WORLD TRADE  
ORGANIZATION  WT/DS244/AB/R 
15 December 2003 
 (03-6603) 
 Original:   English 
  
 
     
 
    
 
     
 
UNITED STATES – SUNSET REVIEW OF ANTI-DUMPING DUTIES ON CORROSION-
RESISTANT CARBON STEEL FLAT  PRODUCTS FROM JAPAN 
  
 
AB-2003-5 
    
 
    
 
  
Report of the Appellate Body  WT/DS244/AB/R 
 Page i 
 
 
I. Introduction................................................................................................................ .................1 
II. Arguments of the Participan ts and Third Participants ................................................................5 
A. Claims of Error by Japan – Appellant........................................................................... 5 
1. The Sunset Policy Bulletin "As Such"..............................................................5 
2. Article 11.3 of the  Anti-Dumping Agreement ..................................................7 
(a) The Dumping Margins Used in the CRS Sunset Review ....................7 
(b) Order-Wide Basis of Likelihood Determination..................................9 (c) The Factors Considered by USDOC in Making a Likelihood 
Determination ....................................................................................11 
B. Arguments of the United States – Appellee.................................................................. 13 
1. The Sunset Policy Bulletin "As Such"............................................................13 
2. Article 11.3 of the  Anti-Dumping Agreement ................................................15 
(a) The Dumping Margins Used in the CRS Sunset Review ..................15 (b) Order-Wide Basis of Likelihood Determination................................17 (c) The Factors Considered by USDOC in Making a Likelihood 
Determination ....................................................................................18 
C. Arguments of the Third Participants............................................................................ 20 
1. Brazil...............................................................................................................20 
2. Chile................................................................................................................20 3. European Communities...................................................................................21 4. Korea...............................................................................................................22 
5. Norway ...........................................................................................................23 
III. Prelimin ary Issues........................................................................................................ .............24 
IV. Issues Raised in this Appeal ............................................................................................... ......25 
V. Is the Sunset Policy Bulletin "Challengeable" As Such?..........................................................26 
A. The Sunset Policy Bulletin ........................................................................................... 26 
B. Japan's Appeal............................................................................................................. 27 
C. The Type of Measures that Can, As Suc h, be the Subject of Dispute Settlement 
Proceedings ................................................................................................................. 29 
D. The Panel's Finding that the Sunset Policy Bulletin, As Such, Cannot be 
Inconsistent with the Anti-Dumping Agreement .......................................................... 32 
VI. Japan's Specific Claims under Article 11.3 of the  Anti-Dumping Agreement .........................37 
A. Overview ...................................................................................................................... 37 
B. The CRS Sunset Review ............................................................................................... 42 
C. The Dumping Margins Used in the CRS Sunset Review.............................................. 43 
1. Japan's Appeal ................................................................................................43 
2. Review of the Panel Findings .........................................................................45 
3. Completing the Analysis.................................................................................49 WT/DS244/AB/R 
Page ii  
 
D. Order-Wide Basis of Likelihood Determination .......................................................... 51 
1. "Company-Specific" and "Order-Wide".........................................................51 
2. Challenge to the Sunset Policy Bulletin "As Such"........................................52 3. Challenge to the Sunset Policy Bulletin "As Applied" ...................................58 
E. The Factors Considered by USDOC in Making a Likelihood Determination............. 59 
1. Challenge to the Sunset Policy Bulletin "As Such"........................................59 
2. Challenge to the Sunset Policy Bulletin "As Applied" ...................................70 
VII. Article 18.4 of the  Anti-Dumping Agreement  and Article XVI:4 of the WTO 
Agreement ............................................................................................................................... ..75 
VIII. Findings and Conclusions................................................................................................. ........76 
 
ANNEX 1: Notification of an Appeal by Japan  under paragraph 4 of Article 16 of the 
Understanding on Rules and Procedu res Governing the Settlement of 
Disputes   
  WT/DS244/AB/R 
 Page iii 
 
 
TABLE OF CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
US – Corrosion-Resistant 
Steel Sunset Review  Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/R, 14 August 2003  
Argentina – Textiles and 
Apparel  Panel Report, Argentina – Measures Affec ting Imports of Footwear, 
Textiles, Apparel and Other Items , WT/DS56/R, adopted 22 April 1998, as 
modified by the Appellate Body Report, WT/DS56/AB/R, 
DSR 1998:III, 1033 
Australia – Salmon  Appellate Body Report, Australia – Measures Af fecting Importation of 
Salmon , WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 
3327 
Canada – Aircraft  Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , 
WT/DS70/R, adopted 20 August 1999, as  upheld by the Appellate Body 
Report, WT/DS70/AB/R, DSR 1999:IV, 1443 
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating 
to Certain Agricultural Products , WT/DS207/R, adopted 23 October 2002, 
as modified by the Appellate Body Repor t, WT/DS207/AB/R 
EC – Bed Linen  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India , WT/DS141/AB/R, adopted 
12 March 2001, DSR 2001:V, 2291 
EC – Bed Linen  
(Article 21.5 – India)  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton-Type Bed Linen from India, Recou rse to Article 21.5 of 
the DSU  by India , WT/DS141/AB/RW, adopted 24 April 2003  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 
13 February 1998, DSR 1998:I, 135 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, 
adopted 18 August 2003 
EEC – Parts and 
Components  Panel Report, European Economic Community – Regulation on Imports of 
Parts and Components , adopted 16 May 1990, BISD 37S/132 
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation 
Regarding Portland Cement from Mexico , WT/DS60/AB/R, adopted 
25 November 1998, DSR 1998:IX, 3767 
Japan – Agricultural Products I
  Panel Report, Japan – Restrictions on Imports  of Certain Agricultural 
Products , adopted 2 March 1988, BISD 35S/163 
Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R, adopt ed 10 December 2003 
Japan – Semi-Conductors Panel Report, Japan – Trade in Semi-Conductors , adopted 4 May 1988, 
BISD 35S/116 
Thailand – Cigarettes Panel Report, Thailand – Restrictions on Importation of and Internal 
Taxes on Cigarettes , adopted 7 November 1990, BISD 37S/200 WT/DS244/AB/R 
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Short Title Full Case Title and Citation 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non-A lloy Steel and H-Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001 
Turkey – Textiles  Panel Report, Turkey – Restrictions on Impor ts of Textile and Clothing 
Products , WT/DS34/R, adopted 19 November 1999, as modified by the 
Appellate Body Report, WT /DS34/AB/R, DSR 1999:VI, 2363 
US – 1916 Act (EC)  Panel Report, United States – Anti-Dumping Act of 1916 – Complaint by the 
European Communities , WT/DS136/R and Corr.1, adopted 
26 September 2000, as upheld by the Appellate Body Report, 
WT/DS136/AB/R, WT/DS162/ AB/R, DSR 2000:X, 4593 
US – 1916 Act (Japan)  Panel Report, United States – Anti-Dumping Act of 1916 – Complaint by 
Japan , WT/DS162/R and Add.1, adopted 26 September 2000, as upheld by 
the Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, 
DSR 2000:X, 4831 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R , adopted 26 September 2000, 
DSR 2000:X, 4793 
US – Carbon Steel  Appellate Body Report, United States – Counterva iling Duties on Certain 
Corrosion-Resistant Carbon Stee l Flat Products from Germany , 
WT/DS213/AB/R and Corr.1, adopted 19 December 2002 
US – Countervailing Measures on Certain EC 
Products  Appellate Body Report, United States – Countervailing Measures 
Concerning Certain Products fr om the European Communities , 
WT/DS212/AB/R, adopted 8 January 2003 
US – DRAMS  Panel Report, United States – Anti-Dumping Duty on Dynamic Random 
Access Memory Semiconductors (DRA MS) of One Megabit or Above from 
Korea , WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521 
US – Export Restraints  Panel Report, United States – Measures Treating Exports Restraints as 
Subsidies , WT/DS194/R and Corr.2, adopted 23 August 2001 
US – FSC  Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations" , WT/DS108/R, adopted 20 March 2000, as modified by the 
Appellate Body Report, WT /DS108/AB/R, DSR 2000:IV, 1677 
US – FSC  
(Article 21.5 – EC)  Panel Report, United States – Tax Treatment for "Foreign Sales 
Corporations", Recourse to Article 21.5 of the DSU by the European 
Communities , WT/DS108/RW, adopted 29 Janua ry 2002, as modified by 
the Appellate Body Re port, WT/DS108/AB/RW 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 
23 August 2001 
US – Hot-Rolled Steel  Panel Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan , WT/DS184/R, adopted 23 August 2001, 
as modified by the Appellate Body Repor t, WT/DS184/AB/R  WT/DS244/AB/R 
 Page v 
 
 
Short Title Full Case Title and Citation 
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R, WT/DS178/ AB/R, adopted 16 May 2001 
US – Lead and Bismuth II  Appellate Body Report, United States – Imposition of  Countervailing Duties 
on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products 
Originating in the United Kingdom , WT/DS138/AB/R, adopted 
7 June 2000, DSR 2000:V, 2601 
US – Malt Beverages Panel Report, United States – Measures Affecting Alcoholic and Malt 
Beverages , adopted 19 June 1992, BISD 39S/206 
US – Section 211 
Appropriations Act  Appellate Body Report, United States – Section 211 Omnibus 
Appropriations Act of 1998 , WT/DS176/AB/R, adopted 1 February 2002 
US – Section 301 Trade Act  Panel Report, United States – Sections 301-310 of the Trade Act of 1974 , 
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815 
US – Steel Plate  Panel Report, United States – Anti-Dumpi ng and Countervailing Measures 
on Steel Plate from India , WT/DS206/R and Corr.1, adopted 29 July 2002 
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Certain Steel Products , WT/DS248/AB/R, WT/DS249/AB/R, 
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003  
US – Superfund  Panel Report, United States – Taxes on Petroleum and Certain Imported 
Substances , adopted 17 June 1987, BISD 34S/136 
US – Tobacco Panel Report, United States Measures Affecting the Importation, Internal 
Sale and Use of Tobacco , adopted 4 October 1994, BISD 41S/I/131 
US – Wheat Gluten  Appellate Body Report, United States – Definitive Safeguard Measures on 
Imports of Wheat Gluten fr om the European Communities , 
WT/DS166/AB/R, adopted 19 January 2001, DSR 2001:II, 717 
 WT/DS244/AB/R 
Page vi  
 
TABLE OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Full Title / Meaning 
Anti-Dumping Agreement Agreement on Implemen tation of Article VI of the General 
Agreement on Tariffs and Trade 1994  
CRS order The order issued by USDOC on 19 August 1993 imposing anti-
dumping duties on certain corrosion-resistant carbon steel flat products from Japan (see footnote 3 of this Report) 
CRS sunset review The "five-year" review of the CRS order that USDOC initiated on 
1 September 1999 (see footnote 4 of this Report), the final results of 
which were published on 2 Augus t 2000 (see footnote 5 of this 
Report) 
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement 
of Disputes  
Final Issues and Decision 
Memo USDOC's "Issues and Decision Memo for the Full Sunset Review of 
Corrosion-Resistant Carbon Steel Flat Products from Japan;  Final Results" (see footnote 152 of this Report) 
Final Results of the CRS sunset review "Corrosion-Resistant Carbon Steel Flat Products from Japan;  Final 
Results of Full Sunset Review of Antidumping Duty Order" (see footnote 5 of this Report) 
GATT General Agreement on Tariffs and Trade 1947 
GATT 1994 General Agreement on Tariffs and Trade 1994  
KSC Kawasaki Steel Corporation 
NSC Nippon Steel Corporation 
Panel Report Panel Report, United States – Sunset Review of Anti-Dumping 
Duties on Corrosion-Resistant Carbon Steel Flat Products from 
Japan , WT/DS244/R, 14 August 2003 
Preliminary Issues and Decision 
Memo USDOC's "Issues and Decision Memo for the Full Sunset Review of 
Corrosion-Resistant Carbon Steel Flat Products From Japan;  Preliminary Results" (see footnote 202 of this Report) 
Regulations United States C ode of Federal Regulations 
SAA Statement of Administrative Action (see footnote 9 of this Report) 
SCM Agreement Agreement on Subsidies and Countervailing Measures   WT/DS244/AB/R 
 Page vii 
 
 
 
Sunset Policy Bulletin USDOC's "Policies Rega rding the Conduct of Five-Year ("Sunset") 
Reviews of Antidumping and Counte rvailing Duty Orders;  Policy 
Bulletin" (see footnote 11 of this Report)  
Tariff Act United States Tariff Act of 193 0, as amended (see footnote 8 of this 
Report) 
URAA Uruguay Round Agreements Act (see footnote 61 of this Report) 
USDOC United States Department of Commerce  
USITC United States International Trade Commission 
Vienna Convention  Vienna Convention on the Law of Treaties   (see footnote 32 of this 
Report) 
Working Procedures Working Proce dures for Appellate Review 
WTO World Trade Organization 
WTO Agreement Marra kesh Agreement Establishing the World Trade Organization  
  WT/DS244/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Sunset Review of Anti-
Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan 
 
Japan,  Appellant   
United States,  Appellee 
 
Brazil, Third Participant   
Chile, Third Participant  
European Communities, Third Participant   
India, Third Participant   
Korea, Third Participant 
Norway, Third Participant   
   AB-2003-5 
  Present:  
 Taniguchi, Presiding Member 
 Abi-Saab, Member  Ganesan, Member  
I. Introduction 
1. Japan appeals certain issues of law and lega l interpretations in the Panel Report,  
United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan  (the "Panel Report").1  The Panel was established to consider a complaint by 
Japan against the United States regarding the continuation of anti-dumping duties on certain 
corrosion-resistant carbon steel flat products from Japan following the conduct of a five-year, or 
"sunset", review of those duties. 
2. On 29 July 1992, USDOC initiated an anti-dumping investigation covering,  inter alia , certain 
corrosion-resistant carbon steel flat products from Japan.2  As a result of this investigation, USDOC 
issued an order on 19 August 1993, imposing de finitive anti-dumping duties on those corrosion-
resistant steel products at the rate of 36.41 percent   ad valorem  for KSC, NSC, and "all others".3  On 
                                                      
1WT/DS244/R, 14 August 2003. 
2"Initiation of Antidumping Duty Investigations and Postponement of Preliminary Determinations:  
Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel Flat Products, and Certain Cut-to-L ength Carbon Steel Plate From Various 
Countries", United States Federal Register, 29 July 1992 (Volume 57, Number 146), p. 33488. (Exhibit  
JPN-12(a) submitted by Japan to the Panel) 
3"Antidumping Duty Orders:  Certain Corrosion-Resistant Carbon Steel Flat Products From Japan", 
United States Federal Register, 19 August 1993 (Volume 58, Number 159), p. 44163. (Exhibit JPN-12(e) 
submitted by Japan to the Panel) WT/DS244/AB/R 
Page 2  
 
1 September 1999, USDOC published a notice of initia tion of a sunset review of the CRS order.
4  In 
the final results of that review, USDOC determined  that revocation of the CRS order "would be likely 
to lead to continuation or recurrence of dumping".5  USITC subsequently determined that revocation 
of the CRS order "would be likely to lead to con tinuation or recurrence of material injury to an 
industry in the United States within a reasonably foreseeable time." 6  Accordingly, the United States 
did not revoke the CRS order.7 
3. Before the Panel, Japan argued that certain provisions of the Tariff Act8, the SAA9, the 
implementing regulations10, and the Sunset Policy Bulletin11 were, both "as such" and as applied in 
the CRS sunset review, inconsistent with Articles VI  and X of the GATT 1994, Articles 2, 3, 5, 6, 11, 
12, and 18 of the  Anti-Dumping Agreement , and Article XVI:4 of the  WTO Agreement .12 
                                                      
4"Initiation of Five-Year ("Sunset") Reviews of Antidumping and Countervailing Duty Orders or 
Investigations of Carbon Steel Plates and Flat Products", United States Federal Register, 1 September 1999 
(Volume 64, Number 169), p. 47767. (Exhibit JPN-8(a) submitted by Japan to the Panel)  "Transition orders" 
are defined as orders that were in effect on 1 January 1995, when the WTO Agreement entered into force.  The 
CRS order is a transition order and is therefore treat ed as having been issued on 1 January 1995.  
(Section 751(c)(6)(C) and (D) of the Tariff Act, Exhibit JPN-1(d) submitted by Japan to the Panel)  For transition orders, the obligation to conduct a sunset review is an obligation to conduct such a review within five 
years of 1 January 1995.  See also Un ited States' first submission to the Panel, para. 29 and Article 18.3 of the 
Anti-Dumping Agreement .   
5"Corrosion-Resistant Carbon Steel Flat Products from Japan;  Final Results of Full Sunset Review of 
Antidumping Duty Order", United States Federal Register, 2 August 2000 (Volume 65, Number 149), p. 47380 
at p. 47381. (Exhibit JPN-8(d) s ubmitted by Japan to the Panel) 
6"Certain Carbon Steel Products from Australia, Be lgium, Brazil, Canada, Finland, France, Germany, 
Japan, Korea, Mexico, The Netherla nds, Poland, Romania, Spain, Swed en, Taiwan, and The United Kingdom", 
USITC Publication 3364, November 2000, p. 58. (Exhibit JPN-9(b) submitted by Japan to the Panel) 
7Panel Report, para. 2.1. 
8Under United States statutory law, reviews of anti-dumping duty "orders" are governed primarily by 
Sections 751 and 752 of the Tariff Act, which corresp ond, respectively, to Sections 1675 and 1675a of Title 19 
of the United States Code. (Exhibit JPN-1(d) and (e) submit ted by Japan to the Panel)  As the participants and 
the Panel have referred primarily to Sections 751 and 752  of the Tariff Act, rather than to Sections 1675 and 
1675a of Title 19 of the United States Code, we will also re fer to the Tariff Act provisions in this Report.     
9Statement of Administrative Action, H.R. 5110, H.R. Doc. 316, Volume 1, 103d Congress, 2nd 
Session, 656 (1994). (Exhibit JPN-2 submitted by Japan to the Panel) 
10"Procedures for Conducting Five-Year ("Sunset") Reviews of Antidumping and Countervailing Duty 
Orders", United States Federal Register, 20 March 1998 (Volume 63, Number 54), p. 13516 (Exhibit JPN-5 
submitted by Japan to the Panel), codified in Part 35 1 of Title 19 of the Regula tions. (Exhibit JPN-3 submitted 
by Japan to the Panel) 
11"Policies Regarding the Conduct of Five-Year ("Sunset") Reviews of Antidumping and 
Countervailing Duty Orders;  Policy Bulletin", United States Federal Register, 16 April 1998 (Volume 63, Number 73), p. 18871. (Exhibit JPN-6 submitted by Japan to the Panel)  
12Panel Report, para. 2.2.  On appeal, Japan's "as such" challenges are limited to the Sunset Policy 
Bulletin.    WT/DS244/AB/R 
 Page 3 
 
 
4. In the Panel Report, circulated to Members of the WTO on 14 August 2003, the Panel found 
that the United States laws, regulations and policies challenged by Japan are not inconsistent with the 
Anti-Dumping Agreement , the GATT 1994, or the  WTO Agreement , either as such or as applied in the 
CRS sunset review.  Specifically, the Panel found that it did not need to address two of Japan's 
claims13 and that: 
(d) In respect of the dumping margins used in sunset reviews: 
(i) Japan has failed to show  that the Sunset Policy 
Bulletin as such is inconsis tent with Articles 2.2.1, 
2.2.2, 2.4, 11.3 and 18.3 of the Anti-dumping 
Agreement , 
… 
(iii) the DOC did not act inconsistently with Article 2.4, 
or, in the alternative, Article 11.3, of the Anti-
dumping Agreement  regarding the administrative 
review dumping margins which it relied upon as a basis for its likelihood of continuation or recurrence 
of dumping determinations in this sunset review, 
… 
(e) In respect of determination of likelihood of continuation or 
recurrence of dumping on an order-wide basis in sunset reviews: 
(i) Japan has failed to show  that the Sunset Policy 
Bulletin as such is inconsistent with Articles 6.10 and 11.3 of the Anti-dumping Agreement  regarding the 
basis of the likelihood of continuation or recurrence of dumping determinations in sunset reviews, 
(ii) the DOC did not act inconsistently with Articles 6.10 
and 11.3 of the Anti-dumping Agreement  by making 
its likelihood determination in this sunset review on an order-wide basis, 
                                                     
 
13Panel Report, para. 8.1(d)(ii) (regarding USDOC's alleged reliance in the CRS sunset review on the 
dumping margins determined in the original investigation) and para. 8.1(d)(iv) (regarding the reporting by 
USDOC of those dumping margins to USITC for purposes of USITC's sunset review of the CRS order). WT/DS244/AB/R 
Page 4  
 
(f) In respect of the investigating authorities' obligation to 
determine likelihood of continuation or recurrence of dumping in sunset reviews: 
(i) Japan has failed to show  that the Sunset Policy 
Bulletin as such is inconsistent with Article 11.3 
regarding the investigating authorities' obligation to 
determine likelihood of continuation or recurrence of dumping in sunset reviews, 
(ii) the DOC did not act inconsistently with Article 11.3 
of the Anti-dumping Agreement  in this sunset review 
in making its determination regarding the likelihood 
of continuation or recurrence of dumping, 
… 
(h) The US did not act inconsistently with Article 18.4 of the 
Anti-dumping Agreement  and Article XVI:4 of the WTO 
Agreement .
14 
5. Certain of these findings were based on the Pa nel's initial finding that "the Sunset Policy 
Bulletin is not a mandatory legal instrument obliga ting a certain course of conduct and thus can not, in 
and of itself, give rise to a WTO violation."  15 
6. The Panel also found (and Japan does not app eal these findings) no inconsistency with the 
United States' WTO obligations in respect of the ev identiary standards appli cable to the self-initiation 
of sunset reviews16, the de minimis standard applicable in sunset reviews17, cumulation in sunset 
reviews18, USDOC's refusal to consider certain additional information submitted by NSC19, or the 
administration of the relevant United States laws and regulations.20  In the light of these conclusions, 
the Panel made no recommendations under Article 19.1 of the DSU.21 
                                                      
14Panel Report, para. 8.1. 
15Ibid., para. 7.145.  See also paras. 7.195 and 7.246. 
16Panel Report, para. 8.1(a), finding no inconsistency w ith Articles 5.6, 11.1, 11.3, 12.1, or 12.3 of the 
Anti-Dumping Agreement . 
17Panel Report, para. 8.1(b), finding no inconsistency with Articles 5.8 or 11.3 of the Anti-Dumping 
Agreement . 
18Panel Report, para. 8.1(c), finding no inconsistency with Articles 3.3, 5.8, or 11.3 of the Anti-
Dumping Agreement . 
19Panel Report, para. 8.1(f)(iii), finding no incons istency with Articles 6.1, 6.2, or 6.6 of the Anti-
Dumping Agreement .   
20Panel Report, para. 8.1(g), finding no inconsistency with Article X:3(a) of the GATT 1994. 
21Panel Report, para. 8.2.  WT/DS244/AB/R 
 Page 5 
 
 
7. On 15 September 2003, Japan notified the DSB of its  intention to appeal certain issues of law 
covered in the Panel Report and cer tain legal interpretations devel oped by the Panel, pursuant to 
paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rule 20 of the 
Working Procedures .22  On 25 September 2003, Japan filed its appellant's submission.23  O n  
10 October 2003, the United States filed its appellee's submission.24  On the same day, Brazil, Chile, 
the European Communities, Korea, and Norway  each filed a third participant's submission 25, and 
India and Canada each notified its intention to appear at the oral hearing as a third participant.26 
8. The oral hearing in the appeal was held on 30 October 2003.  The participants and third 
participants presented oral arguments (with the ex ception of India) and responded to questions by the 
members of the Division hearing the appeal. 
II. Arguments of the Participants and Third Participants 
A. Claims of Error by Japan – Appellant 
1. The Sunset Policy Bulletin "As Such"  
9. Japan argues that the Panel erred in finding  that the Sunset Policy Bulletin is not 
"challengeable", as such, under the  WTO Agreement .  Japan asks the Appellate Body to reverse this 
finding and to find that the Sun set Policy Bulletin sets forth " actionable administrative procedures"  27 
that can give rise to a violation of Article 18.4 of the  Anti-Dumping Agreement   and Article XVI:4 of 
the  WTO Agreement . 
10. Japan challenges the Panel's reasoning on this issu e in three respects.  First, Japan argues that 
the Panel erred in its analysis of the term "adm inistrative procedures" in Article 18.4 of the  Anti-
Dumping Agreement .  According to Japan, this term extends  to the administration of anti-dumping 
laws by investigating authorities and to rules adopt ed by such authorities.  Moreover, existing  WTO 
jurisprudence recognizes that the "conformity" of a pa rticular written instrument such as the Sunset 
Policy Bulletin with WTO rules and norms depends on its true nature and the manner in which it is 
applied, rather than on its form or language alone .  For this reason, Japan maintains that the term 
                                                      
22WT/DS244/7, 17 September 2003, attached as Annex 1 to this Report. 
23Pursuant to Rule 21 of the  Working Procedures . 
24Pursuant to Rule 22 of the  Working Procedures . 
25Pursuant to Rule 24(1) of the  Working Procedures . 
26Pursuant to Rule 24(2) of the  Working Procedures .  By letter dated 14 October 2003, Canada 
withdrew its notification and informed the Appellate Body that it would not attend the oral hearing.   
27Japan's appellant's submission, para. 107. WT/DS244/AB/R 
Page 6  
 
"administrative procedures" encompasses administrativ e rules that appear to be discretionary but in 
fact operate "substantively and e ffectively" as "mandatory rules."
 28 
11. Japan also asserts that the Panel erred in applying its own interpretation of the term 
"administrative procedures" in Article 18.4.  The Pane l stated that the Sunset Policy Bulletin is not an 
administrative procedure under Article 18.4 because it is   not  a "pre-established rule that mandates 
certain conduct for sunset reviews."  29  However, the Sunset Policy Bulletin was published before 
USDOC had conducted any sunset review, and USDOC has consistently applied the rules therein in 
all sunset reviews.  Although the Sunset Policy Bulle tin is described in its own terms as "guidance", 
this does not mean that it grants  USDOC discretion to act in a WTO-consistent manner.  In fact, the 
Sunset Policy Bulletin contains explicit, written inst ructions to  USDOC staff and is an official 
instrument published in the United St ates Federal Register.  Japan cont ends that the mandatory nature 
of the Sunset Policy Bulletin is confirmed by its u se of the word "will" and by the fact that  USDOC 
strictly and consistently adheres to it, never having departed from it in more than 200 sunset reviews.  
This conclusion cannot be changed simply by asser ting that USDOC may choose to depart from the 
Sunset Policy Bulletin at some point in the future.   
12. Second, Japan contends that the Panel inco rrectly applied the mandatory/discretionary 
distinction.  This distinction reflects a policy adopte d by certain panels rather than the text of the 
covered agreements.  In the present case, the Pane l should have examined the actual operation of the 
Sunset Policy Bulletin, rather than adopting a rigi d dichotomy between mandatory and discretionary 
rules based on the language of the Sunset Policy Bu lletin alone.  Had it done so, the Panel would have 
recognized that this administrative procedure, wh ich was written and applied by an executive branch 
agency (USDOC), differs from the more traditional situation in which the legislature writes the rules 
and the executive determines how to implement them.  Moreover, in  US – Countervailing Measures 
on Certain EC Products , the Appellate Body confirmed that a method developed by an administrative 
agency to determine certain issues may be subject to  challenge "as such".  Japan also emphasizes that 
Article 18.4 of the  Anti-Dumping Agreement   and Article XVI:4 of the  WTO Agreement   aim to 
prevent "needless repetitive litigation" by requiri ng Members to take steps—including "writing 
rules"—that ensure the conformity of their anti-dumping regimes with the  Anti-Dumping 
Agreement .30 
                                                      
28Japan's appellant's submission, para. 121. 
29Panel Report, para. 7.137. 
30Japan's appellant's submission, para. 146.  WT/DS244/AB/R 
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13. Third, Japan maintains that the Panel impr operly made its findings based purely on the 
Panel's understanding of the Sunset Policy Bulletin as a whole, and in particular its reading of the 
general language in the introductory "overview" sec tion of the Sunset Policy Bulletin.  Instead of 
focusing on the instrument as a whole, the Panel sh ould have carefully reviewed the specific rules 
under challenge:  namely, the requirement to make a determination in a suns et review on an order-
wide basis and the methods for determining the lik elihood of continuation or recurrence of dumping 
in such a review.  Those rules are mandatory and operate independently of other United States laws 
and regulations on an ti-dumping.  Japan's arguments on these sp ecific rules are outlined later in this 
Report.31 
2. Article 11.3 of the  Anti-Dumping Agreement  
14. Japan argues that the Panel erred in its genera l approach to interpreting Article 11.3 of the 
Anti-Dumping Agreement   due to its failure to apply the prope r standards of review.  As regards the 
legal standard of review, the Panel paid insufficien t attention to the relationship between Article 11.3 
and the rest of the agreement and ignored the contex t of sunset reviews within the broader framework 
of anti-dumping obligations.  According to Japan , the Panel's approach was contrary to the 
requirements of Article 31 of the  Vienna Convention32 and, in particular, the requirement that treaty 
terms be interpreted in good faith in accordance with  their ordinary meaning and context.  Concerning 
the factual standard of review, the Panel failed to consider the principle of good faith under Article 26 
of the  Vienna Convention .  According to Japan, this principle imposes an obligation on Members' 
domestic authorities to act in an objective, unbiased and even-handed manner that respects 
fundamental fairness.  Japan contends, therefore, that  in a sunset review consistent with Article 11.3 
of the  Anti-Dumping Agreement , investigating authorities must make their determination without 
favouring any party. 
(a) The Dumping Margins Used in the CRS Sunset Review 
15. Japan states that the Panel erred in fi nding that USDOC, in making its likelihood 
determination in the CRS sunset review, did not act inconsistently with Article  2.4 or Article 11.3 of 
the Anti-Dumping Agreement  by relying on dumping margins that were determined in previous 
administrative reviews using a "zeroing" methodology.33  Japan asks the Appellate Body to reverse 
                                                      
31Infra , paras. 20-21 and 26-28. 
32Vienna Convention on the Law of Treaties , done at Vienna, 23 May 1969, 1155 U.N.T.S. 331;  8 
International Legal Materials 679. 
33Japan states that, in calculating these margins, "DOC zeroed—literally, DOC ignored—negative 
margins."  (Japan's appellant's submission, para. 39) WT/DS244/AB/R 
Page 8  
 
this finding and to find that USDOC's reliance on  these dumping margins was inconsistent with 
Article 2.4 in conjunction with Article  2.1, and that it was therefore al so inconsistent with Article 11.3 
of the  Anti-Dumping Agreement . 
16. In Japan's view, the Panel incorrectly interp reted the word "dumping" in Article 11.3 by 
taking an overly narrow view of the textual and cont extual aspects of this provision.  For Japan, it 
made "no sense"
 34 for the Panel to read the word "dumping"  in Article 11.3 as having nothing to do 
with the framework for the determination of dumping contained in Article 2.  As Article 2 is the key 
provision defining this word, Japan contends that the obligations of Article 2 apply wherever the word 
"dumping" appears in the  Anti-Dumping Agreement . 
17. Japan argues that the Panel made three specifi c mistakes in interpreting the word "dumping" 
in Article 11.3.  First, the Panel failed to ac knowledge the significance of the opening words of 
Article 2.1:  "[f]or the purpose of this Agreem ent".  Second, the Panel interpreted the terms 
"dumping" and "determination" in Article 11.3 inc onsistently with their meaning in Article 2, 
incorrectly assuming that the phrase "lik ely to lead to continuation or r ecurrence" in Article 11.3 alters 
the "core concept" of dumping.35  In fact, the only difference in the concepts of dumping under 
Articles 2 and 11.3 is the time period to which they apply.  Third, the Pane l erroneously concluded 
that, for the determination to be made under Artic le 11.3, "it is not necessary for dumping to have 
been found to exist".36  Japan argues that, in order to find a likelihood of continuation of dumping, the 
authorities must first find that dumping exists at th e time of the sunset review.  According to Japan, 
this is a "fundamental prerequisite" and the aut horities cannot determine that dumping is likely to 
continue without establishing it.37 
18. Japan maintains that the Panel failed to c onsider whether the evidence on which USDOC 
based its determination under Article 11.3 was valid and consistent with Article 2.   USDOC based its 
determination on margins that had been calculated using a methodology that "zeroed" out negative 
margins.  If USDOC had not used this methodology in calculating dumping margins for  NSC during 
the last administrative review before the sunset  review, USDOC would have found that NSC was not 
dumping.  Therefore, at the time of the sunset review, there would have been no dumping to "continue".  Japan emphasizes that the point is not whether a precise calculation of likely dumping 
                                                     
 
34Japan's appellant's submission, para. 16. 
35Ibid., para. 28. 
36Panel Report, para. 7.179. 
37Japan's appellant's submission, para. 36.  WT/DS244/AB/R 
 Page 9 
 
 
margins is required in a sunset review but, rath er, whether the evidence on which the CRS sunset 
review determination was based is consistent with Article 2.  As "zeroing" is inconsistent with 
Article 2.4 in conjunction with Article 2.1, the evidence on which  USDOC relied to determine the 
existence of dumping was "legally defective".38  USDOC therefore had no WTO-consistent evidence 
of the existence of dumping or its likely continuati on.  As a result, Japan argues, the United States 
acted inconsistently with Article 2.4 in conjunctio n with Article 2.1 and, therefore, Article 11.3. 
19. Japan contends that the Panel also erred in invo king, in support of its finding, the fact that, 
during the CRS sunset review, NSC did not challenge USDOC's reliance on dumping margins calculated using a zeroing methodology.  For Japan, that NSC did not raise this issue in the CRS 
sunset review is irrelevant to the WTO-inconsistenc y of this practice.  Indeed, it was reasonable for 
NSC not to have challenged the zeroing methodology because zeroing is a well-established practice of 
the United States and  NSC had no possibility of overturning it under United States law.  Moreover, in 
Thailand – H-Beams , the Appellate Body recognized that the issues raised in a domestic anti-dumping 
proceeding may differ from those raised in a WTO dis pute settlement proceeding.  Japan adds that it 
is now raising this issue because, unlike USDOC,  the WTO has the authority to decide whether 
zeroing is consistent with the  Anti-Dumping Agreement . 
(b) Order-Wide Basis of Likelihood Determination 
(i) Challenge to the Sunset Policy Bulletin "As Such " 
20. Japan challenges the Panel's finding  that Japan failed to show th at the Sunset Policy Bulletin 
"as such" is inconsistent with Articles 6.10 and 11.3 of the  Anti-Dumping Agreement  in stating that 
USDOC will make its likelihood determination in a s unset review on an order-wide basis.  Japan asks 
the Appellate Body to reverse this finding and to fi nd that Section II.A.2 of the Sunset Policy Bulletin, 
as such, is inconsistent with Articles 6.10 and 11.3, in conjunction with Article 2, of the  Anti-
Dumping Agreement . 
21. Japan contends that the Panel erred in concl uding that the Sunset Policy Bulletin does not 
create a "mandatory" rule that USDOC must make an  order-wide determination in a sunset review.  
Section II.A.2 of the Sunset Policy Bulletin pr ovides that USDOC "will" make an order-wide 
determination, and USDOC has no discretion to assess whether this is appropr iate or to make an 
exception based on the facts of a particular sunset  review.  Japan argues that the Sunset Policy 
Bulletin requires USDOC to make its likelihood dete rmination on an order-wide basis.  For reasons 
                                                     
 
38Japan's appellant's submission, para. 40. WT/DS244/AB/R 
Page 10  
 
elaborated in the following section
39, Japan maintains that this requirement is inconsistent with 
Articles 6.10 and 11.3 of the  Anti-Dumping Agreement . 
(ii) Challenge to the Sunset Policy Bulletin "As Applied " 
22. Japan challenges the Panel's finding that USDOC di d not act inconsistently with Articles 6.10 
and 11.3 of the  Anti-Dumping Agreement  in making its likelihood determination in the CRS sunset 
review on an order-wide basis.  Japan asks the Appe llate Body to reverse this finding and to find that 
USDOC acted inconsistently with Articles 6.10 and 11.3, in conjunction with Article 2, of the  Anti-
Dumping Agreement  in making its likelihood determination in  the CRS sunset review on an order-
wide basis. 
23. Japan argues that the Panel failed to appreciate the proper relationship between Articles 2, 6, 
and 11.3 of the  Anti-Dumping Agreement .  The word "dumping", for purposes of the  Anti-Dumping 
Agreement  including Article 11.3, is defined in Article 2.  The substantive rule in Article 2.1 is itself 
informed by the evidentiary rule in Article 6.10,  which states that the margin of dumping must be 
established on a company-specific basis.  Thus, a de termination that dumping exists under Article 2.1 
must be based on a positive, company-specific margin of dumping.  The use of the word "dumping" in 
Article 11.3 imposes the same requirement on investig ating authorities in establishing the existence of 
dumping in making a likelihood determination in a sun set review.  Therefore, according to Japan, the 
likelihood determination under Artic le 11.3 must also be made and applied on a company-specific 
basis.40 
24. Japan adds that the need for sunset review de terminations to be made on a company-specific 
basis is confirmed by Article 11.4, which provides specifically that the procedural and evidentiary 
rules in Article 6 apply to sunset reviews.  Th e Panel failed to give th is cross-reference proper 
interpretive weight and ignored the text and context of Article 6 in finding that the rule in Article 6.10 
is substantive rather than procedural.  Japan argues that the Appellate Body recognized in  
Thailand – H-Beams  and  EC – Tube or Pipe Fittings  that the requirements of Article 6 are 
procedural, even though some of them may also have  substantive implications.  The title of Article 6 
is "Evidence", and Article 6.14 refers to the "pro cedures set out above".  In Japan's view, the first 
sentence of Article 6.10 contains a rule that is pro cedural or evidentiary in the sense that it requires a 
                                                      
39Infra , paras. 23-25. 
40In addition, Japan explained in response to questioning at the oral hearing that, in its view, if 
investigating authorities make an affirmative likelihood determination in respect of one company and a negative 
likelihood determination in respect of another company, th ey must terminate the duty with respect to the latter 
company.  WT/DS244/AB/R 
 Page 11 
 
 
determination of the existence of dumping (whether  under Article 2 or Article 11) to be based on 
evidence of positive, company-specific dumping margins. 
25. Japan also states that the CRS sunset review demonstrates why company-specific 
determinations are required under Ar ticle 11.3.  In particular, in the absence of zeroing, the dumping 
margin for NSC in the latest administrative revi ew would have been negative, whereas the dumping 
margin for KSC would have remained positive.  An objective evaluation of these facts would 
necessarily involve distinct analyses and separate dete rminations with respect to  NSC and KSC.  Yet 
USDOC made only one, order-wide determination.  Th erefore, Japan maintains that USDOC failed to 
comply with the requirement under Article 11.3 to  make a company-specific likelihood determination. 
(c) The Factors Considered by USDOC in Making a Likelihood 
Determination  
(i) Challenge to the Sunset Policy Bulletin "As Such " 
26. Japan challenges the Panel's finding  that Japan failed to show th at the Sunset Policy Bulletin 
"as such" is inconsistent with Article 11.3 of the  Anti-Dumping Agreement  in that it unduly limits the 
factors to be taken into account by USDOC in making its likelihood determination in a sunset review.  
Japan asks the Appellate Body to reverse this findi ng and to find that Sections II.A.3 and 4 of the 
Sunset Policy Bulletin are, as such, inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
27. Japan maintains that Sections II.A.3 and 4 of  the Sunset Policy Bulletin create mechanical 
rules that are not found in the Tariff Act or the SAA.  The first rule under Section II.A.3 applies to "continuation" cases, which arise when USDOC finds th at dumping exists at the time of the sunset 
review.  In these cases, USDOC is required to make an affirmative determination of the likely 
"continuation" of dumping if it finds that dumping exists at a level above  de minimis  (0.5 percent).  
USDOC therefore makes its determination based on this single fact, without considering any other 
facts or conducting any analysis of probable fu ture events.  The second and third rules of 
Section II.A.3 apply to "recurrence" cases, whic h arise when USDOC finds no dumping at the time of 
the sunset review.  Taken together, the second and third rules require USDOC to make an affirmative 
determination of the likely "recurrence" of dumping unless it finds that import volumes are at or above those existing before the order was issued.  Japan argues that USDOC consistently applies 
these three rules mechanically, desp ite the inclusion of the word "normally" in the Sunset Policy 
Bulletin. WT/DS244/AB/R 
Page 12  
 
28. Japan argues that these rules are based on the presumptions that, if the duty is terminated, all 
responding parties will (i) export their products at volumes at least as high as before the order was 
issued;  and (ii) lower their export price to be low normal value in order to achieve such export 
volumes.  USDOC does not adopt any mechanisms to confirm that th ese presumptions are correct in 
the circumstances of particular sunset reviews, and USDOC has no discretion to consider the case-specific facts that may rebut these presumptions.  Moreover, responding parties wishing to show 
"good cause" for  USDOC to consider other factor s must direct their arguments to the factors 
contained in the three rules, namely the exis tence of dumping and depressed import levels.  The 
mechanical application of these rul es means that the outcome of the sunset review is predetermined in 
favour of the domestic industry.  As the three rules in Section II.A.3 of the Sunset Policy Bulletin are 
inconsistent with Article 11.3, so too is the ru le in Section II.A.4, which states that USDOC will 
normally make a negative likelihood determination wh ere dumping ceased after the order was issued 
and import volumes remained stable or increased.  For reasons elaborated in the following section
41, 
Japan therefore maintains that Sections II.A.3 and 4 of the Sunset Policy Bulletin are inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement . 
(ii) Challenge to the Sunset Policy Bulletin "As Applied " 
29. Japan challenges the Panel's finding that  USDOC did not act inconsistently with Article 11.3 
of the  Anti-Dumping Agreement  in making its likelihood determina tion in the CRS sunset review.  
Japan asks the Appellate Body to reverse this findi ng and to find that USDOC acted inconsistently 
with Article 11.3 of the  Anti-Dumping Agreement   in the methodology and evidentiary standards that 
it applied in making its likelihood determ ination in the CRS sunset review. 
30. Japan contends that the Panel made two specific e rrors in relation to this issue.  First, the 
Panel failed to review whether USDOC made its lik elihood determination in the CRS sunset review 
based on positive evidence evaluated in an even-handed, fair, unbiased, and objective manner.  The 
only evidence USDOC considered was the dumpi ng margins determined in the previous 
administrative reviews and the decline in import volumes following the imposition of the CRS order.  
USDOC's examination of this evidence did not meet the requisite standard of evaluation.  As regards 
the previously-determined dumping margins, the mere  existence of recent dumping is not sufficient to 
substantiate a determination of  likely future dumping.  USDOC's automatic presumption to the 
contrary predetermined the outcome of the CRS sunset  review in favour of the domestic industry.  As 
for the decline in import volumes, USDOC's examina tion of this evidence was irrelevant to its 
                                                      
41Infra , paras. 30-32.  WT/DS244/AB/R 
 Page 13 
 
 
determination because it would in any event have ma de an affirmative determination based solely on 
the alleged current dumping.  In addition, Japan  maintains that  USDOC relied on past import 
volumes that were more than five years old, ignored all intervening developments, and never 
considered  why  import volumes fell. 
31. Second, Japan emphasizes that, a lthough the Panel properly identified the requirements for a 
likelihood determination under Article  11.3, it failed to apply those requirements correctly to the CRS 
sunset review.  Article 11.3 requires USDOC to make  an unbiased "determination" that termination of 
the duty is "likely"  to lead to the continuation or recurrence of dumping.  This provision imposes a 
"serious burden"  42 on USDOC to make its likelihood determination according to  probable , rather 
than  possible , outcomes and to base its determination on a fresh analysis of positive, credible 
evidence.  In Japan's view, the burden is not on th e responding parties to demonstrate that future 
dumping is unlikely if the duty is terminated, but  rather on USDOC to demonstrate that future 
dumping is likely. 
32. According to Japan, USDOC did not meet this burden in the CRS sunset review.  USDOC did 
not collect evidence supporting and detracting from the likelihood of future dumping, consider the 
likely movements of normal value and export price in the absence of the CRS order, nor issue a 
questionnaire to respondents to obtain all relevant  information.  Moreover, USDOC did not properly 
examine the evidence of "other factors" submitted by NSC.  USDOC's treatment of this evidence 
demonstrates that it uses the "good cause" standard to justify its practice of restricting the evidence to 
import volume trends and dumping margins determined in previous administrative reviews.  Limiting 
the evidence in this way helps US DOC to ensure a likelihood determination that favours the domestic 
industry.  According to Japan, USDOC therefore failed to make an unbiased and objective determination in accordance with Article 11.3. 
B. Arguments of the United States – Appellee 
1. The Sunset Policy Bulletin "As Such"
 
33. The United States argues that the Panel was corr ect in finding that the Sunset Policy Bulletin 
is not a measure that can be challenged "as such".   The United States asks the Appellate Body to 
uphold this finding. 
34. The United States makes two main arguments regard ing this issue.  First, the United States 
contends that the Sunset Policy Bulletin is not a legal instrument under United States law and that, 
                                                      
42Japan's appellant's submission, para. 57. WT/DS244/AB/R 
Page 14  
 
therefore, it is not a "measure".  The Sunset Policy Bulletin is not an instrument with a functional life 
of its own, independent of other instruments.  Rather, it operates on the basis of, and within the 
parameters set by, the Tariff Act and the implemen ting regulations.  The purpose of the Sunset Policy 
Bulletin is to provide guidance to USDOC in assessing  the facts in each sunset review.  This guidance 
increases transparency and informs interested partie s of  USDOC's likely approach in given factual 
circumstances.  However, USDOC may depart fro m the Sunset Policy Bulletin in any particular 
sunset review, provided that it explains its reasons  for doing so.  Accordin g to the United States, 
Japan's argument that USDOC has consistently fo llowed the Sunset Policy Bulletin rather than 
conducting an independent analysis in every sunset  review simply takes issue with the Panel's 
findings of fact. 
35. The United States disputes Japan's view that th e Sunset Policy Bulletin is a "pre-established 
rule" and an "administrative procedure" because it was published in the United States Federal Register 
before the first sunset review.  Japan failed to est ablish before the Panel th at, as a matter of United 
States municipal law, publication of the Sunset Po licy Bulletin in the Federa l Register transformed 
that bulletin from policy guidance into a "measure ".  The United States argues that, as the Panel 
found, the Sunset Policy Bulletin cannot be deemed to  be a measure purely by virtue of the form in 
which it is maintained, or the time at which it was published. 
36. The United States also disputes Japan's sugges tion that the Sunset Policy Bulletin is a 
measure because USDOC allegedly adheres strictly to its provisions.  The Sunset Policy Bulletin is 
"comparable to agency precedent"
 43 and, under United States law, such precedent is not binding.  
Administrative practice of this kind cannot evolve  into an administrative procedure or a measure 
solely because USDOC has conducted a number of sun set reviews in which it adhered to the Sunset 
Policy Bulletin.  According to the United States, the panel in  US – Steel Plate  recognized that a 
practice does not become a measure by virtue of its being repeated. 
37. Second, the United States argues that even if  the Sunset Policy Bulletin were a measure 
susceptible to challenge in the presen t proceedings, it is not inconsiste nt with the United States'  WTO 
obligations because it does not mandate WTO-incons istent action.  Japan bears the burden of 
demonstrating that the Sunset Policy Bulletin "m andates" WTO-inconsistent action or precludes 
WTO-consistent action.  In fulfillin g this burden, Japan would need to produce evidence of the scope 
and meaning of the Sunset Policy Bulletin within Un ited States municipal law.  However, as already 
explained, administrative precedent such as the Su nset Policy Bulletin has no functional life of its 
own, regardless of how often it is repeated.  Th e United States argues that, consistent with this 
                                                      
43United States' appellee's submission, para. 53.  WT/DS244/AB/R 
 Page 15 
 
 
interpretation, the Appellate Body indicated in  US – Carbon Steel  that an agency's consistent 
practice may comprise evidence of the meaning of  a challenged law, but not evidence that such 
practice is itself a measure. 
38. The United States emphasizes that the Appellate Body report in  US – Countervailing 
Measures on Certain EC Products  does not address the question of whether non-binding 
administrative precedent or practice can be challenged as a measure.  In fact, panels have consistently 
concluded that such practice cannot be cha llenged in this way, for example, in  US – Steel Plate  and 
US – Export Restraints .  The United States argues that even if such practice could be challenged as a 
measure, the Appellate Body has consistently a pplied the mandatory/discre tionary distinction to 
preclude a finding of WTO-inconsistency where the relevant measure does not mandate the breach of 
a WTO obligation. 
39. The United States points out that the Sunset Policy Bulletin does not contain rules that 
USDOC is required to follow.  Rather, the Sun set Policy Bulletin "simply addresses the limited 
universe of practical scenarios that could ari se in the period after imposition of the order".44  T h e  
outcome in each sunset review is not predetermine d by the provisions of the Sunset Policy Bulletin.  
Rather, the outcome depends on the facts of each case and must be supported by evidence on the 
record.  If USDOC decided to modify its analysis in a way that would represent a change from past 
practice, it would explain this change and normally give parties an opportunity to comment on it.  The 
United States therefore maintains that  USDOC may reach similar results based on similar facts, not 
because it follows the fixed rules of the Sunset Policy Bulletin, but because it adopts consistent 
analysis for similar factual situations. 
2. Article 11.3 of the  Anti-Dumping Agreement  
(a) The Dumping Margins Used in the CRS Sunset Review 
40. The United States argues that the Panel was corr ect in finding that the United States did not 
act inconsistently with Article 2.4 or, in  the alternative, Article 11.3 of the  Anti-Dumping Agreement  
in relying on the administrative review dumping ma rgins while making its likelihood determination in 
the CRS sunset review.  The United States request s the Appellate Body to uphold this finding. 
41. According to the United States, Japan's appeal regarding "zeroing" is premised on factual 
findings that the Panel did not make.  First, th e Panel made no factual finding as to whether the 
dumping margins on which USDOC relied were calculated using the methodology proscribed by the 
                                                      
44United States' appellee's submission, para. 67. WT/DS244/AB/R 
Page 16  
 
Appellate Body in  EC – Bed Linen .  Second, the Panel made no factual finding as to whether 
USDOC would have calculated negative dumping margin s in the administrative reviews if it had not 
used such a methodology.  As recognized in the Appellate Body Report in  Australia – Salmon , 
appellate review does not extend to  claims based on factual findings that the Panel did not make or 
upon facts that are not undisputed.  Accordingly, the Appellate Body should dismiss in its entirety Japan's appeal regarding zeroing.  The United States  argues that, otherwise, Members will be able to 
use sunset reviews "as a back door"
 45 to challenge other measures. 
42. The United States also maintains that  EC – Bed Linen   is legally and factually irrelevant to 
USDOC's likelihood determination in the CRS sunset review.  First, the methodology of the European 
Communities that the Appellate Body considered in  EC – Bed Linen   involved the calculation of 
dumping margins on a basis different from that used by USDOC in the administrative reviews.  In that 
case, the European Communities calcula ted margins on an "average-to-average" basis whereas, in this 
case, USDOC did so on an "average-to-transaction" b asis.  Second, the United States argues that  
EC – Bed Linen  concerned an anti-dumping investigation,  whereas the present appeal concerns a 
sunset  review of an anti-dumping duty. 
43. The United States contends that the Panel correc tly found that the substantive disciplines of 
Article 2 regarding the calculation of dumping marg ins in making a determination of dumping do not 
apply to the making of a likelihood determinati on under Article 11.3.  The introductory words of 
Article 2.1 do not mean that every provision of Article 2 applies throughout the Anti-Dumping 
Agreement , as evidenced by the fact that certain provisions of Article 2 are expressly stated not to 
apply to reviews.46  Article 11.3 of the  Anti-Dumping Agreement  does not prescribe a methodology 
for making a likelihood determination;  nor does it re quire quantification of past or future dumping.  
In fact, according to the United States, Japan con cedes that the likelihood determination is not tied to 
a specific amount of dumping.  In the view of th e United States, this concession cannot be reconciled 
with Japan's argument that the provisions of Article 2 regarding the calculation of dumping margins 
apply to sunset reviews. 
                                                      
45United States' appellee's submission, para. 40. 
46For example, the United States refe rs to the words "during the inves tigation phase" in Article 2.4.2.  
(United States' appellee's submission, footnote 66 to para. 44)  WT/DS244/AB/R 
 Page 17 
 
 
(b) Order-Wide Basis of Likelihood Determination 
(i) Challenge to the Sunset Policy Bulletin "As Such " 
44. The United States argues that the Panel was correct  in finding that Japan failed to show that 
the Sunset Policy Bulletin as such is incons istent with Articles 6.10 and 11.3 of the  Anti-Dumping 
Agreement  regarding the basis on which the likelihood determ ination is made in sunset reviews.  The 
United States asks the Appellate Body to uphold this finding. 
45. In the view of the United States, the Panel correctly identified the two questions to be 
answered in examining an "as such" claim:  firs t, whether the alleged measure mandates a certain 
course of action;  and second, whether that course of ac tion is consistent with th e relevant obligations.  
The Panel considered that it made more sense to begin by addressing the first of these questions, and 
Japan has not shown that in doing so the Panel comm itted a legal error.  The United States maintains 
that, as a result of the Panel's finding that the Suns et Policy Bulletin is not a measure that can be 
challenged in WTO dispute settlement proceedings , the Panel was not required to address the second 
question. 
(ii) Challenge to the Sunset Policy Bulletin "As Applied " 
46. The United States argues that the Panel was corr ect in finding that the United States did not 
act inconsistently with Articles 6.10 and 11.3 of the  Anti-Dumping Agreement  in making its 
likelihood determination in the CRS sunset review on an order-wide basis.  The United States asks the 
Appellate Body to uphold this finding. 
47. The United States emphasizes that, pursuant to Article 11.4, only the provisions of Article 6 
"regarding evidence and procedure" are incorporated into Article 11.  As the Panel found, no 
substantive obligation is imposed on investigati ng authorities to calculate dumping margins in a 
sunset review.  Accordingly, the procedural or evidentiary requirements of Article 6 regarding the 
calculation of such margins do not apply to Article 11.3.  In particular, the United States maintains 
that the procedural requirement in Article 6. 10 that dumping margins be calculated on a company-
specific basis does not apply to sunset reviews. 
48. The United States contends that the provisions of Articles 11.3, 9.2, and 9.4 confirm that 
investigating authorities are not required to make th eir likelihood determination in a sunset review on 
a company-specific basis.  Article 11.3 does not pres cribe a methodology that investigating authorities 
must follow in making their likelihood determination.  Nor does Article 11, as a whole, describe any WT/DS244/AB/R 
Page 18  
 
criteria for making a likelihood determination focu sing on individual companies.  In particular, 
Article 11.3 "does not distinguish between the speci ficity required" for the likelihood determination 
regarding dumping and that regarding inju ry, "and the latter determination is inherently  order-
wide."
 47  Article 11.3 also does not refer to making a determination for individual companies.  
Instead, it provides for a review of the "definitive" duty.  Pursuant to Article 9.2, such a duty is 
imposed on a product-specific basis rather than a compan y-specific basis.  Similarly, the United States 
maintains that Article 9.4 assumes that a definitiv e duty is imposed on a product rather than with 
respect to individual companies, thus enabling duti es to be applied to suppliers not included in the 
anti-dumping investigation. 
(c) The Factors Considered by USDOC in Making a Likelihood 
Determination  
(i) Challenge to the Sunset Policy Bulletin "As Such " 
49. The United States argues that the Panel was correct  in finding that Japan failed to show that 
the Sunset Policy Bulletin "as such" is in consistent with Article 11.3 of the  Anti-Dumping Agreement 
regarding the obligation to make a likelihood determ ination in sunset reviews.  The United States asks 
the Appellate Body to uphold this finding.  For r easons described in relation to the previous issue 48, 
the United States argues that the Panel was correct in  declining to consider further Japan's "as such" 
claim regarding this issue. 
(ii) Challenge to the Sunset Policy Bulletin "As Applied " 
50. The United States maintains that the Panel was correct in finding that the United States did 
not act inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in making its likelihood 
determination in the CRS sunset review.  The United States requests the Appellate Body to uphold 
this finding. 
51. According to the United States, Article 11.3 of the  Anti-Dumping Agreement  does not 
prescribe a methodology that investigating aut horities must follow in making their likelihood 
determination.  Article 11.3 is a "specific impl ementation of the general rule" in Article 11.1.49   A 
sunset review under Article 11.3 focuses on future behaviour and not on the current existence of 
dumping.  According to the United States, footnote 22  to Article 11.3 confirms that Article 11.3 does 
not require investigating authorities to calculate the precise amount of dumping in any given year or 
                                                      
47United States' appellee's submission, para. 33. (original emphasis) 
48Supra , para. 45. 
49United States' appellee's submission, para. 12.  WT/DS244/AB/R 
 Page 19 
 
 
in the future because the current ex istence of a specific amount of dumping is not determinative of the 
likelihood that dumping will continue or recur. 
52. The United States contends that the Panel properly assessed USDOC's conduct of the CRS 
sunset review according to the appropriate standa rd.  The Panel examined whether USDOC based its 
determination on positive evidence evaluated in an obj ective manner.  The Panel correctly found that 
USDOC had a sufficient factual basis to allow it to  draw reasoned and ade quate conclusions that 
dumping was likely to continue or recur if the CRS order were revoked.50  Japan's objection to this 
finding goes to the Panel's assessment of the facts befo re it and the weight accorded to those facts.  As 
Japan does not argue that the Panel failed to dischar ge its function correctly under Article 11 of the 
DSU, the United States maintains that Japan's challe nge to the Panel's finding falls outside the scope 
of appellate review pursuant to Article 17.6 of th e DSU, as interpreted by the Appellate Body in  
EC – Hormones . 
53. The United States adds that the Panel correc tly identified the "positive evidence" on which 
USDOC based its likelihood determination.  Specifi cally, this comprised evidence of dumping and 
declining import volumes after the CRS order was is sued.  The evidence of dumping was contained in 
the results of the two administrative reviews of the CRS order, the second of which was completed 
only one month before USDOC issued its preliminary results in the CRS sunset review.  The evidence 
of import volumes indicated that imports had declin ed substantially after the CRS order was imposed 
and remained depressed for the period prior to the CRS  sunset review.  As the Panel has found, based 
on this evidence, it was reasonable for USDOC to make an affirmative likelihood determination. 
54. The United States disagrees with Japan's argume nt that USDOC's analysis was based on 
limited facts and a methodology that predetermined th e result.  A likelihood determination in a sunset 
review inevitably rests on facts relating to the past and present.  USDOC found that Japanese suppliers had continued to dump since the imposition of the CRS order and that there was no evidence 
to suggest that they would cease dumping if the CRS order were revoked.  USDOC afforded NSC an 
opportunity to explain its behaviour in the CRS suns et review.  Yet, according to the United States, 
although NSC attempted to explain why its import volumes were depressed, it did not attempt to 
explain or disprove its ongoing dumping or why this would stop if the CRS order were revoked. 
                                                     
 
50Panel Report, paras. 7.271-7.272 and 7.278-7.283. WT/DS244/AB/R 
Page 20  
 
C. Arguments of the Third Participants 
1. Brazil
 
55. Brazil argues that the Panel erred in concluding that the United States did not act 
inconsistently with the  Anti-Dumping Agreement  or the  WTO Agreement  by applying a "zeroing" 
methodology in sunset reviews.  In particular, the Panel erred in findi ng no correlation between 
Articles 2 and 11.3 of the Anti-Dumping Agreement .  USDOC's practice of "zeroing" out negative 
dumping margins in original investigations and revi ews is inconsistent with the United States'  WTO 
obligations.   Brazil reaffirms its argume nts before the Panel in this regard. 
2. Chile  
56. Chile argues that the Panel erred in concludi ng that the Sunset Policy Bulletin is not a 
mandatory legal instrument.  The Panel should have focused on the aims of th e Sunset Policy Bulletin 
and the manner in which it is used by USDOC.  In particular, the Sunset Policy Bulletin is a binding 
legal instrument establishing certain conditions th at are not found in the relevant statute and 
regulations.  Accordingly, USDOC must apply the S unset Policy Bulletin in order to comply with the 
statute and regulations. 
57. Chile contends that the Panel erred in finding that the disciplines applicable to original 
investigations under the  Anti-Dumping Agreement  do not apply to sunset reviews.  Although an 
original investigation is different from a sunset review, this does not mean that the disciplines 
envisaged in the Anti-Dumping Agreement  for investigations do not apply to sunset reviews.  Both 
types of proceeding result in the imposition of an anti-dumping duty upon exporters of the relevant 
product.  Moreover, Article 11.1 sets out one of the "guiding principles"  51 of the  Anti-Dumping 
Agreement , according to which the continuation of an anti-dumping measure is an exception to the 
general rule of termination.  Chile argues that the reference to "dumping" in Article 11.1 is a reference 
to dumping as defined in Article 2. 
58. Chile maintains that the Panel erred in finding that Article 11.3 of the  Anti-Dumping 
Agreement  does not require investigating authorities to  make their likelihood determination in a 
sunset review on a company-specific basis.  Article 11.4 requires investigating authorities, in a sunset 
review, to use the logic underlying the rules of  evidence and procedure in Article 6, including 
Article 6.10.  In Chile's view, if investigating authorities do not make a company-specific likelihood 
                                                      
51Chile's third participant's submission, para. 3.  WT/DS244/AB/R 
 Page 21 
 
 
determination, they will not be able to determine the manner in which individual companies will 
behave if the duty is terminated. 
59. Chile suggests that the Panel erred in finding that USDOC's methodology for making the 
likelihood determination in a sunset re view is not inconsistent with the  Anti-Dumping Agreement .  
Although the  Anti-Dumping Agreement  does not prescribe a methodology for making this 
determination, USDOC's methodology pre-determin es the outcome of the sunset review because 
USDOC will normally make an affirmative likeli hood determination based only on dumping margins 
and import levels.  Moreover, Ch ile contends that, in the CRS sunset review, USDOC relied on 
margins that were not properly established. 
3. European Communities  
60. The European Communities contends  that the Panel erred in concluding that the Sunset Policy 
Bulletin is not an actionable measure "as such".   The European Communities submits that the 
mandatory/discretionary dis tinction is not based on any provision of  the covered agreements.  In this 
regard, the European Communities agrees with the report of the panel in  US – Section 301 Trade Act .  
Accordingly, the Panel should have determined whether the Sunset Policy Bulletin was 
"challengeable" based on the specific provisions of the  Anti-Dumping Agreement , and Article 18.4 in 
particular.  The term "administrative procedures" in  Article 18.4 applies to all rules and procedures 
that guide proceedings under the Anti-Dumping Agreement  and that are not legally binding.  For 
reasons advanced by Japan52, the European Communities argues that  the Sunset Policy Bulletin falls 
within the meaning of this term.  Further, even if  the mandatory/discretionary distinction is relevant, 
the Sunset Policy Bulletin is mandatory.  Although  USDOC may have a theoretical ability to depart 
from the Sunset Policy Bulletin, it is "highly unlikely" to do so.53  Thus, according to the European 
Communities, as a practical matter the Sunset Po licy Bulletin is binding on USDOC staff and is 
therefore mandatory. 
61. The European Communities argues that the Panel erred in finding that Article 2 of the  Anti-
Dumping Agreement  does not apply in the context of a sunset review.  Properly interpreted, 
Article 11.3 does not require investigating authorities to calculate likely future dumping margins, but 
it does require them to consider evidence of dum ping since the duty was imposed.  In doing so, both 
the definition of "dumping" in Article 2.1 and the requirements of Article 2 regarding the calculation 
                                                      
52European Communities' third participant's submissi on, referring to Japan's appellant's submission, 
paras. 131-137. 
53Ibid., para. 45. WT/DS244/AB/R 
Page 22  
 
of dumping margins apply.  The European Communities agrees with Japan that it is irrelevant that 
NSC did not challenge the "zeroing" methodology in the CRS sunset review. 
62. According to the European Comm unities, the Panel also erred in  concluding that the United 
States did not act inconsistently with Article 11.3 in basing its likelihood determination in the CRS 
sunset review exclusively on past dumping ma rgins and past import volumes.  The likelihood 
determination in a sunset review must be based  on positive evidence.  Past dumping margins and 
import volumes are relevant to the likelihood determination, but aut horities must also rely on other 
relevant factors in making that determination.  Moreover, USDOC has an obligation to take into 
account all relevant factors.  The Sunset Policy Bulle tin is inconsistent with this obligation because it 
requires importers to show "good cause" before USDOC  will consider "other factors".  The European 
Communities also suggests that the Sunset Polic y Bulletin improperly limits the circumstances in 
which an anti-dumping duty will be terminated following a sunset review. 
4. Korea
 
63. According to Korea, the Panel should have considered and upheld Japan's claims under 
Article 2.4 in addition to those under Article 11.3.   The definition of dumping in Article 2 of the   Anti-
Dumping Agreement  applies throughout that agreement, including in sunset reviews under 
Article 11.3.  This interpretation is supported by the text, object and purpose of Article VI of the 
GATT 1994 as well as the  Anti-Dumping Agreement , including Articles 2, 11.1, and 11.3.  As a 
result, a determination of the existence of dumping that is based on a "zeroing" methodology is not a 
determination of dumping within the meaning of Ar ticle 2.  Korea argues th at such a determination 
cannot form the basis for a likelihood determination under Article 11.3. 
64. In Korea's view, the Panel erred in concluding  that  USDOC's likelihood determination in the 
CRS sunset review was consistent with Article 11.3 of the Anti-Dumping Agreement .  USDOC's 
likelihood determination was based on positive dum ping margins calculated in recent administrative 
reviews and statistics regarding import volumes since the imposition of the CRS order.  These two pieces of evidence alone cannot satisfy the requireme nts of positive evidence and a sufficient factual 
basis for a likelihood determination under Article 11.3.  Moreover, Korea maintains that USDOC's 
definition of "dumping" in the CRS sunset review incorporated the impermissible practice of zeroing 
and was therefore inconsistent with Article 11.3.  WT/DS244/AB/R 
 Page 23 
 
 
5. Norway  
65. Norway contends that the Panel erred in find ing that the Sunset Policy Bulletin is not an 
administrative procedure under Article 18.4 of the  Anti-Dumping Agreement  and that it is therefore 
not challengeable, as such, under Article XVI:4 of the WTO Agreement .  The term "administrative 
procedures" in Article 18.4 of the  Anti-Dumping Agreement  encompasses administrative rules such 
as the Sunset Policy Bulletin that may appear to be  discretionary, but are consistently followed in 
practice.  In addition, the Panel drew an imprope r distinction between manda tory and discretionary 
legislation.  It applied this distinction mechanically  to the Sunset Policy Bulletin even though this is 
an instrument of an administrative agency and not a legislative rule.  In Norway's view, when properly 
applied, the mandatory/discretionary distincti on does not preclude the Sunset Policy Bulletin from 
being "challengeable", as such, under the  WTO Agreement . 
66. According to Norway, the Panel erred in finding that Article 2 of the  Anti-Dumping 
Agreement  does not apply in the context of a sunset review under Article 11.3.  The definition of 
"dumping" in Article 2 applies to Article 11.3 as well.  Moreover, the dumping margins in the administrative reviews were calculated using a " zeroing" methodology that is inconsistent with 
Article 2.4.  The evidence on which USDOC relied in making its likelihood de termination in the CRS 
sunset review was therefore "legally defective."
 54  Norway argues that it is irrelevant that  NSC did 
not raise these concerns during the CRS sunset review. 
67. Norway argues that the Panel erred in concluding  that the Sunset Policy Bulletin, as such, is 
not inconsistent with Articles 6.10 and 11.3 of the  Anti-Dumping Agreement  in stating that  USDOC 
will make its likelihood determina tion in a sunset review on an order-wide basis.  The Panel should 
have considered the mandatory nature of this sp ecific rule.  For the reasons advanced by Japan, 
Norway considers that Articles 6.10 and 11.3 of the  Anti-Dumping Agreement  require investigating 
authorities to make their likelihood determination in  a sunset review on a company-specific basis. 
68. Norway adds that the Panel erred in concluding that the Sunset Policy Bulletin, as such, is not 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement .  The Sunset Policy Bulletin creates 
narrow rules that necessarily l ead to USDOC making an affirmative likelihood determination in a 
sunset review.  According to Norway, these rules are consistently applied and rely on presumptions 
rather than facts. 
                                                      
54Norway's third participant's submission, para. 17. WT/DS244/AB/R 
Page 24  
 
III. Preliminary Issues 
69. Two preliminary issues arise with respect to the scope of Japan's appeal.  The first concerns 
Japan's request, in its Notice of Appeal
55, that we reverse the finding of the Panel in paragraph 8.1(d) 
of the Panel Report that:  
In respect of the dumping margins used in sunset reviews: 
(i) Japan has failed to show  that the Sunset Policy 
Bulletin as such is inconsis tent with Articles 2.2.1, 
2.2.2, 2.4, 11.3 and 18.3 of the Anti-dumping 
Agreement . 
70. Japan's appellant's submission cont ains no arguments in support of its request that we reverse 
this finding.  At the oral hearing, Japan confirmed that it is not pursuing its appeal of paragraph 8.1(d)(i) of the Panel Report.  In ot her words, concerning the dumping margins used in 
sunset reviews, Japan's appeal does not cha llenge—and we therefore do not address—the Panel's 
finding regarding the consistency of the Sunset Policy Bulletin  as such  with the  Anti-Dumping 
Agreement .  Rather, Japan's appeal concerning the dumping margins used in sunset reviews is limited 
to the issue of whether the Panel erred in finding that,  in the CRS  sunset review , USDOC did not act 
inconsistently with Article 2.4 or Article 11.3 of the  Anti-Dumping Agreement  by relying on 
dumping margins calculated in previous admini strative reviews allegedly using a "zeroing" 
methodology.  We address this issue in Section VI.C of this Report.
56 
71. The second preliminary issue was raised by the United States in its appellee's submission.  
According to the United States, Japan's "claims"  57 that the Panel failed to apply the correct legal and 
factual standards of review in interpreting Article  11.3 fall outside the scope of appellate review 
because Japan's Notice of Appeal did not refer to Article 11 of the DSU or Article 17.6 of the  Anti-
Dumping Agreement  and did not allege that the Panel erred in its application of the standards of 
review prescribed in those provisions.  In consequence, the United States argues, we are precluded from finding that the Panel acted inconsistently with  Article 11 of the  DSU or Article 17.6 of the 
Anti-Dumping Agreement .
58  At the oral hearing, Japan explaine d that the references in its appellant's 
submission to these standards of review59 form part of Japan's "reasoning" in support of its appeal of 
certain findings by the Panel regarding Article 11.3 of the  Anti-Dumping Agreement,  but that Japan is 
not asking us to find that the Panel acted inconsisten tly with Article 11 of the  DSU or Article 17.6 of 
                                                      
55WT/DS244/7, 17 September 2003, p. 2, attached as Annex 1 to this Report.   
56See infra  paras. 118-138. 
57United States' appellee's submission, para. 8. 
58United States' response to questi oning at the oral hearing. 
59Japan's appellant's submission, paras. 3-15.  WT/DS244/AB/R 
 Page 25 
 
 
the  Anti-Dumping Agreement .  Therefore, the issue of whether Japan's Notice of Appeal included any 
allegations of inconsistency with Article 11 of the  DSU or Article 17.6 of the  Anti-Dumping 
Agreement  has become moot.  We have not been asked to  make findings in relation to these provisions, 
and we make no findings on them.60 
IV. Issues Raised in this Appeal  
72. The following issues are ra ised in this appeal: 
(a) whether the Panel erred in finding, in paragr aphs 7.145, 7.195, and 7.246 of the Panel 
Report, that the Sunset Policy Bulletin is not  a mandatory legal instrument and thus is 
not a measure that is "challengeable", as such, under the  Anti-Dumping Agreement  or 
the  WTO Agreement ;   
(b) whether the Panel erred in finding, in para graphs 7.170, 7.184, and 8.1(d)(iii) of the 
Panel Report, that the United States did not act inconsistently with Article 2.4 or 
Article 11.3 of the  Anti-Dumping Agreement  by relying, in the CRS sunset review, 
on dumping margins calculated in previous administrative reviews allegedly using a 
"zeroing" methodology; 
(c) as regards the making of likelihood dete rminations on an order-wide basis: 
(i) whether the Panel erred in finding, in pa ragraph 8.1(e)(i) of the Panel Report, 
that Japan failed to show that the Sunset Policy Bulletin, as such , is 
inconsistent with Article 6. 10 or Article 11.3 of the  Anti-Dumping 
Agreement  in stating that USDOC will make its determination in a sunset 
review on an "order-wide" basis;   
(ii) whether the Panel erred in finding, in paragraphs 7.208 and 8.1(e)(ii) of the 
Panel Report, that the United States did not act inconsistently with Article 6.10 or Article 11.3 of the  Anti-Dumping Agreement  in making its 
determination in the CRS sunset review on an "order-wide" basis;   
                                                     
 
60We have already held that a claim, by an appellant, that a panel erred under Article 11 of the DSU, 
and a request for a finding to this e ffect, must be included in the Notice of  Appeal, and clearly articulated and 
substantiated in an appellant's submission with  specific arguments.  (Appellate Body Report, US – 
Countervailing Measures on Certain EC Products , para. 74;  Appellate Body Report, Japan – Apples , para. 127;  
and Appellate Body Report, US – Steel Safeguards , para. 498) WT/DS244/AB/R 
Page 26  
 
(d) as regards the factors considered by USDOC  in making a likelihood determination: 
(i) whether the Panel erred in finding, in pa ragraph 8.1(f)(i) of the Panel Report, 
that Japan failed to show that the Sunset Policy Bulletin, as such , is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement  in that it 
limits the factors to be taken into account by USDOC in determining, in a sunset review, if the expiry of the duty  would be likely to lead to continuation 
or recurrence of dumping; 
(ii) whether the Panel erred in finding, in paragraphs 7.283 and 8.1(f)(ii) of the 
Panel Report, that the United States did not act inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in the CRS sunset review in 
determining that dumping was likely to continue or recur;  and 
(e) whether the Panel erred in finding, in pa ragraphs 7.315 and 8.1(h) of the Panel 
Report, that, with respect to the Sunset Policy Bulletin, the United States did not act 
inconsistently with Article 18.4 of the Anti-Dumping Agreement or Article XVI:4 of 
the  WTO Agreement . 
V. Is the Sunset Policy Bulletin "Challengeable" As Such? 
A. The Sunset Policy Bulletin  
73. Before turning to Japan's appeal on this issu e, we wish to set out certain background 
information concerning the Sunset Policy Bulleti n.  This document forms part of the overall 
framework within which "sunset" reviews of anti- dumping or countervailing duties are conducted in 
the United States.  Sunset reviews became part  of United States law when the United States 
implemented the Uruguay Round agreements through the URAA.
 61  The URAA consists of a broad-
ranging package of new laws as well as modifications  to existing United States trade laws, such as the 
Tariff Act.  With respect to sunset reviews, th e URAA added Sections 751(c) and 752 to the Tariff 
Act.  These statutory provisions governing sun set reviews were in turn implemented through 
amendments to the Regulations.62  Section 218 of Part 351 of Title 19 of the Regulations sets forth a 
number of detailed rules and pro cedures for USDOC to follow in c onducting sunset reviews, as well 
as specific rules that apply to interested parties. 
                                                      
61Uruguay Round Agreements Act, Public Law 103- 465, 108 Stat. 4809, wh ich became law in the 
United States on 8 December 1994. (Exhibit JP N-1(a) submitted by Japan to the Panel) 
62Supra , footnote 10.  WT/DS244/AB/R 
 Page 27 
 
 
74. Japan's request for establishment of a panel63 referred to these statutory and regulatory 
provisions, as well as to the SAA64 and the Sunset Policy Bulletin.65  The Sunset Policy Bulletin, 
together with a request for comments thereon, w as published by USDOC in the United States Federal 
Register in 1998, before the United States had conducted any sunset review of anti-dumping or 
countervailing duties.  In the Sunset Policy Bu lletin, USDOC sets forth "policies regarding the 
conduct of five-year ('sunset') reviews ... pursuant to  the provisions of sections 751(c) and 752 of the 
Tariff Act of 1930, as amended,  and [USDOC's] regulations".66  In developing the Sunset Policy 
Bulletin, USDOC drew on "the guidance provided by the legislative history accompanying the 
URAA, specifically the Statement of Administrative Action".67  The Sunset Policy Bulletin is 
"intended to complement the applicable statutory and regulatory provisions by providing guidance on methodological or analytical issues not explic itly addressed by the statute and regulations".
68  
According to the Sunset Policy Bulletin, these stat utory and regulatory provisions assign to  USDOC 
the responsibility, in sunset reviews of anti-dumping duties, of, inter alia , determining whether 
revocation of an anti-dumping duty order would be likely to lead to continuation or recurrence of 
dumping.  This appeal concerns certain provision s contained in Section II.A of the Sunset Policy 
Bulletin, entitled " Determination of Likelihood of Continuation or Recurrence of Dumping ". 
B. Japan's Appeal 
75. Before the Panel, Japan claimed, inter alia , that certain provisions of the Sunset Policy 
Bulletin are, "as such", inconsistent with relevant United States obligations under the  Anti-Dumping 
Agreement .69   
                                                      
63WT/DS244/4, 5 April 2002.   
64The  SAA, which was submitted to the United St ates Congress along with the proposed URAA, 
"represents an authoritative expression by the Administration concerning its views regarding the interpretation 
and application of the Uruguay Round agreements".  (SAA, p. 656) 
65See infra , footnote 69. 
66Sunset Policy Bulletin, p. 18871. 
67Ibid., p. 18872. 
68Ibid., pp. 18871 and 18872. 
69Japan's "as such" claims, to the extent relevant to this appeal, related to:  (i) Section II.A.2 of the 
Sunset Policy Bulletin, regarding the making of determinations in sunset reviews on an order-wide basis;  and (ii) Sections II.A.3 and 4 of the Sunset Policy Bulletin, regarding the factors considered by USDOC in making a 
determination in a sunset review.  In its request for estab lishment of a panel, Japan's "as such" claims referred to 
both the SAA and the Sunset Policy Bulletin.  However,  in response to a question from the Panel, Japan 
clarified that it was not challenging the WTO-consistency of the SAA.  Accordingly, the Panel construed Japan's 
"as such" claims as claims against the Sunset Policy Bulletin alone. (Panel Report, paras. 7.113, 7.195, and 
7.246)  In this appeal, too, Japan's "as such" claims relate solely to the Sunset Policy Bulletin. WT/DS244/AB/R 
Page 28  
 
76. The Panel declined to address the substance of Japan's "as such" claims against the provisions 
of the Sunset Policy Bulletin because it found that: 
… the Sunset Policy Bulletin is not a mandatory legal instrument 
obligating a certain course of c onduct and thus can not, in and of 
itself, give rise to a WTO violation.
70  
… the Sunset Policy Bulletin is not a measure that is challengeable, 
as such, under the WTO Agreement .71 
… the Sunset Policy Bulletin is not  challengeable as such under the 
WTO Agreement .72 
77. Japan asks us to reverse these findings and to fi nd that the Sunset Policy Bulletin sets forth 
"actionable administrative procedures"  73 that can, as such, be challenged under, and that are 
inconsistent with, the  Anti-Dumping Agreement   and Article XVI:4 of the  WTO Agreement .   
78. As a first step in examining Japan's appeal, we  consider it important to distinguish between 
two issues that the Panel did not seem to differentiate in its analysis.74  The first issue concerns the 
type of measures that may, as such, form th e subject matter of dispute settlement under the  Anti-
Dumping Agreement .  In other words, does the type of instrument itself—be it a law, regulation, 
procedure, practice, or something else—govern whet her it may be subject to WTO dispute settlement?  
The second issue concerns whether a measure's mandato ry or discretionary character determines if it 
can, as such, be found to be  inconsistent  with the covered agreements.  
79. In our view, the ambiguity created by the Pane l's approach stems from its use of the term 
"challengeable".  In other words, it is not clear to us whether the Panel's finding that, because the 
Sunset Policy Bulletin is not a "mandatory legal instrument"  75, it is not "challengeable, as such"  76, is 
to be understood as a finding that non-mandatory  measures cannot, as su ch, constitute the  specific 
                                                      
70Panel Report, para. 7.145. 
71Ibid., para. 7.195. 
72Ibid., para. 7.246. 
73Japan's appellant's submission, para. 107. 
74We drew attention to a similar "blurring" of two distinct issues by the panel in Guatemala – Cement I . 
(Appellate Body Report, Guatemala – Cement I , para. 69) 
75Panel Report, para. 7.145. 
76Ibid., para. 7.195.  See also para. 7.246.  WT/DS244/AB/R 
 Page 29 
 
 
measure at issue , or as a finding that non-mandatory meas ures cannot, as such, constitute a violation 
of a Member's obligations.77 
80. We consider below these two ways in whic h the Panel's finding can be understood. 
C. The Type of Measures that Can, As Such,  be the Subject of Dispute Settlement 
Proceedings  
81. We first examine whether there is any basi s for holding that non-mandatory measures cannot, 
as such, be subject to dispute settlement under the  Anti-Dumping Agreement.  In so doing, we start 
with the concept of "measure".  Article 3.3 of th e  DSU refers to "situations in which a Member 
considers that any benefits accruing to it directly or  indirectly under the cove red agreements are being 
impaired by  measures  taken by another Member ". (emphasis added)  This phrase identifies the 
relevant nexus, for purposes of dispute settleme nt proceedings, between the "measure" and a 
"Member".  In principle, any act or omission attributable to a WTO Member can be a measure of that Member for purposes of dispute settlement proceedings.
78  The acts or omissions that are so 
attributable are, in the usual case, the acts or omi ssions of the organs of the state, including those of 
the executive branch.79   
82. In addition, in GATT and WTO dispute settlement  practice, panels have frequently examined 
measures consisting not only of particular acts app lied only to a specific situation, but also of acts 
setting forth rules or norms that are intended to have general and prospective application.80  In other 
words, instruments of a Member containing rules or  norms could constitute a "measure", irrespective 
of how or whether those rules or norms are applied in a particular instance.  This is so because the 
                                                      
77For example, in footnote 103 to paragraph 7.119 of the Panel Report, the Panel seemed to equate "the 
nature of 'measures' that may form part of the 'matter' re ferred to the DSB under the DSU" with "the nature of a 
'measure' that is challengeable in WTO dispute settlement" and considered the latter to be "a fundamental matter 
relating to our mandate and jurisdiction in this case."   
78We need not consider, in this appeal, related issues  such as the extent to which the acts or omissions 
of regional or local governments, or even the actions of  private entities, could be attributed to a Member in 
particular circumstances.   
79Both specific determinations made by a Member's executive agencies and regu lations issued by its 
executive branch can constitute acts attributable to that Member.  See, for example, the Panel Report in  US – 
DRAMS , where the measures referred to the panel included a USDOC determination in an administrative review 
as well as a regulatory provision issued by USDOC.   
80See, for example Panel Report,  US – Superfund ;  Panel Report,  US – Malt Beverages ;  Panel Report, 
EEC – Parts and Components ;  Panel Report,  Thailand – Cigarettes ;  Panel Report,  US – Tobacco ;  Panel 
Report,  Argentina – Textiles and Apparel ;  Panel Report,  Canada – Aircraft ;  Panel Report,  Turkey –  Textiles ;  
Panel Report, US – FSC ;  Panel Report,  US – Section 301 Trade Act ;  Panel Report, US – 1916 Act (EC) ;  Panel 
Report, US – 1916 Act (Japan) ;  Panel Report,  US – Hot-Rolled Steel ;  Panel Report, US – Export Restraints ;  
Panel Report, US – FSC (21.5 – EC) ;  and Panel Report, Chile – Price Band System .  See also Appellate Body 
Report, US – Carbon Steel , paras. 156 and 157.  See also Appellate Body Report, US – 1916 Act , footnotes 34 
and 35 to paras. 60 and 61, respectively. WT/DS244/AB/R 
Page 30  
 
disciplines of the GATT and the WTO, as well as the dispute settlement system, are intended to 
protect not only existing trade but also the security a nd predictability needed to conduct future trade.  
This objective would be frustrated if instruments setting out rules or norms inconsistent with a 
Member's obligations could not be brought befo re a panel once they have been adopted and 
irrespective of any particular instance of  application of such rules or norms.
81  It would also lead to a 
multiplicity of litigation if instruments embodying rules or norms could not be challenged as such, but 
only in the instances of their application.  Thus, allowing claims against measures, as such, serves the 
purpose of preventing future disputes by allowing th e root of WTO-inconsistent behaviour to be 
eliminated. 
83. Having outlined these general pr opositions, we next consider whether there are any 
limitations upon the types of measures that may, as such, be the subject of dispute settlement under 
the DSU or the applicable covere d agreement, in this case the  Anti-Dumping Agreement.82  As 
regards the specific requirements of the  Anti-Dumping Agreement , we have explained that  
Article 17.4 precludes a panel from addressing individual acts (as opposed to measures "as such") committed by an investigating authority in the c ontext of the initiation and conduct of anti-dumping 
investigations  unless   one of the three types of measure lis ted in Article 17.4 is identified in the 
request for establishment of a panel.
83  These measures are a definitive anti-dumping duty, the 
acceptance of a price undertaking, and a provisi onal measure.  We have also found, in  
US – 1916 Act,  that Article 17.4 does not place such a limit on a panel's jurisdiction to entertain 
claims against legislation   as such .  Indeed, we stated in that appeal that no provision of the  Anti-
Dumping Agreement  precludes a panel from considering claims against legislation  as such .84 
84. Our reasoning for concluding that the panel in  US – 1916 Act  had jurisdiction to consider 
legislation , as such, also applies in this c ase, where the relevant measures are specific provisions of an 
administrative instrument issued  by an executive agency pursuan t to statutory and regulatory 
provisions.  That reasoning was based on the GATT  acquis  and the language of the  Anti-Dumping 
Agreement , in particular Articles 17.3 and 18.4.   
                                                      
81Panel Report, US – Superfund , para. 5.2.2. 
82We recall, in this regard, that Article 1.1 of the DSU applies the rules and procedures contained in the 
DSU to "disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in 
Appendix 1", but that this general rule is, under Article 1.2 of the DSU, subject to the special or additional rules and procedures on dispute settlement identified in Appendix 2 to the DSU.  The  Anti-Dumping Agreement  is 
listed as a covered agreement in Appendix 1 of the DSU.   Articles 17.4 through 17.7 of the  Anti-Dumping 
Agreement  are listed as special or additional rules in Appendix 2 to the DSU. 
83Appellate Body Report, Guatemala – Cement I , paras. 79-80;  Appellate Body Report, US – 1916 
Act, paras. 72-74. 
84Appellate Body Report, US – 1916 Act , paras. 63-82.