WT/DS523/R/Add.1  
 
18 December 2018  
(18-7938) Page: 1/74 
    
 
  
UNITED STATES – COUNTERVAILING MEASURES  ON CERTAIN PIPE  
AND TUBE PRODUCTS FROM TURKEY  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document 
WT/DS523/R . 
 
 
_______________  
 
 WT/DS523/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on  Business Confidential Information  9 
Annex  A-3 Interim Review  11 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Turkey  19 
Annex  B-2 Second integrated executive summary of the arguments of Turkey  29 
Annex B -3 First integrated executive summary of the arguments of the United States  38 
Annex B -4 Second integrated executive summary of the arguments of the United States  50 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of  the European Union  63 
Annex  C-3 Integrated executive summary of the arguments of Japan  67 
Annex  C-4 Integrated executive summary of the arguments of Mexico  72 
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  ANNEX  A 
PANEL DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on  Business Confidential Information  9 
Annex  A-3 Interim Review  11 
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Adopted on 8 November 2017  
 
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
2. The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures s hall preclude a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as c onfidential. Where a party submits a confidential version of its written 
submissions to the Panel, it shall also,  upon request of a Member, provide a non -confidential 
summary of the information contained in its submissions that could be disclosed to the pu blic.  
3. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU  
(hereafter "third parties"), shall be present at the meetings only  when invited by the Panel to 
appear before it.  
4. Each party and third party has the right to determine the composition of its own delegation  
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own de legation and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
5. Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which its presents the facts of the case and its arguments, in accordance 
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the 
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable 
adopted by the Panel.  
6. A party shall submit any request for a preliminary ruling at the earliest possible opportunity 
and in any event no later than in its first written submission to the Panel. If Turkey requests such 
a ruling, the United States shall submit its response to the request in its first written submission. 
If the United States requests such a ruling, Turkey shall submit its response to the request prior to 
the first subs tantive meeting of the Panel, at a time to be determined by the Panel in light of the 
request. Exceptions to this procedure shall be granted upon a showing of good cause.  
7. Each party shall submit all evidence to the Panel no later than during the first subs tantive 
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions 
or comments on answers provided by the other party. Exceptions to this procedure shall be 
granted upon a showing of good cause. Where such exception h as been granted, the Panel shall 
accord the other party a period of time for comment, as appropriate, on any new evidence 
submitted after the first substantive meeting.   WT/DS523/R/Add.1  
 
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  8. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of the submission at the 
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. Any objection as to the a ccuracy of a translation should be raised 
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following 
the submission which contains the translation in question. The Panel may grant exceptions to this 
procedure upon a showing of good cause, including where the issue concerning translation arises 
later in the dispute. Any objection shall be accompanied by a detailed explanation of the grounds 
of objection and an alternative  translation. Should a party become aware of any  inaccuracies in the 
translations of the exhibits submitted by that party, it shall inform the Panel and the other party 
promptly, and provide a new translation.  
9. To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submis sions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by Turkey could be numbered TUR -1, 
TUR-2, etc. If the last exhibit in connection with the first submission was nu mbered TUR -5, the 
first exhibit of the next submission thus would be numbered TUR -6. 
Questions  
 
10. The Panel may at any time pose questions to the parties and third parties, orally or in 
writing, including prior to each substantive meeting.   
Substantive meet ings  
 
11. Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 12h00  (noon) the previous working day.  
12. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Turkey to make an opening statement to present its case first. 
Subsequently, the Panel shall invite the United States to present its point of view. Before 
each party takes the floor, it shall provide the Panel a nd other participants at the 
meeting with a provisional written version of its statement. In the event that 
interpretation is needed, each party shall provide additional copies for the interpreters, 
through the Panel Secretary. Each party shall make availa ble to the Panel and the other 
party the final version of its opening statement as well a s its closing statement, if any, 
preferably at the end of the meeting, and in any event no later than 17h00 on the first 
working day following the meeting.  
b. After the c onclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answer these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the other party's written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Turkey presenting its statement first.  
13. The second substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask the United States if it wishes to avail itself of the right to pr esent its 
case first. If so, the Panel shall invite the United States to present its opening statement, WT/DS523/R/Add.1  
 
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  followed by Turkey. If the United States chooses not to avail itself of that right, the Panel 
shall invite Turkey to present its opening statement first . Before each party takes the 
floor, it shall provide the Panel and other participants at the meeting with a provisional 
written version of its statement. In the event that interpretation is needed, each party 
shall provide additional copies for the interp reters, through the Panel Secretary. Each 
party shall make available to the Panel and the other party the final version of its 
opening statement as well a s its closing statement, if any, preferably at the end of the 
meeting, and in any event no later than 17h00 of the first working day following the 
meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall then 
have an opportunity to answ er these questions orally. Each party shall send in writing, 
within a timeframe to be determined by the Panel, any questions to the other party to 
which it wishes to receive a response in writing. Each party shall be invited to respond in 
writing to the ot her party's written questions within a deadline to be determined by the 
Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has  concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
14. The Panel shall invite each third party to  transmit to the Panel a written submission prior to 
the first substantive meeting  of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
15. Each third party shall also be invited to present its views orally during a session of  this first 
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 12h00 (noon) the 
previous working day.  
16. The third -party session shal l be conducted as follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present  their views orally at 
that session, shall provide the Panel, the parties and other third -parties with provisional 
written versions of their statements before they take the floor. Third parties shall make 
available to the Panel, the parties and other third  parties the final versions of their 
statements, preferably at the end of the session, and in any event no later than 17h00 
of the first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a ti meframe to be determined by it, any questions to the third parties to WT/DS523/R/Add.1  
 
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  which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive section  
 
17. The description of the arguments of the parties and third parties in the descriptive section  of 
the Panel report shall consist  of executive summaries provided by the parties and third parties, 
which shall be annexed  as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.  
18. Each party shall submit an integrated executive summary of the facts and arguments as 
presented to the Panel in its first written submissions, first opening and closing oral statements 
and responses to questions following the first substantive meeting, and a separate integrated 
executive summary of its written rebuttal, second opening and closing oral s tatements and 
responses to questions following the second substantive meeting, in accordance with the timetable 
adopted by the Panel. Each integrated executive summary shall be limited to no more than 
15 pages. The Panel will not summarize in a separate pa rt of its report, or annex to its report, the 
parties' responses to questions.  
19. Each third party shall submit an integrated executive summary of its arguments as 
presented in its written submission  and statement in accordance with the timetable adopted by t he 
Panel. This integrated executive  summary may also include a summary of responses to questions, 
if relevant. The executive summary to be provided by each third party shall not exceed six pages.  
20. The Panel reserves  the right to request the parties and thi rd parties to provide executive 
summaries of facts and arguments  presented by a party or a third party in any other submissions 
to the Panel for which a deadline may not be specified in the timetable.  
Interim review  
 
21. Following issuance of the interim repo rt, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
22. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopt ed by the Panel. Such comments shall be limited to commenting on the other party's written 
request for review.  
23. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclose d. 
Service of documents  
 
24. The following procedures regarding service of documents shall apply:  
a. Each party and third party  shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047) .  
b. Each party and third party shall file three paper copies of all documents it submits to the 
Panel. Exhibits may be filed in two copies on a CD-ROM, DVD or USB key  and two paper 
copies. The DS  Registrar shall stamp the documents with the date and time of the filing.  
c. Each party and third party s hall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD -ROM, DVD or USB key  or as an e -mail attachment. If the 
electronic copy is provided by e-mail, it should be addressed to xxxxx@wto.org, with a 
copy to xxxxx @wto.org  and xxxxx@wto.org. If a CD -ROM, DVD or USB key  is provided, WT/DS523/R/Add.1  
 
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  it shall be filed with the DS Registry. The paper version of documents shall constitute the 
official version for purpo ses of the record of the dispute.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the  Panel. Each third party shall serve any 
document submitted to the Panel directly on the parties and all other third parties. Each 
party and third party shall confirm, in writing, that copies have been served as required 
at the time it provides each docume nt to the Panel.  
e. Each party and third party  shall file its documents with the DS Registry and serve  copies 
on the other party (and third parties where appropriate) by 17h00 (Geneva time) on the 
due dates established by the Panel.  A party or third party may  submit  its documents to 
another party or third party in electronic  format only,  subject to the recipient party or 
third party's prior written approval and provided that the Panel Secretary  is notified . 
f. The Panel shall provide the parties with an electroni c version of the descriptive section, 
the interim report and the final report, as well as of other documents as appropriate. 
When the Panel transmits to the parties or third parties both paper and electronic 
versions of a document, the paper version shall constitute the official version for the 
purposes of the record of the dispute.  
25. The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  WT/DS523/R/Add.1  
 
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  ANNEX A -2 
ADDITIONAL WORKING PROCEDURES ON BUSINESS CONFIDENTIA L INFORMATION  
Adopted on 8 November 2017  
1. The following procedures apply to business confidential information (BCI) submitted in the 
course of the present Panel proceedings . 
2. For the purposes of these proceedings, BCI is defined as any information that has been 
designated as such by a party submitting the information to the Panel. The parties shall only 
designate as BCI information that is not available in the public domain, the release of which would 
cause serious harm to the interests of the originator(s) of the information. BCI may include 
information that was previously treated by the U.S. Department of Commerce or the United States 
International Trade Commission as confidential or proprietary information protected by 
Administrative P rotective Order in the course of the countervailing duty proceedings at issue in this 
dispute. In addition, these procedures do not apply to any BCI if the entity which provided the 
information in the course of the aforementioned proceedings agrees in writ ing to make the 
information publicly available.   
3. If a party considers it necessary to submit to the Panel BCI as defined above from an entity 
that submitted that information in the proceedings  at issue, the party shall, at the earliest possible 
date, obtai n an authorizing letter from the entity and provide such authorizing letter to the Panel, 
with a copy to the other party. The authorizing letter from the entity shall authorize both Turkey  
and the United States to submit in this dispute, in accordance with  these procedures, any 
confidential information submitted by that entity in the course of the proceeding . Each party shall, 
at the request of the other party, facilitate the communication to an entity in its territory of any 
request to provide an authorizi ng letter referred to above. Each party shall encourage any entity in 
its territory that is requested to grant the authorization referred to in this paragraph to grant such 
authorization.  
4. No person may have access to BCI except a member of the Secretariat or the Panel, an 
employee of a party or third party, or an outside advisor to a party or third party for the purposes 
of this dispute. However, an outside advisor to a party or third party is not permitted access to BCI 
if that advisor is an officer or emp loyee of an enterprise engaged in the production, sale, export, or 
import of the products that were the subject of the proceedings at issue in this dispute, or an 
officer or employee of an association of such enterprises.  
5. A person having access to BCI shal l treat it as confidential, i.e. shall not disclose that 
information other than to persons authorized to have access to it pursuant to these procedures. 
Each party and third party is responsible for ensuring that its employees and/or outside advisors 
compl y with these procedures. BCI obtained under these procedures may be used only for the 
purpose of providing information and argumentation in this dispute and for no other purpose. All 
documents and electronic storage media containing BCI shall be stored in such a manner as to 
prevent unauthorized access to such information.  
6. A party submitting BCI shall mark the cover and/or first page of the document containing 
BCI, and each page of the document, to indicate the presence of such information. The specific 
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The 
first page or cover of the document shall state "Contains Business Confidential Information on 
pages xxxxxx", and each page of the document shall contain the notic e "Contains Business 
Confidential Information" at the top of the page. Documents previously submitted to the United 
States Department of Commerce containing information designated as BCI for purposes of these 
proceedings pursuant to paragraph 2, and marked  as "Contains Business Proprietary Information", 
shall be deemed to comply with this requirement. A party submitting BCI in the form of, or as part 
of, an Exhibit shall, in addition to the above, so indicate by putting "BCI" next to the exhibit 
number (e.g . Exhibit TUR -1 (BCI)).  WT/DS523/R/Add.1  
 
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  7. Where BCI is submitted in electronic format, the file name shall include the terms "Business 
Confidential Information" or "BCI". In addition, where applicable, the label of the storage medium 
shall be clearly marked with the stateme nt "Business Confidential Information" or "BCI".  
8. Where a party or third party submits a document containing BCI to the Panel, the other 
party or third party referring to that BCI in its documents, including written submissions and oral 
statements, shall cl early identify all such information in those documents. All such documents shall 
be marked and treated as described in paragraph 7. In the case of an oral statement containing 
BCI, the party or third party making such a statement shall inform the Panel bef ore making it that 
the statement will contain BCI, and the Panel will ensure that only persons authorized to have 
access to BCI pursuant to these procedures are present or observing the session at that time. The 
written versions of such oral statements sub mitted to the Panel shall be marked as provided for in 
paragraph 7.  
9. If a party or third party considers that information submitted by the other party or a third 
party should have been designated as BCI and objects to its submission without such designation , 
it shall forthwith bring this objection to the attention of the Panel and the other party, and, where 
relevant, the third parties, together with the reasons for the objection. Similarly, if a party or third 
party considers that the other party or a third  party designated as BCI information which should 
not be so designated, it shall forthwith bring this objection to the attention of the Panel and the 
other party, and, where relevant, the third parties, together with the reasons for the objection. 
The Pane l shall decide whether information subject to an objection will be treated as BCI for the 
purposes of these proceedings on the basis of the criteria set out in paragraph 2.  
10. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized 
under these procedures to have access to BCI. The Panel may, however, make statements of 
conclusion drawn from such information. Before the Panel circulates its final report to the 
Members, the Panel will give each party and, where BCI was submi tted by a third party, that third 
party an opportunity to review the report to ensure that it does not contain any information that 
the party or third party has designated as BCI.  
11. Submissions, exhibits, and other documents or recordings containing BCI will  be included in 
the record forwarded to the Appellate Body in the event of an appeal of the Report of the Panel.  WT/DS523/R/Add.1  
 
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  ANNEX A -3 
INTERIM REVIEW  
1  INTRODUCTION  
1.1.  On 14 September 2018, the Panel issued its Interim Report to the parties. On 28 September 
2018, Turkey and the United States submitted their written requests for review. In addition to its 
written request , the United States also requested the Panel to hold  an interim review meeting  with 
the parties.  On 5 October  2018, Turkey submitted comments on the United States' written request 
for review. The Panel held an interim review meeting  with the parties  on 13 November 2018.  
1.2.  In accordance with Article  15.3 of th e DSU, this Annex sets out our discussion of the 
arguments made at the interim review stage. We have revised certain aspects of the 
Interim  Report in light of the parties' comments. In addition, we have made certain editorial 
changes to improve the clarity  and accuracy of the Final Report, or to correct typographical and 
non-substantive errors, including those suggested by the parties. The footnote numbers in the 
Final Report have changed due to these revisions. The footnote numbers indicated in this Annex 
pertain to those in the Final Report. The paragraph numbers in the Final Report remain 
unchanged.  
2  SPECIFIC REQUESTS FO R REVIEW SUBMITTED B Y THE PARTIES  
2.1  Paragraph 3.1  
2.1.  The United States requests us to modify paragraph 3.1 to clarify which claims Turkey broug ht 
"as such" and those claims it brought "as applied".1 Turkey did not comment on this request.  
2.2.  We have modified this paragraph to specify which claims Turkey brought "as such" and those 
it brought "as applied".  
2.2  Paragraphs  7.6 and 7.15  
2.3.  The United States r equests us to delete the term "manager" in describing OYAK as a pension 
fund, as this term is not used in the description of OYAK in the USDOC's determinations.2 Turkey 
did not comment on this request.  
2.4.  We have made the requested change in these two paragra phs. 
2.3  Paragraph 7.17  
2.5.  The United States requests us to modify this paragraph to accurately describe its argument 
concerning OYAK.3 Turkey asks us to reject the United States' request because Turkey considers 
that the USDOC did treat OYAK as a governmental entity or as governmental in the broader 
sense.4 
2.6.  We have made some changes to more closely reflect the actual language used by the 
United  States  in its submissions without making any of the requested changes objected to by 
Turkey. We consider that these changes reflect the United States' position.  
                                                
1 United States' request for interim review, para. 4.  
2 United States' request for interim review, paras. 5 -6. 
3 United States' request for interim review, para. 7.  
4 Turkey's comments on the United States' request for interim review, para. 1.  WT/DS523/R/Add.1  
 
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  2.4  Paragraph 7.21 and footnote 51  
2.7.  The United States requests us to modify footnote 51 to r eiterate its argument that we should 
not consider Turkey's arguments with respect to OYAK in  the context of its challenge to Erdemir 
and Isdemir because the claim was independently raised .5 Turkey requests us to modify the last 
sentence to avoid suggesting  that the parties have agreed on OYAK's status.6 
2.8.  We have made the requested changes to clarify the United States' argument and to address 
Turkey's concern.  
2.5  Paragraph 7 .27 and footnote 61  
2.9.  The United States requests us to modify this paragraph and footnote 6 1 to reflect the fact 
that Erdemir's ownership interest in Isdemir differed slightly in each of the challenged 
determinations.7 Turkey did not comment on this request.  
2.10.   We have made changes to paragraph 7.27 and footnote 61 to reflect that Erdemir's 
ownersh ip interest in Isdemir differed slightly in the context of each of the challenged 
determinations.  
2.6  Paragraph 7.61  
2.11.   The United States requests us to delete the language "not legally 'relevant'" from this 
paragraph because the USDOC's determinations used the p hrase "not dispositive".8 Turkey asks us 
to reject the United States' request because the USDOC used the language "not legally 'relevant'" 
in the OCTG CVD Final Determination Memorandum.9 
2.12.   We reject the United States' request because, as Turkey notes, the USDOC used the word 
"relevant" in the OCTG CVD Final Determination Memorandum. The USDOC alternately used the 
term "dispositive" in the WLP, HWRP, and CWP  CVD Final Determination Memorand a. Therefore, 
it is accurate to include both terms.  
2.7  Paragraph 7.96  
2.13.   The United States requests us to delete the word "sole" before the word "basis" when 
referring to the United States' argument concerning Turkey's "as such" claim corresponding to the 
benefit determination in the OCTG investigation.10 Turkey did not comment on  this request.  
2.14.   We have made the suggested deletion.  
2.8  Paragraph 7.102  
2.15.   The United States requests us to modify this paragraph to clarify that the United States 
requested the Panel to find that the OCTG Final Determination is outside the Panel's terms of 
reference.11 Turkey did not comment on this request.  
2.16.   We have made the suggested change.  
2.9  Paragraphs 7.103 and 7.105  
2.17.   The United States requests us to delete paragraph 7.103 concerning panels' discretion to 
rule on expired measures, and to additionally modify parag raph 7.105 to indicate that the Panel 
has no basis to make findings on a measure that ceased to have legal effect or was withdrawn 
                                                
5 United States' request for interim review, para. 8.  
6 Turkey's request for interim review, para. 2.  
7 United States' request for interim review, paras. 9 -10. 
8 United States' request for interim review, para. 11.  
9 Turkey's comments on the United States' request for interim review, para. 2.  
10 United States' request for interim review, para. 12.  
11 United States' request for interim review, para. 13.  WT/DS523/R/Add.1  
 
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  prior to the establishment of a panel.12 The United States considers that prior panel reports 
support its position that panels  have no discretion to make findings regarding measures that 
expire before  a panel's  establishment. In such instances, the United States considers that panels 
are required to rule that such measures fall outside of a panel's terms of reference.13 Turkey did  
not comment on this request.  
2.18.   We see no basis to make either of the United States' requested changes. Paragraph 7.103 is 
correct as formulated. The Panel otherwise disagrees with the United States that panels have no 
discretion to make findings on measures  at issue  that ceased to have legal effect or were 
withdrawn prior to the establishment of a panel. We hold the view that the decision whether to 
make findings on a given measure that has expired – including measures that have expired prior 
to a panel's  establishment – will depend on the circumstances of the case. A panel is therefore 
required to exercise its discretion in deciding whether to make findings depending on the 
circumstances.  
2.10  Paragraph 7.106  
2.19.   The United States requests us to conform the language in this paragraph with the changes it 
has requested to paragraphs 7.103 and 7.105. In particular, the United States requests that the 
Panel state that it has no basis to make "as applied" findings, rather than stating that the Panel 
does not need to make f indings on the WTO consistency of the initial benchmark determination.14 
Turkey asks us to reject this request in the view that the phrases "see no basis" and "do not need 
to make" have different meanings, and because Turkey disagrees with the United States ' view that 
the Panel had no discretion in deciding whether to make findings or not.15 
2.20.   We decline to make this change for the same reason as we declined to make changes to 
paragraphs 7.103 and 7.105.  
2.11  Paragraph 7.123  
2.21.   The United States requests us to adjust l anguage in this paragraph to indicate that the 
United  States submitted examples in response to the Panel's questions seeking such examples.16 
Turkey did not comment on this request.  
2.22.   We have made the requested change.  
2.12  Paragraphs 7.153, 7.157, 7.209, 7.213, 7 .217, 7.220, and 7.249  
2.23.   The United States requests us to replace  the phrase "reasonable and unbiased investigating 
authority"  with "objective and unbiased investigating authority" in last sentence of 
paragraph  7.153,  as well as in  paragraphs 7.157, 7.209, 7 .213, 7.217, 7.220 , and 7.249 , to reflect 
the standard of review as articulated in prior panel reports.17 Turkey did not comment on this 
request.  
2.24.   We have made the requested changes to improve consistency and to conform the language 
to the applicable standard of review  as set out in, inter alia , paragraphs 7.2, 7.3 , 7.205 , 
and 7.222.  
2.13  Paragraph 7.190  
2.25.   The United States requests us to replace  the word "determine" with "make determination s" 
in the first sentence of paragraph 7.190  to more accurately reflec t the text of Article 12.7 of the 
SCM Agreement.18 Turkey did not comment on this request.  
                                                
12 United Stat es' request for interim review, para. 18.  
13 United States' request for interim review, paras. 15 -17. 
14 United States' request for interim review, para. 19.  
15 Turkey's comments on the United States' request for interim review, para. 3.  
16 United States' requ est for interim review, para. 20.  
17 United States' request for interim review, paras. 21 -22. 
18 United States' request for interim review, para. 23.  WT/DS523/R/Add.1  
 
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  2.26.   We have made the requested change.  
2.14  Subsection 7.5.2.2.2 heading and paragraph 7.203  
2.27.   The United States requests us to modify  the heading of this subsection to read "Punitive 
application of facts available"  rather than  "Punitive facts available". The United States also 
requests us to make similar modifications to  the third and fifth sentences of  paragraph 7.203.19 
Turkey did not make any comment on this request.  
2.28.   We have made the requested change s. 
2.15  Paragraph 7.200  
2.29.   The United States requests us to replace "this data" in the second sentence of 
paragraph  7.200 with "the data provided by Borusan regarding its purchases of HRS for the Gemlik 
mill" to specify which data that is being discussed .20 Turkey did not comment on this request.  
2.30.   We have made the requested change.  
2.16  Paragraph 7.202  
2.31.   The United States requests us to modify this paragraph  to more accurately refl ect the 
United  States' argument that the use of weighted average transaction prices would in general 
"require a finding that is necessarily better  than some of the outcomes for cooperating entities".21 
In particular the United States requests that we replac e the language "have led to a finding which 
would have made Borusan necessarily better off" with the language "in general lead to findings 
that are necessarily better than some of the outcomes for cooperating entities" . Turkey did not 
comment on this reque st.  
2.32.   We have made the requested change.  
2.17  Paragraph 7.204  
2.33.   The United States requests us to modify the language in the second sentence to reflect that 
the alleged punitive nature of the USDOC's application of facts available is an argument advanced 
by Turkey  and contested by the United States.22 Turkey did not comment on this request.  
2.34.   We have made the requested change.  
2.18  Paragraph 7.215  
2.35.   The United States requests us to strike the phrase "to discourage non -cooperation" in the 
second sentence in paragraph 7.215 to  avoid giving the impression that the USDOC inferred 
adversely by selecting the lower price on the record to discourage non -cooperation. According to 
the United States, there is no statement in the USDOC's Final D etermination to this effect.23 
Turkey disagrees that the sentence is inaccurate as currently drafted. In the event that the Panel 
were to modify this paragraph, Turkey requests us to indicate that the USDOC inferr ed adversely 
in selecting the lowest price on the record because of Borus an's non -cooperation.24 
2.36.   We do not  consider that  the United States' requested change is a fair reflection of the 
USDOC's  determination in this regard.  Although  the USDOC does not explicitly state in its 
determination that it inferred adversely in order to di scourage non -cooperation, the USDOC 's 
OCTG  Final Determination  nevertheless  clearly connects its decision to apply an adverse inference 
                                                
19 United States' request for interim review, paras. 24 and 27.  
20 United States' request for interim review, para. 25.  
21 United States' request for interim review, para. 26 (referring to United States' response to Panel 
question No. 47, para. 146).  
22 United States' request for interim review, para. 28.  
23 United States' request for interim review, para. 29.  
24 Turkey's comments on the United States' request for interim review, para. 4.  WT/DS523/R/Add.1  
 
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  to its finding that Borusan failed to cooperate.25 We have accordingly modified this paragraph to 
reflect the USDOC's sta tements in the OCTG Final  Determination  that the USDOC inferr ed 
adversely in selecting the lowest price on the record because of Borusan's non -cooperation . 
2.19  Paragraph 7.250  
2.37.   The United States requests us to modify this paragraph to indicate that the CWP revi ew and 
the WLP investigation did not cover the identical subsidy programmes, but only some of the same 
programmes .26 Turkey did not comment on this request.  
2.38.   We have made the requested change.  
2.20  Paragraph 7.260, footnote 418  
2.39.   The United States requests us to d elete footnote  418 because it does not support the 
proposition in the text.27 Turkey did not comment on this request.  
2.40.   We have modified the footnote to more clearly support our statement that this is not a 
situation in which the USDOC did not have other fac ts on the record to consider . 
2.21  Paragraph s 7.267, 7.317, 7.330 , and 7.333  
2.41.   Turkey requests us to identify the CWP sunset review at issue as the 2011 CWP sunset 
review.28 The United States did not comment on this request.  
2.42.   We have made the requested change.  
2.22  Paragraph 7.275, footnote 431  
2.43.   The United States requests us to modify  footnote 431 to more accurately reflect the text of 
the Appellate Body's report in Argentina – Import Measures .29 Turkey did not comment on this 
request.  
2.44.   We have made the requested change s. 
2.23  Paragraphs 7.285 -7.295 and footnote 444  
2.45.   The United States requests us to revise our approach as set out in paragraphs 7.285 to 
7.295 and footnote 444 regarding the interpretation of Article 15.3 of the SCM Agreement. The 
United  States submits that the P anel erred in enquiring whether the United States has identified 
"cogent reasons " for deviating from the conclusions reached by the panel and the Appellate Body 
in US – Carbon Steel (India)  regarding the interpretation of  Article 15.3. According to the 
United States, the Panel's understanding of the value of prior adopted panel or Appellate Body 
reports is inconsistent with the relevant provisions of the DSU and the WTO dispute settlement 
system.  The United States thus asks us to eliminate any reference to the notion of "cogent 
reasons" or to otherwise engage with specific provisions in Article 3.9 of the DSU and Article IX:2 
of the WTO  Agreement, and with arguments that have been presented against a "cogent reasons" 
approach.30  
2.46.   At an interim review meeting held with the Panel, the United States elaborated on its 
position that the DSU does not assign precedential value to adopted panel and Appellate Body 
                                                
25 See, e.g. OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 12 ("[W]e find that 
Borusan failed to cooperate by not acting to the best of its ability because Borusan with held requested 
information on its purchases of HRS, despite having two opportunities, and never requested an extension to 
provide this information in accordance with 19 CFR 351.302(c). Consequently, an adverse inference is 
warranted in the application of f acts available.")  
26 United States' request for interim review, para. 30.  
27 United States' request for interim review, para. 32.  
28 Turkey's request for interim review, para. 2.  
29 United States' request for interim review, para. 33.  
30 United States' request for interim review, paras. 34 -36 and 41.  WT/DS523/R/Add.1  
 
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  reports and the interpretations contained in those reports. According to the United States, a  panel 
(or the Appellate Body ) is to apply customary rules of interpretation of public international law in 
assisting the DSB to determine  whether a measure is inconsistent with a Member 's commitments 
under the covered agreements . The United States also argues that t hose rules of interpretation do 
not assign to interpretations given as part of dispute settlement a precedential value for purposes 
of discerning the meaning of the text of the covered agreements. The United States further 
elaborated on why it considers that  there are flaws in the Appellate Body's statement that a panel 
must follow an Appellate  Body interpretation absent undefined "cogent reasons " for departing from 
that interpretation . In this respect, the United States considers that the Appellate Body's "c ogent 
reasons" approach is flawed because (a) it fails to appreciate the functions of panels and the 
Appellate Body in the WTO dispute settlement system; (b) it is based on an erroneous 
interpretation of Article 3.2 of the DSU; (c) it relies on previous re ports that do not support it; 
(d) it misunderstands why parties cite previous reports in WTO disputes; (e) it rests on 
inappropriate analogies to other international adjudicative fora; and (f) it incorrectly assumes the 
existence of a hierarchical structur e that does not reflect the role assigned to the Appellate Body in 
the DSU.31 Although the United States disagrees that adopted panel and Appellate Body reports 
have precedential value, the United States considers it appropriate for a panel to consider and 
refer to prior Appellate Body or panel reasoning in conducting its own objective assessment of the 
matter .32 
2.47.   Turkey disagrees with the United States' requests. Turkey considers that, although the 
concept of "cogent reasons" does not appear in the text of the DSU, it can be derived from a 
reading of Article 3.2, 17.6, and 17.13 of the DSU, and it is well -established that a panel will 
resolve the same legal question in the same way in a subsequent case, absent cogent reasons to 
rule differently.  Turkey furth er submits that the Panel correctly concluded that the United States 
provided no cogent reasons for why the Panel should depart from prior guidance in interpreting 
Article 15.3, and that the Panel did not fail to engage with the United States' arguments.33 
2.48.   We have made certain modifications to paragraphs 7.283 and 7.285 -7.295, and 
accompanying footnotes to clarify our approach and the reasoning supporting our conclusions. 
In making our own objective assessment of the matter before us, we  have recalled that p anels 
may take into account the reasoning followed in prior adopted panel and Appellate Body reports 
when resolving similar legal issues. In this respect, the Report explains  that we are persuaded by 
and agree with the panel 's and the Appellate Body's  interpretations of Article 15.3 of the 
SCM Agreement in US – Carbon Steel (India) , and we therefore adopt the reasoning contained in 
these reports as our own in making our objective assessment of Turkey's claim in this dispute. We 
found it all the more appropr iate to do so given that the United States has raised essentially the 
same arguments in this dispute regarding the interpretation of Article 15.3 of the SCM Agreement 
as were before the panel and the Appellate Body in US – Carbon Steel (India)  and were rej ected in 
their entirety .  
2.24  Paragraphs 7.288 and 7.295  
2.49.   The United States requests us to modify these paragraphs to avoid suggesting that the 
United  States did not raise any new arguments in this dispute concerning the interpretation of 
Article  15.3 of the SCM Agreement apart from those raised before the panel and the Appellate 
Body in US – Carbon Steel (India) . The United States also disagrees that the Appellate Body in 
US – Carbon Steel (India) dismissed those arguments raised by the United States in their entirety. 
Accordingly, the United States requests us t o replace the phrase "identical arguments" with "these 
same arguments".34 The United States also requests that we specify the US statute that is 
discussed in this paragraph.35 Turkey did not comment on these requests.  
2.50.   We have made the requested clarification s in the context of addressing other comments 
made by the United States in connection with paragraphs 7.285 -7.295.  
                                                
31 United States'  statement at the interim review meeting , paras. 55 -82. 
32 United States'  statement at the interim review meeting , para. 27.  
33 Turkey's comments on the United States' request for interim review, paras . 5-6; statement at the 
interim review meeting , paras. 6 -7. 
34 United States' request for interim review, paras. 37 and 39 -40. 
35 United States' request for interim review, para. 38.  WT/DS523/R/Add.1  
 
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  2.25  Paragraph 7.327, footnote 528  
2.51.   The United States requests us to delete footnote 528 for the same reasons as it requests us 
to make changes to paragraph 7.285 and footnote 444 as discussed above.36 Turkey asks us to 
reject the United States' request because it considers that it is well -established that adopted panel 
and Appellate Body reports create legitimate expectations among WTO Members  and th at absent 
cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a 
subsequent case.37 
2.52.  We have deleted footnote 528 consistently with our modifications to paragraphs  7.285 -7.295 
as discussed above.  
 
_______________  
 
  
                                                
36 United States' request for interim review, para. 42.  
37 Turkey's comments on the United States' request for interim review, para. 7 (referring to Appellate 
Body Reports, Japan – Alcoholic Beverages II , DSR 1996:1, p. 143; and US – Stainless Steel (Mexico) , 
para. 160).  WT/DS523/R/Add.1  
 
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ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Turkey  19 
Annex  B-2 Second integrated executive summary of the arguments of Turkey  29 
Annex B -3 First integrated executive summary of the arguments of the United States  38 
Annex B -4 Second integrated executive summary of the arguments of the United States  50 WT/DS523/R/Add.1  
 
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  ANNEX  B-1 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF TURKE Y 
I. EXECUTIVE SUMMARY OF TURKEY 'S FIRST WRITTEN SUBMISSION  
1. This dispute relates to the countervailing duty measures imposed by the United States 
pursuant to its investigations of Turkish imports of Certain Oil Country Tubular  Goods ( "OCTG ") 
(C-489-817); Welded Line Pipe ( "WLP") (C-489-823); and Heavy Walled Rectangular Welded 
Carbon Steel Pipes and Tubes ( "HWRP ") (C-489-825); and pursuant to its sunset and 
administrative reviews, for calendar years 2011 and 2013, respectively, of the countervailing duty 
order on Turk ish imports of Circular Welded Carbon Steel Pipes and Tubes ( "CWP") (C-489-502). 
2. The United States ' determinations in these proceedings suffer from a number of manifest 
defects.  As discussed in greater detail below, these measures are inconsistent with core 
WTO obligations, namely: Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), and 15.3 of the 
Agreement on Subsidies and Countervailing Measures ( "SCM Agreement "). Moreover, the 
United  States ' approach is particularly surprising because in most of th ese instances, the 
problematic approach is very similar, and in some cases identical, to that in previous 
determinations which the Appellate Body and prior panels have found to be inconsistent with the 
SCM Agreement.  
3. At its core, this dispute originates  with the United States ' post-preliminary determinations in 
the OCTG proceeding.  Specifically, in the OCTG proceeding, the U.S. Department of Commerce 
("USDOC ") first made a preliminary determination that no countervailing duty measures were 
warranted beca use it calculated de minimis subsidy rates.  If that preliminary result had been left 
undisturbed, there would be no countervailing duty measures on Turkish imports of OCTG, and 
likely none on WLP or HWRP either.  
4. However, the USDOC reversed its negative preliminary determination when it issued post -
preliminary determinations increasing the calculated subsidy rates above the de minimis  level and 
thus finding countervailable subsidies where originally it had not.  In these post -preliminary 
determinations, th e USDOC treated the private occupational pension fund for employees of the 
Turkish military, Ordu Yardimlasma Kurumu ( "OYAK "), as well as Eregli Demir ve Celik Fabrikalari 
T.A.S. ( "Erdemir ") and Iskenderun Iron & Steel Works Co. ( "Isdemir "), two of Turkey 's three 
integrated iron and steel producers,  as public bodies.  The USDOC then relied on these and other 
erroneous findings in the OCTG proceeding to reach positive findings of subsidization in the 
investigations of WLP and HWRP and in a subsequent administ rative review of the order on CWP.  
The U.S. International Trade Commission 's ("ITC") injury determinations in these proceedings also 
suffer fatal flaws.  
5. The United States ' determinations in these proceedings are now enshrined in its 
countervailing duty regime, resulting in further WTO -inconsistent rulings and subjecting Turkey 's 
steel imports to countervailing duty measures that should not exist.  
A. Overview of Occupational Pension Funds, Turkey 's Pension Fund System, the 
Turkish Steel Industry, and the United States Countervailing Duty Measures 
against Certain Turkish Steel Pipe and Tube Products  
6. Like many other countries, Turkey has a diversified pension fund system, consisting of: a 
mandatory public social security system; mandatory and voluntary pr ivate occupational pension 
funds; and voluntary personal savings funds.  This "three pillar " system is precisely the 
organizational structure recommended by the World Bank.  There are two supplementary 
mandatory private occupational pension funds in the Turk ish pension fund scheme.  One of these 
funds is the Armed Forces Pension Fund, OYAK.  
7. OYAK is the mandatory private occupational pension fund established in 1961 for employees 
of the Turkish military.  OYAK operates as a non -profit foundation, providing pe nsion plans and WT/DS523/R/Add.1  
 
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  other benefits such as retirement, disability, death, and mortgage and consumer loans for its over 
300,000 members.  OYAK is not part of the Turkish Armed Forces or affiliated with the 
Turkish  Ministry of National Defense, or any other gover nment agency.  Turkey notes that the 
investigating authorities of other WTO Members that have investigated OYAK concluded it is not a 
public body.  In 2014, for example, the Canada Border Services Agency found that 
"Ordu Yarimlasma Kurumu (OYAK) is a private  pension fund established by law in 1961 with the 
objective of providing retirement benefits to member { sic} of the Turkish Armed Forces. " 
8. The challenged measures in this dispute all relate to OYAK and its alleged subsidization of 
Turkey 's steel industry.  As such, it may be useful to provide some background on that industry as 
well, including its development over time, and privatization.  As previously mentioned, Erdemir and 
Isdemir are two of Turkey 's three integrated iron and steel producers.  Erdemir and Isdemir were 
previously owned by the GOT.  Turkey established Erdemir in 1965 to produce flat steel products.  
Isdemir is one of Erdemir 's subsidiaries.  
9. Turkey began the process of privatizing its steel industry in 1996, when it entered into a fr ee 
trade agreement with the European Coal and Steel Community to regulate trade in steel and 
eliminate customs duties on steel products.  Pursuant to this agreement, Turkey committed to 
privatizing its steel industry and banning all forms of state aid.  
10. In October 2005, the GOT, through the Turkish Privatization Administration, held a public 
tender to sell the entirety of its ownership interest in the Erdemir Group.  OYAK participated in the 
public tender and was selected as the winning bid, with the terms  of the sale finalized in 2006.  
Since then, i.e., more than a decade ago and more than seven years prior to the countervailing 
duty petition that lay at the basis of the various measures now challenged in this dispute, Erdemir 
and its subsidiary Isdemir ha ve operated on a commercial basis, fully independent from the GOT.  
11. On July 2, 2013, several U.S. steel companies filed a petition with the USDOC alleging that 
the GOT provides countervailable subsidies to Turkish producers of OCTG.  Petitioners alleged that 
the GOT, through OYAK and Erdemir, provides hot rolled steel, the primary input used to produce 
OCTG, for less than adequate remuneration.  The USDOC agreed with petitioners, erroneously 
finding that OYAK, Erdemir, and Isdemir are "public bodies " becau se the GOT allegedly exercises 
"meaningful control " over OYAK.  The USDOC also made similarly inadequate findings that the 
GOT's supposed "meaningful control " of OYAK extends to Erdemir and Isdemir.  
12. The USDOC repeated the same errors in subsequent inves tigations of WLP and HWRP, and in 
a subsequent administrative review of the order on CWP, applying the same incorrect legal 
standard in its public body findings, which again were unsupported by the evidence.  The USDOC 
consequently imposed additional, WTO -inconsistent countervailing duties measures on these other 
Turkish steel pipe and tube products.  In short, the USDOC made a WTO -inconsistent set of 
findings in one determination, and then kept repeating that same set of mistakes over and over 
again.  
B. Lega l Standards  
13. Turkey 's claims in this dispute are based on several provisions of the SCM Agreement, 
namely: Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), and 15.3.  The common thread among 
all of these claims is the United States ' repeated failure  to apply the correct legal standard and 
ground its findings in the evidence on the record.  
C. The United States ' Countervailing Duty Measures on Certain Oil Country 
Tubular Goods from Turkey Are Inconsistent with Its WTO Obligations  
14. First, in determin ing that OYAK is a "public body, " the USDOC failed to adhere to the 
appropriate legal standard under Article 1.1(a)(1) of the SCM Agreement and follow the Appellate 
Body's guidance regarding the interpretation of that standard.  The USDOC failed to make any  
findings that OYAK meets the public body standard articulated by the Appellate Body, i.e., that it 
possesses, exercises, or is vested with governmental authority.  Instead, the USDOC found OYAK is 
a public body, within the meaning of Article 1.1(a)(1) of t he SCM Agreement, alleging that the 
GOT exercises meaningful control over OYAK.  However, the USDOC failed completely to assess 
how the GOT 's alleged control of OYAK has been exercised in a meaningful way.  The USDOC, WT/DS523/R/Add.1  
 
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  moreover, failed to engage in any analys is whatsoever of the overall relationship between OYAK 
and the GOT within the Turkish legal order.  
15. The USDOC also failed to provide a reasoned and adequate explanation, based on the 
evidence on the record, for its finding that OYAK is a public body.  The evidence cited by the 
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to 
give proper consideration to evidence that contradicted its finding and which demonstrates that 
OYAK acts independently from the GOT.  The U SDOC made the same errors in finding that Erdemir 
and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the SCM Agreement.  
In particular, (1) the evidence cited by the USDOC does not support its public body findings; and 
(2) the USDOC improperly failed, or outright refused, to consider evidence which contradicted its 
findings.  
16. Second , the USDOC 's determination that sales of hot rolled steel conferred a benefit and 
were made for less than adequate remuneration is inconsistent with Ar ticles 1.1(b) and 14 of the 
SCM Agreement.  The USDOC has a practice, in assessing whether a good is provided for less than 
adequate remuneration thereby conferring a benefit, of rejecting in -country prices as a benchmark 
based solely on evidence that the g overnment owns or controls the majority or a substantial 
portion of the market for the good, with no consideration of whether in -country prices are 
distorted.  This USDOC practice is inconsistent with Article 14(d) of the SCM Agreement both "as 
such" and as  applied in this investigation.  Furthermore, b ecause the USDOC failed to properly 
establish that Erdemir and Isdemir provided hot rolled steel to the respondents for less than 
adequate remuneration under Article 14(d), it also failed to establish that the alleged provision of 
hot rolled steel conferred a benefit within the meaning of Article 1.1(b) of the SCM Agreement.  
17. Third, the USDOC 's application of "facts available " and use of an "adverse inference " is 
inconsistent with Article 12.7 of the SCM Agre ement in light of difficulties the respondent, Borusan, 
experienced in gathering and reporting requested information.  The USDOC 's application of "facts 
available " is also inconsistent with Article 12.7 of the SCM Agreement because the USDOC applied 
an "adverse inference " for the purpose of punishing Borusan for its alleged non -cooperation.  
18. Fourth , the USDOC 's determination that the alleged provision of hot rolled steel for less than 
adequate remuneration is "specific " is inconsistent with Articles 2.1(c ) and 2.4 of the 
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on 
positive evidence on the record as required under Article 2.4, the existence of a "subsidy 
programme " related to the provision of hot rolled steel.  Moreover, the USDOC 's determination is 
inconsistent with Article 2.1, because the USDOC failed to consider the two factors specified in the 
last sentence of subparagraph (c).  
19. Fifth, the ITC 's cumulation of imports in its determination of injury is inco nsistent with 
Article 15.3 of the SCM Agreement.  The ITC has a practice, in assessing material injury, of 
cumulating imports that are subject to countervailing duty investigations with imports that are 
subject only to antidumping duty investigations, i.e., non-subsidized imports.  This practice of 
"cross-cumulating " subsidized and non -subsidized imports, with respect to which antidumping or 
countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the 
SCM Agreement both "as such " and as applied in its investigation of OCTG.  
D. The United States ' Countervailing Duty Measures on Welded Line Pipe from 
Turkey Are Inconsistent with Its WTO Obligations  
20. First, the USDOC repeated the same errors it made in the OCTG investigati on in determining 
that OYAK is a "public body. " The USDOC failed to adhere to the appropriate legal standard under 
Article 1.1(a)(1) of the SCM Agreement and follow the Appellate Body 's guidance regarding the 
interpretation of that standard.  The USDOC fail ed to make any findings that OYAK meets the public 
body standard articulated by the Appellate Body, i.e., that it possesses, exercises, or is vested 
with governmental authority.  Instead, the USDOC found that OYAK is a public body, within the 
meaning of Art icle 1.1(a)(1) of the SCM Agreement, because the GOT exercises meaningful control 
over OYAK.  However, the USDOC failed completely to assess how the GOT 's alleged control of 
OYAK has been exercised in a meaningful way.  The USDOC, moreover, failed to engage in any 
analysis whatsoever of the overall relationship between OYAK and the GOT within the Turkish legal 
order.  WT/DS523/R/Add.1  
 
- 22 - 
 
  21. The USDOC also failed to provide a reasoned and adequate explanation, based on the 
evidence on the record, for its finding that OYAK is a pu blic body.  The evidence cited by the 
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to 
give proper consideration to evidence that contradicted its finding and which demonstrates OYAK 
acts independently from the GO T. The USDOC again repeated the same errors in finding that 
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the 
SCM Agreement.  
22. Second , the USDOC 's application of "facts available " and use of an "adverse inference " is 
inconsistent with Article 12.7 of the SCM Agreement because the USDOC applied an "adverse 
inference " for the purpose of punishing the respondent, Borusan, for its alleged non -cooperation.  
Furthermore, the United States has acted contrary to its obligations under Article 19.4 of the 
SCM Agreement and Article VI:3 of the GATT 1994 by applying countervailing duty measures in 
excess of the amount of subsidization attributable to WLP.  
23. Third, the USDOC 's determination that the alleged provision of hot rolled steel for less than 
adequate remuneration is "specific " is inconsistent with Articles 2.1(c) and 2.4 of the 
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on 
positive evidence on the record as required under Article 2.4, the existence of a "subsidy 
programme " related to the provision of hot rolled steel.  Moreover, the USDOC 's determination is 
inconsistent with Article 2.1, because the USDOC failed to consider t he two factors specified in the 
last sentence of subparagraph (c).  
24. Fourth , the ITC 's cumulation of imports in its determination of injury is inconsistent with 
Article 15.3 of the SCM Agreement.  The ITC has a practice, in assessing material injury, of 
cumulating imports that are subject to countervailing duty investigations with imports that are 
subject only to antidumping duty investigations, i.e., non -subsidized imports.  This practice of 
"cross-cumulating " subsidized and non -subsidized imports, with re spect to which antidumping or 
countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the 
SCM Agreement both "as such " and as applied in its investigation of WLP.  
E. The United States ' Countervailing Duty Measures on Heavy Walled 
Rectangular Welded Carbon Steel Pipes from Turkey Are Inconsistent with 
Its WTO Obligations  
25. First, the USDOC again repeated the same errors it made in the OCTG investigation in 
determining that OYAK is a "public body. " The USDOC failed to adhere to the appropriate legal 
standard under Article 1.1(a)(1) of the SCM Agreement and follow the Appellate Body 's guidance 
regarding the interpretation of that standard.  The USDOC failed to make any findings that OYAK 
meets the public body standard articulated by the Appellate Body, i.e., that it possesses, 
exercises, or is vested with governmental authority.  Instead, the USDOC found that OYAK is a 
public body, within the meaning of Article 1.1(a)(1) of the SCM Agreement , because the GOT 
exercises meaningful control over OYAK.  However, the USDOC failed completely to assess how the 
GOT's alleged control of OYAK has been exercised in a meaningful way.  The USDOC, moreover, 
failed to engage in any analysis whatsoever of the o verall relationship between OYAK and the GOT 
within the Turkish legal order.  
26. The USDOC also failed to provide a reasoned and adequate explanation, based on the 
evidence on the record, for its finding that OYAK is a public body.  The evidence cited by th e 
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to 
give proper consideration to evidence that contradicted its finding and which demonstrates OYAK 
acts independently from the GOT.  The USDOC again repeated the sam e errors in finding that 
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the 
SCM Agreement.  
27. Second , the USDOC 's application of "facts available " and use of an "adverse inference " is 
inconsistent with Article 12.7 of th e SCM Agreement because the USDOC applied "adverse 
inferences " for the purpose of punishing the respondents, MMZ and Ozdemir, for their alleged non -
cooperation.  Furthermore, the United States has acted contrary to its obligations under 
Article  19.4 of the SCM Agreement and Article VI:3 of the GATT 1994 by applying countervailing 
duty measures in excess of the amount of subsidization attributable to HWRP.  WT/DS523/R/Add.1  
 
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  28. Third, the USDOC 's determination that the alleged provision of hot rolled steel for less than 
adequa te remuneration is "specific " is inconsistent with Articles 2.1(c) and 2.4 of the 
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on 
positive evidence on the record as required under Article 2.4, the existence of a "subsidy 
programme " related to the provision of hot rolled steel.  Moreover, the USDOC 's determination is 
inconsistent with Article 2.1, because the USDOC failed to consider the two factors specified in the 
last sentence of subparagraph (c).  
29. Fourth , the ITC's cumulation of imports in its determination of injury is inconsistent with 
Article 15.3 of the SCM Agreement.  The ITC has a practice, in assessing material injury, of 
cumulating imports that are subject to countervailing duty investigations with impor ts that are 
subject only to antidumping duty investigations, i.e., non -subsidized imports.  This practice of 
"cross-cumulating " subsidized and non -subsidized imports, with respect to which antidumping or 
countervailing duty petitions are filed on the same d ay, is inconsistent with Article 15.3 of the 
SCM Agreement both "as such " and as applied in its investigation of HWRP.  
F. The United States ' Countervailing Duty Measures on Circular Welded Carbon 
Steel Pipes and Tubes from Turkey Are Inconsistent with Its WTO Obligations  
30. First, the USDOC again repeated the same errors it made in the OCTG investigation in 
determining that OYAK is a "public body. " The USDOC failed to adhere to the appropriate legal 
standard under Article 1.1(a)(1) of the SCM Agreement and  follow the Appellate Body 's guidance 
regarding the interpretation of that standard.  The USDOC failed to make any findings that OYAK 
meets the public body standard articulated by the Appellate Body, i.e., that it possesses, 
exercises, or is vested with gov ernmental authority.  Instead, the USDOC found that OYAK is a 
public body, within the meaning of Article 1.1(a)(1) of the SCM Agreement, because the GOT 
exercises meaningful control over OYAK.  However, the USDOC failed completely to assess how the 
GOT's alleged control of OYAK has been exercised in a meaningful way.  The USDOC, moreover, 
failed to engage in any analysis whatsoever of the overall relationship between OYAK and the GOT 
within the Turkish legal order.  
31. The USDOC also failed to provide a reason ed and adequate explanation, based on the 
evidence on the record, for its finding that OYAK is a public body.  The evidence cited by the 
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to 
give proper consideration t o evidence that contradicted its finding and which demonstrates OYAK 
acts independently from the GOT.  The USDOC again repeated the same errors in finding that 
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the 
SCM Agreement.  
32. Second , the USDOC 's determination that the alleged provision of hot rolled steel for less 
than adequate remuneration is "specific " is inconsistent with Articles 2.1(c) and 2.4 of the 
SCM Agreement, because the USDOC failed to sufficiently id entify or substantiate, based on 
positive evidence on the record as required under Article 2.4, the existence of a "subsidy 
programme " related to the provision of hot rolled steel.  Moreover, the USDOC 's determination is 
inconsistent with Article 2.1, becau se the USDOC failed to consider the two factors specified in the 
last sentence of subparagraph (c).  
33. Third, the ITC 's cumulation of imports in its determination of injury is inconsistent with 
Article 15.3 of the SCM Agreement.  Similar to its practice in  investigations, the ITC has a practice, 
in assessing material injury in five -year reviews, of cumulating imports that are subject to 
countervailing duty orders with imports that are subject only to antidumping duty orders, 
i.e., non-subsidized imports, wi th respect to which the five -year reviews are initiated on the same 
day. This practice of "cross-cumulating " subsidized and non -subsidized imports, with respect to 
which five -year reviews of antidumping or countervailing duty orders are initiated on the sa me 
day, is inconsistent with Article 15.3 of the SCM Agreement both "as such " and as applied in its 
review of the countervailing  duty order on CWP.  
34. Moreover, because  the United States ' imposition of countervailing duty measures was 
inconsistent with it s obligations under Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), 15.3, 
and 19.4 of the SCM Agreement, as well as Article VI:3 of the GATT 1994, the United States is also 
in violation of its obligations under Articles 10 and 32.1 of the SCM Agreeme nt. WT/DS523/R/Add.1  
 
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  II. EXECUTIVE SUMMARY OF TURKEY 'S OPENING STATEMENT AT THE FIRST MEETING 
OF THE PANEL  
35. This dispute relates to several countervailing measures imposed by the United States on 
imports of steel products from Turkey in violation of its obligations under the SCM Agreement, 
specifically the United States ' countervailing duty measures imposed pursuant to its investigation 
of Certain Oil Country Tubular Goods; Welded Line Pipe; and Heavy Walled Rectangular Welded 
Carbon Steel Pipes and Tubes; and pursua nt to its sunset and administrative reviews, for calendar 
years 2011 and 2013, respectively, of the countervailing duty order on Circular Welded Carbon 
Steel Pipes and Tubes.  As the two governments were unable to resolve this matter through 
consultations, the Government of Turkey has found it necessary to request the establishment of 
this Panel.  
36. The United States ' determinations in these proceedings are flawed in numerous respects, 
which are detailed in Turkey 's First Submission.  In this statement, Turk ey will focus on a few key 
issues that should inform the Panel 's examination of the measures at issue in this dispute.  First, 
Turkey will address the legal standards for "governmental " entities, both for "public body " and 
"government organ ", under Article 1.1(a)(1) of the SCM Agreement and explain why the USDOC 
failed to apply the correct legal standards with regard to OYAK and Erdemir (and its subsidiary 
Isdemir).  Second, Turkey will explain why the USDOC failed to provide a reasoned and adequate 
explanati on for its findings that OYAK and Erdemir are public bodies, within the meaning of 
Article  1.1(a)(1) of the SCM Agreement.  
37. Third, Turkey will explain why the USDOC 's rejection of in -country or "tier one " benchmarks, 
for purposes of assessing the level of benefit under Articles 1.1(b) and 14(d) of the 
SCM Agreement, based solely on evidence of government ownership or control of domestic 
suppliers is a "practice, " subject to challenge "as such, " and why this practice is inconsistent with 
Articles 1.1(b) a nd 14(d) of the SCM Agreement, both "as such " and "as applied " in the OCTG 
investigation.  Fourth, Turkey will address the USDOC 's reliance on facts available and its drawing 
of adverse inferences in choosing among the facts available for punitive purposes,  which is 
inconsistent with Article 12.7 of the SCM Agreement.  
38. Fifth, Turkey will address the USDOC 's failure to identify a subsidy programme, within the 
meaning of Article 2.1(c) of the SCM Agreement, or evaluate the two specificity factors in the fin al 
sentence of Article 2.1(c).  Finally, Turkey will address the legal standard for cumulation of imports 
under Article 15.3 of the SCM Agreement and explain why the ITC 's practice of cross -cumulating 
subsidized and non -subsidized imports is inconsistent wi th Article 15.3, both "as such " and "as 
applied " in the proceedings at issue.  
A. The USDOC Applied Incorrect Legal Standards for "Governmental" Entities, 
for Either "Government Organ" or "Public Body", Under Article 1.1(a)(1)  
39. First, the United States ' subsidy determinations are inconsistent with Article 1.1(a)(1) of the 
SCM Agreement because the USDOC failed to apply the correct legal standards for "governmental " 
entities, either for "public body " or "government organ ", in its assessments of OYAK and E rdemir.  
The Appellate Body has defined "public body, " within the meaning of Article 1.1(a)(1) of the 
SCM Agreement, as "an entity that possesses, exercises or is vested with governmental authority. " 
40. The United States does not dispute that this is the l egal standard for "public body " under 
Article 1.1(a)(1) articulated by the Appellate Body, and Turkey considers that it is the correct 
standard.  Moreover, Turkey has shown that the USDOC failed to apply this standard in its analysis 
of whether OYAK and Erd emir are public bodies.  In particular, not once in any of the four 
proceedings at issue did the USDOC refer to the correct legal standard for "public body, " that is, 
an entity that possesses, exercises, or is vested with governmental authority, " let alone find that 
OYAK or Erdemir meet this standard.  The United States ' arguments to the contrary are nothing 
more than a post hoc  rationale created for the benefit of this Panel in a belated attempt to 
reconcile the USDOC 's public body findings with the requirem ents of Article 1.1(a)(1).  
41. Second , contrary to the United States ' argument, the USDOC did not examine OYAK as a 
"government organ ". The United States provides no citation or evidentiary support for this 
assertion, and, indeed, nowhere in any of the USD OC's determinations did it make such a WT/DS523/R/Add.1  
 
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  statement regarding OYAK, or even mention the term "government organ. " Moreover, the 
USDOC 's reasoning and analysis in its published determinations compels the conclusion that it 
implicitly found OYAK to be a "public body. " 
42. However, assuming, arguendo , that the United States ' characterization of the USDOC 's 
analysis regarding OYAK is correct and that the USDOC did in fact examine OYAK as a 
"government organ, " the USDOC still applied the incorrect legal standard under Article 1.1(a)(1).  
In particular, the legal standard for a "government organ " is actually a stricter  one than the legal 
standard for "public body " articulated by the Appellate Body, i.e., "an enti ty {that} possesses, 
exercises or is vested with governmental authority. " The USDOC made no findings regarding OYAK 
that would suggest it applied this standard; rather, its findings were strictly limited to the concept 
of "meaningful control. " As Turkey de monstrated in its First Submission, this is not the correct 
standard for a "public body, " let alone for a "government organ. " 
43. Third, the lack of a financial contribution determination with regard to OYAK is irrelevant to 
this Panel 's assessment of the USDOC 's "public body ", or "government organ ", determination 
under Article 1.1(a)(1) of the SCM Agreement.  The Appellate Body 's guidance in interpreting 
Article 1.1(a)(1) makes clear that it is first necessary to determine whether an entity is 
governmental or a private body in order to establish that a financial contribution exists, because 
an additional showing of entrustment or direction is necessary if the entity is not governmental.  
Accordingly, the fact that the USDOC did not find that OYAK itself made a financial contribution 
does not mean that the USDOC could not make an analysis regarding OYAK 's status, within the 
meaning of Article 1.1(a)(1).  Moreover, Turkey submits that the United States ' interpretation of 
Article 1.1(a)(1) raises serious concerns regarding the reviewability of an investigating authority 's 
determinations.  
B. The Evidence on the Records of the Underlying Proceedings Does Not Support 
the USDOC 's Public Body Findings  
44. The second issue Turkey will address is the lack of evidentiary support for the USDOC 's 
public body findings.  In each of the underlying proceedings, the USDOC provided a bulleted list of 
the pieces of evidence which it relied on in finding that OYAK and Erdemir are public bodies.  While 
the USDOC may have considered the se pieces of evidence in their totality, as the United States 
asserts, the Panel must enquire whether those particular pieces of evidence, taken individually and 
as a whole, support the USDOC 's public body findings.  
45. As Turkey discussed in its First Sub mission, the USDOC failed to provide a reasoned and 
adequate explanation for its findings that OYAK and Erdemir are public bodies.  In particular, the 
evidence relied on by the USDOC does not support its public body findings and consists almost 
entirely of evidence that demonstrates, at most, "formal indicia " of government control.  Turkey 
considers that indicia of government control can demonstrate, at most, that a government has the 
ability  to control an entity; they are not evidence of that entity 's functi ons or conduct and, in 
particular, they are not evidence that the government in fact exercises  its ability to control an 
entity, or that entity 's conduct . Turkey explained in detail in its First Submission these and other 
errors which the USDOC made in eva luating the evidence it relied on to find that OYAK and 
Erdemir are public bodies, and Turkey reaffirms those arguments.  
46. Turkey also observes that the United States discusses in its First Submission several facts on 
the record of the underlying proceed ings which the USDOC did not rely upon in finding that OYAK, 
Erdemir, and Isdemir are public bodies.  As the United States acknowledges elsewhere in its First 
Submission, the Panel must consider the investigating authority 's, i.e., the USDOC 's, explanations  
and conclusions on their own terms, not the United States ' post hoc  justifications for the USDOC 's 
findings.  
47. Moreover, while it is well established that a panel should not conduct a de novo  review of 
the evidence, nor substitute its judgment for that of the investigating authority, a panel must take 
into account all of the evidence on the record before the investigating authority and, in the context 
of reviewing individual pieces of evidence , a panel should examine whether the evidence may 
reasonably be relied on in support of the particular inference drawn by the investigating authority.  
In this regard, Turkey submits that it is appropriate for this Panel to examine the immediate 
context of certain statements in Erdemir 's Annual Reports which the USDOC cited and that, in light WT/DS523/R/Add.1  
 
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  of this context, the two statements cannot reasonably be relied on to support an inference that 
Erdemir implements governmental policies.  
48. Finally, Turkey submits th at the USDOC 's public body findings lack evidentiary support 
because the USDOC failed to give proper consideration to evidence which contradicts its 
conclusions regarding OYAK and Erdemir.  The Appellate Body has made it clear that evidence of an 
entity 's conduct is relevant to whether that entity is a public body.  As Turkey explained in its First 
Submission, there was a considerable amount of evidence on the record regarding OYAK 's and 
Erdemir 's conduct which demonstrates that these entities operate on a co mmercial basis, 
autonomously from the Government of Turkey.  
C. The USDOC 's Practice of Rejecting In -Country Benchmarks for Benefit Based 
on Evidence of Government Ownership or Control is Inconsistent with 
Articles 1.1(b) and 14(d) of the SCM  Agreement  
49. The third issue Turkey will address is the USDOC 's practice of rejecting in -country prices as 
potential benchmarks in benefit determinations.  Turkey has shown in its First Submission that the 
USDOC has a practice of rejecting in -country benchmarks for benefit based solely on evidence of 
government ownership or control of domestic suppliers and that this practice is inconsistent with 
Articles 1.1 (b) and 14(d) of the SCM Agreement, both "as such " and "as applied " in the OCTG 
investigation.  
50. Turkey considers that the practice at issue is expressed in a written document, namely the 
Preamble to the Department 's regulations.  Turkey also provided exa mples of several cases, 
including the OCTG investigation, which confirm the USDOC 's understanding and application of the 
Preamble in practice; thus, there can be no uncertainty as to the existence or content of this 
practice.  
51. Turkey has also demonstrat ed that the USDOC 's practice of rejecting in -country prices as 
potential benchmarks is a rule or norm which has both "general " and "prospective " application.  
In particular, the Preamble explains that the USDOC will normally reject in -country benchmarks 
where the government owns or controls a majority or substantial portion of domestic production.  
This practice therefore has general application, because it may apply to an unidentified number of 
economic operators, and prospective application, because it embo dies the USDOC 's administrative 
guidance for future benefit determinations and the USDOC applies it systematically, such that 
economic operators have an expectation the practice will be applied in future.  Turkey also submits 
that the USDOC 's departure from  its normal practice, under protest and at the direction of a U.S. 
domestic court, is not dispositive evidence that the practice does not exist or cannot be challenged 
"as such. " 
52. Accordingly, Turkey asks this Panel to find that the USDOC 's practice of rejecting in -country 
prices as potential benchmarks based solely on evidence of majority or substantial government 
ownership or control of domestic production is a measure subject to challenge "as such, " and that 
this practice is inconsistent with Articles  1.1(b) and 14(d) of the SCM Agreement, both "as such " 
and "as applied " in the OCTG investigation, as Turkey explained in its First Submission.  
D. The USDOC Impermissibly Drew Adverse Inferences in Selecting among the 
Facts Available for the Purpose of Pun ishing Respondents  
53. Fourth, Turkey will address several issues related to Turkey 's claim under Article 12.7 of the 
SCM Agreement that the USDOC improperly applied adverse inferences in selecting among facts 
available, including by doing so for the expre ss purpose of punishing respondents in the OCTG, 
WLP, and HWRP investigations.  At the outset, Turkey reiterates that its claims under Article 12.7 
of the SCM Agreement are not limited to particular subsidy programs as the United States 
suggests, but rather  relate to the USDOC 's application of facts available in general in these 
proceedings.  
54. Turkey notes that the United States does not dispute that the USDOC applies adverse 
inferences in a manner specifically designed to punish respondents or that the US DOC did so in 
these proceedings.  Nor does the United States dispute that the Appellate Body has found such WT/DS523/R/Add.1  
 
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  practices to be inconsistent with Article 12.7, because it could result in inaccurate subsidization 
determinations.  
55. Turkey submits that if there is no connection between the "necessary information " that is 
missing and the "facts available " on which a determination is based, a subsidy determination 
cannot be considered "accurate " within the meaning of Article 12.7.  The USDOC failed to establish 
a connection between the rates it selected by drawing adverse inferences and the "necessary 
information " missing from the record in these proceedings, and it is clear from the record of the 
underlying proceedings that this res ulted in inaccurate subsidy determinations.  Moreover, the 
USDOC' s application of facts available and drawing of adverse inferences was clearly intended to 
be punitive, which is not permissible under Article 12.7.  
E. The USDOC Failed to Identify a Subsidy P rogramme, Within the Meaning of 
Article 2.1(c), or Evaluate the Specificity Factors in Article 2.1(c)  
56. Next, Turkey will address the USDOC 's failure to identify a "subsidy programme, " within the 
meaning of Article 2.1(c) of the SCM Agreement, or evaluat e the factors in the last sentence of 
Article 2.1(c).  
57. First, Turkey demonstrated in its First Submission that the USDOC failed to sufficiently 
identify or substantiate the existence of a "subsidy programme, " i.e., a "plan" or "scheme ", related 
to the p rovision of hot rolled steel.  In response, the United States points to evidence which was on 
the record of the OCTG investigation but on which the USDOC did not rely, in any way, in its 
specificity findings.  Turkey respectfully submits that this is yet ano ther example of post hoc  
justification by the United States.  Turkey also submits that evidence that there was more than one 
transaction for which respondents ' purchase prices for hot rolled steel were below the benchmark 
price is not positive evidence of a  systematic  series of actions, let alone a plan or scheme  to 
provide hot rolled steel for less than adequate remuneration.  
58. Second , Turkey demonstrated in its First Submission that the USDOC failed to take into 
account the two factors identified in the last sentence of Article 2.1(c) of the SCM Agreement.  
While consideration of these two factors need not be done explicitly, prior panels have made it 
clear that there must be some  evidence on the record that the investigating authority took the two 
factors  in the final sentence of Article 2.1(c) into account, either explicitly or implicitly.  The 
United  States points to no such evidence, and indeed it cannot, because the USDOC did not  
consider the two factors in Article 2.1(c), even implicitly.  Moreover, Tur key submits that the 
USDOC 's obligation to consider the two factors in the last sentence of Article 2.1(c) exists 
independent of whether any interested party raised the relevance of these factors in the 
underlying proceedings.  
F. The ITC 's Practice of Cross -Cumulating Subsidized and Non -Subsidized 
Imports Is Inconsistent with Article 15.3 of the SCM Agreement  
59. Finally, Turkey will address the ITC 's practice of cross -cumulating subsidized and non -
subsidized imports in injury determinations.  As Turkey explained in its First Submission, the ITC 
has a long -standing practice of cross -cumulating imports subject to the USDOC 's affirmative 
subsidy determinations with imports subject to the USDOC 's affirmative dumping determinations, 
when certain other conditi ons are met.  Turkey would like to focus on this practice in the context of 
injury investigations.  
60. Turkey provided evidence that this practice satisfies the three -prong test for measures which 
are challengeable "as such " articulated by the Appellate Bod y in US – Zeroing (EC) . First, Turkey 
identified the precise content of the ITC 's practice in investigations:  namely, the cumulation of 
subject imports from all countries as to which petitions were filed and/or investigations self -
initiated by the USDOC on  the same day, if such imports compete with each other and with the 
domestic like product in the U.S. market, regardless of whether those imports are subject to 
subsidy determinations or not.  The ITC developed this practice in its cases over time, both as a 
result of its own interpretation of the Tariff Act and the interpretation of U.S. domestic courts.  
61. Second , this practice is clearly attributable to the United States and, in particular, the ITC.  
The ITC is the sole U.S. agency responsible for making injury determinations in countervailing duty WT/DS523/R/Add.1  
 
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  investigations and reviews.  In this regard, Turkey notes that the ITC discusses its practice of 
cross-cumulating subsidized and non -subsidized imports in its injury determinations in which it 
applies this practi ce. 
62. Third, the ITC 's practice has general and prospective application.  It is a practice which the 
ITC developed based on its own and U.S. domestic court interpretations of the statute.  As a result, 
the ITC considers this practice to be required  under s ection 771(7)(G)(i) of the Tariff Act.  The ITC 
applies this practice in all investigations involving subsidized and non -subsidized imports for which 
petitions were filed on the same day and/or investigations self -initiated by the USDOC on the same 
day. The practice thus affects an unidentified number of economic operators and therefore has 
"general application. " 
63. With regard to its "prospective application, " the ITC has consistently applied the challenged 
practice in injury investigations since 1987, dem onstrating a systemic application of the measure.  
Finally, the fact that the ITC interprets the statute to require  this practice demonstrates that the 
practice provides administrative guidance for future conduct and creates expectations among 
economic oper ators that it will be applied in the future.  In this regard, Turkey notes that the 
United States does not assert that the ITC has the authority to depart from its cross -cumulating 
practice in injury investigations.  To the contrary, the ITC 's own statements demonstrate that it 
may not  depart from this practice in investigations, because it considers the practice to be 
required  under the statute.  
64. Turkey also demonstrated in its First Submission that the ITC 's practice is inconsistent with 
Article 15.3 of the SCM Agreement, both "as such " and as applied in the underlying injury 
investigations.  In particular, in its First Submission, Turkey discussed the legal standard for 
cumulation under Article 15.3 and the Appellate Body 's approach to int erpretation of Article 15.3 in 
US – Carbon Steel (India) . Turkey considers this to be the correct approach to interpreting 
Article  15.3 and one that this Panel should follow.  
65. The United States presents an alternative approach to interpreting Article 15 .3, but fails to 
explain why the Panel should deviate from the approach taken by the Appellate Body.  Turkey 
respectfully submits that ensuring security and predictability in the dispute settlement system 
implies that, absent cogent reasons, panels should r esolve the same legal questions in the same 
way in subsequent cases.  The United States has provided no cogent reasons for why this Panel 
should interpret Article 15.3 in a manner that differs from the Appellate Body 's approach in US – 
Carbon Steel (India) . Turkey also notes that the United States presented many of the same 
arguments regarding its preferred interpretation of Article 15.3 in US – Carbon Steel (India) , and 
both the Appellate Body and the panel in that case specifically rejected these arguments . 
 WT/DS523/R/Add.1  
 
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  ANNEX B -2 
SECOND INTEGRATED EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF TURK EY 
I. EXECUTIVE SUMMARY OF TURKEY'S SECOND WRITTEN SUBMISSION  
1. This submission by the Government of Turkey ( "Turkey ") responds to the arguments 
presented by the United States in its First Submission, during the first meeting of the Panel and in 
its responses to questions from the Panel concerning the countervailing duty measures imposed by 
the United States pursuant to its investigations of Turkish imports of Certain Oil Country Tubular  
Goods ( "OCTG ") (C-489-817); Welded Line Pipe ( "WLP") (C-489-823); and Heavy Walled 
Rectangular Welded Carbon Steel Pipes and Tubes ( "HWRP ") (C-489-825); and pursuant to its 
sunset and adm inistrative reviews, for calendar years 2011 and 2013, respectively, of the 
countervailing duty order on Turkish imports of Circular Welded Carbon Steel Pipes and Tubes 
("CWP") (C-489-502).  
2. At the outset, Turkey makes a few overarching observations . The  first issue is the 
United  States ' continued , and repeated, efforts to rely on post hoc  justification and explanations 
for actions that the USDOC and the ITC took in the past. Turkey recalls that the Appellate Body 
has made it very clear that WTO Members m ay not justify an investigating authority 's 
determinations by providing reasoning and explanation that the authority itself did not provide. 
Thus, the Panel should disregard the United States ' arguments to the extent those arguments are 
not reflected in th e reasoning and evaluation provided by the USDOC, or the ITC, in the challenged 
determinations.  
3. The second issue Turkey addresses upfront is the importance of the legal reasoning in 
previously adopted panel and Appellate Body reports. Turkey finds the U nited States ' arguments 
during the first substantive meeting and in its responses to the Panel 's questions regarding the 
alleged limited  or non -existing relevance of prior panel and/or Appellate Body findings to be 
concerning.  
4. The third issue is that Tu rkey observes that the United States appears to not dispute several 
key issues: (1) that the USDOC 's benefit determination as applied in the OCTG investigation was 
inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; (2) that the USDOC 's 
application of facts available based on adverse inferences for purposes of punishing a respondent 
is impermissible under Article 12.7 of the SCM Agreement; and (3) that the ITC has a practice of 
cross-cumulating subsidized and non -subsidized imports in injury d eterminations. Turkey believes 
that it is important to note this as this means that the Panel can now also consider that these 
issues are no longer in dispute.  
5. The final issue is the United States ' continued portrayal of OYAK and Turkish pension funds 
in general as some sort of anomaly. In reality, as noted in Turkey 's First Submission, occupational 
pension fund schemes , both public and private, are widespread and a major source of capital in 
OECD countries, and OYAK is very comparable to the occupationa l pension fund schemes found in 
many countries.  
A. The United States Has Failed to Rebut Turkey's Claim that the USDOC's Public 
Body Findings with Regard to OYAK and Erdemir and Isdemir are 
Inconsistent with Article 1.1(a)(1) of the SCM Agreement  
6. As explained in Turkey 's First Submission, the USDOC 's findings in the underlying 
proceedings that OYAK, Erdemir, and Isdemir are "public bodies, " within the meaning of 
Article  1.1(a)(1) of the SCM Agreement, are fundamentally flawed in two respects. First, t he 
USDOC applied an incorrect legal standard for "public body. " Second, the USDOC failed to provide 
a "reasoned and adequate " explanation for its public body findings. In its prior submissions and 
during the Panel meeting, the United States presented a num ber of arguments in an attempt to 
rebut Turkey 's arguments to this effect. Each of these attempted counter arguments fails.  WT/DS523/R/Add.1  
 
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  7. First, the United States argues that the USDOC did apply the correct standard, at least with 
regard  to Erdemir and Isdemir, becau se "USDOC {} considered numerous indicia of the GOT 's 
meaningful control over Erdemir and Isdemir " and "this evidence demonstrated that Erdemir and 
Isdemir possess, exercise or are vested with governmental authority. " The United States ' 
argument is nothing  more than a post hoc  rationale created for the benefit of this Panel. Not once 
in any of the four proceedings at issue did the USDOC refer to the correct legal standard for 
"public body, " that is, an entity that possesses, exercises, or is vested with gov ernmental 
authority, " let alone find that OYAK, Erdemir, or Isdemir meets this standard. Moreover, to the 
extent the United States is arguing that this Panel should interpret Article 1.1(a)(1) in a manner 
differently than the Appellate Body, the United Sta tes has failed to provide any cogent reasons for 
why this Panel should depart from the Appellate Body 's guidance in interpreting Article 1.1(a)(1) of 
the SCM Agreement.  
8. Second , the United States argues that the USDOC evaluated OYAK as a "government orga n" 
not a "public body " and made no legal findings regarding OYAK. This argument is demonstrably 
false, based on the reasoning and findings of the USDOC in its published determinations . 
In particular, the USDOC articulated its preferred legal standard for "public body " and applied that 
legal standard to OYAK in each of the challenged proceedings.  
9. Third, the United States argues that the USDOC did not make a "financial contribution " 
finding with regard to OYAK, and thus did not find OYAK to be a "public body. " As Turkey 
previously explained, the USDOC did investigate OYAK under its preferred public body standard, 
and thus this argument is just another example of post hoc  rationalization. Moreover, the United 
States is incorrect that a "financial contribut ion" finding is a necessary prerequisite for application 
of the disciplines of Article 1.1(a)(1) to an investigating authority 's "public body " finding regarding 
a particular entity. Turkey also considers that the United States ' interpretation of Article 1. 1(a)(1), 
and its argument that the requirements of Article 1.1(a)(1) do not apply to the USDOC 's 
examination of OYAK, raise serious concerns regarding the reviewability of an investigating 
authority 's determinations.  
B. The United States Has Failed to Rebu t Turkey's Claim that the USDOC Failed 
to Provide a Reasoned and Adequate Explanation for its Public Body Findings  
10. The USDOC 's determinations are also inconsistent with Article 1.1(a)(1) of the 
SCM Agreement because the USDOC failed to provide a "reaso ned and adequate " explanation for 
its findings that OYAK, Erdemir, and Isdemir, are public bodies for two reasons. First, the evidence 
cited by the USDOC does not support its public body findings. Second, the USDOC improperly 
refused to consider evidence w hich contradicted its findings. Specifically, the USDOC failed to give 
proper consideration to conflicting evidence on the record regarding the relationship between the 
Government of Turkey and OYAK (or Erdemir and Isdemir) "and, in particular, the degree of 
control by the {Government of Turkey} and the degree of autonomy enjoyed by " OYAK or Erdemir 
and Isdemir, such as evidence of the latters ' commercial conduct. The United States makes several 
arguments in response, none of which has any merit.  
11. First, the United States argues that Turkey essentially asks the Panel to act as an initial trier 
of facts. The United States is incorrect; Turkey merely asks that the Panel examine the USDOC 's 
conclusions in a critical and searching manner, based on the information on the record and the 
explanations  given by the USDOC in its published determinations, to determine if the USDOC 's 
conclusions are "reasoned " and "adequate. " Turkey also encourages the Panel to focus its analysis 
on the evidence actually relied upon by the USDOC in finding that OYAK, Erdemir, and Isdemir are 
public bodies.  
12. Second , the United States argues that Turkey focuses narrowly on individual pieces of 
evidence and ignores that the USDOC 's determinations were based on the totality of the evidence 
on the record. Turkey submits that the United States ignores the Appellate Body 's guidance that 
there is no error in a panel 's review of individual pieces of evidence, even where th e investigating 
authority draws its conclusions from the totality of the evidence. The Panel should assess whether 
the particular pieces of evidence relied upon by the USDOC, taken individually and as a whole, 
support the inferences and conclusions drawn b y the USDOC in its public body determinations. 
Turkey respectfully submits that they do not.  WT/DS523/R/Add.1  
 
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  13. Third, the United States argues that evidence on the record of indicia of government control 
support the USDOC 's public body determinations. As Turkey has prev iously explained, indicia of 
government control are insufficient to support a public body determination without evidence that 
the alleged government control has been exercised in a meaningful way. Turkey respectfully 
submits that there was, in fact, no evidence on the record of the Government of Turkey ever 
exercising its alleged  control, or ability to control, OYAK (or Erdemir and Isdemir). Moreover, the 
evidence on the record demonstrates that OYAK, Erdemir, and Isdemir are autonomous and 
independent from  the Government of Turkey. The USDOC improperly refused  to consider this 
evidence, and its evaluation of this evidence would not risk conflating the "financial contribution " 
and "benefit " analyses, as the United States argues.  
C. The United States Has Fail ed to Rebut Turkey's Claim that the USDOC's 
Practice of Rejecting In -Country Benchmarks for Benefit Based Solely on 
Evidence of Government Ownership or Control of Domestic Producers is 
Inconsistent with Articles 1.1(b) and  14(d) of the SCM Agreement  
14. Turkey demonstrated in its First Submission that the USDOC has a practice of rejecting in -
country benchmarks for benefit based solely on evidence of government ownership or control of 
domestic suppliers and that this practice is inconsistent with Articles 1.1(b) and 14(d) of the 
SCM Agreement, both "as such " and "as applied " in the OCTG investigation. Turkey observes that 
the United States has not disputed that it would be impermissible under Articles 1.1(b) and 14(d) 
for the USDOC to reject in -country pric es based solely on evidence of government ownership or 
control of domestic suppliers or even attempted to rebut Turkey 's claim that this practice as 
applied in the OCTG investigation is inconsistent with Articles 1.1(b) and 14(d) of the 
SCM Agreement.  
15. The United States argues instead that Turkey has not sufficiently demonstrated that the 
USDOC 's practice of rejecting in -country benchmarks for benefit based solely on evidence of 
government  ownership or control of domestic suppliers exists as a rule or no rm of "general " and 
"prospective " application. The United  States ' argument is incorrect. Turkey has provided evidence, 
including the Preamble to the USDOC 's regulations and numerous examples of cases, 
demonstrating that the USDOC, systematically and as a m atter of practice, rejects in -country 
market prices based solely  on a finding of majority or substantial government ownership or control 
of domestic suppliers and with no consideration or investigation of whether in -country market 
prices are, in fact, dist orted. Thus, there can be no uncertainty as to the existence or content of 
this practice or its "general " and "prospective " application with regard to an unidentified number of 
economic operators in future benefit determinations.  
16. The United States also  argues that Turkey has failed to establish the existence of a rule of 
"general " and "prospective " application because the USDOC exercised its discretion to depart from 
this practice on remand in the OCTG investigation and in the subsequent WLP, HWRP, and CWP 
proceedings. However, the USDOC 's exercise of its discretion to deviate from its normal practice, 
under protest and at the direction of a U.S. domestic court, is not dispositive evidence that the 
USDOC 's practice is not a rule of "general " or "prospective " application, challengeable "as such. " 
Turkey notes in this regard that it submitted several other examples of cases following the OCTG 
investigation in which the USDOC has continued to apply the challenged practice. Moreover, 
nowhere has the U SDOC or the United States confirmed that the USDOC will no longer apply the 
challenged practice in future cases.  
D. The United States Has Failed to Rebut Turkey's Claim that the USDOC Did Not 
Identify, Based on Positive Evidence on the Record, a "Subsidy P rogramme" 
or Evaluate the Two Factors in the Last Sentence of Article 2.1(c) of the 
SCM Agreement  
17. Turkey demonstrated in its First Submission that the USDOC 's specificity determinations in 
the underlying  proceedings are inconsistent  with Articles 2.1(c ) and 2.4 of the SCM Agreement for 
two reasons. First, the USDOC failed to sufficiently identify or substantiate, based on positive 
evidence on the record as required under Article 2.4, the existence of a "subsidy programme " 
related to the provision of hot  rolled steel. Second, the USDOC failed to consider the two factors in 
the last sentence of Article 2.1(c). The United States has failed to rebut either of these two 
arguments.  WT/DS523/R/Add.1  
 
- 32 - 
 
  18. First, the United States argues that evidence regarding Turkey 's National R estructuring Plan, 
OYAK 's alleged policies of boosting output  for export -oriented production, and two statements in 
Erdemir 's Annual Reports demonstrate the existence of a "subsidy programme. " Turkey notes that 
the USDOC did not rely on any of this evidenc e in its de facto specificity determinations . Moreover, 
Turkey disputes that this evidence demonstrates the existence of a subsidy programme for the 
provision of hot rolled steel for less than adequate remuneration.  
19. Second , the United States argues that evidence of a series of transactions for the provision 
of hot rolled steel for less than adequate remuneration demonstrates the existence of a subsidy 
programme. Turkey respectfully submits that a list of transactions, some of which are above and 
some of which are below a benchmark price, is not positive evidence of a systematic  series of 
actions, let alone a plan or scheme  to provide hot rolled steel for less than adequate remuneration.  
20. Moreover, there is no explanation whatsoever in the USDOC 's determinations for how the 
evidence cited by the United States in its submissions demonstrates or otherwise reflects a 
systematic  series of actions, or a "plan" or "scheme " to provide hot rolled steel for less than 
adequate remune ration. Thus, to the extent the USDOC purports to have relied on this evidence, it 
failed to provide a reasoned and adequate explanation for its specificity determinations.  
21. Third, the United States argues that the USDOC implicitly considered the two fa ctors in the 
final sentence of Article 2.1(c) because there was evidence on the record of the length of time 
Erdemir and Isdemir have been in operation and because of certain statements in Erdemir 's annual 
reports. Turkey respectfully submits that these fa cts are not evidence of the duration of the 
alleged subsidy programme, particularly in light of the fact that Erdemir and Isdemir were 
privatized in 2006. Moreover, the USDOC did not rely upon or even cite this evidence, or any of 
the other evidence the Un ited States discusses in its submissions, in its de facto  specificity 
determinations in the challenged proceedings. Thus the United States ' argument is simply another 
example of post hoc  rationalization.  
E. The United States Has Failed to Rebut Turkey's Cl aim that the USDOC 
Improperly Used Facts Available and Drew Adverse Inferences for the 
Purpose of Punishing Respondents, Resulting in Inaccurate Subsidy 
Determinations That Are Inconsistent with Article 12.7 of the SCM Agreement  
22. Turkey explained in its  First Submission that the USDOC 's use of facts available and drawing 
of adverse inferences in the OCTG, WLP, and HWRP proceedings is inconsistent with Article 12.7 of 
the SCM Agreement. In particular, in the OCTG investigation, the USDOC 's determination  to use 
facts available and draw adverse inferences is inconsistent with Article 12.7 for two reasons: first, 
because the USDOC failed to take "due account " of the difficulties Borusan experienced in 
gathering the requested information; and second , because  the USDOC, in drawing adverse 
inferences, chose the worst facts available, in order to punish Borusan for its alleged non -
cooperation. The USDOC 's use of facts available in the WLP and HWRP investigations is also 
inconsistent with Article 12.7 for the lat ter reason —in drawing adverse inferences, the USDOC 
purposefully selected the worst  possible facts available in order to punish respondents for their 
alleged failure to cooperate.  
23. The United States appears to not dispute that the USDOC uses facts avail able and draws 
adverse inferences  for the purpose of punishing respondents, or that the Appellate Body has found 
such practices to be inconsistent with Article 12.7, because it could result in inaccurate 
subsidization determinations. Instead, the United St ates argues that the USDOC 's use of facts 
available was not punitive in these cases because the USDOC selected facts that were a 
"reasonable replacement " for the missing "necessary information " and because it did not result in 
inaccurate subsidy determinat ions. Each of these arguments fails.  
24. First, the USDOC did not select facts that "reasonably  replace " the missing necessary 
information. The USDOC did not engage in a process of "reasoning and evaluation " involving "a 
degree of comparison " of all the su bstantiated facts on the record, but instead simply chose the 
worst possible facts in order to punish respondents.  WT/DS523/R/Add.1  
 
- 33 - 
 
  25. Second , the USDOC failed to identify or explain the connection between the selected "facts 
available " and the missing "necessary informat ion." Thus, the resulting determinations cannot be 
considered "accurate " for purposes of Article 12.7. In this regard, Turkey submits that the lack of a 
connection between the allegedly missing "necessary information " and the rates selected by the 
USDOC is particularly egregious with regard to the programs for which the USDOC used rates 
calculated in the 1996 investigation of Certain Pasta from Italy and the 1986 investigation of CWP.  
F. The United States Has Failed to  Rebut Turkey's Claim that the ITC's 
Cross -Cumulation of Subsidized and Non -Subsidized Imports in Injury 
Determinations is Contrary to Article  15.3 of the SCM Agreement  
26. Turkey explained in its First Submission that the ITC has a practice, in assessing material 
injury, of cumulating imports that are subject to countervailing duty investigations or reviews with 
imports that are subject only to antidumping duty investigations or reviews, i.e., non -subsidized 
imports. Turkey also explained that the ITC 's practice of "cross-cumulating " subsidized and non -
subsidized imports  is inconsistent with Article 15.3 of the SCM Agreement both "as such " and as 
applied in the OCTG, WLP, HWRP, and CWP proceedings. In response, the United States argues 
that Turkey has faile d to demonstrate that the ITC 's practice exists or can be challenged "as such " 
and that cross -cumulation is permissible under Article 15.3. Neither of these arguments has any 
merit.  
27. First, Turkey has met its burden of proof to show the ITC 's practice of cross -cumulating 
exists and is challengeable "as such. " Turkey has explained that the ITC cumulates all imports 
from countries as to which antidumping or countervailing duty petitions were filed 
(or investigations self -initiated) on the same day, and therefore cumulates subsidized and non-
subsidized  imports. The ITC developed this practice in its cases over time, both as a result of its 
own interpretation of the Tariff Act and the interpretation  of U.S. domestic courts. Turkey has also 
demonstrated that the ITC 's practice has "general " and "prospective " application, both in 
investigations and in reviews. The ITC considers its cross -cumulation practice to be required  under 
the statute in investigation, and while the ITC has discretion to depart from its normal practice in 
reviews, the United States has not identified any cases in which the ITC has declined to cross -
cumulate subsidized and non -subsidized imports when the conditions for cumulation are met.  
28. Second , Turkey has explained that cross -cumulation is not permitted under Article 15.3 of 
the SCM Agreement, in any circumstances. This is confirmed by the Appellate Body 's interpretation 
of Article 15.3 in US – Carbon Steel (India) , as well as the ob ject and purpose of the 
SCM Agreement and its negotiating history. Contrary to the United States ' argument, the text of 
Article 15.3 is not silent on this issue, and the United States has failed to identify any cogent 
reasons for why this Panel should inte rpret Article 15.3 in a manner that differs from the 
Appellate  Body's approach in US – Carbon Steel (India) . 
29. Moreover, the United States ' reliance on the Appellate Body 's reasoning in US – Oil Country 
Tubular Goods Sunset Reviews  and EC – Tube or Pipe Fittings  is misplaced. The Appellate Body did 
not address the permissibility of cross -cumulation of subsidized imports and dumped 
(non-subsidized) imports in those cases. Turkey respectfully  submits that the cross-cumulation  of 
subsidized and non-subsidize d imports presents distinct concerns from the cumulative assessment 
of subsidized (or dumped) imports from multiple countries, and indeed is contrary to the very 
object and purpose of the SCM Agreement.  
II. EXECUTIVE SUMMARY OF TURKEY'S OPENING STATEMENT AT THE SECOND 
MEETING OF THE PANEL  
30. In its prior submissions, Turkey explained that the United States ' determinations in the 
challenged proceedings suffer from a number of manifest  defects in violation of core obligations 
under the SCM Agreement . In tod ay's statement, Turkey will not repeat those points. Instead, we 
will focus on a few overarching points raised by the United States in its submissions and some of 
the key issues at stake in this dispute.  WT/DS523/R/Add.1  
 
- 34 - 
 
  A. The Panel Should Reject the United States' Challe nge to Factual Evidence 
Submitted by Turkey in Its Responses to the Panel's Questions  
31. The first issue Turkey would like to discuss is the United States ' argument in its Second 
Submission that the Panel should reject factual evidence which Turkey submit ted in its responses 
to the Panel 's questions —including evidence regarding the USDOC 's practice of rejecting in -country 
benchmarks and the ITC 's practice of cross -cumulation —as "untimely and contrary to the Panel 's 
Working Procedures. " Turkey  respectfully submits that the complained -of evidence falls within the 
scope of paragraph 7 of the Panel 's Working Procedures both because this evidence is necessary to 
rebut arguments made by the United States and to answer questions posed by the Panel.  
32. Turkey reca lls that Article 11 of the DSU does not establish time limits for the submission of 
evidence to a panel. Moreover, contrary to the United States ' arguments, a complainant is not 
required to submit all factual evidence in its First Submission in order to ma ke a prima facie  case. 
Turkey observes that the United States failed to cite a single  example of a panel or Appellate Body 
refusing to consider factual evidence submitted in response to questions from the panel following 
the First Substantive Meeting of th e parties. The United States has also failed to demonstrate how 
Turkey 's submission of additional factual information in response to questions from the Panel has 
prejudiced its ability to present its defense.  
B. The United States Has Failed to Rebut Turkey's Claim that the USDOC Applied 
an Incorrect Legal Standard and Failed to Provide Reasoned and Adequate 
Explanations for Its Public Body Determinations Under Article 1.1(a)(1) of 
the SCM Agreement  
33. Turkey will next address some of the United State s' counter arguments regarding Turkey 's 
claims under Article 1.1(a)(1) of the SCM Agreement. First, the United States argues that the 
USDOC did apply the correct legal standard, at least with regard to Erdemir and Isdemir, because 
the USDOC considered nume rous indicia of the Government of Turkey 's meaningful control and 
that this evidence demonstrated that Erdemir and Isdemir possess, exercise, or are vested with 
governmental authority. However, as Turkey has previously not ed, not once in any of the 
four proceedings at issue did the USDOC refer to the correct legal standard for "public body. " 
Instead, the USDOC simply substituted its preferred concept of "meaningful control " for the public 
body standard articulated by the Appellate Body. The Appellate Body i n US – Carbon Steel (India)  
did not adopt the concept of "meaningful control " as the legal standard for "public body, " and 
indeed criticized the panel in that dispute for doing so.  
34. The United States also argues that standard for "public body " articulat ed by the 
Appellate  Body erroneously  collapses the concepts of "public body " and "government " or 
"government agency. " While the United States may disagree with the Appellate  Body's 
interpretation of Article  1.1(a)(1) of the SCM Agreement, it has failed to provide any cogent 
reasons for why this Panel should not follow the Appellate Body 's guidance and apply this standard 
to OYAK, Erdemir, and Isdemir.  
35. Second , the United States argues that the record evidence supports the USDOC 's conclusion 
that the Gove rnment of Turkey exercised meaningful control over Erdemir and Isdemir. As Turkey 
has previously  demonstrated, the substantive legal question  to be answered by the USDOC, and 
this Panel, is whether one or more of the characteristics of a public body exist,  i.e., whether OYAK, 
Erdemir, and Isdemir possess , exercise , or are  vested with  governmental authority, not whether 
the Government of Turkey exercised meaningful control over them.  
36. Moreover, the alleged "formal indicia " of government control cited by t he USDOC are 
insufficient to support  a public body determination without further analysis and corroborating 
evidence of an entity 's conduct . In this regard, consideration  of evidence of OYAK 's, Erdemir 's, and 
Isdemir 's conduct does not conflate the issues of "financial contribution " and "benefit, " as the 
United States argues. The USDOC 's outright refusal to consider evidence of OYAK 's, Erdemir 's, and 
Isdemir 's conduct demonstrates a clear failure to provide a reasoned and adequate explanation for 
its determinations.  WT/DS523/R/Add.1  
 
- 35 - 
 
  37. Third, the United States is incorrect that the USDOC did not, and did not need to, make a 
public body finding regarding OYAK. As Turkey has previously observed, the USDOC articulated its 
preferred standard for "public body " in the OCTG investigation and applied that standard to OYAK 
in all of the challenged determinations; the USDOC thus plainly found  OYAK to be a public body. 
The United States ' assertions to the contrary are nothing more than post hoc  rationalization. 
Furthermore, the U nited States is incorrect that it was unnecessary for the USDOC to make a 
public body finding regarding OYAK because the USDOC did not find that OYAK itself provided a 
countervailable subsidy.  
C. The United States Has Failed to Rebut Turkey's Claim that th e USDOC's 
Practice of Rejecting In -Country Benchmarks Is Contrary to Articles 1.1(b) 
and 14(d) of the SCM  Agreement  
38. The next issue Turkey would like to address is the USDOC 's practice  of rejecting in -country 
prices as potential benchmarks for benefit w ith no consideration of price distortion. Turkey has 
already demonstrated that this practice exists as a rule or norm of general and prospective 
application and is inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement, both "as 
such" and "as app lied" in the OCTG investigation. Turkey would like to make two brief additional 
points regarding the United States ' arguments.  
39. First, the United States argues that in several of the examples Turkey provided the USDOC 
considered evidence of price distor tion such as import penetration. Turkey submits that according 
to the Appellate Body 's guidance in US – Countervailing Measures (China)  and US – Carbon Steel 
(India) , an investigating authority cannot presume that governm ent ownership or control of 
domestic producers results in price distortion but rather must conduct a market analysis that 
explains how the alleged government ownership or control results in price distortion. Evidence of 
import penetration may be relevant to such a market analysis, bu t in the examples cited by the 
United States that is not how the USDOC used evidence of import penetration.  
40. Second , the United States argues that because the USDOC exercised its discretion to depart 
from its normal  practice in the WLP, HWRP, and CWP de terminations, Turkey cannot establish a 
rule or norm necessarily leading to WTO -inconsistent action. The United States ' argument appears 
to be based on a GATT -era distinction between mandatory and discretionary  legislation, which is 
not relevant in this ca se. Indeed, Turkey submits that the fact that the USDOC does not apply the 
complained -of practice in all instances, or that it has the discretion to depart from its normal 
practice, does not mean the practice is not challengeable "as such, " or that the pra ctice does not 
necessarily  result in a WTO inconsistency.  
D. The United States Has Failed to Rebut Turkey's Claim that the USDOC Failed 
to Identify a Subsidy Programme, Within the Meaning of Article 2.1(c), or 
Evaluate the Specificity Factors in Article 2. 1(c) 
41. The next issue Turkey will address is the USDOC 's failure to identify a "subsidy programme, " 
within the meaning of Article 2.1(c) of the SCM Agreement, or evaluate the factors in the last 
sentence of Article 2.1(c). Turkey demonstrated in its prior submissions that the USDOC failed to 
sufficiently identify or substantiate the existence of a "subsidy programme " related to the provision 
of hot rolled steel. In response, the United States points to certain evidence on the record, namely 
the respondents ' transaction -specific accounting and statements  in Erdemir 's annual reports.  
42. Turkey observes th at the USDOC did not cite any of this evidence now referenced by the 
United States in its de facto  specificity findings. Moreover, to the extent the USDOC purports to 
have relied upon this evidence  in its de facto specificity findings , it failed to provide a reasoned 
and adequate explanation for how this information demonstrates a "plan," "scheme, " or 
"systematic series of actions " to provide subsidies.  
43. Turkey also demonstrated in its First Submission that the USDOC failed to take into account 
the two factors identified in the last sentence of Article 2.1(c) of the SCM Agreement, namely the 
length of time the alleged "subsidy programme " was in operation and the extent of diversification 
of the Turkish economy. In response, the Unite d States argues  that the USDOC 's implicit 
consideration of these factors is reflected in the USDOC 's examination of certain pieces of record 
evidence.  WT/DS523/R/Add.1  
 
- 36 - 
 
  44. Turkey explained in detail in its Second Submission why this evidence is not relevant to an 
analysis of the two factors in the last sentence of Article 2.1(c). Moreover , as Turkey also 
previously explained, the USDOC did not rely upon or even cite this evidence in any way in its de 
facto specificity findings. Thus, there is no indication in the USDOC 's determinations that it 
explicitly or even implicitly  considered the two factors in the last sentence of Article 2.1(c), which 
it was obligated to do regardless of whether any interested party raised the issue.  
E. The United States Has Failed to Rebut Turkey' s Claim that the USDOC 
Impermissibly Drew Adverse Inferences in Selecting among the Facts 
Available for the Purpose of Punishing Respondents  
45. Next, Turkey addresses several of the United States ' arguments regarding Turkey 's claims 
under Article 12.7 of the SCM Agreement that the USDOC  improperly applied adverse inferences in 
selecting among facts available, including by doing so for the express purpose of punishing 
respondents in the OCTG , WLP, and HWRP investigations.  
46. First, the United States argues with respect to the OCTG investigation that the USDOC 
appropriately resorted to facts available and that the outcome was less favorable to Borusan does 
not mean the application  of facts available was punitive or otherwise inconsi stent with Article 12.7. 
The United States also argues that Turkey has failed to explain how the USDOC 's use of facts 
available was not accurate because Borusan 's actual prices for hot rolled steel for the Halkali and 
Izmit mills could have been lower than  the lowest price it paid for the Gemlik mill.  
47. Turkey submits that the United States ' argument is yet another example of post hoc  
rationalization. Moreover, it is entirely speculative and has no basis in the actual record of the 
case. The USDOC did not engage in any reasoning or evaluation  of which  of the substantiated facts 
available on the record of the OCTG investigation could "reasonably replace " the missing necessary 
information. Instead, the USDOC simply applied an adverse inference to select the lowest  price 
Borusan paid for hot rolled steel. The USDOC 's reasoning suggests that it viewed this price as the 
worst  possible information on the record and that it selected this price to punish Borusan for 
alleged non -cooperation.  
48. Second , the United S tates argues that Turkey dramatically expanded the scope of its 
arguments with respect to the WLP proceeding in its responses to the Panel 's questions. Turkey 
has already explained that its claim under Article 12.7 regarding the WLP proceeding is not limit ed 
to certain subsidy programs, as the United States suggests, but rather relates to the USDOC 's 
application of "facts available " in general. In any event, and as previously discussed, a 
complainant is not required to submit all arguments and evidence in i ts First Submission to make a 
prima facie  case and Turkey submitted the evidence in question in response to a question from the 
Panel, as expressly permitted under paragraph 7 of the Panel 's Working Procedures.  
49. Third, the United States argues that Turk ey has failed to demonstrate that the subsidy rates 
the USDOC selected  in the WLP and HWRP proceedings were not "accurate, " because the rates 
were based on information provided in other Turkish countervailing duty proceedings and reflect 
the actual subsidy  practices of the Turkish government. Turkey strongly disputes that subsidy 
rates calculated in a previous Turkish countervailing duty proceeding can be used as "facts 
available " to replace any missing "necessary information, " if the subsidy programs are "similar " or 
if a rate is otherwise "based on information provided by cooperating companies. " As Turkey has 
previously explained, there was no connection between the USDOC 's selected facts available and 
the missing "necessary information " in the challenged proceedings. Moreover, the USDOC 's 
methodology of selecting the highest possible rates —or, in other words, the worst  possible 
information —as "facts available " is clearly intended to be punitive, as Turkey has discussed in its 
prior submissions.  
F. The Unit ed States Has Failed to Rebut Turkey's Claims Regarding the 
ITC's  Practice of Cross -Cumulating Subsidized and Non -Subsidized Imports, 
Both in Investigations and in Sunset Reviews, in Violation of Article 15.3 of 
the SCM  Agreement  
50. The final issue Turkey  addresses is the ITC 's practice of cross -cumulating subsidized and 
non-subsidized imports in injury determinations and sunset reviews, which is inconsistent with WT/DS523/R/Add.1  
 
- 37 - 
 
  Article 15.3 of the SCM Agreement both "as such " and as applied in the challenged proceedings . 
Turkey has already addressed the United States ' challenge to the factual evidence which Turkey 
submitted in its responses to the Panel 's questions. Turkey will briefly respond to three additional 
points raised by the United States in its Second Submissio n. 
51. First, the United States argues that Turkey failed to make a prima facie case in support of its 
claims under Article 15.3 because Turkey failed to engage in an interpretation  of Article 15.3 
according to the customary rules of interpretation of international law. Turkey explained why the 
United States ' argument, and its contrary interpretation of Article 15.3, are incorrect in Turkey 's 
prior submissions. What is more, and in a ny event, Turkey does not believe that the United States ' 
argument is correct that to meet its burden of proof, a party must engage in a detailed 
interpretation of the legal provisions on which it relies. Indeed, these are two very different issues.  
52. Second, the United States argues that Turkey failed to adequately describe all of the 
conditions of competition which the ITC examines to determine  if the conditions for cumulation are 
met. Turkey disputes that it has not accurately described the factors whi ch the ITC evaluates in 
determining whether to exercise its discretion to cumulate imports in sunset reviews, although it 
also does not believe that this is necessarily its burden. Regardless, however, this does not alter 
the fact that the ITC 's conditions  for cumulation, and thus it s exercise of discretion in reviews, do 
not even relate  to whether subject imports are subsidized or not.  
53. Third, the United States argues that if investigating authorities are not mandated to follow 
the provisions of Article  15 in making a likelihood -of-injury determination under Article 21.3, then 
Article 15 cannot prohibit cross -cumulation in sunset reviews. Turkey does not argue that all of the 
requirements for injury determinations in Article 15 apply with equal force in sunset reviews. 
Rather, Turkey considers that the cumulative assessment  of subsidized and dumped, non-
subsidized  imports for purposes of determining injury is fundamentally inconsistent with 
Article  15.3, in light of its context and the object and purpose of the SCM Agreement.  
54. None of the United States ' arguments explain why or how it would be a correct 
interpretation of the SCM Agreement  to prohibit cross -cumulation in investigations but allow it in 
sunset reviews. Indeed, it would be an absurd and irr ational result if, after having reached a 
positive injury determination based on the effects of only subsidized  imports, investigating 
authorities were permitted in sunset reviews to also cumulatively consider the effects of dumped , 
non-subsidized imports for purposes of determining whether revocation of a countervailing duty 
order is likely to result in recurrence of injury.  
 WT/DS523/R/Add.1  
 
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  ANNEX B -3 
FIRST INTEGRATED EXE CUTIVE SUMMARY OF TH E ARGUMENTS OF THE U NITED STATES  
I. PRELIMINARY RULING REQUEST  
A. Turkey 's Panel  Request Improperly Included Measures and Claims that Were 
Not the Subject of Consultations  
1. DSU Article 4.4 provides that a request for consultations must state the reasons for the 
request, "including identification of the measures at issue a nd an indication of the legal basis for 
the complaint. " Under DSU Article 6.2, a panel request must "identify the specific measures at 
issue and provide a brief summary of the legal basis of the complaint[.] " The panel request may 
neither "expand the scope " nor change the essence of a consultations request.  A panel should 
"compare the respective parameters of the consultations request and the panel request to 
determine whether an expansion of the scope or change in the essence of the dispute occurred 
throug h the addition of instruments in the panel request that were not identified in the 
consultations request. "  
2. In its consultations  request, Turkey identifies the specific measures at issue as the 
"preliminary and final countervailing duty measures imposed by  the United States on Turkish 
imports of Certain Oil Country Tubular Goods (‘OCTG '); Welded Line Pipe [WLP]; Heavy Walled 
Rectangular Welded Carbon Steel Pipes and Tubes [HWRP]; and Circular Welded Carbon Steel 
Pipes and Tubes [CWP]. " The legal basis for T urkey 's complaint is that USITC 's "determination of 
injury based on cumulated imports " in the OCTG, WLP, HWRP, and CWP proceedings is 
inconsistent with Article 15.3 of the SCM Agreement.   
3. Turkey has attempted to expand the scope of this dispute by improper ly introducing in its 
panel request new measures and claims.  First, Turkey 's panel request challenges USITC 's "practice 
of 'cross-cumulating ' subsidized and non -subsidized imports " as being inconsistent with 
Article  15.3 of the SCM Agreement "both 'as such ', as a practice and as applied " in the OCTG, 
WLP, HWRP, and CWP  proceedings.  Turkey had identified no "practice " of cross -cumulating in its 
consultation request.  Moreover, Turkey failed to request consultations on this alleged practice "as 
such, " instead limiting its claims to the injury determinations made in the specific investigations 
identified in its consultations request.  Thus, Turkey 's newly added "as such " legal claims are not 
within the Panel 's terms of reference.   
4. Second, Turkey also has attempte d to expand the scope of this dispute by improperly 
introducing in its panel request new measures and claims with respect to benefit.  Turkey claims 
that USDOC has a practice of rejecting in -country prices as a benchmark "based solely on evidence 
that the g overnment owns or controls the majority or a substantial portion of the market for the 
good, " and asserts that this practice is inconsistent with Article 14(d) of the SCM Agreement "both 
'as such ', as a practice, and as applied in [the OCTG] proceeding. " Turkey failed to request 
consultations on this alleged "practice " of rejecting in -country prices as a benchmark.  A measure 
on which Turkey failed to consult cannot be included in its panel request and falls outside the 
Panel 's terms of reference.  In additio n, Turkey 's panel request challenges this alleged practice "as 
such, " but this claim was not included in its consultation request.  Because the consultation request 
was limited to claims concerning the benefit determination made in the OCTG proceeding, Turk ey's 
newly added legal claims are not within the Panel 's terms of reference.   
B. Turkey' s First Written Submission Improperly Included Claims that Are Not 
Within the Panel 's Terms of Reference  
5. Article 6.2 requires two elements to be included in a panel request, namely:  
(a) identification of the specific measures at issue; and (b) a brief summary of the legal basis of 
the complaint.  These elements comprise the "matter referred to the DSB, " which is the basis for a 
panel 's terms of reference under Article 7.1 of the DSU.  "[I]f either of them is not properly 
identified, the matter would not be within the panel 's terms of reference. "  WT/DS523/R/Add.1  
 
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  6. First, Turkey 's claim  with respect to Article 12.7 of the SCM Agreement in the WLP 
investigation is expressly limited to the a pplication of facts available by USDOC "[i]n connection 
with the alleged Provision of Hot Rolled Steel [HRS] for Less Than Adequate Remuneration 
[LTAR]. " The other 29 subsidy programs are not the subject of any claims in Turkey 's panel 
request, including a ny claims under Article 12.7, and are thus outside the Panel 's terms of 
reference.  
7. In its first written submission , however, Turkey has dramatically expanded its arguments.  
In addition to the application of facts available with respect to the Provision of HRS, Turkey 
challenges its application for all 30 subsidy programs at issue in the WLP investigation.  Having 
failed to raise claims regarding these other 29 programs in either its consultations request or panel 
request, Turkey may not argue for the first t ime in its first written submission that the applications 
of facts available for these programs are inconsistent with Article 12.7.  
8. Second, in its request for establishment of a panel, Turkey includes claims under Article 19.4 
of the SCM Agreement  and Article VI:3 of the GATT 1994 that are expressly dependent on the 
Panel finding that the United States ' practices are inconsistent with other provisions of the 
SCM Agreement.   
9. Turkey attempts to raise independent arguments with respect to Article 19.4 and 
Article VI:3 in its first written submission.  Since the only claims Turkey included in its panel 
request under Article 19.4 and Article VI:3 were expressly contingent on the Panel finding a 
violation of Articles  1.1(a)(1), 1.1(b), 2.1(c), 12.7, 14(d) and/or 15 .3 of the SCM Agreement, 
these new, independent claims are not within the Panel 's terms of reference.   
C. The Benchmark Measure Challenged by Turkey Ceased to Have Legal Effect 
Prior to The Date of The Panel 's Establishment  
10. With respect to its Articles 1.1(b) and 14(d) claims, Turkey challenges an aspect of USDOC 's 
benefit determination in the OCTG investigation that was superseded and ceased to have any legal 
effect prior to the establishment of the Panel.  Accordingly, it is thus outside its terms of re ference.   
11. When the DSB establishes a panel, the panel 's terms of reference under Article 7.1 are 
(unless otherwise decided) "[t]o examine . . . the matter referred to the DSB " by the complainant 
in its panel request.  Under DSU Article 6.2, the "matter " to be examined by the DSB consists of 
"the specific measures at issue " and "a brief summary of the legal basis of the complaint. " As the 
Appellate Body recognized in EC – Chicken Cuts , "[t]he term ‘specific measures at issue ' in 
Article  6.2 suggests that, as a general rule, the measures included in a panel 's terms of reference 
must be measures that are in existence at the time of the establishment of the panel. " 
12. However, the measure  challenged by Turkey in this dispute —USDOC 's rejection of in -
country benchmark s to determine whether HRS was provided to the Turkish respondents for 
LTAR—was no longer the legal basis for USDOC 's benefit determination at the time of 
establishment of the Panel in this case.  Rather, the benchmarks determination supporting the CVD 
order at the time of panel establishment was reflected in the OCTG remand determination, issued 
on remand pursuant to domestic litigation.  On March 10, 2016, USDOC published notice of its 
OCTG amended final determination, which effectuated USDOC 's new benchmar k and benefit 
determination reflected in the OCTG remand determination.  
13. Therefore, when the OCTG amended final determination was published on March 10, 2016, 
USDOC 's determination to use of out -of-country benchmarks ceased to have any legal effect, and 
was replaced by USDOC 's remand determination, in which it determined to use in -country 
benchmarks.  The Panel subsequently was established on June 19, 2017.  Because the task of a 
panel is to determine whether the measure at issue is consistent with the relevan t obligations at 
the time of establishment of the Panel , Turkey 's challenge to the benchmark and benefit 
determination in the OCTG final determination falls outside the Panel 's terms of reference.  
II. TURKEY 'S "AS SUCH" CHALLENGE UNDER ARTICLES 1.1(B) AND 14(D)  
14. Turkey 's "as such " claim with respect to the benchmark determination is not within the 
Panel 's terms of reference.  For completeness, the United States notes that Turkey 's challenge also WT/DS523/R/Add.1  
 
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  fails on the merits.  Turkey  alleges that "[t]he USDOC has a prac tice, in assessing whether a good 
is provided for less than adequate remuneration thereby conferring a benefit, of rejecting 
in-country prices as a benchmark based solely on evidence that the government owns or controls 
the majority or a substantial portio n of the market for the good, with no consideration of whether 
in-country prices are distorted. "  
15. The Appellate Body explained in US – Zeroing (EC)  that "a panel must not lightly assume the 
existence of a ‘rule or norm ' constituting a measure of general an d prospective application, 
especially when it is not expressed in the form of a written document. " In finding the existence of 
a rule or norm in US – Zeroing (EC) , the Appellate Body noted that the "evidence consisted of 
considerably more than a string of cases, or repeated action, based on which the Panel would 
simply have divined the existence of a measure in the abstract. "  
16. Turkey 's showing with respect to USDOC 's alleged rule falls far short of its burden.  
In support of its claim, Turkey points only to a statement in the final benchmark determination for 
OCTG – which, as explained, was reversed by a U.S. domestic court and amended by USDOC – 
and the preliminary benchmark determinations in four other investigations, one of which also was 
reversed in the f inal benchmark determination.  Turkey has not explained how these 
determinations support its claim, only merely citing to conclusory sentences from the 
determinations.  Turkey also attempts to support its claim by citing to language in the preamble of 
USDOC 's regulations; however, Turkey concedes just two paragraphs prior in its submission that 
the USDOC regulation is consistent with Article 14(d) of the SCM Agreement.  
17. Moreover, in none of the four cases challenged by Turkey in this dispute did USDOC "reject [] 
in-country prices as a benchmark based solely on evidence that the government owns or controls 
the majority or a substantial portion of the market for the good, with no consideration of whether 
in-country prices are distorted, " as alleged by Turkey.  Rather, as demonstrated, in each case, 
USDOC discussed and considered evidence relevant to the distortion of in -country prices, in 
addition to the government 's market share, to determine whether in -country prices are an 
appropriate benchmark.  Therefore, th e United States respectfully requests that the Panel reject 
Turkey 's "as such " claim because Turkey has not met the "high" evidentiary burden in these 
circumstances to establish a rule or norm of general and prospective application.  
III. TURKEY 'S ARTICLE 1.1(A) (1) CLAIMS  
18. Turkey claims, "[t]he USDOC 's determinations that OYAK, Erdemir, and Isdemir are public 
bodies is inconsistent with Article 1.1(a)(1). " Contrary to Turkey 's claims, USDOC did not find, in 
any of the determinations, that OYAK provided a financia l contribution, and thus did not find OYAK 
to be a public body for purposes of Article 1.1(a)(1).  Such a finding was neither necessary, nor 
appropriate, because USDOC did not find that OYAK provided a countervailable subsidy.  Rather, in 
determining that HR S was provided for LTAR, USDOC found Erdemir and Isdemir to be public 
bodies.   
19. Therefore, because USDOC did not find a countervailable subsidy with respect to OYAK, and 
thus did not find that OYAK provided a financial contribution, Turkey 's claim must fail  because the 
requirements of Article 1.1(a)(1) of the SCM Agreement do not apply to USDOC 's analysis of 
OYAK.   
20. Regarding Erdemir and Isdemir, after consideration of the record as a whole, USDOC 
determined Erdemir and Isdemir to be public bodies, based on n umerous considerations, including 
the involvement of OYAK in Erdemir.  USDOC first described the legal basis for OYAK 's authority as 
the pension fund for the Turkish military and the functions it performs pursuant to this authority.  
In carrying out this fun ction, USDOC noted that Law No. 205 specifies that OYAK 's property "shall 
enjoy the same rights and privileges as State property " and that OYAK is exempt from corporate 
and other taxes in parallel with the privileges granted to all actors operating within the social 
security system in Turkey.  USDOC likewise observed that "members of the armed forces must by 
law contribute part of their salaries to OYAK. "  
21. USDOC also described the extensive overlap between OYAK 's leadership structure and the 
Turkish Armed Fo rces, as well as other organs of the GOT.  In the OCTG final determination, 
USDOC explained that a study by the Turkish Economic and Social Studies Foundation concluded WT/DS523/R/Add.1  
 
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  that "a review of the membership and administrative structure of OYAK reveals that the m ilitary is 
clearly in control. "  
22. USDOC next examined the functions and conduct of Erdemir and Isdemir, specifically the 
meaningful control by the GOT.  USDOC examined the ownership of Erdemir and Isdemir.  USDOC 
then tied the stated corporate objectives and accomplishments of Erdemir and Isdemir to certain 
macroeconomic goals defined by the GOT, demonstrating that Erdemir and Isdemir designed their 
corporate priorities to adhere to state -crafted policy.  In doing so, USDOC established that 
Erdemir 's and Isdemi r's purview extends beyond that of a typical profit -oriented private firm to 
encompass considerations that are governmental in the legal order of Turkey.  Specifically, in the 
OCTG final determination, USDOC explained that Erdemir 's 2012 Annual Report is "in line with the 
GOT's…2012 -2014 Medium Term Programme. " Similarly, in the WLP, CWP and HWRP 
determinations, USDOC examined Erdemir 's 2013 Annual Report, and determined that it was "in 
line with the GOT 's stated policy in its 2012 -2014 Medium Term Programm e to improve Turkey 's 
balance of payments. " 
23. USDOC then examined Erdemir 's Annual Report and Articles of Association.  USDOC found 
evidence indicating that "OYAK effectively decides the composition of the majority of Erdemir 's 
board through its majority shar eholder voting rights in Erdemir. " In each of the determinations, 
USDOC also examined the role of the Turkish Prime Ministry Privatization Administration (TPA).  
USDOC examined Erdemir 's Annual Reports, which state that OYAK and the TPA both maintain 
member s on Erdemir 's Board of Directors.  In addition, USDOC cited the TPA 's veto power over any 
decision related to the closure, sale, merger, or liquidation of Erdemir and Isdemir.  Accordingly, 
USDOC provided reasoned and adequate explanations in each determina tion that the GOT, 
through OYAK and the TPA, exercised "meaningful control " over Erdemir and Isdemir.   
24. Turkey also argues that the evidence cited by USDOC does not support a determination that 
OYAK is a public body.  In arguing that the evidence relied upon  by USDOC does not support its 
examination concerning OYAK, Turkey mainly points to a position paper authored by a law firm, 
and the GOT 's and Borusan 's case briefs.  Throughout its submission, Turkey presents as objective 
facts, statements from these non -objective pieces of record evidence.   
25. Specifically, in countering the OCTG, HWRP and WLP determinations, Turkey relies on a 
position paper authored by a law firm that was on the record of the three proceedings.  As USDOC 
explained, however, this position pap er was commissioned by OYAK as a result of a report from 
WYG, a consulting firm, ( "WYG Report "), "that OYAK qualified as a public undertaking and that 
State aid rules are applicable to OYAK 's investment decisions. " Specifically, the position paper 
explains  that OYAK asked the law firm to "provide assessments of sections of the WYG report " and 
that its "legal analysis ... should result in rectifying any erroneous statements, especially as to any 
misrepresentations contained in the WYG report that could poten tially be very damaging to OYAK if 
further relied upon by the Commission. " Because the position paper was created for the express 
purpose of rebutting statements in the WYG report, that is, a report that opined that OYAK was a 
public undertaking and that S tate aid rules were applicable to OYAK 's investment decisions, 
USDOC asked the GOT twice  to submit the referenced WYG report and other documents that this 
position paper cited.  However, the GOT claimed that it could not submit the documents under its 
confidentiality agreements with the European Union or provide public summaries of their contents.   
26. As for the CWP determination, in attempts to undermine USDOC 's finding, Turkey points 
repeatedly to Borusan 's case brief in the proceeding.  A case brief in a USDOC administrative 
proceeding, at which point parties are not permitted to submit new record evidence, is simply 
argument made by an interested party in a proceeding.  Moreover, the statements that Turkey has 
pulled from Borusan 's case brief are themselve s unsupported by record evidence, and are merely 
assertions presented by an interested party.  Thus, by relying on administrative case briefs and the 
law firm position paper, Turkey does no more than proffer, in a conclusory manner, its alternative 
interpre tation of the record facts.   
27. Turkey argues that USDOC refused to consider evidence that demonstrates that OYAK 
operates independently of the government, and that Erdemir operates on a commercial basis.  
However, USDOC considered this information and provide d a reasoned and adequate explanation 
for its rejection.  As USDOC explained, "a firm 's commercial behavior is not dispositive in 
determining whether that firm is a government 'authority. '" Specifically, USDOC explained, "this 
line of argument conflates the  issues of the ‘financial contribution ' being provided by an authority WT/DS523/R/Add.1  
 
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  and ‘benefit. '" This reasoning is consistent with the approach taken by dispute settlement panels in 
prior proceedings, for example, in Korea – Commercial Vessels (Panel) . Moreover, thi s reasoning is 
supported by the structure of the SCM Agreement.  Accordingly, contrary to Turkey 's claims, 
consideration of whether a financial contribution was provided consistent with market principles is 
not germane to the determination of the existence of a financial  contribution, as determined 
by USDOC.  
28. As discussed above, USDOC considered the evidence that was submitted and, taking into 
account the totality of the evidence before it, came to a different conclusion than that for which 
Turkey now argues . The Panel should, as the Appellate Body has found previously, "seek to review 
the [USDOC 's] decision on its own terms, in particular, by identifying the inference drawn by 
[USDOC ] from the evidence, and then by considering whether the evidence could sust ain that 
inference. " For the reasons given above, the Panel should find that USDOC 's public body 
determinations with respect to Erdemir and Isdemir are consistent with Article 1.1(a)(1) of the 
SCM Agreement.    
IV. TURKEY 'S CLAIMS UNDER ARTICLE 12.7 OF THE SCM AGREEMENT  
29. Article 12.7 provides a Member 's authority to make determinations on the basis of the facts 
available.  The extent to which the investigating authority must evaluate the possible "facts 
available, " and the form that evaluation may take, "depend[s]  on the particular circumstances of a 
given case. " A non -cooperating party 's knowledge of the consequences of failing to provide 
information can be taken into account by an investigating authority, along with other procedural 
circumstances in which informa tion is missing, in ascertaining those "facts available " on which to 
base a determination.  "[A]n investigating authority must nevertheless evaluate and reason which 
of the ‘facts available ' reasonably replace the missing ‘necessary information ', with a view to 
arriving at an accurate determination. " 
A. USDOC' s Application of Facts Available in the OCTG Investigation  
30. Turkey argues that USDOC 's determination to rely on facts available is inconsistent with 
Article 12.7 because USDOC allegedly failed to take "due account " of the difficulties Borusan 
experienced in gathering and reporting the requested information.  Turkey claims that USDOC 
imprope rly failed to select a "reasonable replacement " for the missing information in light of these 
difficulties.   
31. Turkey 's argument is not supported by record evidence.  USDOC took due account of 
Borusan 's difficulties in gathering data regarding its HRS purchas es, including by granting an 
extension and by issuing a supplemental questionnaire to allow Borusan to remedy its initial 
deficient reporting, which permitted Borusan significant additional time to gather such data.  
USDOC also selected a reasonable replace ment for the missing information by relying on the HRS 
purchase data that Borusan had provided for another of its facilities.  Therefore, USDOC 's 
application of facts available was not punitive and fully complied with Article 12.7.  
B. USDOC 's Application of  Facts Available in the WLP Investigation  
32. Turkey claims that USDOC acted inconsistently with Article 12.7 because its use of facts 
available resulted in an inaccurate subsidy calculation that has no factual connection to the 
programs under investigation.  Turkey only included argumentation and evidence in its written 
submission for two categories of subsidy programs:  (1) programs for which USDOC was unable to 
identify above -zero rates calculated for the same or similar programs in prior Turkish 
countervailin g proceedings, and (2) income tax reduction or elimination programs.   
33. For those programs where USDOC was unable to identify above -zero rates for the same or 
similar programs, USDOC applied the highest calculated subsidy rate for any program in a Turkish 
countervailing duty proceeding that could be used by Borusan.  USDOC appropriately selected this 
rate as a reasonable replacement for necessary benefit information that was not on the record due 
to Borusan 's failure to cooperate, and specifically excluded any  rates from company -specific 
programs or from programs that would not benefit the industry to which Borusan belongs.  USDOC 
thus sought to arrive at an accurate benefit determination.   WT/DS523/R/Add.1  
 
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  34. With respect to the income tax programs, USDOC found that the programs "pertained to 
either the reduction of income tax paid or the payment of no income tax. " USDOC inferred that 
Borusan had paid no income tax during the period of investigation and determined that the 
amount of that benefit was 20 percent, the standard income tax rate for corporations in Turkey.  
USDOC thus acted consistently with Article 12.7, and Turkey has not shown otherwise.  
35. Turkey also claims that USDOC acted contrary to its obligations under Article 19.4 of the 
SCM Agreement and Article VI:3 of the GATT 1994 "by applying countervailing duty measures in 
excess of the amount of subsidization attributable to HWRP [sic]. " Turkey 's arguments are based 
upon a flawed understanding of these provisions.  Consistent with Article VI:3, Article 19.4 requires 
that "[n]o countervailing duty shall be levied on any imported product in excess of the amount of 
the subsidy found to exist. " There  is no argument by Turkey that any amounts levied have 
exceeded the subsidy amount calculated.  The United States has thus acted consistently with 
Article 19.4 and Article VI:3 by not applying countervailing duties in excess of the amount of 
subsidy found t o exist by USDOC.   
C. USDOC's Application of Facts Available in the HWRP Investigation  
36. Turkey argues that USDOC 's application of facts available is inconsistent with Article 12.7 
because the subsidy rates applied to MMZ and Ozdemir "are not accurate and ha ve no factual 
connection to the alleged subsidy programs actually investigated. " Turkey disagrees with USDOC 's 
selection of the "highest  subsidy rate for similar  programs " from other Turkish countervailing duty 
proceedings.   
37. Turkey has provided no evidence  or substantive argumentation that the rate USDOC 
selected for the Deduction from Taxable Income program was determined contrary to Article 12.7.  
The rate USDOC selected is the same  rate that USDOC calculated for Ozdemir for the same  
program in the same  proceeding.  With respect to the remaining programs — Provision of Electricity 
for LTAR and Exemption from Property Tax — USDOC was unable to find a rate for the same 
programs, and therefore turned to "facts available " for similar subsidy programs.  Because th e 
subsidy rate for each program was on a par with identical or similar subsidy programs, the rate is 
not a punitive one, but instead provides a reasonable estimate of the level of subsidization 
provided by the government consistent with Article 12.7.   
38. Turkey also claims that USDOC acted contrary to its obligations under Article 19.4 of the 
SCM Agreement and Article VI:3 of the GATT 1994 "by applying countervailing duty measures in 
excess of the amount of subsidization attributable to HWRP. " Turkey 's argumen ts are based upon 
a flawed understanding of these provisions.   
39. Consistent with Article VI:3, Article 19.4 requires that "[n]o countervailing duty shall be 
levied on any imported product in excess of the amount of the subsidy found to exist. " There is no 
argument by Turkey that any amounts levied have exceeded the subsidy amount calculated.  
The United States has thus acted consistently with Article 19.4 and Article VI:3 by not applying 
countervailing duties in excess of the amount of subsidy that was found t o exist by USDOC.  
V. TURKEY'S CLAIMS UNDER ARTICLES 2.1(C) AND 2.4  
40. Turkey alleges that USDOC failed to identify or evidence the existence of a "subsidy 
programme " for the provision of HRS.  In US – Countervailing Measures (China) , the 
Appellate  Body considered the significance of the term "programme " in paragraph (c) of Article 
2.1, and envisioned that a subsidy program, in the form of an unwritten "plan or scheme " could be 
evidenced by "a systematic series of actions pursuant to which financial contributions that confer a 
benefit have been provided to certain enterprises. " 
41. Here, the record supports USDOC 's determination that the provision of HRS for LTAR is a 
"subsidy program " in the form of "plan or scheme " through a systematic series of actions . In 
particular, in each challenged proceeding, the HRS for LTAR subsidy program was first identified in 
the application submitted by the petitioners, which USDOC found to be substantiated by record 
evidence.  USDOC thereafter determined to investigate the program, including by asking questions 
of Turkey and other interested parties and reviewing their responses, identified the program in the 
preliminary determinations, gave all parties the opportunity to comment, and ultimately made a WT/DS523/R/Add.1  
 
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  final determination wi th respect to the program in each of the cases.  Specifically, the respondents 
provided USDOC with a complete transaction -specific accounting of the provision of HRS for LTAR.  
USDOC in each proceeding relied on this evidence in identifying the subsidy progr am alleged by 
petitioners.   
42. Turkey also asserts in its submission that USDOC did not consider in its specificity 
determination the factors listed in the final sentence of Article 2.1(c).  However, Turkey has not 
even asserted a prima facie  case of inconsist ency, because it fails to explain how USDOC allegedly 
neglected the factors set out in the third sentence of Article 2.1(c).   
43. USDOC took all required factors into account in its specificity determinations.  The third 
sentence of Article 2.1(c) does not impo se a purely formalistic requirement.  An authority takes a 
factor into account when it deals or reckons with it.  Where these factors are not relevant to the 
authority 's determination, it need not include express discussion of each factor.  Rather, an 
authori ty satisfies its obligation by implicitly taking into account the factors.  Accordingly, previous 
panels have found that "taking into account the two factors in the final sentence of Article 2.1(c) 
need not be done explicitly. " Such implicit findings are al l the more reasonable where, as here, 
none of the parties to the countervailing duty proceedings ever argued or suggested that the 
factors had any bearing on the facts at issue.   
44. Here, neither of the two factors identified in the third sentence of Article 2.1(c) was alleged 
in the proceedings at issue to have any bearing on the specificity inquiries, nor does Turkey point 
to any such evidence now.  Accordingly, USDOC 's specificity findings in each of the four challenged 
determinations are consistent with the  SCM Agreement.   
VI. TURKEY'S CLAIMS UNDER ARTICLE 15.3 OF THE SCM AGREEMENT  
45. Turkey claims that "the ITC has a practice, in assessing material injury, of cumulating 
imports that are subject to countervailing duty investigations with imports that are subject only to 
antidumping duty investigations, i.e., non -subsidized imports, " and that this "practice " is 
inconsistent "as such " with Article 15.3.  Turkey argues that this alleged practice should be 
considered a rule or norm of general application, subject to challenge "as such. " 
46.  "[A] panel must not lightly assume the existence of a ‘rule or norm ' constituting a measure 
of general and prospective application, especially when it is not expressed in the form of a written 
document. " A "high [evidentiary] threshold " must be reached by a complaining party, who must 
clearly establish that the alleged "rule or norm " is attributable to the responding Member; its 
precise content; and that it does have general and prospective application.   
47. Turkey 's showing falls far short of its burden.  First, Turkey states that the alleged "practice " 
it challenges is conside red by the USITC to be required by U.S. statute . The statement cited by 
Turkey from each determination similarly states that "section 771(&)(G)(i) of the Tariff Act 
requires the Commission " to take certain action.  However, Turkey has not challenged that U. S. 
law. Irrespective of what the U.S. statute may or may not require, Turkey has not alleged, much 
less demonstrated, that a "practice " autonomous from the U.S. statute exists.  
48. Second, Turkey has not proven the content of the alleged practice, much less it s existence.  
Turkey cites only to the specific injury determinations at issue.  The fact that USITC cumulated the 
effects of subsidized and non -subsidized imports in the investigations at issue, however, does not 
demonstrate "systemic application " or that t he alleged practice has "general and prospective 
application. " Furthermore, the statement by the USITC in each determination to which Turkey next 
specifically refers does not describe the cumulation of subsidized imports and dumped, non -
subsidized imports.  Rather, the statement says that the relevant statute requires USITC "to 
cumulate subject imports from all countries as to which petitions were filed ... on the same day, if 
such imports compete with each other and with the domestic like product in the U.S . market. " This 
statement does not indicate that both subsidized and dumped imports must be cumulated.  WT/DS523/R/Add.1  
 
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  49. Finally, under U.S. law a U.S. investigating authority may depart from a practice as long as 
it explained its reasons for doing so.  As the panel in US – Export Restraints  found, this "prevents 
such practice from achieving independent operational status in the sense of doing  something or 
requiring  some particular action. "  
A. The Cumulation of Dumped and Subsidized Imports In Original Investigations  
50. A proper interpretation of a provision of the WTO Agreements "must be made on the basis of 
a careful examination of the text, context and object and purpose of that provision. " Turkey has 
claimed that USITC 's cumulation of imports in the OCTG, WLP, and HWR P investigations is 
inconsistent with Article 15.3.  The burden of proving those claims thus falls on Turkey.  Yet Turkey 
has failed to engage in any analysis of Article 15.3 that would allow that burden to be met.  Turkey 
has provided no interpretation of Ar ticle 15.3 's text, context, object, or purpose.  Instead, Turkey 
has simply quoted statements made by the Appellate Body in a previous dispute.  This is not a 
sufficient basis upon which to make a legal showing.  
51. Even in the absence of argumentation by a part y, under DSU Article 11, a panel must satisfy 
itself that a breach has been made out by application of a covered agreement, properly 
interpreted, to the facts before it.  A proper interpretation reveals that nothing in the text of 
Article  15.3 prohibits the  cumulation of subsidized imports with imports that are dumped.  
Article  15.3 addresses the conditions under which an authority may cumulatively assess the effects 
of imports from multiple countries that are found to be subsidized.  Article 15.3 does not add ress — 
and certainly does not set any prohibition against — an investigating authority conducting a 
cumulative assessment of the effects on the domestic industry of subsidized imports and dumped 
imports.  In fact, it does not address dumped imports at all.  Article 15.3 is silent  on the issue of 
whether cumulation of dumped and subsidized is permissible.   
52. The fact that Article 15.3 does not specifically authorize an authority to cumulate subsidized 
imports with imports that are dumped does not, in and of itse lf, indicate that such an approach is 
prohibited by the SCM Agreement.  Turkey 's claim would have the Panel read into Article 15.3 
terms that are not there.  Such an interpretation is not consistent with proper rules of 
interpretation, and should therefore b e rejected by the Panel.   
53. An analysis that focused solely on the injurious effects of either dumped or subsidized 
imports alone when both types of imports are injuring the industry at the same time would prevent 
the investigating authority from "adequately  tak[ing] into account " the injurious effects of all 
unfairly traded imports, rendering the authority 's injury analysis less than complete.  In US – Oil 
Country Tubular Goods Sunset Reviews (AB)  and EC – Tube or Pipe Fittings , the Appellate Body 
emphasized that a cumulative assessment of the effects of unfairly traded imports from multiple 
countries is a critical component of the injury analysis authorized in the AD Agreement.  The 
Appellate Body 's reasoning is similarly applicable to a  situation where dumped  and subsidized 
imports are having a simultaneous injurious impact on an industry.  The AD and SCM Agreements 
contain nearly identical provisions governing an authority 's injury analysis, including cumulation, in 
original investigations.  Both contemplate that an authority may consider the cumulative injurious 
effects of unfairly traded imports from multiple sources, given that these imports can have a 
cumulative injurious impact on the domestic industry.   
54. Turkey, through its reliance on the Appellate Body report in US – Carbon Steel (India)  alone, 
would have the Panel read the cumulation provisions of the AD and SCM Agreements "in willful 
isolation " from each other, resulting in a reading of Article 15.3 that makes little sense in light of 
the policies unde rlying the cumulation provisions of each Agreement.  
55. Article VI also provides important context for considering the object and purpose of the SCM 
Agreement and its relationship with the AD Agreement.  Article VI:6(a) provides that a Member 
shall not impose a ntidumping or countervailing duties "unless it determines that the effect of 
dumping or subsidization , as the case may be, is such as to cause or threaten to cause material 
injury to an established domestic industry ... . " The phrase "as the case may be " acknowledges 
that cumulation of dumped and subsidized imports may be appropriate in particular injury 
investigations.   WT/DS523/R/Add.1  
 
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  56. Prohibiting investigating authorities from cross -cumulating, such that the same volume of 
subsidized imports from a country can be counter vailed in some circumstances (where exporters in 
other countries also happen to be subsidized) but not in others (where the unfairly traded imports 
from other countries are dumped but not subsidized), will impair the right afforded to Members 
under the SCM  Agreement to countervail injurious subsidized imports.  The United States urges the 
Panel to interpret the SCM Agreement in a way that ensures that the treatment of those imports is 
consistent under all the applicable provisions of the WTO agreements.  
B. The Cumulation of Dumped and Subsidized Imports in Sunset Reviews  
57. Turkey 's "as such " challenge to USITC 's alleged practice of cross -cumulation in sunset 
reviews must fail because Turkey has not established the existence of a rule or norm of general 
and pros pective application.  The alleged practice it challenges is subject to USITC 's discretion . To 
succeed in an "as such " challenge, a complainant must show that the application of the measure 
necessarily leads to WTO inconsistent action.  Turkey has made no suc h showing.  Turkey does not 
claim that the statute itself is inconsistent with the SCM Agreement.  Therefore, Turkey must prove 
its claim that USITC has exercised this discretion "in practice " in a manner that would constitute a 
"rule or norm " of "general an d prospective application. " Turkey 's reference to the single sunset 
determination at issue in this dispute is insufficient to do so.   
58. Turkey also has failed to show that Article 15.3 prohibited the cumulation of dumped and 
subsidized imports in the sunset review determination at issue.  Review proceedings, including 
sunset review proceedings, are governed by Article 21 of the SCM Agreement — not Article 15.3.  
Therefore, Article 15.3 does not apply directly to the review determination at issue.  
59. The provisions of the WTO Agreements governing dumping, subsidies, and injury findings in 
original investigations do not apply to an authority 's likely injury analysis in sunset reviews.  The 
Appellate Body has expressly rejected claims that the Agreements ' specific requirements relating 
to cumulation in original investigations can be applied directly in sunset reviews.   
60. Article  21 of the SCM Agreement does "not expressly prescribe any specific methodology for 
investigating authorities to use in making a lik elihood determination in a sunset review, " nor does 
it "identify any particular factors that authorities must take into account in making such a 
determination. " Accordingly, the SCM Agreement imposes no specific limitation on an authority 's 
cumulation deci sions in a sunset review.   
EXECUTIVE SUMMARY OF U.S. OPENING ORAL STATEMENT AT THE FIRST SUBSTANTIVE 
MEETING OF THE PANEL  
I. TURKEY'S  RESPONSE TO THE U.S. PRELIMINARY RULING  REQUEST  
61. Turkey attempts to argue in response to the U.S. Preliminary Ruling Reques t that it 
identified the injury and benefit "practices " by including the phrase "and related practices " at the 
end of a description of the challenged measures.  This reference to "related practices " is so general 
that it does not identify any "practices " at issue.  
62. Turkey further argues that its "identification of the measures at issue as the United States ' 
preliminary and final countervailing duty measures imposed in the OCTG, WLP, HWRP, and CWP 
proceedings does not limit Turkey 's legal claims to ‘as applied ' claims. " The issue, however, is not 
that Turkey described its claims with respect to the alleged practices as "as such " claims, but that 
Turkey failed to identify those alleged measures in its consultations request.   
63. With respect to its claims und er Article 12.7, Turkey attempts to draw a distinction between 
the "claims " being asserted and the "arguments put forth by a party in support of its claims. " For 
purposes of DSU Article 6.2, a "claim " refers to an "allegation that the respondent party has 
violated . . . an identified provision of a particular agreement, " whereas "arguments . . . are 
statements put forth by a complaining party to demonstrate that the responding party 's measure 
does indeed infringe upon the identified treaty provision. " Here,  Turkey alleged  that the 
U.S. application of facts available in connection with the Provision of HRS for LTAR breached 
Article  12.7 of the SCM Agreement.  Turkey 's arguments  with respect to that allegation would be 
any "statements put forth . . . to demonst rate" that the application of facts available in connection WT/DS523/R/Add.1  
 
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  with the Provision of HRS for LTAR did indeed breach Article 12.7.  If Turkey had intended to raise 
legal claims regarding the application of facts available with respect to subsidy programs other 
than the Provision of HRS for LTAR program, it should have identified those claims in its panel 
request.   
64. By contrast, with respect to the HWRP proceeding, Turkey not only identified two claims 
under the SCM Agreement "[i]n connection with the alleged Prov ision of Hot Rolled Steel for Less 
than Adequate Remuneration, " Turkey  also raised a separate claim under Article 12.7 regarding 
the application of facts available "[i]n connection with ‘other subsidies ' not previously reported to 
the USDOC. " In contrast to the HWRP proceeding, in the WLP proceeding Turkey failed to raise any 
claims regarding subsidy programs other than the Provision of HRS for LTAR program.   
65. Turkey also claims that USDOC 's determination to apply facts available in the WLP 
proceeding was n ot a "program -specific determination, " but was based on respondent Borusan 's 
decision not to participate in verification.  However, Turkey 's characterization of USDOC 's findings 
regarding Borusan cannot have the effect of curing the deficiencies in its pane l request, and does 
not change the fact that the only claim Turkey raised in its panel request regarding Article 12.7 
was with respect to the Provision of HRS for LTAR subsidy program.   
66. Turkey also claims that the United States was not "prejudiced " by its deficient panel request.  
However, the Panel need not make a finding of prejudice to the United States in order to find the 
additional claims under Article 12.7 to be outside its terms of reference.   
67. Regarding the challenge to USDOC 's use of benchmarks, Tur key "acknowledges that the 
USDOC reversed its benefit determination on remand, but disputes that the measures at issue has 
{sic} ceased to have legal effect. " Turkey claims that because of potential subsequent domestic 
litigation, there was still the possi bility that the OCTG remand determination still could have been  
reversed at the time of its panel request.  This is both factually inaccurate and legally irrelevant.   
68. As a result of the U.S. Court of International Trade sustaining USDOC 's remand 
determinati on, USDOC issued an amended final determination on March 10, 2016, which 
effectuated USDOC 's remand determination to use in -country benchmarks.  On that date, the OCTG 
final determination with respect to the use of out -of-country benchmarks ceased to have a ny legal 
effect.  The potential for a subsequent appeal did not alter the legal effect of the amended OCTG 
final determination, which changed the subsidy rates and served as the legal basis for the 
collection of cash deposits on entries at the time of the P anel's establishment.   
69. If a challenge were permitted based on Turkey 's arguments, it would mean that a 
complainant could equally challenge a countervailing duty order in which no inconsistency was 
identified or claimed, based on the possibility that a dome stic legal challenge to that order might 
result in an inconsistency at some time in the future.  This would lead to absurd results, and is not 
consistent with a proper interpretation of the DSU.   
70. Turkey has also claimed that the OCTG benefit determination "continues to have legal effect 
because it reflects the USDOC 's long -standing practice of rejecting in -country or ‘tier one ' 
benchmarks based on evidence of government ownership or control of domestic producers, " which 
Turkey has also attempted to challenge  in this dispute.  Contrary to Turkey 's claims, not only has 
the United States demonstrated that no such practice exists, Turkey 's suggestion that the 
existence of a "practice " would preserve the legal effect under U.S. law  of a superseded USDOC 
countervail ing duty determination makes no sense.  A U.S. court determined that USDOC 's use of 
out-of-country benchmarks in the OCTG proceeding was not consistent with U.S. law, and 
remanded the determination to USDOC for that reason.   
71. Therefore, the United States req uests that the Panel find Turkey 's claims with respect to 
USDOC 's use of out -of-country benchmarks in the OCTG investigation to be outside the Panel 's 
terms of reference, and to decline to make findings on those claims accordingly.  WT/DS523/R/Add.1  
 
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  EXECUTIVE SUMMARY OF RESPONSES OF THE UNITED STATES TO THE PANEL'S 
QUESTIONS FOLLOWING THE FIRST SUBSTANTIVE MEETING  
U.S. RESPONSE TO PANEL QUESTION 7  
72. In its determinations, USDOC did not make a legal finding regarding the status of OYAK for 
purposes of Article 1.1(a)(1) of th e SCM Agreement.  Therefore, the U.S. statement concerning 
USDOC 's examination of OYAK "as an organ of the GOT " does not require the Panel to determine 
whether USDOC 's findings with respect to OYAK comply with any legal standard regarding a 
"government orga n" under the SCM Agreement.  In making this statement in its first written 
submission, the United States was distinguishing USDOC 's factual assessment of OYAK from the 
legal standard of "government or any public body " found in Article 1.1(a)(1) of the 
SCM Agreement.  As the United States explained in its first written submission, because USDOC did 
not determine that a financial contribution was provided by OYAK, there is no legal issue before 
the Panel with respect to OYAK 's status under Article 1.1(a)(1).  
73. Instead, USDOC found that Erdemir and Isdemir are public bodies by virtue of the 
meaningful control exercised over the two entities by the GOT, including, through OYAK.  
Therefore, the inquiry for the Panel with respect to OYAK is a factual one that must be e xamined 
as part of the Panel 's analysis of whether USDOC properly found Erdemir and Isdemir to be public 
bodies within the meaning of Article 1.1(a)(1).   
74. The text of Article 1.1(a)(1) does not define "government or any public body within the 
territory of a  Member, " nor does it prescribe the relationship between these two types of entities.  
The United States has explained that a proper interpretation of the text, in context, demonstrates 
that a public body is any entity that has the ability or authority to t ransfer government financial 
resources, including, for example, because that entity is meaningfully controlled by the 
government.  The Appellate Body also has found that "evidence that a government exercises 
meaningful control over an entity and its conduct  may serve, in certain circumstances, as evidence 
that the relevant entity possesses governmental authority and exercises such authority in the 
performance of governmental functions " such that the entity could be deemed a "public body " 
under Article 1.1(a) (1). 
75. USDOC having found the GOT 's meaningful control through OYAK of Erdemir and Isdemir 
(which were then found to be "public bodies "), the inquiry before the Panel with respect to OYAK is 
whether OYAK was found as a matter of fact to be capable of exercis ing meaningful control over 
Erdemir and Isdemir, such that the controlled entities would be public bodies within the meaning 
of Article 1.1(a)(1).  Nothing in the text of that provision, or in the interpretations described above, 
suggests that only a partic ular type of governmental entity, such as a government "organ, " could 
exercise such control over another entity.  Rather, the characteristics of such an entity might be 
consistent with those of a government "organ " or "agency, " or they might be consistent with those 
of a "public body, " for example, or any other "governmental " entity.   
76. While no legal standard under the SCM Agreement would apply to USDOC 's findings with 
respect to OYAK, the Panel may find relevant to its factual a ssessment of OYAK 's status in Turkey 
the characteristics examined by other panels or the Appellate Body with respect to "government, " 
"public body, " and other governmental entities in other contexts.  As discussed, the record 
evidence concerning OYAK before  USDOC exhibits the attributes associated with "government " in 
this broader sense.  Therefore, this record evidence provided a sufficient factual basis for USDOC to 
examine OYAK as an entity through which the GOT meaningfully controlled Erdemir and Isdemir,  
and supported its determination that Erdemir and Isdemir are public bodies within the meaning of 
Article 1.1(a)(1) of the SCM Agreement.   
U.S. RESPONSE TO PANEL QUESTION 59  
77. There is no provision in the DSU or the covered agreements that establishes a syst em of 
"case-law" or "precedent, " or otherwise requires that a panel apply the provisions of the covered 
agreements consistently with the adopted findings of the Appellate Body absent "cogent reasons " 
to depart from those findings.  Indeed, were a panel to d ecide to apply the reasoning in prior 
Appellate Body reports alone, and decline to fulfill its duty under Article 11 to make an objective 
assessment of the matter before it, the panel would risk creating additional obligations for WT/DS523/R/Add.1  
 
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  Members that are beyond w hat has been provided for in the covered agreements – an act strictly 
prohibited under Article 3.2.    
78. To the extent a panel finds prior Appellate Body or panel reasoning to be persuasive, a panel 
of course may rely on that reasoning in conducting its own objective assessment of the matter.  
But that is very different from a conclusion that the interpretation is controlling  in a later dispute.  
To say that an Appellate Body interpretation in one dispute is controlling for later disputes would 
appear to conver t that interpretation into an authoritative interpretation of the covered agreement.   
79. Such an approach would directly contradict the agreed text of the Marrakesh Agreement, 
which provides in Article IX:2 that:  "The Ministerial Confere nce and the General Council shall have 
the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade 
Agreements. " The DSU confirms that panel and Appellate Body reports do not set out authoritative 
interpretations in Article 3.9.  
80. The Appellate Body itself has recognized that prior reports may not bind future adjudicators 
in its report in Japan – Alcohol . According to the Appellate Body, a negative  consensus report 
adoption procedure by the DSB  cannot supplant the "exclusive authority " of the Ministerial 
Conference and the General Council  to adopt, by positive  consensus, an "authoritative 
interpretation " of a covered agreement, as explicitly established in DSU Article 3.9 and WTO 
Agreement Article IX:2.   
81. The United State s refers the Panel to its first written submission, in which it set out a proper 
interpretation of the text of Article 15.3 of the SCM Agreement in accordance with the ordinary 
meaning of the text, in context, and in the light of the object and purpose of the SCM Agreement.  
If the Panel agrees that a proper interpretation of that provision leads to a different conclusion 
regarding whether "cross-cumulation " is prohibited under Article 15.3 in original investigations, 
that would provide all the reason the Pa nel needs not to concur with the interpretation in US – 
Carbon Steel (India) (AB) . WT/DS523/R/Add.1  
 
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  ANNEX B -4 
SECOND INTEGRATED EX ECUTIVE SUMMARY OF T HE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF THE U.S. SECOND WRITTEN SUBMISSION  
I. PRELIMINARY  RULING REQUEST  
A. Turkey's  Panel  Request Adds Measures and Claims that Were Not the Subject 
of Consultations  
1. In its responses to the Panel's questions, Turkey argues that Section A of its consultation 
request, including its reference to "related practi ces," is "sufficient to establish that Turkey's 
challenges extend beyond the preliminary and final countervailing duty determinations in the 
OCTG, WLP, HWRP, and CWP proceedings." Turkey further argues that "panels have found there to 
be a 'natural evoluti on' of claims where there is 'some connection' between the claims set forth in 
the panel request and those identified in the request for consultations" and that the claims in its 
panel request regarding the United States' alleged injury and benefit practic es are "clearly 
connected" to the claims in its consultation request.  
2. However, Turkey's "some connection" argument has almost no limit, and would effectively 
read out the consultation requirement in DSU Article 4. Perhaps for this reason, in none of the  
disputes cited to by Turkey had the complainant failed to identify the measure at issue in its 
consultations request altogether. Since Turkey failed to identify the measures at issue in its 
consultation request, the addition of these new measures in its p anel request cannot be a "natural 
evolution" from its consultation request. There is nothing in Turkey's consultation request for these 
measures to "evolve" from.  
3. Turkey argues that "the obligation to identify a specific countervailing measure at issue  in a 
consultations or panel request does not limit the nature of the claims that may be brought 
concerning those measures to 'as applied' claims," but this argument is equally unavailing. 
The issue is not that Turkey set out "as such" claims with respect to the alleged practices in its 
panel request, but that Turkey failed to identify those alleged measures in its consultations request 
altogether. The obligation, and opportunity, to consult is a requirement of DSU Article 4 and is 
designed to promote the r esolution of disputes. By including new measures and corresponding 
claims in its panel request that were not the subject of its consultations request , Turkey has 
ignored a DSU requirement and expanded the scope of  the dispute in contravention of the DSU.   
4. Turkey has impermissibly expanded the scope and changed the essence of the dispute, 
contrary to DSU Article 4.4, and thus its challenges to alleged U.S. injury and benefit practices, as 
well as its "as such" claims with respect to those practices, fall outside the Panel's terms of 
reference.  
B. Turkey's First Written Submission Improperly Included Claims that Are Not 
Within the Panel's Terms of Reference  
5. Turkey's request for establishment of a panel limited its claims under Article 12.7 of the 
SCM Agreement with respect to the WLP investigation to a single subsidy program: the Provision 
of Hot -Rolled Steel (HRS) for Less Than Adequate Remuneration (LTAR). However, Turkey's 
written submission includes a number of new claims regarding  USDOC's application of facts 
available that were not identified in its panel request.  
6. Turkey argues that the United States was "sufficiently notified" of the legal basis of Turkey's 
claim and that the United States' "due process" rights were only affected to a limited extent. 
Turkey also argues that the United States " could have asked for clarification following Turkey's 
request  for the establishment of a panel" or "for an ex tension of time so as to have sufficient time 
to prepare its responses" to Turkey's first written submission. However, Turkey's arguments in this 
respect are not relevant to the Panel's analysis under DSU Articl e 6.2. Article 6.2 requires 
two elements; if either of these two elements is not properly identified, the matter would not be WT/DS523/R/Add.1  
 
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  within the panel's terms of reference. Moreover, compliance with the requirements of Article 6.2 
"must be objectively determined on the basis of the panel request as it existe d at the time of 
filing" and be "demonstrated on the face" of the panel request. Thus, the Panel need not make a 
finding of whether the United States was "sufficiently notified" or the extent to which its "due 
process rights" were affected in order to find  the additional claims under Article 12.7 to be outside 
its terms of reference.  
7. In addition, it is simply incorrect that the United States was "sufficiently notified" of Turkey's 
claims. In fact, the US had no notice or opportunity to begin preparing a  defense with respect to 
the 29 additional subsidy programs, because Turkey failed to raise any legal claims in its panel 
request with respect to those programs. Nor would the United States have had any reason to ask 
for "clarification" regarding the scope  of Turkey's panel request. The panel request was clear on its 
face; the United States had no reason to suspect that Turkey would subsequently challenge 
29 additional subsidy programs in its first written submission.  
8. Turkey argues that "USDOC's determi nation to apply adverse facts available with regard to 
Borusan in the WLP proceeding was not a program -specific determination," but was based on 
Borusan's decision to not participate in verification. However, USDOC engaged in separate fact -
finding and lega l determinations with respect to each of the 30 subsidy programs at issue in that 
proceeding. Turkey's decision to identify only one subsidy program in its panel request, and then 
raise claims regarding the remaining 29 programs in its written submission, has placed the 
United  States at a distinct disadvantage in this proceeding.  
C. The Benchmark Measure Challenged by Turkey Ceased to Have Legal Effect 
Prior to The Date of The Panel's Establishment  
9. Turkey's challenge under Articles 1.1(b) and 14(d) of the SCM Agreement falls outside the 
Panel's terms of reference because the out -of-country benchmark and benefit determination in the 
OCTG final determination ceased to exist and have legal effect at lea st 15 months prior to the date 
of the Panel's establishment.  
10. In its response to the United States' preliminary ruling request, Turkey argues that the 
Appellate Body in EC – Selected Customs Matters  "has also recognized two exceptions to the 
general re quirement that measures must be in force at the time of establishment of the panel: 
where a measure is enacted subsequently or expires prior to establishment of the panel." Turkey 
explains that the latter "exception" was recognized by the Appellate Body in  US – Upland Cotton.  
11. The Appellate Body's findings in US – Upland Cotton , however, are not applicable to this 
dispute. In US – Upland Cotton , the issue was whether two subsidy measures (i.e., contract 
payments) could be within the panel's terms of ref erence if the legislative basis for those measures 
had expired prior to the panel's establishment. The situation before this Panel is very different. 
The OCTG final determination in which USDOC used an out -of-country benchmark was successfully 
challenged b y Turkish respondents at the U.S. Court of International Trade (USCIT), was 
remanded to USDOC, and was subsequently reversed by USDOC with regard to benefit in the 
OCTG remand determination. USDOC issued an amended final determination on March 10, 2016, 
which effectuated USDOC's remand determination to use in -country benchmarks. On that date, the 
OCTG final determination ceased to exist and have any legal effect with respect to the use of out -
of-country benchmarks.  
12. Therefore, Turkey cannot demonstrate that the benchmark and benefit determination in the 
OCTG final determination had effects that were "impairing the benefits accruing to it" at the time 
of the Panel's establishment. Once the amended OCTG final determination was issued 
on March  10, 2016, it changed the subsidy rates and served as the legal basis for the collection of 
cash deposits on entries.  
13. Turkey disputes that the original OCTG benefit determination ceased to have legal effect by 
claiming that "there was a possibility that USDOC's rem and determination would be reversed, and 
that the original benefit determined reinstated." However, that legal action in U.S. courts might 
have caused USDOC to further amend the duty rates, or to alter the legal basis of those rates, at a 
later date, does not mean that the superseded determination continued to have legal effect. 
Moreover, if a challenge were permitted based on Turkey's arguments, it would mean that a WT/DS523/R/Add.1  
 
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  complainant could equally challenge a countervailing duty order in which no inconsistency w as 
identified or claimed, based on the possibility that a domestic legal challenge to that order might 
result in an inconsistency at some time in the future. This would lead to absurd results, and is not 
consistent with a proper interpretation of the DSU.  
14. Turkey argues that "although the benefit determination in the OCTG proceeding which 
resulted in the imposition of countervailing duties may have been superseded by the remand 
determination, the basic legislative framework and implementing regulations that gives rise to the 
United States' practice of rejecting in -country benchmarks in benefit determinations based on 
evidence of government ownership or control remains in place." To the extent Turkey now 
attempts to challenge the "basic legislative framew ork and implementing regulations that gives 
rise to the United States' practice," such a claim is outside the Panel's terms of reference.  
II. TURKEY'S "AS SUCH" CHALLENGE UNDER ARTICLES 1.1(B) AND 14(D)  
15. Turkey, in its responses to the Panel's questions, presents new evidence relating to 
28 USDOC determinations purportedly demonstrating the existence of a "practice" that is a rule or 
norm, which necessarily led to WTO -inconsistent action on the part of USD OC. The Panel should 
reject Turkey's new evidence because it is untimely and contrary to the Panel's Working 
Procedures. Having failed to make its affirmative case in its first written submission, or even 
during the first Panel meeting, that such a "practi ce" exists, Turkey should not be permitted to 
make such a case at this late stage of the panel proceedings when the parties are to present 
rebuttal evidence, or evidence necessary for purposes of answering clarifying questions.  
16. In addition to being un timely, Turkey also fails to attempt to explain how the newly added 
28 determinations establish that USDOC had a practice at the time of the Panel's establishment 
that constitutes a rule or norm of general and prospective application. In its response to Pa nel 
Question 34, Turkey merely lists the titles of these 28 determinations, without more. Turkey does 
not identify which of the subsidy program analyses included in each of the determinations is 
alleged to support its claims, or even include a page number or section heading in its footnotes.  
17. Turkey apparently considers that it is sufficient for it to submit these determinations as 
exhibits, and leave it to the Panel to review and analyze them on its own. A panel is not to make 
an affirmative case for a  party through its own review of evidence, not based on the party's own 
claims and arguments. The Appellate Body similarly found in Canada – Wheat and US-Gambling  
that a complainant cannot succeed in making a prima facie  case by submitting evidence without  
explaining how its content is relevant to the claims before the panel. The Panel should thus not 
examine this evidence further.  
18. The United States also notes that the determinations fail to support Turkey's claim regarding 
the existence of the alleged practice at the time of the Panel's establishment, which necessarily led 
to WTO -inconsistent action on the part of USDOC. First, of the 28 determinations listed, 23 of the 
determinations could not assist in establishing a practice existing at the time of t he Panel's 
establishment. Turkey cannot succeed in its challenge by demonstrating that USDOC had, prior to  
the date of the Panel's establishment, a practice regarding the use of out -of-country benchmarks. 
And, to the extent that Turkey could show that such  a practice previously existed – which it has 
not – the United States has demonstrated no such practice existed at the time of the Panel's 
establishment, as evidenced by the HWRP, CWP, and WLP determinations at issue in this dispute, 
by other determination s that post -date these determinations, as well as the decision of the USCIT 
in the Borusan case. 
19. Second, the five remaining determinations are not sufficient to demonstrate the existence of 
a rule or norm, and in any event, in fact contain findings by USDOC demonstrating that no such 
rule or norm exists. For example, some of the listed determinations are actually examples of 
where USDOC did not use out -of-country benchmarks. Other determinations listed by Turkey 
demonstrate that when USDOC uses an out -of-country benchmark, such findings are not based 
solely on evidence concerning the government constituting a majority or substantial portion of the 
market. Therefore, the new evidence provided by Turkey fails to support its claim.  WT/DS523/R/Add.1  
 
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  III. TURKEY'S ARTICLE 1.1 (A)(1) CLAIMS  
20. As the United States has explained, Turkey's claim with respect to OYAK must fail because 
the requirements of Article 1.1(a)(1) of the SCM Agreement do not apply to USDOC's analysis of 
OYAK. Turkey argues that, although USDOC "did not exp licitly refer to OYAK as a public body," "it 
is clear from the overall analysis that the USDOC analyzed OYAK under its standard for 'public 
body,' and not as a 'government organ' or part of the [GOT] in some other way." Turkey misses 
the point in suggestin g that the use of particular terminology in a domestic determination can 
convert a factual finding into a legal finding for purposes of WTO dispute settlement. USDOC did 
not need to make a finding regarding whether OYAK was a public body under Article 1.1( a)(1), and 
none of Turkey's arguments change that fact.  
21. Moreover, because Turkey's arguments concerning OYAK are raised separately from its 
challenge against USDOC's determinations concerning Erdemir and Isdemir, the Panel should 
decline to review Tur key's OYAK arguments because they are made on an independent basis.  
22. However, for completeness, to the extent that the Panel considers Turkey's arguments 
concerning OYAK to be understood as a basis of its challenge against USDOC's determinations 
concer ning Erdemir and Isdemir, the Panel could examine whether USDOC's factual findings 
regarding the relationship between the GOT and OYAK, and the relationship between OYAK and 
Erdemir and Isdemir, support USDOC's legal determination that Erdemir and Isdemir are public 
bodies for purposes of Article 1.1(a)(1) of the SCM Agreement.  
23. In its previous submissions, the United States explained that USDOC determined Erdemir 
and Isdemir to be public bodies based on numerous considerations. Throughout this dispute,  
however, Turkey has attempted to draw the Panel away from its standard of review and from 
considering the totality of the record evidence, as USDOC did. Rather, Turkey isolates specific facts 
and assertions on the record of the proceedings, and continues to make assertions that rely on 
secondary non -objective material on the record, that is, a law firm position paper and case briefs 
from interested parties. Thus, in arguing that USDOC's determinations are inconsistent with the 
SCM Agreement, Turkey merely offers its own interpretation of the record, and seeks for the Panel 
to conduct a de novo review. However, a panel must not conduct a de novo evidentiary review, 
but instead should "bear in mind its role as reviewer of agency action." Accordingly, "in orde r to 
examine the evidence in the light of the investigating authority's methodology, a panel's analysis 
usually should seek to review the agency's decision on its own terms, in particular, by identifying 
the inference drawn by the agency from the evidence,  and then by considering whether the 
evidence could sustain that inference." Thus, the inquiry for the Panel is whether an unbiased and 
objective investigating authority could have determined Erdemir and Isdemir to be public bodies 
based on the totality of  the record evidence before it.  
24. A close examination of the arguments that Turkey has continued to make since its first 
written submission demonstrates that Turkey fails to engage with or undermine USDOC's 
examination of the totality of the record evid ence. Many of the arguments are either premised on 
secondary non -objective material from the record, or are simply unsupported. Other arguments 
are premised on the isolation of a sentence pulled from the record, where Turkey thereby attempts 
to shield that  sentence from the remainder of the record, which USDOC considered in totality.  
25. Indeed, in contrast to Turkey's presentation of isolated record facts, USDOC weighed the 
totality of the record evidence. Turkey has therefore failed to demonstrate that a n unbiased and 
objective investigating authority, when faced with the totality of the record evidence, could not 
have examined OYAK as an entity through which the GOT exercised meaningful control over 
Erdemir and Isdemir, such that Erdemir and Isdemir coul d be found to be public bodies within the 
meaning of Article 1.1(a)(1).  
26. Turkey claims that USDOC's public body determinations concerning Erdemir and Isdemir are 
inconsistent with Article 1.1(a)(1) because USDOC "refused to consider evidence regarding their 
commercial conduct." Turkey errs in suggesting that evidence of commercial, profit -maximizing 
behavior precludes a finding that an entity is controlled by the government. To the contrary, while 
such evidence may be relevant to an investigating author ity's determination, nothing in Article 1.1 
suggests that, where meaningful control by the government is otherwise demonstrated, a public 
body cannot also exhibit commercial behavior.  WT/DS523/R/Add.1  
 
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  27. Turkey argues that "evidence of an entity's corporate governance fr amework, policies and 
procedures that make it accountable to shareholders or members and require it to pursue 
commercial, profit -maximizing strategies, and external audit requirements are highly relevant to 
whether that entity is a public body." The United  States agrees that such evidence may be relevant 
to an investigating authority's analysis. However, Turkey appears to equate a company exhibiting 
commercial, profit -maximizing behavior with a company operating independently and/or 
autonomously from the go vernment. It is not the case, however, that either a government, or a 
government -controlled entity, cannot act in a commercial manner. Moreover, when viewed in light 
of the totality of the evidence, as USDOC did, the information cited by Turkey purporting to show 
"commercial conduct" does not undermine USDOC's finding that GOT meaningfully controlled 
Erdemir and Isdemir.  
28. Therefore, Turkey has failed to demonstrate that an objective and unbiased investigating 
authority, after examining the totality of t he record evidence, could not have determined that the 
GOT exercised meaningful control over Erdemir and Isdemir, such that the two entities are public 
bodies within the meaning of Article 1.1(a)(1).  
IV. TURKEY'S CLAIMS UNDER ARTICLE 12.7 OF THE SCM AGREE MENT  
A. USDOC's Application of Facts Available in the OCTG Investigation  
29. Turkey has clarified that its claims relate only to USDOC's "selection" of facts available, and 
do not include either USDOC's decision to resort to the use of facts available or whether the 
information requested by USDOC was "necessary" within the meaning of Article 12.7. In short, 
Turkey does not challenge USDOC's determination that Borusan failed to provide "necessary 
information," that this failure significantly impeded USDOC's investigation, and that the use of 
facts available was therefore warranted. T hus, it is undisputed that by failing to provide the 
requested information, Borusan hindered USDOC's ability to calculate the subsidy from the 
Provision of HRS for LTAR program.  
30. Turkey's argument that "USDOC should have considered whether Borusan's failure to 
provide requested information was attributable to resource constraints, ... and therefore whether it 
would have been reasonable to use the data which Borusan provided on its hot rolled steel 
purchases for the Gemlik mill to approximate the missing information or to ask Borusan to provide 
the missing information in a different form" is perplexing. USDOC did consider Borusan's "resource 
constraints," including when it granted Bo rusan's extension of time to respond to the initial 
questionnaire. In addition, USDOC did use the data Borusan provided on its HRS purchases for the 
Gemlik mill to approximate the missing information for the Halkali and Izmit mills. Finally, Turkey's 
sugge stion that USDOC could have asked Borusan to provide the missing information in a different 
form is pure speculation. Turkey has cited to no evidence that USDOC requested the data in a 
"form" that was problematic, or that a "different form" would have reso lved Borusan's claimed 
difficulties.  
31. Turkey claims that USDOC acted inconsistently with Article 12.7 because it "relied on only a 
part of the evidence provided by Borusan – e.g., only the lowest price on the record for the Gemlik 
mill's hot rolled ste el purchases from Erdemir and Isdemir." However, Turkey has failed to explain, 
much less provide evidence, that its suggested approaches would provide a more accurate 
determination of the missing purchase data than the method used by USDOC.  
32. In this ca se, USDOC selected a reasonable replacement for the missing information by 
relying on the HRS purchase data that Borusan had provided for its Gemlik facility, as well as data 
provided by Borusan regarding the respective production capacities of the Halkali  and Izmit mills. 
Moreover, Turkey has pointed to no evidence on the record that contradicted or raised questions 
about this data or its reasonableness as a replacement for the missing information. Since an 
"unbiased and objective" investigating authority could have found the chosen HRS price and 
quantity data to be a reasonable replacement for the missing information, there is no basis for the 
Panel to overturn that assessment.  WT/DS523/R/Add.1  
 
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  B. USDOC's Application of Facts Available in the WLP Investigation  
33. In resp onse to the Panel's written questions after the first Panel meeting, Turkey has 
dramatically expanded the scope of its arguments under Article 12.7 with respect to the 
WLP investigation. In response to Question 49, Turkey sets forth a bullet -point list ind ividually 
challenging USDOC's application of facts available with respect to 27 of the subsidy programs at 
issue in the WLP investigation: the original 13 programs that it challenged in its first written 
submission, as well as 14 additional programs that h ave never previously been addressed by 
Turkey under Article 12.7. The Panel should reject Turkey's attempt to challenge these 14 subsidy 
programs.  
34. Turkey's belated introduction of new arguments and evidence is contrary to the Panel's 
Working Procedures  and basic procedural fairness as it impairs the United States' ability to defend 
its interests. Turkey was well aware of these 14 programs at the time it filed its first written 
submission, and (assuming it had properly raised these claims in its panel re quest) it could have 
included a substantive challenge of USDOC's application of facts available with respect to those 
programs in that submission. The Panel should reject Turkey's attempt to bring such claims now.  
35. Finally, the United States notes that for three of the subsidy programs at issue – including 
the Provision of HRS for LTAR program – Turkey still has provided no substantive argumentation or 
analysis. Turkey has clarified that its claims under Article 12.7 "relate[] specifically to the USDOC's  
selection  of facts available" – namely, USDOC's selection of facts available to calculate subsidy 
rates for each of the programs at issue. Since Turkey's claims relate specifically to USDOC's 
selection of facts available – a necessarily program -specific d etermination – Turkey has failed to 
meet its burden of proof with respect to the three programs for which it has provided no 
substantive arguments regarding how USDOC's determination of a subsidy rate for those programs 
based on facts available is allegedl y inconsistent with Article 12.7.  
36. Moreover, as detailed in the United States' Preliminary Ruling Request, Turkey's panel 
request limited its claims under Article 12.7 with respect to the WLP investigation to the Provision 
of HRS for LTAR program only.  Since Turkey has opted not to raise any substantive arguments in 
any of its submissions with respect to the Provision of HRS for LTAR program, Turkey has not 
properly raised any claims under Article 12.7, and thus the Panel should not make any findings in  
relation to these claims.  
37. In the interest of completeness, the United States briefly comments on Turkey's newly -
raised arguments and demonstrates that they lack any substantive merit. Although Turkey 
appears to challenge USDOC's use of the "highest" p ossible rates, it has provided no 
argumentation or evidence that these rates are not a reasonable replacement for necessary 
information missing from the record.  
38. Second, with respect to 27 programs, Turkey asserts that "while Borusan declined to 
partic ipate in verification, the USDOC did verify the Government of Turkey's responses, which 
confirmed Borusan's own responses regarding its use or non -use of the investigated subsidy 
programs." However, because Borusan refused to participate in verification, U SDOC did not verify 
the Government of Turkey's responses with respect to Borusan.  
39. Third, Turkey's response to Panel Question 49 includes new, program -specific argumentation 
regarding USDOC's application of facts available with respect to 27 of the ind ividual subsidy 
programs at issue in the WLP proceeding. However, Turkey's references mischaracterize the 
Government of Turkey's questionnaire response regarding certain subsidy programs or fail to 
mention key pieces of information with respect to USDOC's selection of facts available to replace 
missing necessary information.  
40. Fourth, Turkey claims that USDOC's resulting subsidy determination "cannot be described as 
'accurate' because there is no connection between the allegedly missing 'necessary inform ation' 
and the rates selected by the USDOC as 'facts available.'" However, Turkey has pointed to no 
evidence on the record to suggest that the rates chosen by USDOC were not accurate, or that 
other information on the record would have been more appropriate  for use because it was more 
accurate. And in fact, for each subsidy program, USDOC's calculation of the subsidy rates was 
based on information provided by cooperating companies in the same or other Turkish WT/DS523/R/Add.1  
 
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  countervailing duty investigations. The chosen ra tes reflect the actual subsidy practices of the 
Turkish government as reflected in the actual experiences of companies in Turkey, including 
Borusan's fellow respondent in the WLP investigation, and thus serve as a "reasonable 
replacement" for information t hat was missing from the record. Turkey has therefore failed to 
demonstrate that USDOC's application of facts available is inconsistent with Article 12.7.  
C. USDOC's Application of Facts Available in the HWRP Investigation  
41. Turkey's claims with respect to USDOC's application of facts available in the 
HWRP  investigation are without merit. Because the subsidy rate calculated for each of the three 
HWRP programs challenged by Turkey was on a par with identical or similar subsidy programs, 
these rates were no t punitive, but instead provided a reasonable estimate of the level of 
subsidization provided by the government, that an objective and unbiased investigative authority 
could have determined to use, as USDOC did.  
V. TURKEY'S CLAIMS UNDER ARTICLES 2.1(C) AND  2.4  
42. Turkey has confused the inquiry by claiming that "the United States argues that a 'series of 
transactions for the provision of [hot rolled steel] for [less than adequate remuneration]' is 
sufficient to demonstrate a subsidy 'plan' or scheme.'" US DOC's determinations were based on 
both the transaction -specific accountings of the provision of HRS for LTAR provided by the 
respondent parties and statements in Erdemir's 2012 and 2013 Annual Reports indicating that its 
actions furthered the promotion of  export -oriented production consistent with GOT policy as set 
out in Turkey's 2012 -2014 Medium Term Programme. Thus, Turkey's arguments that USDOC 
relied only on a list of transactions to demonstrate the existence of a subsidy program are 
misplaced.  
43. Next, in the determinations at issue, USDOC took account of the extent of diversification of 
economic activities within Turkey and the length of time during which the HRS subsidy program 
had been in operation. With respect to the length of time factor, USDO C examined Erdemir's 2012 
and 2013 Annual Reports, and in each proceeding requested and received from the GOT 
information regarding the production and provision of HRS for not only the period of investigation, 
but also the preceding two years, which demons trated that the program usage data for the period 
of investigation was not anomalous in comparison to data for past years. With respect to the 
extent of diversification factor, USDOC took into account this factor when it considered and 
discussed the Medium  Term Programme and Erdemir's 2012 and 2013 Annual Reports, which 
reflected the publicly known fact of Turkey's highly diversified economy.  
44. The lack of any explicit findings with respect to the two factors is both reasonable and 
appropriate where, as here, none of the parties to the countervailing duty proceedings ever argued 
or suggested that the factors had any bearing on the facts at issue. This is also relevant to the 
Panel's assessment, as it reaffirms the United States' position that there were n o facts on the 
record that call into question the soundness of USDOC's specificity findings.  
VI. TURKEY'S CLAIMS UNDER ARTICLE 15.3 OF THE SCM AGREEMENT  
45. Turkey's claims regarding cumulation in the context of original investigations under 
Article  15.3 o f the SCM Agreement must fail. Not only has Turkey failed to demonstrate that a 
"practice" regarding cumulation exists, but Turkey is wrong that Article 15.3 prohibits the 
cumulation of dumped and subsidized imports.  
46. Turkey has challenged USITC's alleg ed practice of cumulating dumped and subsidized 
imports in original investigations as a rule or norm of general and prospective application. In such 
a case, there is a "high [evidentiary] threshold" that must be reached by the complaining party. 
Turkey mus t not only show that the alleged "rule or norm" is attributable to the United States, but 
must establish its precise content, and that it has general and prospective application.  
47. Turkey's showing with respect to USITC's alleged "practice" in original investigations has 
fallen far short of its burden. In support of its claim, Turkey's first written submission pointed to 
the three original injury determinations at issue in this dispute. However, as the United States 
explained in its previous submissions,  the fact that USITC cumulated the effects of subsidized and WT/DS523/R/Add.1  
 
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  non-subsidized imports in the investigations at issue does not demonstrate that the alleged 
practice has been "systemic[ally] appli[ed]" or that it has general and prospective application. 
Moreov er, the fact that an investigating authority may have employed a practice in the past 
"would not be sufficient to accord such a practice an independent operational existence."  
48. In light of the United States' arguments, Turkey in its responses to Panel q uestions presents 
additional injury determinations which it argues provide further evidence of the existence of a 
practice. The Panel should reject Turkey's evidence because it is both untimely and unpersuasive. 
Permitting Turkey to introduce new evidence at this late stage is contrary to the Working 
Procedures adopted by the Panel and to procedural fairness and the orderly resolution of this 
dispute.  
49. Further, Turkey bears the burden of proving that USITC's cumulation of imports in the 
OCTG, WLP, and H WRP investigations is inconsistent with Article 15.3. Yet Turkey has failed to 
engage in any analysis of Article 15.3 that would allow that burden to be met. It has provided no 
interpretation of the text, in context, of Article 15.3, or of the object and p urpose of the 
SCM Agreement. Turkey has simply quoted statements made by the Appellate Body in a previous 
dispute, but this is not a sufficient basis upon which to make a legal showing. Under DSU 
Article  11, a panel must make an "objective assessment" of t he matter before it, and that a breach 
has been made out by application of a covered agreement, properly interpreted, to the facts 
before it. Turkey has failed to provide the Panel with any argumentation that would allow the Panel 
to engage in such an inte rpretation, and its claims thus must fail.  
50. Moreover,  a proper interpretation of Article 15.3 reveals that nothing in the text of that 
provision prohibits the cumulation of subsidized imports with imports that are dumped. Article 15.3 
addresses the conditions under which an authority may cumulatively assess the effects of imports 
from multiple countries that are found to be subsidized. Article 15.3 does not address – or set any 
prohibition against – an investigating authority conducting a cumulative assessment of the effects 
on the domestic industry of subsidized imports and dumped, non -subsidized imports. Article 15.3 
is silent on this issue, and silence cannot be read as a prohibition. Both the purpose of the 
cumulation provisions of the AD and SCM Agreements and relevant context support the proposition 
that cumulation of dumped and subsidized imports is consistent with the WTO Agreements.  
51. Turkey's "as such" challenge to USITC's alleged practice of cross -cumulation in sunset 
reviews also must fa il because Turkey has not established the existence of a rule or norm of 
general and prospective application. To succeed in an "as such" challenge to any measure, a 
complainant must also show that the application of the measure necessarily leads to 
WTO-inconsistent action. Turkey has made no such showing. First, Turkey itself acknowledges that 
USITC has discretion in electing whether or not to cumulate in five -year reviews and does not 
argue that USITC is required to cumulate in the context of sunset review s. Second, it cited to no 
evidence in its first written submission, other than the sunset determination in the CWP 
proceeding. Evidence that USITC has exercised its discretion to cumulate on one occasion does not 
demonstrate the existence of a measure, muc h less that the alleged practice necessarily leads to 
WTO-inconsistent action.  
52. In its responses to Panel questions, Turkey erroneously asserts that the ITC always cross -
cumulates subsidized and non -subsidized imports in reviews, despite its discretion not to do so, if 
the other conditions for cumulation are satisfied. In actuality, in sunset reviews, USITC decides on 
a case -by-case basis whether to cumulate subject imports, largely on the basis of whether or not 
subject imports compete under similar con ditions of competition. This examination of the 
conditions of competition is a separate, distinct, and additional analytic step from the question of 
whether imports are likely to compete with each other or with the domestic like product in the 
U.S. market.  Turkey's listing of cases in its response to the Panel's questions does not cure 
Turkey's failure to provide sufficient evidence to demonstrate the content or existence of the 
alleged "practice" it challenges, or that the "practice" constitutes a rule or norm of general and 
prospective application.  
53. Turkey has also failed to show that Article 15.3 prohibits the cumulation of dumped and 
subsidized imports in the context of sunset reviews. Sunset review proceedings are governed by 
Article 21, and not by Article 15.3, of the SCM Agreement. In fact, the Appellate Body has 
expressly rejected claims that the SCM and AD Agreements' specific requirements relating to 
cumulation in original investigations can be applied directly in sunset reviews.   WT/DS523/R/Add.1  
 
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  54. Turkey off ers no textual support for its position that Article 15.3 prohibits cross -cumulation 
in sunset reviews. Turkey's reliance on the object and purpose of the SCM Agreement, and its 
contention that cross -cumulation, whether in investigations or reviews, is inc onsistent with this 
object and purpose, fails. The object and purpose of an agreement cannot have the effect of 
changing the text of that agreement.  
55. Turkey also relies on the negotiating history of the SCM Agreement to support its argument 
that cross -cumulation is prohibited in reviews. Recourse to supplementary means of interpretation 
is not warranted, since the meaning of Articles 15 and 21 is clear. However, even if the use of 
supplementary means of interpretation were warranted, the negotiating his tory of the 
SCM Agreement does not support Turkey's position. In particular, Turkey has not pointed to any 
mention at all in the negotiating history of the issue here – cumulation in the context of sunset 
reviews – and therefore Turkey's entire discussion is inapposite.  
EXECUTIVE SUMMARY OF  U.S. OPENING STATEM ENT AT THE SECOND SU BSTANTIVE 
MEETING OF THE PANEL  
I. TURKEY'S CHALLENGE TO USDOC'S PUBLIC BODY DETERMINATIONS  
56. We note Turkey's argument that the United States has engaged in a " post hoc " defense.  
In making this argument, Turkey appears to suggest that where, for example, USDOC referred to 
specific language in a record document, its review of that document must be understood as having 
been limited to that language only, such that the Panel should f ind that USDOC otherwise did not 
examine or rely on that document in making its determination. Turkey's position is untenable and 
without any basis in the SCM Agreement or the DSU. An investigating authority is not required to 
cite or discuss, down to the word, every piece of supporting record evidence for each factual 
finding in its determination.  
II. TURKEY'S CHALLENGE TO USDOC'S SPECIFICITY DETERMINATIONS  
57. Turkey continues to suggest that the finding of a subsidy program was based on "a list of 
transactions, some of which are above and some of which are below a benchmark price." Turkey 
argues that such a series of transactions is not positive evidence of a systematic series of actions, 
let alone a plan or scheme because "the frequency or number o f transactions that provide a 
subsidy may be relevant evidence of an underlying 'plan or scheme,' but is not, in and of itself, 
sufficient evidence."  
58.  Turkey's arguments are wrong on both a factual and a legal basis. Factually, it is the two 
findings in conjunction  – the repeated provision of hot -rolled steel for less than adequate 
remuneration, and its provision in accordance with stated GOT policy – that formed the basis of 
USDOC's finding that a "subsidy programme" existed.  
59.  Legally, Turkey's ar guments also reflect a misunderstanding of the text of Article 2.1, as 
well as the findings of the Appellate Body on which it relies. In US – Countervailing Measures 
(China) , the Appellate Body recognized, the inquiry under "Article 2.1 assumes the existen ce of a 
financial contribution that confers a benefit, and focuses on the question of whether that subsidy is 
specific ." Thus, the only remaining question is whether the contribution and benefit were provided 
"pursuant to" "a systematic series of actions."  Contrary to Turkey's claim then , a "systematic 
series of actions" need not consist entirely of acts of subsidization; rather, the subsidy in question 
must be provided "pursuant to" a series of actions that qualifies as a "program." The identification 
of a plan or scheme pursuant to which  the subsidies in question are provided serves a particular 
purpose in this context because, in an analysis of de facto  specificity, it is not the financial 
contribution or benefit that is in question, but rather "whether t here are reasons to believe that a 
subsidy is, in fact, specific, even though there is no explicit limitation of access to the subsidy set 
out in [law]." As the Appellate Body observed, systematic activity or a series of activities may be 
evidence of an un written subsidy program.  
60. Turkey's arguments that USDOC did not consider the two factors in Article 2.1(c) are equally 
unavailing. Turkey claims that the evidence presented by the United States is post hoc . However, 
where the path of an investigating a uthority's determination is reasonably discernable, an 
adjudicator should meet with that reasoning rather than avoid it on the basis of form. This WT/DS523/R/Add.1  
 
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  principle is apparent in past cases. For example, the panels in US – Softwood Lumber IV and EC – 
Countervaili ng Measures on DRAM Chips  both upheld the investigating authority's consideration of 
the factors provided in the final sentence of Article 2.1(c) where such consideration was implicit. 
Likewise, in US – DRAMS , the Appellate Body found that an investigating  authority need not cite or 
discuss every piece of record evidence supporting its conclusion.  
61. Here, USDOC explicitly discussed the evidence demonstrating the two factors in its 
determination. Having done so, and without these issues having been raised  by any interested 
party in the investigation in the context of specificity, the Panel should find that USDOC took the 
two factors identified in Article 2.1(c) into account in making its specificity determination.    
EXECUTIVE SUMMARY OF RESPONSES OF THE U NITED STATES TO THE PANEL'S 
QUESTIONS FOLLOWING THE SECOND SUBSTANTIVE MEETING  
U.S. RESPONSE TO PANEL QUESTION 64  
62. The Appellate Body in US – Carbon Steel (India)  further stated that "a government's 
exercise of 'meaningful control' over an entity and it s conduct, includ[es] control such that the 
government can use  the entity's resources as its own." Thus, the Appellate Body has recognized 
that a government's exercise of meaningful control includes evidence that "the government 
can use the entity's resources," and has not stated that evidence that the government is in fact 
actually  using an entity's resources is necessary.  
63. In the United States' view, requiring evidence that the government is "in fact actually" 
exercising control ov er the entity and its conduct would conflate the public body analysis with the 
examination of a private body under Article 1.1(a)(1)(iv) of the SCM Agreement, where a 
demonstration of entrustment or direction is required. The Appellate Body in US – Anti-Dumping 
and Countervailing Duties (China)  similarly found that there need not be "an affirmative 
demonstration of the link between the government and the specific conduct" as part of a public 
body analysis. Rather, " all conduct  of a governmental entity [incl uding an entity determined to be 
a public body] constitutes a financial contribution to the extent that it falls within 
subparagraphs  (i)-(iii) and the first clause of subparagraph (iv)."  
64.  Turkey appears to suggest that an entity may be deemed a public  body only when the 
entity is "exercising" governmental authority. This is incorrect, however, even under the public 
body approach of the Appellate Body. The Appellate Body has "explained that the term public body 
in Article 1.1(a)(1) of the SCM Agreement means 'an entity that possesses, exercises or is vested 
with governmental authority'." Under the framework elaborated by the Appellate Body, an entity 
might be deemed a public body when there is evidence that the entity possesses or is vested with 
governme ntal authority, even if there is no evidence that the entity is exercising governmental 
authority at the time of the particular transaction at issue. Likewise, in the United States' view, an 
entity's ability or authority to transfer government resources is  sufficient to find an entity as a 
public body.  
65. Therefore, a determination that an entity exercises meaningful control, such that the 
government can use  an entity's resources as its own, is sufficient. An investigating authority need 
not demonstrate t hat the government has "in fact actually" used an entity's resources, that is, that 
the government "in fact actually" exercised meaningful control.  
U.S. RESPONSE TO QUESTION 74  
66. The Appellate Body has stated that "[w]hether the conduct of an entity is t hat of a public 
body must in each case be determined on its own merits, with due regard being had to the core 
characteristics and functions of the relevant entity, its relationship with the government, and the 
legal and economic environment prevailing in t he country in which the investigated entity 
operates." Thus, the question is not whether the conduct  under Article 1.1(a)(1) is governmental. 
Rather, the question is whether the entity  engaging in the conduct is governmental.  WT/DS523/R/Add.1  
 
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  67. Regardless, to the extent  the Panel finds certain statements in US – Carbon Steel (India ) 
persuasive concerning this issue, the United States observes that the evidence before USDOC in 
this case substantially differs both in substance and volume from that before USDOC in US – 
Carbon Steel (India) .  
U.S. RESPONSE TO QUESTION 86  
68. In its oral statement at the second panel meeting, for the first time in this dispute, Turkey 
raised a new argument concerning certain USDOC determinations it cited in response to 
Question  34. Turkey appe ars to suggest that import penetration does not demonstrate an 
evaluation of whether in -country prices are distorted. However, past panels have recognized that 
import penetration is relevant to an investigating authority's distortion analysis. The panel in  US – 
Carbon Steel (India)  stated that "import transactions necessarily relate to prevailing market 
conditions in India because they are made by entities in India operating subject to Indian market 
conditions." The panel in US – Coated Paper (Indonesia)  also recognized the relevance of import 
penetration to the distortion analysis. Therefore, contrary to Turkey's claim, USDOC's evaluation of 
import penetration is one factor that may be examined to determine whether a domestic market is 
distorted by governme nt involvement  
 
_______________  
 
 
 
 WT/DS523/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of the European Union  63 
Annex  C-3 Integrated executive summary of the arguments of Japan  67 
Annex  C-4 Integrated executive summary of the arguments of Mexico  72 
 
 WT/DS523/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF BRAZIL  
1. Brazil would like to comment on the interpretation of Article 12.7 of the Agreement on 
Subsidies and Countervailing Measures (SCM Agreement). Brazil understands that a proper 
reading of that provision would lead to the conclusion that recourse to facts ava ilable is possible 
only with the purpose of identifying replacements for the "necessary information " that is missing 
from the record. This understanding is corroborated by the Appellate Body findings in US –Carbon 
Steel that "Article 12.7 is not directed a t mitigating the absence of 'any' or 'unnecessary ' 
information, but is rather concerned with overcoming the absence of information required to 
complete a determination. "1 
2. Brazil notes that nothing in the wording or context of Article 12.7 suggests it co uld be used 
in a punitive manner. On the contrary, as found by the Panel of EC - Countervailing Measures on 
DRAM Chips2, that provision allows an authority to make determinations on the basis of the facts 
available, but not on the basis of mere assumptions  or inferences. In fact, when the provisions of 
the Covered Agreements open the possibility to draw adverse inferences they are explicitly 
determined in the text, as in paragraph 7 of Annex V of the SCM Agreement.  
3. In addition, Brazil points out that Art icle 12.7 allows for the use of " the facts available"3 and 
not merely "facts available". This reinforces Brazil 's interpretation that all facts available to the 
authority would have to be considered in order to fill in the gap of the missing information. 
Consequently, the investigating authority is not allowed to "cherry -pick" those facts that would 
lead to a biased determination of subsidy , while disregarding other facts that may point in a 
different direction.  
4. The importance of preventing a Member 's investigating authority to pick and choose which 
facts to consider cannot be overstated. It is the investigating authorities ' duty to perfo rm a process 
of reasoning and evaluation that takes into account all the facts available on the record. Brazil 
notes that the United States acknowledges that, when faced with a lack of information regarding 
the purchase price of Hot Rolled Steel (HRS) as a n input by some plants of one of the interested 
parties, it invoked facts available to select "the lowest price on the record for the Gemlik Facility 's 
HRS purchases "4.  
5. This is not a proper application of Article 12.7 of the SCM Agreement. The admissio n by the 
United States that it selected the lowest price available on record as the basis for its inferences 
regarding the price paid by other facilities indicates that the record also contained other prices paid 
for the same product over the investigated period. Brazil believes that recourse to facts available 
does not allow a Member to select the lowest price and disregard the other data.  
6. Brazil is cognizant of the fact that, as mentioned by the United States in its First Written 
Submission, "a non -cooperating party 's knowledge of the consequences of failing to provide 
information can be taken into account by an investigating authority, along with other procedural 
circumstances in which information is missing "5. That, however, does not allow the depart ure from 
the facts actually available on the record nor does it exempt the investigating authority from the 
duty to "evaluate and reason which of the ‘facts available ' reasonably replace the missing 
‘necessary information ', with a view to arriving at an ac curate determination. "6 The authority 
must, therefore, weigh all the information and evidence available in order to reach a reasonable 
conclusion.  
                                                
1 Appellate Body Report, United States – Countervailing Measures on Certain Hot -Rolled Carbon Steel 
Flat Products , para. 4.416.  
2 Panel Report, EC - Countervailing Measures on DRAM Chips,  para. 7.245.  
3 Emphasis added.  
4 United States FWS, para. 146.  
5 United States FWS, para . 133. 
6 Appellate Bo dy Report, US — Carbon Steel (India), para. 4.426.  WT/DS523/R/Add.1  
 
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  ANNEX  C-2 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF THE EUROPEA N UNION  
I. PUBLIC BODY RELATED CLAIMS UNDER ARTICLE 1.1 ASCM  
1. The Appellate Body in US – Anti-Dumping and Countervailing Duties (China)  found that a 
public body is properly understood as one that is governmental in nature. The performance of 
governmental functions, or the  fact of being vested with, and exercising, the authority to perform 
such functions are core commonalities between government and public body.1 Whether the 
functions or conduct are of a kind that are ordinarily classified as governmental in the legal order  
of the relevant Member may be a relevant consideration. The classification and functions of entities 
within WTO Members generally may also bear on the question of what features are normally 
exhibited by public bodies.2 State ownership is a relevant but no t decisive criterion.3 
2. The Appellate Body concluded that a public body is an entity that possesses, exercises or is 
vested with governmental authority, which is to be determined on a case -by-case basis having 
regard to all the relevant facts. Evidence t hat an entity is in fact exercising governmental 
functions, particularly if there is a sustained and systematic practice, may serve as evidence that it 
possesses or has been vested with governmental authority. Evidence that government exercises 
meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence 
that the relevant entity possesses governmental authority and exercises such authority in the 
performance of governmental functions. However, the existence of mere form al links is unlikely to 
suffice to establish the necessary possession of governmental authority. The mere fact that a 
government is the majority shareholder of an entity does not demonstrate that the government 
exercises meaningful control over the conduct  of that entity, or that the government has bestowed 
it with governmental authority. On the other hand, where the evidence shows that the formal 
indicia of government control are manifold, and there is also evidence that such control has been 
exercised in a meaningful way, then such evidence may permit an inference that the entity 
concerned is exercising governmental authority.4 The Panel would therefore have to assess 
whether the USDOC's determinations reveal sufficient evidence of the existence of governm ent 
control and of the exercise of such control by the GOT over Erdemir and Isdemir.  
3. The EU considers that the question whether OYAK constitutes a "government " entity would 
be a particularly relevant factor to be considered for the qualification of Erde mir and Isdemir as 
public bodies, notably for the question of government ownership and hence the existence of 
government control. In this context, the EU considers that the conditions of Article 1.1(a)(1) ASCM 
apply and are relevant for an assessment of OY AK even if it provided no financial contribution. 
The USDOC did not qualify OYAK as a "public body" but as a GOT "organ".5 The EU considers that 
the relationship of an organ with the government would appear to be more closely linked than that 
of a public b ody with the government. The term "government organ" connotes a closer relationship 
with the government than the more generic term "public body". The Appellate Body distinguished 
in Article 1.1(a)(1) ASCM between the term "government" in the narrow sense a nd the term 
"government" in a parenthetical phrase which means, collectively, government in the narrow sense 
and any public body.6 Hence if OYAK is not a public body, it must necessarily form part of the 
government in the narrow sense in order to be qualif ied as "government ". The Appellate Body has 
not provided a definition of the term government in the narrow sense and whether an entity falls 
into this category will therefore have to be determined on a case -by-case basis in view also of the 
internal laws a nd organisation of the Member in question. Possible examples could include the 
police, ministries or the judiciary. The Panel may therefore have to assess whether the pension 
fund OYAK falls into that category.  
                                                
1 Appellate Body Report,  US – Anti-Dumping and Countervailing Duties (China) , para. 290.  
2 Appellate Body Report,  US – Anti-Dumping and Countervailing Duties (China) , paras. 295 -297. 
3 Appellate Body Repor t, US – Anti-Dumping and Countervailing Duties (China) , paras. 309 -316. 
4 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 317 -322. 
5 United States' First Written Submission, paras. 75, 84, 97.  
6 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , paras. 286, 288.  WT/DS523/R/Add.1  
 
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  II. BENEFIT RELATED CLAIMS UNDER ARTICLES 1. 1(B) AND 14(D)  
4. The EU recalls that the Appellate Body found that the primary benchmark under 
Article  14(d)  is the prices at which the same or similar goods are sold by private suppliers in arm's 
length transactions in the country of provision.7 The use of out -of-country benchmarks is rather 
the exception.8 But the Appellate Body has found, for example, that prices of private suppliers in a 
country could not be used as benchmarks because of the government's predominant role in the 
market.9 The Appellate Body also held that the question whether a relevant entity is to be qualified 
as "government" (including as a "public body") does not automatically answer the question of 
whether the prices of goods provided by private or government -related entities in the country of 
provision are to be considered as market determined for the purpose of selecting a benefit 
benchmark.10 Hence, even assuming that Erdemir and Isdemir are public bodies (and control a 
substantial part of the market), this fact alon e may not evidence market distortion. Assuming 
Erdemir  and Isdemir are public bodies, the government could be considered as a predominant or 
significant supplier of the market through these entities which would be relevant considerations for 
a demonstratio n of market distortion. The Appellate Body found previously that the more 
"predominant" a government is as a supplier in the market in question, the less relevant other 
evidence will become for a finding of price distortion.11 However, if the government is only a 
"significant" supplier, evidence from other sources will always be required.12 There is no clear 
dividing line between the concepts of "predominant" and "significant" supplier. In previous cases, 
predominance was found where the government had above 90% market share.13 Therefore, an 
important element in the assessment of market distortion – even if not the only element - is the 
level of the market share held by the government as supplier regarding the product in question.  
5. Having said that, given th at the USDOC’s original out -of-country benchmark was replaced by 
an in-country benchmark, the EU recalls that "as a general rule , the measures included in a panel’s 
term of reference must be measures that are in existence at the time of the establishment o f the 
panel " pursuant to Article 6.2 of the DSU.14 [emphasis added]. This means that, in a case of expiry 
of the measure prior to panel establishment, a panel should normally exercise its discretion to the 
effect of not making findings regarding the expired  measure. In addition, in the present case the 
measure not only expired but was replaced by a different measure which addressed and resolved 
the concern of the complaining Member. Previous panels in similar circumstances declined to make 
findings.15 The EU therefore considers that the Panel should not make findings in this respect.    
III. SPECIFICITY UNDER ARTICLE 2.1(C)  
6. A subsidy programme in the form of a "plan or scheme of some kind" under Article 2.1(c) 
may be manifested in written instruments or it m ay take less explicit forms such as a systematic 
series of actions.16 With respect to subsidies in the form of a provision of goods for less than 
adequate remuneration as in the present case, the Appellate Body found that a subsidy 
programme cannot be evide nced by the mere fact that financial contributions have been granted 
to certain enterprises. Rather, an investigating authority must have adequate evidence of the 
existence of a systematic series of actions pursuant to which financial contributions that co nfer a 
benefit are provided to certain enterprises,17 possibly over a period of time.18 The EU agrees. The 
fact that some of the transaction prices are higher than the benchmark price whereas other prices 
are lower than the benchmark price may be one of the elements relevant for the assessment of 
the existence of a subsidy programme. If the list of transactions alone does not demonstrate a 
series of systematic actions, the investigating authority must otherwise demonstrate the existence 
                                                
7 Appellate Body Report, US – Carbon Steel (India), para. 4.154.  
8 Appellate Body Report, US – Softwood Lumber IV , para. 102.  
9 Appellate Body Report, US – Softwood Lumber IV , para. 90.  
10 Appellate Body Report, US – Countervailing Measures (China) , para. 4.43.  
11 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 446.  
12 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 443.  
13 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 455; Panel 
Report, US –Coated Paper (Indonesia), para. 7.80.  
14 Appellate Body Report, EC－ Chicken Cuts , para. 156.  
15 Panel Report, US – Gasoline, para. 6.19, Panel Report, Argen tina – Textiles and Apparel, para. 6.15.  
16 Appellate Body Report, US – Countervailing Measures (China) , para. 4.141.  
17 Appellate Body Report, US – Countervailing Measures (China) , para. 4.143.  
18 Appellate Body Report, US – Countervailing Measures (China) , para. 4.142.  WT/DS523/R/Add.1  
 
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  of a policy of providi ng goods at less than adequate remuneration (e.g., through policy documents 
or statements).   
IV. ARTICLE 12.7 ASCM (ADVERSE FACTS AVAILABLE)  
7. The purpose of Article 12.7 is to "overcome a lack of information" and to enable 
investigating authorities to continue with the investigation and make determinations.19 
The Appellate Body found that Article  12.7 ASCM "permits the use of facts on record solely for the 
purpose of replacing information that may be missing, in order to arrive at an accurate 
subsidizati on or injury determination."20 The Appellate Body also found that in view of this 
objective of Article 12.7 ASCM, an investigating authority may not use any information in whatever 
way it chooses but that there are limitations. The first limitation is that an investigating authority 
must take into account all the substantiated facts provided by an interested party and the second 
limitation is that the "facts available" to the agency are generally limited to those that may 
reasonably replace the information t hat an interested party failed to provide.21 The EU considers 
that the legal requirement that facts available must "reasonably replace" missing information 
should be interpreted in light of the overall objective of Article 12.7 ASCM of arriving at an 
"accur ate determination." 22 
8. A key decision in the present case is which (adverse) inferences may be drawn from 
non-cooperation and which facts may be available to support a determination. The authority is not 
permitted to identify two different equally possib le inferences, and then select the inference that is 
more adverse to the interests of a particular interested party, solely because it is more adverse 
(for example, in order to "punish" non -cooperation).23 Rather, the authority must draw the 
inference that best fits the facts that have been evidenced. However, the facts that may be taken 
into account for this purpose include such things as the precise question that has been put; the 
procedural circumstances; the availability of the evidence being sought; and  all the circumstances 
surrounding the absence of the requested information from the record. Thus, the behaviour of an 
interested party as "procedural circumstance " can colour the inferences that can be reasonably 
drawn in any particular instance. The more  uncooperative a party is in fact, the more attenuated 
and extensive the inferences that it may be reasonable to draw.  
9. Whether or not a WTO Member has acted inconsistently with Article 12.7 ASCM might 
therefore depend less upon the particular label that  has been used (e.g., "adverse inference "), and 
more upon a specific examination of all the surrounding facts and procedural context. The EU 
considers that one element that an investigating authority may consider when weighing the 
evidence is whether and t o what extent the available information on the record is reliable.  There 
may be situations where all or part of the information provided by an interested party that could – 
in principle - be used as facts available may be "tainted" by non -cooperation which  may justify the 
authority to use information e.g. from a different producer or from a different subsidy programme.  
Depending on the circumstances, an authority may in such scenario decide to discard the entire 
data set of the particular producer and inste ad rely on information provided by a different producer 
or on information from a different subsidy programme. However, an investigating authority must 
properly reason and evaluate why it selected the facts that it did, consider all the evidence on 
record a nd may not select exclusively certain "adverse" evidence in order to punish non -
cooperation.    
V. CROSS -CUMULATION UND ER ARTICLE 15.3 ASCM   
10. The EU recalls that the Appellate Body in US – Carbon Steel (India)  addressed the legality of 
cross-cumulating s ubsidized and dumped imports under Article 15.3 ASCM. The Appellate Body 
agreed with the panel's  findings that "the consistent use of the term "subsidized imports" in 
Article  15 ASCM limits the scope of the investigating authority's injury assessment to subsidized 
                                                
19 Panel Report, EC – Countervailing Measures on DRAM Chips , para. 7.245.  
20 Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice , para. 293. In a 
similar vein, the Appellate Body has also stated that the use of inferences in order to select adverse facts that 
punish non -cooperation would lead to an inaccurate determination and thus not accord with Article 12.7 ASCM, 
Appellate Body Report, US – Carbon Steel (India) , para. 4.468.  
21 Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice , para. 294.  
22 Appellate Body Report, US – Carbon Steel (India) , paras. 4.416 and 4.419.  
23 Appellate Body Report, US – Carbon  Steel (India) , para. 4.419.  WT/DS523/R/Add.1  
 
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  imports only." The Appellate Body further found that the consistent references to "subsidies" and 
"subsidised imports" require investigating authorities to ensure that their examinations are 
directed at the effects of subsidized imports and excl ude non -subsidized imports."24 It concluded 
that "we see no basis in the text of Article 15.3 ASCM for cumulatively assessing the effects of 
subsidized imports with those of non -subsidized imports."25 In the EU's view, the Appellate Body's 
case law on cross -cumulation is relevant also for Turkey's claim under Article 15.3 ASCM.  
 
 
                                                
24 Appellate Body Report, US – Carbon Streel (India) , para. 4.591.  
25 Appellate Body Report, US – Carbon Streel (India) , para. 4.593.  WT/DS523/R/Add.1  
 
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  ANNEX C-3 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF JAPAN  
I. THE DEFINITION OF "PUBLIC BODY " UNDER ARTICLE 1.1 OF THE SCM AGREEMENT  
1. In this dispute, Turkey challenges the determination of the U.S. Department of Commerce 
("USDOC") that Eregli Demir ve Celik Fabrikalari T.A.S. ("Erdemir") and  its affiliate  Iskenderun 
Iron & Steel Works Co. ("Isdemir") are "public bodies"  as defined under  Article 1.1 of the 
SCM Agreement.1  
2. The Appellate Body has explained that a "public body" is "an entity that possesses, exercises 
or is vested with governmental authority." 2 The Appellate Body has further found that "evidence 
that a government exercises meaningful control over an entity and its conduct" may serve as 
evidence that the relevant entity "possesses governmental authority  and exercises such authority 
in the performa nce of governmental functions ,"3 and is thus a public body.   
3. In determining whether a government exercises "meaningful control" over an entity,  the 
Appellate Body has explained that  "formal indicia of control," such as the government’s ownership 
interes t in the entity and the government’s power to appoint and nominate directors, are "certainly 
relevant ."4 However, without further evidence and analysis of several other factors, those indicia 
"do not provide a sufficient basis" for a public body determinat ion.5 Factors other than formal 
indicia that the Appellate Body has found relevant include whether board directors  appointed by 
the government are independent,6 and the extent to which the government  in fact exercised 
meaningful control over the relevant e ntity and over its conduct .7  
4. Taking this into account, Japan considers that the relevant factors in determining whether 
the Government of Turkey ("GOT") exercises meaningful control over Erdemir and Isd emir include 
not only formal indicia of control, s uch as share ownership and the government’s power to appoint 
directors, but also whether, and to what extent, the GOT influences the management of these 
entities  (i.e., whether the business decisions of  the entities are independent from the GOT), the 
legal status and structure of the entities, and the legal status of their property, as compared with 
those of other private steel producers in Turkey.  Thus, Japan considers that a key question before 
the Panel is whether Erdemir and Isdemir are independent from  the GOT, and whether these 
entities are structured in a manner that ensures that management decisions are made 
independently and without government interference.   
5. Japan notes the United States'  explanation that, as part of its public body determination , the 
USDOC examined the involvement of Ordu Yardimlasma Kurumu ("OYAK") , which the 
United  States conten ds is an "organ of the GOT, " in Erdemir, including OYAK ’s majority interest in 
Erdemir.8 The term "government organ" is not contained in the SCM Agreeme nt, and no WTO 
precedent has exact ly defined this term.  Moreover, the United States itself does not provide a 
definition of the term in this proceeding.  Japan considers that the relationship between the GOT 
and OYAK is relevant only to the extent that it i s part of the factual analysis of whether the 
involvement of OYAK in Erdemir, and by extension, in Isdemir, contributes to establishing 
"meaningful control" by the GOT over these entities.   
                                                
1 For example,  First Written Submission of Turkey,  paras. 94 -95.  
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317.  
3 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318.  
4 Appellate Body Report, US – Carbon Steel (India) , paras. 4.43 and 4.54; See also  Appellate Body 
Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318.  
5 Appellate Body Report, US – Carbon Steel (India) , para. 4.43.  
6 Appellate Body Report, US – Carbon Steel (India) , para. 4.45.  
7 Appellate Body Report, US－ Carbon Steel (India) , paras. 4.52-4.54. 
8 See First Written Submission  of the United States , paras. 97, 100.  WT/DS523/R/Add.1  
 
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  II. MEASURE OF BENEFITS UNDER ARTICLES 1.1(B) AND 14(D) OF THE 
SCM AGREEMENT   
6. Turkey alleges that the USDOC improperly determined that Erdemir and Isdemir provided 
hot rolled steel to the respondents for less than adequate remuneration under Article 14(d), 
thereby conferring a benefit under Article 1.1(b) , because the  USDOC erroneously  reject ed 
in-country prices as potential benchmarks based solely on evidence of government ownership or 
control of domestic producers.9 Turkey’s claim raises the question of the weight that should be 
placed on the role of the government  in the market  in determining whether market prices are 
distorted, thus permitting an investigating authority to reject in -country prices.  
7. Article 14(d) establishes that the adequacy of remuneration is to be determined "in relation 
to prevailing market c onditions for the good or service in question in the country of provision or 
purchase."  What an investigating authority must do in assessing the proper benchmark "will vary 
depending upon the circumstances of the case, the characteristics of the market bei ng examined, 
and the nature, quantity, and quality of the information supplied by petitioners and 
respondents."10 In-country prices are the primary benchmark for the calculation of benefit under 
Article 14(d),11 but "an investigating authority may use a benc hmark other than private prices of 
the goods in the country of provision, when it has been established that private prices of the goods 
in question in that country are distorted, because of the predominant role of the government in the 
market as a provider  of the same or similar goods."12  
8. The weight that should be placed on the government’s role  in the market  may differ 
depending on whether the government’s role is "predominant" or " significant ". When the 
government is a predominant supplier, the Appella te Body has found that the government would 
likely have the market power to affect the pricing by private providers through its own pricing, 
inducing them to align with government prices.13 In these circumstances, "evidence of factors 
other than government market share will have less weight  in the determination of price distortion 
than in a situation where  the government has only a ‘significant ’ presence in the market ."14 Price 
distortion may also be established where the government is a significant supplier,  but there must 
be evidence pertaining to factors other than government market share,15 such as the structure of 
the relevant market, including the type of entities operating in that market, their respective 
market share, as well as any entry barriers.16  
9. Whether the government is a "predominant" or "significant" supplier, Japan considers that 
the investigating authority must consider all of the evidence that is put on the record.17 Thus,  the 
determination of an appropriate benchmark requires an assessment of the specific facts of the 
case, taking into consideration the characteristics, structures, and participants of the market, as 
well as the role of the government in the relevant market.  The weight that the investigating 
authority places on each of these facts may depend  on the predominance or significance of the 
government in the supplier market.   
10. Having said that, as the Panel pointed out in its question to the third parties, the US DOC 
issued an amended determination which relied on in -country prices  prior to panel establishment.18 
Japan recalls that "as a general rule, the measures included in a panel’s term of reference must be 
measures that are in existence at the time of the establishment of the panel" pursuant to 
Article  6.2 of the DSU ,19 and that "panels are allowed to examine a measure ‘whose legislative 
basis has expired, but whose effects are alleged to be impairing the benefits accruing to the 
                                                
9 First Written Submission  of Turkey , paras.  181-183. 
10 Appellate Body Report, US – Carbon  Steel (India) , para. 4.153.  
11 Appellate Body Report, US – Softwood Lumber IV , para. 9 7. 
12 Appellate Body Report, US – Softwood Lumber IV , para. 119.  
13 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 455.  
14 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 455.  
15 Appellate Bo dy Report, US – Anti-Dumping and Countervailing Duties (China) , para. 443.  
16 Appellate Body Report, US－ Carbon Steel (India) , para. 4.157, fn. 754.  
17 First Written Submission  of Turkey , para. 185, fn. 446 (citing Appellate Body Report, US –
Anti-Dumping and  Countervailing Duties (China) , para. 45 3). 
18 Panel’s Questions to Third Parties, question 4.  
19 Appellate Body Report, EC － Chicken Cuts , para. 156.  WT/DS523/R/Add.1  
 
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  requesting Member under a covered agreement’ at the time of the establishment of the panel."20 
Therefore, Japan considers that if the original determination had already been superseded by an 
amended determination and had ceased to have legal effect when the Panel was established, the 
original determination would fall outside the Panel’s terms of ref erence  and should not be 
examined.  
III. DETERMINATION OF SPECIFICITY UNDER ARTICLE 2.1 OF THE SCM AGREEMENT  
11. Turkey challenges the USDOC ’s determination that the provision of hot rolled steel for less 
than adequate remuneration was de facto  specific wi thin the meaning of Article 2.1 of the 
SCM Agreement because the number of industries or enterprises using the program was limited to 
eight industries identified by the GOT.21  
12. Assuming that the use of the subsidy program was strictly limited to the spe cific industries 
identified by the GOT, Japan believes  that the USDOC could properly find the provision of hot 
rolled steel to be "limited" under Article 2.1(c).  However, Japan notes that there may be instances 
where an entity outside of the enumerated ind ustries may also benefit from the provision of hot 
rolled steel for less than adequate remuneration.  Thus, it is Japan’s view that the investigating 
authority cannot rest its finding of specificity only on the identification of a limited number of 
industri es or entities, if it is found that the provision of the good or service in question for less than 
adequate remuneration can benefit  an entity that is outside of the enumerated industries or 
enterprises .  
13. Japan also notes the Panel’s questions to third  parties on what must be shown to 
demonstrate a "series of systematic actions" that constitute a subsidy programme under 
Article  2.1(c) when the subsidy programme consists of a list of transactions.22 Japan notes the 
Appellate Body’s guidance in US – Countervailing Measures (China)  that "[t]he mere fact that 
financial contributions have been provided to certain enterprises is not sufficient … to 
demonstrate  … a plan or scheme for purposes of Article 2 .1(c)."23 Rather, "an investigating 
authority must ha ve adequate evidence of the existence of a system atic series of actions pursuant 
to which financial contributions that confer a benefit are provided to certain enterprises."24 Japan 
considers that this determination must be made on a case -by-case basis, and  that there is  not a 
bright -line rule to determine how much, or what kind of, evidence is "adequate" to determine the 
existence of a "system atic series of actions ." Japan does not consider that the requirement to have 
"adequate evidence" mean s that each in dividual transaction must be lower than the benchmark to 
demonstrate the existence of a subsidy programme . Such rigid construct could potentially permit 
circumvention of countervailing duties, and would go against the objective of Article 2.1(c), which 
is to cover de facto  specific subsidies , including through the use of a subsidy programme,  which 
may appear non -specific on its face.   
IV. APPLICATION OF FACTS AVAILABLE UNDER ARTICLE 12.7 OF THE SCM AGREEMENT  
14. Turkey challenges the USDOC’s application of adverse inferences with respect to the 
respondents’ reported data  in several  countervailing duty investigations .25 In particular, Turkey 
challenges the USDOC’s use of facts available under  Article 12.7 of the SCM Agreement, in part 
because the USDOC drew ad verse inferences in selecting among facts available, in order to punish 
the respondent  for its alleged non -cooperation.26 
15. Japan agrees that Article 12.7 does not permit the application of "facts available" in a 
punitive manner.  Article 12.7 states that,  "[i]n cases in which any interested Member or interested 
party refuses access to, or otherwise does not provide, necessary information within a reasonable 
period or significantly impedes the investigation, preliminary and final determinations, affirmative  
or negative, may be made on the basis of the facts available."  The Appellate Body has explained 
                                                
20 Appellate Body Report, EC – Selected Customs Matters , para.  184, referring to Appellate Body Report, 
US – Upland Cotton , para.  263. 
21 First Written Submission  of Turkey , para s. 213-220. 
22 Panel’s Questions to Third Parties, question 5.  
23 Appellate Body Report, US – Countervailing Measures (China) , para. 4.143.  
24 Appellate Body Report, US – Countervailing Measures (China) , para. 4.143.  
25 First Written Submission  of Turkey , paras. 195 -196, 323 -325, and 434 -436. 
26 First Written Submission  of Turkey , para s. 196, 326, 437 . WT/DS523/R/Add.1  
 
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  that "Article 12.7 is intended to ensure that the failure of an interested party to provide necessary 
information does not hinder an agency’s investigation.  Thus, the provision permits the use of facts 
on record solely for the purpose of replacing information that may be missing, in order to arrive at 
an accurate subsidization or injury determination."27  
16. The Appellate Body has also explained that "Article 12 .7 requires an investigating authority 
to use ‘facts available’ that reasonably replace the missing ‘necessary information,’ with a view to 
arriving at an accurate determination, " and that this "calls for a process of evaluation of available 
evidence, the extent and nature of which depends on the particular circumstances of a given 
case."28 Thus,  the determination of what information constitutes a "reasonable replacement"  must 
be made on a case -by-case basis, in light of the available evidence.  The circumsta nces of a case 
that may be taken into consideration  may include procedural circumstances relating to the missing 
information, such as any difficulties experienced by interested parties that have not provided the 
"necessary information ,"29 and the knowledge of a non -cooperating party of the consequences of 
failing to provide information .30  
17. Japan recognizes that the Appellate Body has found in US – Carbon Steel (India)  that the 
grant of authorization  to use adverse inferences under the S CM Agreement was not in itself "as 
such" inconsistent with Article 12.7, insofar as it was possible to apply the U.S. statute in a 
manner that comports with Article 12.7.31 However, Japan does not  understand the Appellate 
Body’s ruling as allowing Members t o apply adverse inferences in a manner intended to punish a 
non-cooperating respondent.  In fact, while recognizing that an investigating authority may use 
inferences and may consider the procedural circumstances of the missing information in 
determining wh ich "facts available" constitute reas onable replacements, the Appellate Body noted 
that "the use of inferences in order to select adverse facts that punish non -cooperation would lead 
to an inaccurate determination and thus not accord with Article 12.7. "32  
18. That Article 12.7 does not permit Members to apply adverse inferences in a punitive manner 
is further supported by Article 6.8 and Annex II of the Anti -Dumping Agreement , which sets out 
several conditions that the investigating authority must meet in o rder to apply "facts available. " 
While the SCM Agreement does not include a reference to Article  6.8 or Annex II, the 
Appellate  Body has confirmed that these provisions of the Anti -Dumping Agreement provides 
guidance in interpreting  the SCM Agreement . According to the Appellate  Body,  "it would be 
anomalous if Article 12.7 of the SCM Agreement were to permit the use of ‘facts available’ in 
countervailing duty investigations in a manner markedly different from that in anti -dumping 
investigations."33  
19. Annex II is titled "Best Information Available in Terms of Paragraph 8 of Article 6."  By the 
very terms of its title, the Annex makes clear that the purpose of using "facts available " is to use 
the "best information available."  A WTO panel has further state d that Article 6.8 and Annex II are 
meant to ensure that "even where the investigating authority is unable to obtain the ‘first -best’ 
information as the basis of its decision, it will nonetheless base its decision on facts, albeit perhaps 
‘second -best’ fac ts."34  
20. Paragraph 3 of Annex II states that "[a]ll information which is verifiable, which is 
appropriately submitted so that it can be used in the investigation without undue difficulties, which 
is supplied in a timely fashion … should be taken into acc ount when determinations are made."  
Paragraph 5 also states that "[e]ven though the information provided may not be ideal in all 
respects, this should not justify the authorities from disregarding it, provided the interested party 
has acted to the best of its ability."  Pursuant to paragraphs 3 and 5, even if an investigating 
authority uses "facts available," it is nonetheless required to take into account all substantiated 
facts provided by an interested party, even if those facts may not constitute the com plete 
information requested of the party.  
                                                
27 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 293.  
28 Appellate B ody Report, US – Carbon Steel (India) , para. 4.435.  
29 Appellate Body Report, US – Carbon Steel (India) , para. 4.4 22. 
30 Appellate Body Report, US – Carbon Steel (India) , para. 4.4 26. 
31 Appellate Body Report, US – Carbon Steel (India) , para. 4.483.  
32 Appella te Body Report, US – Carbon Steel (India) , para. 4.468.  
33 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 295.  
34 Panel Report, US – Hot-Rolled Steel , para. 7. 55. WT/DS523/R/Add.1  
 
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  21. Finally, neither Article 12.7 of the SCM Agreement nor Article 6.8 (incorporating Annex II) of 
the Anti -Dumping Agreement refers to the use of "adverse facts available" or "adverse inferences."  
Rather, paragrap h 7 of Annex II states that "if an interested party does not cooperate and thus 
relevant information is being withheld from the authorities, this situation could lead to a result 
which is less favourable to the party than if the party did cooperate."  In Ja pan’s view, this 
language acknowledges that the "best information available" may be less favorable than the 
interested parties’ own data, but does not grant permission for the investigating authority to bring 
about an outcome that is punitive and that does  not reasonably reflect an accurate margin 
calculation based on the available facts.   
22. In sum, the authority  to use "facts available" under Article 12.7 of the SCM Agreement does 
not permit the investigating authority to apply adverse inferences in a manner that runs counter to 
the authority’s overarching obligation to make an accurate  determination.  Thus, it is  Japan’s view 
that an investigating authority must select among "facts available " a "reasonable replacement" for 
missing information that seeks to achieve an "accurate determination."  Article 12.7 does not 
permit Members to apply adverse inferences in a ma nner that would punish non -cooperating 
respondents.   
V. CROSS -CUMULATION UNDER ARTICLE 15.3 OF THE SCM AGREEMENT  
23. Turkey challenges the U.S. International Trade Commission ’s ("ITC") "cross -cumulat ion" of 
imports from countries that were subject to both anti -dumping and countervailing duty 
investigations with imports from countries that were subject only to anti -dumping investigations .35 
As Turkey notes, the Appellate Body in US – Carbon Steel (India)  found  that "the effects of 
imports other than such subsidized imports must not be incorporated in a cumulative assessment 
pursuant to Article 15.3."36 Thus, the ITC’s practice of cross -cumulating imports that are subject to 
only anti -dumping investigations with those that are subject to countervailing duty investigations 
would appear to be inconsistent with the Appellate Body’s guidance.  
24. That said, Japan notes that the Appellate Body’s ruling, if taken at face value, would appear 
to leave a logical gap with regards to the principal objective of Article 15.3 of the SCM Agreement, 
as well as the parallel provisions under Article 3.3 of the Anti -Dumping Agreement.  In Japan’s 
view, the purpose of Article 15.3 is to capture circumstances where the causal relations hip 
between the injury and subsidized imports may escape scrutiny simply because it would be difficult 
to identify, individually,  the injurious effects of subsidized imports that originate from multiple 
countries.  In other words, just as the effects of sub sidized (or dumped) imports originating from 
several countries may not be adequately taken into account in a country -specific analysis, Japan 
considers that the combined effects of subsidized and dumped imports  from several countries  may 
not be adequately taken into account if cross -cumulation is prohibited.  
                                                
35 For example, First Written Submission  of Turkey , paras. 221 -232. 
36 First Written Submission of Turkey, para. 227 (citing Appellate Body Report, US – Carbon Steel 
(India) , para s. 4.579 , 4.593).  WT/DS523/R/Add.1  
 
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  ANNEX C -4 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGU MENTS OF MEXICO  
1. Mexico is grateful for this opportunity to present its views on this dispute, and notes that it s 
oral statement will be confined  to the complaints regarding  cross-cumulati on raised by Turkey in 
its first written submission.  
 
2. With respect to this issue, Turkey maintains that the United States' practice of 
cross-cumulating , which consists in cumula ting the harmful effects of the subsidized imports with 
those caused by non -subsidized  imports, is inconsistent "as such" with Article 15.3 of the 
Agreement on Subsidies and Countervailing Measures (SCM  Agreement ). Turkey also affirms that 
cross-cumulation  is inconsistent with that same article as applied to the proceedings regarding 
Oil Country Tubular Goods (OCTG), Welded Line Pipe (WLP) , Heavy Walled Rectangular Welded 
Carbon Steel Pipes and Tubes (HWRP) , and Circular Welded Carbon Steel Pipes and Tubes (CWP).  
 
3. As can be seen from Turkey's first written submission, the Appellate Body's findings in  
US – Carbon Steel (India)  on cross-cumulation are the key to resolving this issue because , as 
Turkey rightly points out, in that dispute the Appellate Body expressly ruled that cumulatively 
assessing the effects of subsidized imports with the effects of non -subsidized imports was 
inconsistent with Article 15.3 of the SCM Agreement.  
 
4. Mexico notes in this connection that the facts examined in US – Carbon Steel (India) , in 
particular those pertaining to cross -cumulation, are unquestionably similar to the facts pertaining  
to the practice  in dispute in this case. In both cases: (i) simultaneous applications  were submitted 
for the initiation of anti -subsidy an d anti -dumping proceedings , and the United States investigating 
authority performed a cumulative assessment of the effects of the subsidized imports with the 
effects of the dumped imports; and (ii) the authority that applied the cross -cumulation was the 
International Trade Commission (ITC).  
 
5. Similarly, Mexico notes that the practice of cross -cumulation was grounded on 
Section  1677(7)(G)(i) of the United States Tariff Act. While Mexico is aware that the Appellate 
Body Report in  US – Carbon Steel (India) states that it is unclear whether this Section requires the 
USITC to carry out the cross -cumulation, paragraphs 223, 224, 343 and 456 of Turkey's first 
written submission apparently provide verbatim quotes of the relevant ITC rulings in which the ITC 
itself expressly states that Section 1677(7)(G)(i) of the US Tariff Act requires the Commission to 
cumulate. Mexico has no reason to suppose that the ITC is not required to cumulate when the ITC 
itself expressly states that it is required to do so.  
 
6. It is cle ar to Mexico that the text of Article 15.3 of the SCM Agreement permits the 
cumulation of imports from several countries only where they are simultaneously subject to 
countervailing duty investigations , and points (a) and (b) of the said  Article are compli ed with.  
 
7. At the same time  Mexico notes that, contrary to what the United States claims, the text of 
Article 15.3 of the SCM Agreement is not silent with respect to the possibility of cumulating 
imports subject to countervailing duty investigations with  imports that are not subject to 
countervailing duty investigations. On the contrary, Mexico believes that Article 15.3 expressly 
conditions the cumulation of i mports on their being subject to countervailing duty investigations. It 
is clear  that if that condition is not met, cumulative assessment is plainly and simply not 
permitted.  
 
8. This interpretation is perfectly consistent with the rulings  of the Panel and the 
Appellate  Body in US – Carbon Steel (India) . In that dispute, the Appellate Body ruled that  to 
assess cumulatively the effects of imports, Article 15.3 of the SCM Agreement requires, in 
principle, that those imports be " subject to countervailing duty investigations ". In the words of the 
Appellate Body, " [t]he provision that investigating authori ties may, if the conditions set out in the WT/DS523/R/Add.1  
 
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  last clause of Article 15.3 are fulfilled, cumulatively assess the effects of 'such' imports thus 
requires that the imports be 'subject to countervailing duty investigations1'". 
 
9. Moreover, the Appellate Body un dertook a contextual interpretation of Article 15.3 of the 
SCM Agreement and reached the conclusion that paragraphs 1, 2, 4 and 5 of Article 15 as well as 
other provisions throughout Part V of the Agreement require d that the injury analysis in the 
context of a countervailing duty procedure be limited to consideration of the effects of subsidized 
imports.2 It is therefore clear that where there is cumulation of imports in the assessment of 
injury, that cumulation must be limited to subsidized imports.  
 
10. Both the Panel and the Appellate Body in US – Carbon Steel (India)  reached similar 
conclusions with respect to the  causation analysis. In that dispute, they ruled that under 
Article  15.5 of the SCM Agreement, non -subsidized imports come  within the scope of  "any known 
factors other than the subsidized imports which at the same time are injuring the domestic 
industry", so that the injuries caused by non -subsidized imports must not be attributed to the 
subsidized imports, because they are "other factors".  
 
11. Mexico notes that in its first written submission, the United States puts forward  a number of 
arguments in defence  of cross -cumulation that are identical to the arguments it presented in  
US – Carbon Steel (India)  that were ruled by the Appellate Body to be without foundation . For 
example, it repeats the argument that Article 15.3 is silent on whether the cumulation of the 
effects of subsidized imports with the effects of dumped imports is permitted , in spite of the fact 
that the Appellate Body expressly s tates, in paragraph 4.589, that "Article 15 is not silent on the 
question of cumulation of the effects of subsidized imports with the effects of non -subsidized 
imports " since, as the Appellate Body also mentions in the same paragraph, from the requirement 
that the imports must simultaneously be subject to countervailing duty investigations, " it follows 
that a cumulative assessment pursuant to Article 15.3 must not encompass the effects of 
non-subsidized imports ." 
 
12. In another example of this reiteration  of the same arguments, the United States repeats, in 
this dispute, that an analysis that focuses solely on subsidized imports or dumped imports would 
prevent the investigating authority from taking account of the injurious effects of all unfairly 
traded im ports. However, this issue was clearly settled by the Panel in paragraph 7.343 of its 
report and confirmed by the Appellate Body in paragraph 4.596 of its report with the statement  
that the object of the analysis to be made under Article 15 is injury cause d by subsidized imports, 
and not injury caused by unfairly traded imports.  
 
13. The United States also reiterates that Article VI:6 (a) of the General Agreement on Tariffs 
and Trade (GATT) 1994 supports its interpretation of cross -cumulation as being consis tent with the 
provisions of Article 15 of the SCM Agreement, since the expression "as the case may be" suggests 
that there are situations in which the determination of injury may involve dumping, subsidization, 
or both. However, in paragraphs 4.598 and 4.5 99 of its report, the Appellate Body ruled that 
Article VI.6(a) of the GATT referred to two separate elements, dumping and subsidization, so that 
the expression "as the case may be" clarifies that injury may be caused by either the effect of the 
subsidy or , in another case, the effect of dumping. Accordingly, the Appellate Body ruled that the 
United States' interpretation simply did not apply to Article VI:6 (a) of the GATT.  
 
14. At the same time, since the cross -cumulation used by the ITC has already been s ubject to 
dispute settlement and the Appellate Body upheld the Panel's findings of inconsistency with 
paragraphs 1, 2, 3, 4 and 5 of Article 15 of the SCM Agreement, it is a source of concern to Mexico 
that the United States should continue to apply this i njury analysis methodology which, in addition 
to infringing Members' rights, prevents the dispute settlement system from meeting its objectives 
of providing the multilateral trading system with security and predictability . Thus, regardless of 
whether cross -cumulation constitutes a practice, we are struck by the fact that this is the second 
dispute against the same Member in which we are assessing the same methodology that was 
already found to be inconsistent with that Member's WTO obligations.  
 
15. In other  words, the fact that the United States persists in applying a measure in the full 
knowledge that it is inconsistent with its multilateral obligations, and that it has not provided a 
                                                
1 Appellate Body Report, US – Carbon Steel (India) , para 4.579.  
2 Appellate Body Report, US – Carbon Steel (India) , para 4.586.  WT/DS523/R/Add.1  
 
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  defence that is any different from the defence it presented in the case i n which cross -cumulation 
was found to be inconsistent with Article 15 of the SCM Agreement, means that although the 
United States is aware of the Appellate Body's legal interpretation and ultimately of its multilateral 
obligations, it has decided to contin ue to act in a manner inconsistent with those obligations.  
 
16. However, leaving aside the concern that this attitude inspires, we believe that the Panel 
should bear in mind, as the Appellate Body has stressed, that "ensuring 'security and predictability' 
in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent 
cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a 
subsequent case."3 Consequently, the Panel must "[follow] the A ppellate Body's conclusions in 
earlier disputes", since doing so " is not only appropriate, but is what would be expected from 
panels, especially where the issues are the same".4 
 
17. Finally, Mexico thanks you for your attention and the interpreters for t heir w ork. We look 
forward to any questions you may have.  
 
 
__________  
                                                
3 Appellate Body Report, US – Stainless Steel (Mexico) , para. 160.  
4 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188.