WORLD TRADE
ORGANIZATIONWT/DS184/13
19 February 2002
(02-0823)
UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN
HOT-ROLLED STEEL PRODUCTS FROM JAPAN
Arbitration
under Article 21.3(c) of the
Understanding on Ru les and Procedures
Governing the Settlement of Disputes
Award of the Arbitrator
Florentino P. FelicianoWT/DS184/13
Page 1
I. Introduction
1. On 23 August 2001, the Dispute Settlement Body  (the "DSB") adopted the Appellate Body
Report1 and the Panel Report 2, as modified by the Appellate Body Report, in  United States – Anti-
Dumping Measures on Ce rtain Hot-Rolled Steel Products from Japan  ("US – Hot-Rolled Steel ").3  At
the DSB meeting of 10 September 2001, the United Stat es informed the DSB, pursuant to Article 21.3
of the  Understanding on Rules and Procedures Go verning the Settlement of Disputes   (the "DSU"), that
it would implement the recommendations and rulings of the DSB in this dispute and that it would
require a "reasonable period of time" to do so, under the terms of Article 21.3 of the DSU.4
2. In view of its inability to reach an agreem ent with the United States on the period of time
reasonably required for implementation of those recommendations and rulings, Japan requested that
such period be determined by binding arbitr ation pursuant to Article 21.3(c) of the DSU.5
3. By joint letter of 6 December 2001, the United States and Japan notified the DSB that they had
agreed that the duration of the "reasonable peri od of time" for implementation should be determined
through binding arbitration, under the terms of Artic le 21.3(c) of the DSU, and that I should act as
Arbitrator.6  The parties had indicated in a previous letter that they had agreed to extend the time period
for the arbitration to 19 February 2002.7  Notwithstanding this extension of the time period, the parties
stated that the arbitration award would be deemed to be an award made under Article 21.3(c) of the
DSU.  My acceptance of the designation as Arbitrator was conveyed to the parties by letter of10 December 2001.
8
4. Written submissions were received from the Un ited States and Japan on 4  January 2002, and an
oral hearing was held on 18 January 2002.
                                                     
1Appellate Body Report, WT/DS/184/AB/R.
2Panel Report, WT/DS184/R.
3WT/DS184/8.
4WT/DSB/M/109.
5WT/DS184/9.
6WT/DS184/11.
7WT/DS184/10.
8WT/DS184/12.WT/DS184/13
Page 2
II. Arguments of the Parties
A. The United States
5. The United States requests me to fix the "reasonab le period of time" at 18 months, so that that
period will expire on 23 February 2003.
6.  The United States submits that implementation will entail a multi-faceted process that may
include extensive consultations w ith Congress, legislative action, internal analysis and revision of
certain policies and practices, and a recalculation of th e dumping margins.  It anticipates that the process
will require 14 months for the enactment of amending  legislation and 4 additional months to apply this
legislation to the anti-dumping investigation at issue.
7. In the present case, the United States argues that the legal forms of implementation and the
technical complexity of the necessary measures c onstitute particular circumstances that justify a
"reasonable period of time" in excess of 15 months under Article 21.3(c).
8. The United States explains that this case requires a sequential combination of forms of
implementation.  The first step involves the enactment  of a statute amending Section 735(c)(5)(A) of the
United States Tariff Act of 1930, as amended, which refers to the calculation of the "all others" rate.The "all others" rate is defined in this statute as the rate of dumping duty that is imposed on companiesthat were not individually investigated.  Followi ng the enactment of the amending statute, the
Department of Commerce of the Unite d States will be required to issue an amended determination in the
anti-dumping investigation at issue.  The United Stat es maintains that this second step can be carried out
only after enactment of this legislation, given that the administering authority must apply the amended
statute.
9. The United States further states that, in additi on to amending the statute relating to the "all
others" rate and applying it, there are other recommendations and rulings to be implemented.  Theseother recommendations and rulings are already in  the process of being implemented and their
implementation will be completed within the time period required to pass the legislative change
mentioned earlier.  As an example, the United States  mentions the need to change the administrative
practice with respect to the exclusion of home market  sales on the basis of the "99.5 percent" or "arm's
length" test.  No additional time is separately sought to carry out such change of practice.
10. The United States submits that a period of 14 months to make the necessary legislative changes
is reasonable in the light of the United States legal system and prior experience.  The end of this period
would correspond, according to the United States, to the end of the current (2002) session of the United
States Congress when there is greater likelihood of enactment of the implementing legislation.WT/DS184/13
Page 3
11. According to the United States, a period of 14 months for implementation of the necessary
legislation is consistent with past arbitrati on awards under Article 21.3(c) of the DSU.  The
United States points, in this regard, to the time periods set by the arbitrators in several previous
disputes.9
12. In describing the procedures for introducti on and consideration of legislation in the
United States Congress and the timeframe applicable to  these procedures, the United States explains that
the earliest date a bill can be introduced is during the month of January, when its Congress convenes.
The process is complex and a bill must move through numerous stages, none of which has well-definedtimetables.  To illustrate the volu me of its legislative business, the United States notes that a total of
5,514 bills were introduced during the First Sessi on of the 106th Congress and only 170 of these bills
became law.  The United States points out that at ever y step of the process, legislators have the ability to
control the progress of a bill or to seek additional time for its consideration.  Most bills that do become
law are not enacted until the last weeks or months of a legislative session.  Fifteen of  25 major trade
laws enacted since 1930 became law at the end or after a session of the United States Congress.
13. According to the United States, the actions th at must be undertaken in the anti-dumping
investigation at issue following enactment of the amending statute include:  calculation of the "all
others" rate based on the new methodology;  prepar ation of a draft redetermination to provide to
interested parties for comment as required under dom estic law;  issuance of a final redetermination;
and, finally, correction of clerical errors.
14. The United States maintains that the  Agreement on Implemen tation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement ") contains a number of due
process and transparency obligations that should be taken into account in determining the amount of
time required to issue the dumping redetermination.  Reference is made to, for example, Articles  6.2,6.4 and 12 of the  Anti-Dumping Agreement .  The United States stresses that these due process
safeguards are no less significant in the context of a redetermination based on the DSB'srecommendations and rulings and argues, therefore, that the arbitrator's award should respect these
safeguards as reflected in United States law and regulations.
                                                     
9The United States refers to Award of the Arbitrator, Japan – Taxes on Alcoholic Beverages – Arbitration
under Article 21.3(c) of the DSU  ("Japan – Alcoholic Beverages II "), WT/DS8/15, WT/DS10/15, WT/DS11/13,
14 February 1997, DSR 1997:I, 3;  Award of the Arbitrator, European Communities – Regime for the Importation,
Sale and Distribution of Bananas – Arbitration under Article 21.3(c) of the DSU  ("EC – Bananas III "),
WT/DS27/15, 7 January 1998, DSR 1998:I, 3;  Award of the Arbitrator, EC Measures Concerning Meat and Meat
Products (Hormones) – Arbitration under Article 21.3(c) of the DSU ("EC – Hormones "), WT/DS26/15,
WT/DS48/13, 29 May 1998;  Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – Arbitration
under Article 21.3(c) of the DSU  ("US – 1916 Act "), WT/DS136/11, WT/DS162/14, 28 February 2001;  and,
Award of the Arbitrator, United States – Section 110(5) of the US Copyright Act – Arbitration under Article 21.3(c)
of the DSU  ("US – Section 110(5) Copyright Act "), WT/DS160/12, 15 January 2001.WT/DS184/13
Page 4
15. The United States thus submits that the practical minimum to recalculate the "all others" rate
and to make a draft redetermination available to in terested parties is at least 30 days following the
enactment of the amending legislation.  This woul d be followed by a 30-day period to allow for
comments from interested parties.  Then, an additi onal time period of 30 days are required to produce a
final redetermination.  Finally, 30 days are added to make any necessary corrections.  These time
periods add up to 4 months following the 14 mont hs required for the enactment of the amending
legislation.  The United States requests, therefore,  that the "reasonable period of time" be set at 18
months.
B. Japan
16. Japan submits that a period of 10 months from the date of adoption of the Panel Report, as
modified by the Appellate Body, and up to 23 June 2002, is a "reasonable period of time" forimplementation by the United States of th e recommendations and rulings of the DSB.
17. According to Japan, in order to implement the rulings and recommendations of the DSB, the
United States must:
(i) amend the statutory provision on the "all others" rate to remove the requirement that
these rates exclude only those margins based "entirely" on the facts available;
(ii) adopt an even-handed "arm's length" test for determining whether the home market
sales to affiliates are made in the ordinary course of trade;
(iii) recalculate Kawasaki Steel Corporation's ("KSC") dumping margin incorporating the
new "arm's length" test and not applying adverse facts available to KSC'sUnited States sales through its affiliated company in the United States;
(iv) recalculate Nippon Steel Corporation’s ("NSC") dumping margin incorporating the
new "arm's length" test and not applying facts available (i.e., using  NSC's submittedweight conversion factor);
(v) recalculate NKK Corporation’s ("NKK") dumping margin incorporating the new
"arm's length" test and not applying facts available (i.e., using NKK's submittedweight conversion factor);
(vi) recalculate the "all others" dumping margin incorporating the change in the statutory
provision; and,WT/DS184/13
Page 5
(vii) redetermine whether the domestic industry is materially injured by reason of subject
imports while ensuring that the merchant and captive markets are examined in a likeor comparable way, and that the proper standard is applied to avoid attributing theeffects of other causes to imports.
18. Japan argues that Article 21.1 of the DS U requires "prompt compliance" with the
recommendations and rulings of the DSB.  It asse rts further that the implementing Member bears the
burden of proving that "prompt" or "immediate" complia nce is "impracticable".  Japan then refers to the
arbitrator's award in  Canada – Patent Protection of Pharmaceutical Products – Arbitration under
Article 21.3(c) of the DSU  ("Canada – Pharmaceutical Patents
 ") 10, and asserts that this burden
increases with the length of the proposed peri od for implementation.  Japan contends that the
United States has failed to meet this burden.
19. Referring to the arbitrator's award in  Canada- Pharmaceutical Patents 11, Japan argues that in
an arbitration under Article 21.3(c) of the DSU, as  a general rule, only factors relating to actual
implementation within the Member's domestic legal system may be considered.  In past arbitrations,
arbitrators have considered as relevant such circumstances as the means of implementation, the
complexity of the measures, and the existence of  mandatory time limits for procedures under domestic
law, while refusing to consider other circumstances, such as the "contentiousness" of theimplementation, the ongoing struct ural adjustment or the adverse effects on domestic producers and
consumers within the implementing Member.  Relyin g on these considerations, Japan submits that any
domestic hurdles of a non-legal nature that the Un ited States' implementation efforts may face are
irrelevant to the analysis under Article 21.3(c).
20. According to Japan, the maximum time peri od within which the United States should
implement the DSB's recommendations and rulings is  10 months.  The United States should be able to
complete the amendment of its statute within a pe riod of seven months from the date the DSB adopted
the Panel Report as modified by the Appellate Body .  Japan states that amendments to the "Foreign
                                                     
10Award of the Arbitrator, WT/DS114/13, 18 August 2000.
11Ibid.WT/DS184/13
Page 6
Sales Corporations" legislation were enacted in thre e and a half months from the date of introduction of
the amending bill and that the Byrd Amendment was enacted in less than one month from the date it was
attached to another bill.  The amendment required in the present case to make the statute consistent with
the  Anti-Dumping Agreement  is only the deletion of one word—"en tirely".  Japan additionally explains
that in respect of the "arm's length" test, the United States does not need to amend its existing
regulations, but rather needs only to correct its admini strative practice.  In the view of Japan, the United
States should be able to complete this change in  administrative practice within the seven months that
Japan proposes be allocated for the enactment of the amending legislation.
21. Japan contends that once the statute is amended, the United States can complete the
recalculations of all dumping margins within a period of  one month.  This period is similar to that used
by the United States during the original less-than-f air-value investigation.  Japan does not see why the
United States needs to collect new information to perform the recalculations;  the changes needed are
simple changes to the pertinent programming code.
22. Japan also submits that the injury redetermina tion can be carried out within 45 days after the
dumping recalculation is issued.  The United States  International Trade Commission (the "USITC"), the
agency responsible for performing th e injury analysis, can begin its work immediately, even while the
other agencies are carrying out their own tasks.  The facts and analysis necessary for this purpose havealready been established.  Forty-five days is the period normally given to the USITC to take thedumping margins into consideration.
23. Japan finally contends that the remaining pr ocedures, including those required under United
States law, can be completed within two week s from the date the USITC completes its injury
redetermination.  These procedures include the cons ultations with the United States Congress required
under the Uruguay Round Agreements Act and the publication of the redeterminations in the  Federal
Register .  United States law does not provide any maximu m or minimum time periods to carry out these
procedures.  Japan requests, therefore, that the "reasonable period of time" for implementation of the
recommendations and rulings of the DSB by the Unite d States be set at 10 months from the adoption of
the Appellate Body Report.WT/DS184/13
Page 7
III. Reasonable Period of Time
24. My task in this arbitration is to determine the "r easonable period of time", as that term is used in
Article 21.3 of the DSU, for the implementation of  the recommendations and rulings of the DSB in
US – Hot-Rolled Steel.
25. It is useful to recall the essential principle and rule that WTO Members are committed to
"prompt compliance" with DSB recommendations and rulings12 and that "prompt compliance" translates
into "immediate" compliance. 13  When, however, such "immediate" compliance is " impracticable, " then
the Member bound to comply becomes entitled to "a  reasonable period of time" within which to
comply.14  It is similarly salutary to recall that the 15-month period mentioned in Article 21.3(c) of the
DSU is expressly designated as "a  guideline  for the arbitrator" (emphasis added):  the "reasonable
period of time" to implement panel or Appellate Body recommendations "s hould not exceed 15 months"
from the date of adoption of the panel or Appella te Body Report, which period may, however, be
"shorter or longer", "depending upon the particular circumstances." 15  I do not see any basis for reading
the 15-month guideline as establishing a fixed maximum or " outer  limit" for "a reasonable period of
time."  Neither, of course, does the 15-month guideline constitute a  floor  or " inner  limit" of "a
reasonable period of time".  In  US – Hot-Rolled Steel ,  the implementation of which is involved here,
the Appellate Body had occasion to interpret the phr ase "reasonable period" found in Article 6.8 of the
Anti-Dumping Agreement  and "reasonable time" used in paragraph 1 of Annex II of that Agreement.
"The word 'reasonable'", the Appellate Body stated:
… implies a degree of flexibility that involves consideration of all of
the circumstances of a particular case.  What is "reasonable" in one setof circumstances may prove to be less than "reasonable" in different
circumstances.  This suggests that what constitutes a reasonable period
or a reasonable time under Article 6.8 and Annex II of the  Anti-
Dumping Agreement , should be defined on a case-by-case basis, in the
light of the specific circumstances of each investigation.
In sum, a "reasonable period" must be interpreted consistently with the
notions of flexibility and balance that are inherent in the concept of
"reasonableness", and in a manner that allows for account to be taken
of the particular circumstances of each case.
16
                                                     
12Article 21.1 of the DSU.
13Article 21.3 of the DSU.
14Ibid.
15Ibid.
16Appellate Body Report, supra,  footnote 1, paras. 84-85.WT/DS184/13
Page 8
26. Although, in the above excerpt the Appellate Body d ealt with the  Anti-Dumping Agreement ,
and not the DSU, the essence of "reasonableness" so articulated is, in my view, equally pertinent for an
arbitrator faced with the task of determining wh at constitutes "a reasonable period of time" in the
context of the DSU.
27. As already noted, the DSB adopted the Panel's recommendations as modified by the Appellate
Body in  US – Hot-Rolled Steel .  The overall recommendation was that the United States bring its
measures found to be inconsistent with the  Anti-Dumping Agreement and the  Marrakesh Agreement
Establishing the World Trade Organization  (the " WTO Agreement ") into conformity with its
obligations under those Agreements.  The United St ates measures found to be WTO-inconsistent,
pertinent for present purposes, were the following:
(a) the application of "facts available" to NSC, NKK and KSC in the determination of the
dumping margins of NSC, NKK and KSC;
(b) Section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended, and the
United States' application of this provision in connection with the determination of
the anti-dumping duty rate for exporters which were not individually investigated (the"all others" rate) in this case;
(c) the exclusion from the calculation of normal value, as outside "the ordinary course of
trade", of certain home market sales to parties affiliated with an investigated exporteron the basis of the "99.5 percent" or "arm's length" test;  and
(d) the application of Section 771(7)(C)(iv) of the United States Tariff Act of 1930, as
amended, known as the captive production provision, in the determination in this case
of injury sustained by the United States' hot-rolled steel industry.
28. In  Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished
Leather: Arbitration under Article 21.3(c) of the DSU ("Argenti na – Hides and Leather
 "), the Arbitrator
stated that:
[T]he non-conforming measure is to be brought into a state of
conformity with specified treaty provisions either by  withdrawing
such measure completely, or by  modifying  it by excising or
correcting the offending portion of the measure involved.  Where the
non-conforming measure is a statute, a repealing or amendatory
statute is commonly needed.  Where the measure involved is an
administrative regulation, a new statute may or may not be necessary,
but a repealing or amendatory regulation is commonly required. *WT/DS184/13
Page 9
It thus appears that the concept of compliance or implementation
prescribed in the DSU is a technical concept with a specific content:
the withdrawal or modification of a measure, or part of a measure, the
establishment or application of which by a Member of the WTO
constituted the violation of a provision of a covered agreement.(original emphasis)
17
_____________________
*The non-conforming measure might also assume other forms:  e.g., an
executive or administrative practice actually carried out but not specifically
mandated or authorized by statute or administrative regulation;  or a "quasi-
judicial" determination by an administrative body.  Since the Argentinemeasures involved in this arbitration are not of these kinds, it is not necessaryto examine the requirements of compliance where those other kinds ofmeasures are concerned.
29. In the present case, both the United States and Japan are in agreement that a statute
appropriately modifying Section 735(c)(5)(A) of the United States Tariff Act of 1930, as amended,would be necessary, both to put that (a) provision a nd (b) the application thereof in the determination of
the "all others" anti-dumping duty rate in the present case, into a state of conformity with Article 9.4 of
the  Anti-Dumping Agreement .
30. There is, however, no agreement between the par ties on what the amending statute should set
forth.  Japan submits that all the amending law need s to do is to excise one word—"entirely"—from the
existing statute, that is, Secti on 735(c)(5)(A) of the United States Tariff Act of 1930, as amended.  The
United States believes that Japan's view is oversi mplified and that a more complex amending statute
may well be necessary or appropriate.  However, the United States has not, at this time, determined theproper scope and specific content of the necessary le gislation.  The United States also adverts to the
presence of the  lacuna  identified by the Appellate Body in Article 9.4 of the  Anti-Dumping
Agreement , in effect suggesting, it appears to me, that the amending United States legislation might also
address the matter of ensuring that the  lacuna  is filled in a WTO-consistent manner.
18  I do not believe
that an arbitrator acting under Article 21.3(c) of th e DSU is vested with jurisdiction to make any
determination of the proper scope and content of implementing legislation, and hence do not propose to
deal with it.  The degree of complexity of the c ontemplated implementing legislation may be relevant
for the arbitrator, to the extent that such complexity bears upon the length of time that may reasonably
be allocated to the enactment of such legislati on.  But the proper scope and content of anticipated
legislation are, in principle, left to the implementing WTO Member to determine.
                                                     
17Award of the Arbitrator, WT/DS155/10, 31 August 2001, paras. 40 and 41.
18Appellate Body Report, US – Hot-Rolled Steel ,  supra, footnote 1 , para. 126.  The Appellate Body
noted that, "while Article 9.4  prohibits  the use of certain margins in the calculation of the ceiling for the 'all
others' rate, it does not expressly address the issue of how that ceiling should be calculated in the event that  all 
margins are to be excluded  from the calculation under the prohibitions".  The Appellate Body did not address
this matter, which had not been raised in the appeal.WT/DS184/13
Page 10
31. There is also agreement between the United St ates and Japan that implementing action of an
administrative nature is necessary in this case.  It  appears that such administrative implementation would
not require the formulation and promulgation of so me new administrative regulation to set aside or
modify a pre-existing regulation.  No pre-existing United States administrative regulation was found to
be WTO-inconsistent by the Panel or the Appellate Body in  US – Hot Rolled Steel .  Rather, the
corrective or implementing actions by administrative officials of the United States will include the
revision of certain calculations or determinations ma de by such officials by excluding from or including
in such determinations certain discrete data or transa ctions.  Thus, in respect of the determination of the
home value of the hot-rolled steel products here involved, certain sales transactions between aninvestigated exporter and its affiliated company, previously excluded under the "99.5 percent" or "arm's
length" test applied by the United States administra tive officials, would have to be factored in a
redetermination of such home value.  Again, the dumping margins of NSC, NKK and KSC would have
to be recalculated or redetermined by, inter alia , replacing the "facts available" previously utilized with
the data supplied by NSC, NKK and KSC.  It may be that such redeterminations could result in
consequential changes becoming necessary in "dow nstream" determinations by the same or other
United States administrative officials or agencies.
32. The temporal relationship between the legislative and the administrative implementing actions
is an important consideration in the present arbitr ation.  The United States and Japan agree that the
relationship is not necessarily a linear, sequential one and that some administrative actions may well betaken, or at least commenced, concurrently with th e initiation of the legislative implementing effort.
33. There is, however, disagreement in respect of which administrative action or actions may be
undertaken by the United States at the same time that  its legislative amending process is set in motion.
The United States argues that some of the admini strative actions involved in implementation must be
performed in a sequential order following the enactment of the amending statute.  More specifically, the
United States states that it cannot undertake, for in stance, the recalculation of the "all others" anti-
dumping duty rate before completion of the amendm ent of Section 735(c)(5)(A) of the United States
Tariff Act of 1930, as amended.
19  At the same time, the United States states that modification of the
"99.5 percent" or "arm's length" test applied in pr actice by its administrative officials has already been
commenced and will be completed even before the amendment of Section 735(c)(5)(A) is done.20
34. In support of its request for a period of 4 months to complete the administrative actions
necessary for implementation, in addition to the peri od of 14 months for the legislative phase of such
implementation, the United States adverts to certain requirements of the  Anti-Dumping Agreement
                                                     
19United States' response to questions at the oral hearing.
20Ibid.WT/DS184/13
Page 11
relating to due process and transparency standards to be complied with in anti-dumping investigations
carried out by the authorities of a WTO Member.  These embrace, for instance, giving "all interested
parties … a full opportunity for the defense of their interests" 21, including meeting "parties with adverse
interests, so that opposing views may be presented and rebuttal arguments offered" 22;  providing "timely
opportunities" for interested parties to see inform ation relevant to their cases and to prepare
presentations based on that information;23 and giving public notice and explanation of, e.g., preliminary
and final determinations of the Member's authorities.24  The United States stresses that the above
standards are applicable in respect of a redetermination based on the DSB's recommendations andrulings, and adverts to provisions of its own laws a nd regulations said to reflect those treaty standards.
25
                                                     
21Article 6.2 of the Anti-Dumping Agreement .
22Ibid.
23Article 6.4 of the Anti-Dumping Agreement .
24Article 12 of the Anti-Dumping Agreement.
25Sections 129(c) and (d) of the Uruguay Round Agreements Act in relevant part provide:
(c) EFFECTS OF DETERMINATIONS;  NOTICE OF
IMPLEMENTATION.—
…
(2) NOTICE OF IMPLEMENTATION.—
(A) The administering authority shall publish in the Federal
Register notice of the implementation of any determination made under this
section with respect to title VII of the Tariff Act of 1930.
(B) The Trade Representative shall publish in the Federal
Register notice of the implementation of any determination made under this
section with respect to title II of the Trade Act of 1974.
(d) OPPORTUNITY FOR COMMENT BY INTERESTED PARTIES —
Prior to issuing a determination under this section, the administering
authority or the Commission, as the case may be, shall provide interestedparties with an opportunity to submit written comments and, in appropriatecases, may hold a hearing, with respect to the determination.  (Exhibit 12 tothe United States' submission)
See, further, Section 123(g) of the Uruguay Round Agreements Act, which provides in relevant part:
(g) REQUIREMENTS FOR AGENCY ACTION.—
(1) CHANGES IN AGENCY REGULATIONS OR PRACTICE.
— In
any case in which a dispute settlement panel or the Appellate Body finds in
its report that a regulation or practice of a department or agency of the United
States is inconsistent with any of the Uruguay Round Agreements, thatregulation or practice may not be amended, rescinded, or otherwise modified
in the implementation of such report unless and until 
—
…
(C) the head of the relevant department or agency has provided
an opportunity for public comment by publishing in the Federal Register the
proposed modification and the explanation for the modification;
…
(F) the final rule or other modification has been published in the
Federal Register. (Exhibit 1 to the United States' submission.)WT/DS184/13
Page 12
In the light of the foregoing, "and the particular circumstances of this case where much work can be
done prior to the enactment of any legislation", the United States submits the following breakdown of
administrative activity it proposes to undertake following the passage of legislation:
[A] minimum of 30 days following any legislation to make a
"preliminary" redetermination available to the parties (compared to 140
days for a preliminary determination in a normal investigation), a further
30 days to provide an opportunity for interested parties to providecomments (compared to 50 days for a normal investigation), 30 days to
produce a final redetermination (including rebuttal comments, a hearing,
and consideration of comments and views in the final determination)(a
total time of 60 days from "preliminary" to "final" determination,
compared to 75 days in a normal investigation), and a final 30 days tomake any necessary corrections (the same as in a normal investigation).
This is a total of 120 days, or four months.
26
35. Japan did not address the question whether th e provisions of Articles 6.2, 6.4 and 12 of the Anti-
Dumping Agreement  are applicable in the context of redeterminations made in the course of
implementing recommendations and rulings of the DSB.  I do not consider it necessary to pass upon thatquestion in this arbitration.  It seems suffici ent to note that, upon the assumption they are here
applicable, Articles 6.2, 6.4 and 12 do not establish any minimum or maximum time periods for carrying
out the steps respectively contemplated by those Article s.  It may also be noted that Section 123(g) of
the United States Uruguay Round Agreements Ac t establishes conditions or requirements for
modification of an administrative practice found by a panel or the Appellate Body to be WTO-
inconsistent, but not minimum or maximum time periods for each step.
27  Section 129 of the same
United States statute, sets time limits for actions by the USITC and the United States Department ofCommerce (as "administering authority") that w ould render previous actions or determinations
                                                     
26United States' submission, para. 45.
27Section 123(g)(2) provides that the final rule or modification may not go into effect before  the end of
a 60-day period  beginning on the date on which consultations under paragraph (1)(E) begin, unless the President
determines that an earlier effective date is in the United States' national interest.  The consultationscontemplated in (1)(E) are between the United States Trade Representative and the relevant department or
agency head, and the appropriate congressional committees on the proposed contents of the modified practice.
(Exhibit 1 to the United States' submission)WT/DS184/13
Page 13
WTO-consistent.28  For the USITC, the time-limit  is 120 days;  for the "administering authority", the
maximum  period is 180 days.  In both cases, the  maximum  periods are reckoned from the time the
                                                     
28Sections 129(a) and (b) provide in relevant part:
(a) ACTION BY UNITED STATES INTERNATIONAL TRADE
COMMISSION. —
…
(4) COMMISSION DETERMINATION. — Notwithstanding any
provision of the Tariff Act of 1930 or title II of the Trade Act of 1974, if a
majority of the Commissioners issues an affirmative report under paragraph (1),the Commission, upon the written request of the Trade Representative, shall
issue a determination in connection with  the particular proceeding that would
render the Commission's action described in paragraph (1) not inconsistent withthe findings of the panel or Appellate Body. The Commission shall issue itsdetermination not later than 120 days after the request from the TradeRepresentative is made.
(5) CONSULTATIONS ON IMPLEMENTATION OF COMMISSION
DETERMINATION.
— The Trade Representative shall consult with the
congressional committees before the Commission's determination underparagraph (4) is implemented.
(6) REVOCATION OF ORDER.
— If, by virtue of the Commission's
determination under paragraph (4), an antidumping or countervailing duty order
with respect to some or all of the impor ts that are subject to the action of the
Commission described in paragraph (1) is no longer supported by an affirmativeCommission determination under title VII of the Tariff Act of 1930 or thissubsection, the Trade Representative may, after consulting with thecongressional committees under paragraph (5 ), direct the administering authority
to revoke the antidumping or countervailing duty order in whole or in part.
…
(b) ACTION BY ADMINISTERING AUTHORITY.—
(1) CONSULTATIONS WITH AD MINISTERING AUTHORITY AND
CONGRESSIONAL COMMITTEES.— Promptly after a report by a dispute
settlement panel or the Appellate Body is issued that contains findings that an
action by the administering authority in a proceeding under title VII of the TariffAct of 1930 is not in conformity with the obligations of the United States underthe Antidumping Agreement or the Agreement on Subsidies and CountervailingMeasures, the Trade Representative shall consult with the administeringauthority and the congressional committees on the matter.
(2) DETERMINATION BY ADMINISTERING AUTHORITY.—
Notwithstanding any provision of the Tariff Act of 1930, the administeringauthority shall, within 180 days after receipt of a written request from the Trade
Representative, issue a determination in connection with the particular
proceeding that would render the administering authority's action described inparagraph (1) not inconsistent with the findings of the panel or the AppellateBody.
(3) CONSULTATIONS BEFORE IMPLEMENTATION.— Before the
administering authority implements any determination under paragraph (2), theTrade Representative shall consult with  the administering authority and the
congressional committees with respect to such determination.
(4) IMPLEMENTATION OF DETERMINATION.— The Trade
Representative may, after consulting with the administering authority and thecongressional committees under paragraph (3 ), direct the administering authority
to implement, in whole or in part, the determination made under paragraph (2).
(Exhibit 12 of the United States' submission)WT/DS184/13
Page 14
United States Trade Representative (the "USTR") requests the USITC or the "administering authority"
to render the WTO-consistent redetermination.  In both cases, too, consultations  with the appropriate
congressional committees and provision of opportun ity for comment are required by the statute.
36. The United States has not been specific on whet her or not it would carry out a redetermination
of the presence of "material injury" after factorin g in the results of the recalculations carried out
administratively, and re-evaluating the overall conditi on of the hot-rolled steel industry in the light of an
appropriate analysis of both the "merchant" market and the "captive production" market in that industry.
However, the United States has clea rly stated that, should it undertake an injury redetermination, it will
do so within the confines of the 18-month period it has requested for legislative  cum  administrative
implementation.29  One assumption that naturally suggests itself is that the United States, in its request
for a total of 18 months for implementation measures , has built into that request whatever time it may
need should it conclude that an injury redetermination is necessary or appropriate.
37. Japan believes that the time periods built into the four months requested by the United States for
its administrative, post-legislative phase of impl ementation are too long and not really necessary
considering the kind of operations involved in administ rative recalculations of discrete data.  It should
be noted in this connection that the United States was not very clear as to which administrative acts
(other than the recalculation of the "all others" an ti-dumping duty rate) need to be postponed to the post-
legislative phase, and why and to what extent.  It a ppears that, in some instances, the matter of timing of
the administrative redetermination could reflect,  not United States legal requirements, but rather
considerations of "efficiency" 30, in the sense of economy of effort, that is, doing several
redeterminations at the same time, rather than separately and sequentially.
38. Turning to the legislative phase of the impl ementation of the pertinent recommendations and
rulings of the DSB, two submissions of the United St ates may in particular be usefully noted.  One is
that "pre-legislative" consultations between the re levant executive and administrative officials and the
pertinent congressional committees of the Congress of the United States are necessary in the effort to
develop and organize the broad support necessary fo r the adoption by both Houses of Congress of a
particular proposed WTO-compliance bill.  According to the United States, these consultations are
                                                     
29United States' response to questioning at the oral hearing.
30Ibid.WT/DS184/13
Page 15
different from and do not replace or supersede the formal discussions that take place between the
executive and administrative agencies concerned and the legislative committees to which a bill, once
introduced, may be assigned.31  Even so, it does not seem unreasonable to infer that the formal
proceedings are likely to be carried out with more dispatch in view of the "pre-legislative", informal
consultations already undertaken.  In  Chile – Taxes on Alcoholic Beverages – Arbitration under
Article 21.3(c) of the DSU  ("Chile – Alcoholic Beverages "), the Arbitrator noted that the "pre-
legislative" phase is "an important phase if the success of the legislative effort is important." 32
39. The second submission of the United States worth particular note is that Japan's claim that "a
reasonable period of time" in the present case consists of 10 months, ignores the fact that important trade
bills commonly are approved towards or at the end of the regular session of the United States Congress.A 10-month period would end in June 2002, while th e second session of the 107th Congress would
probably end in October 2002.
33  Japan, for its part, argues that important bills have in fact been passed
in the midst of a legislative session of the United States Congress.  The United States also points out
that, in two dispute settlement proceedings which reached the stage of arbitration under Article 21.3(c)
of the DSU, US – 1916 Act  and  US – Section 110(5) Copyright Act , the arbitrators set the reasonable
period at 10 months and 12 months, respectively.34  The United States on 12 July 2001 asked the DSB to
modify the reasonable period of time determined by the arbitrators in both cases, that were due to expire,
respectively, on 26 July 2001 and 27 July 2001, so th at the modified periods would instead end on
31 December 2001, or on the date on which the then current 2001 session of the United States Congressadjourned, whichever was earlier.  At its meeting of 24 July 2001, the DSB noted and agreed to the
United States' request.  In both instances, the co mplaining parties—the European Communities and
Japan in  US – 1916 Act
;  and the European Communities in US – Section 110(5) of the US Copyright
Act—having previously reached some understanding with the United States on the matter, did not
oppose the requests of the United States.35  It appears to me that whether the actions of the DSB in those
two instances have any precedential value in respect of the present arbitration proceedings, is open to
substantial debate.  The present proceedings have been precipitated precisely by the failure of the partiesto the dispute to reach an agreement on a reasonable period of time to comply under Article 21.3(b) ofthe DSU.
                                                     
31United States' response to questioning at the oral hearing.
32Award of the Arbitrator, WT/DS87/15, WT/DS110/14, 23 May 2000, para. 43.
33United States' submission, para. 15.
34Award of the Arbitrator, US – 1916 Act , supra , footnote 9 and Award of the Arbitrator, US –
Section 110(5) Copyright Act , supra , footnote 9.
35WT/DSB/M/107, paras. 64 and 69-70.WT/DS184/13
Page 16
IV. The Award
40. Having regard to the written and oral submissi ons of the parties, the considerations indicated
above and the circumstances constituting this case, my determination is that the reasonable period forthe United States to comply with the recommendations and rulings of the DSB is a total of 15 months
from 23 August 2001.  This period, which covers both legislative and administrative phases of
implementation, will accordingly expire on 23 November 2002.
Signed in the original at Geneva this 4th day of February 2002 by:
________________________
Florentino P. Feliciano
Arbitrator