WT/DS488/ R 
 
14 November  2017 
(17-6128) Page: 1/100 
  Original: English  
 
  UNITED STATES – ANTI -DUMPING MEASURES ON CERTAIN OIL 
COUNTRY TUBULAR  GOODS FROM KOREA  
REPORT  OF THE PANEL  
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  12 
1.1   Complaint by Korea  ................................ ................................ ................................ ....12 
1.2   Panel establishment and composition  ................................ ................................ ............ 12 
1.3   Panel proceedings  ................................ ................................ ................................ .......13 
1.3.1    General  ................................ ................................ ................................ .................. 13 
1.3.2    Additional working procedures on Business Confidential Information (BCI)  ...................... 13 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 13 
2.1   The measures at issue  ................................ ................................ ................................ 13 
3   PARTIES' R EQUESTS FOR FINDINGS  AND RECOMMENDATIONS  ................................  14 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  16 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  16 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 16 
7   FINDINGS  ................................ ................................ ................................ .................  16 
7.1   General principles regarding treat y interpretation, the standard of review, and 
burden of proof  ................................ ................................ ................................ .................. 16 
7.1.1    Treaty interpretation  ................................ ................................ ................................ 16 
7.1.2    Standard of review ................................ ................................ ................................ ...17 
7.1.3    Burden of proof  ................................ ................................ ................................ .......18 
7.2   Whether the "viability test" is inconsistent with Article 2.2 of the Anti -Dumping 
Agreement  ................................ ................................ ................................ ........................ 18 
7.2.1    Provision at issue  ................................ ................................ ................................ .....19 
7.2.2    Whether the "viability test" is as such inconsistent with Article  2.2 of the 
Anti-Dumping Agreement  ................................ ................................ ................................ ....19 
7.2.2.1    Main arguments of the parties  ................................ ................................ ................ 19 
7.2.2.2    Main arguments of third parties  ................................ ................................ .............. 20 
7.2.2.3    Evaluation by the Panel  ................................ ................................ ......................... 20 
7.2.3    Whether the "viability test" as applied in the underlying investigation is 
inconsistent with Article 2.2 of th e Anti -Dumping Agreement  ................................ ................... 21 
7.2.3.1    Main arguments of the parties  ................................ ................................ ................ 21 
7.2.3.2    Evaluation by the Panel  ................................ ................................ ......................... 22 
7.2.4    Conclusion  ................................ ................................ ................................ .............. 22 
7.3   Whether the USDOC's determination of profit rates for the Korean respondents in 
the final and remand determinations is i nconsistent with Articles  2.2.2 and 2.4 of the 
Anti-Dumping Agreement  ................................ ................................ ................................ ....22 
7.3.1    Provisions at issue  ................................ ................................ ................................ ...23 
7.3.2    USDOC's profit r ate determination in the underlying investigation  ................................ ..23 
7.3.2.1    Whether the USDOC's failure to use "actual data" as a CV profit source is 
inconsistent with Article  2.2.2 ................................ ................................ .............................. 24 
7.3.2.1.1    Main arguments of the parties  ................................ ................................ ............. 24 
7.3.2.1.2    Main arguments of third parties  ................................ ................................ ........... 25 WT/DS488/ R 
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  7.3.2.1.3    Evaluation by the Panel  ................................ ................................ ....................... 25 
7.3.2.1.3.1    The USDOC's rejection of actual data pertaining to the Korean 
respondents'  domestic market sales of the like product during the per iod of investigation 
because these sales were made in "low volumes" ................................ ................................ ...26 
7.3.2.1.3.2    Alleged lack of actual profit data pertaining to the respondents' domestic 
market sales of the like product , in the USDOC's record in the underlying investigation  .............. 27 
7.3.2.1.3.3    Rejection of data showing [[***]]  in determining the amounts for "profits" 
for constructed normal value  ................................ ................................ ............................... 29 
7.3.2.1.4    Conclusion  ................................ ................................ ................................ ........ 29 
7.3.2.2    Whether  the USDOC's interpretation and application of "same general category 
of products" was inconsiste nt with Articles  2.2.2(i) and 2.2.2(iii)  ................................ ............. 30 
7.3.2.2.1    Main arguments of the parties  ................................ ................................ ............. 30 
7.3.2.2.2    Main arguments of third par ties ................................ ................................ ........... 30 
7.3.2.2.3    Evaluation by the Panel  ................................ ................................ ....................... 30 
7.3.2.3    Whether the USDOC's use of profit data from the Tenaris financial state ments in 
constructing normal value was a "reasonable method" within the meaning of 
Article  2.2.2(iii)  ................................ ................................ ................................ ................. 34 
7.3.2.3.1    Main arguments of the parties  ................................ ................................ ............. 34 
7.3.2.3.2    Main arguments of third parties  ................................ ................................ ........... 35 
7.3.2.3.3    Evaluation by the Panel  ................................ ................................ ....................... 35 
7.3.2.4    Whether th e USDOC acted inconsistently with Article  2.2.2(iii) and Article  2.2 by 
failing to calculate and apply a profit cap  ................................ ................................ .............. 39 
7.3.2.4.1    Main arguments of the parties  ................................ ................................ ............. 39 
7.3.2.4.2    Main arguments of third parties  ................................ ................................ ........... 39 
7.3.2.4.3    Evaluation by the Panel  ................................ ................................ ....................... 40 
7.3.2. 5   Whether the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping 
Agreement by failing to make due allowance for differences in the profit rates reflected in 
the constructed normal value and the export price  ................................ ................................ .41 
7.3.2.5.1    Main arguments of the parties  ................................ ................................ ............. 41 
7.3.2.5.2    Evaluation by the Panel  ................................ ................................ ....................... 42 
7.3.2.6    Conclusions  ................................ ................................ ................................ .......... 42 
7.3.3    The USDOC's profit rate determination in the remand investigation  ................................ 42 
7.3.3.1    Main arguments of the parti es with respect to the Panel's jurisdiction  .......................... 43 
7.3.3.2    Evaluation by the Panel  ................................ ................................ ......................... 44 
7.4   Whether the USDOC's decision to constr uct NEXTEEL's export price was inconsistent 
with Article 2.3 of the Anti -Dumping Agreement  ................................ ................................ ....47 
7.4.1    Provision at issue  ................................ ................................ ................................ .....48 
7.4.2   Factual background  ................................ ................................ ................................ ..48 
7.4.3    Main arguments of the parties  ................................ ................................ ................... 49 
7.4.4    Main arguments of the third parties  ................................ ................................ ........... 49 
7.4.5    Evaluation by the Panel  ................................ ................................ ............................ 49 
7.4.5.1    Whether the USDOC's conclusion of association between the concerned entities 
was inconsistent wit h Article 2.3  ................................ ................................ .......................... 51 
7.4.5.1.1    Meaning of "association" under Article 2.3  ................................ ............................. 51 
7.4.5.1.2    The USDOC's conclusions regarding associa tion ................................ ..................... 51 WT/DS488/ R 
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  7.4.5.1.2.1    NEXTEEL's purchases and consumption of steel coils during the POI and 
USDOC's inferences based on the nature of services provided by [[***]]  to NEXTEEL 
during the product ion process of OCTG  ................................ ................................ ................. 53 
7.4.5.1.2.2    Marketing and technology collaboration between POSCO and NEXTEEL  .................. 54 
7.4.5.1.2.3    [[***]]  in US sales through Company A and Company B  ................................ ....55 
7.4.5.1.2.4    The USDOC's overall conclusion of association within the meaning of 
Article  2.3 ................................ ................................ ................................ ......................... 55 
7.4.5.2    Whether the USDOC erred in not considering evidence allegedly pertaining to 
the reliability of the export price  ................................ ................................ .......................... 56 
7.4.6    Conclusion  ................................ ................................ ................................ .............. 57 
7.5   Whether the USDOC's decision to reject the price at which NEXTEEL purchased steel 
coils from POSCO was inconsistent with Article 2.2.1.1 of the Anti -Dumping Agreement  ............. 57 
7.5.1    Provisions at issue  ................................ ................................ ................................ ...58 
7.5.2    Factual background  ................................ ................................ ................................ ..58 
7.5.3    Main arguments of the parties  ................................ ................................ ................... 58 
7.5.4    Main arguments of the third parties  ................................ ................................ ........... 59 
7.5.5    Evaluation by the Panel  ................................ ................................ ............................ 59 
7.6   Whether the USDOC acted inconsistently with Articles 6.2, 6.4, and 6.9 of the 
Anti-Dumping Agreement  ................................ ................................ ................................ ....61 
7.6.1    Provisions at issue  ................................ ................................ ................................ ...62 
7.6.2    Whether the USDOC acted inconsistently with Articles  6.2, 6.4, and 6.9 in 
connection with the Tenaris financial statements  ................................ ................................ ....62 
7.6.2.1    Main arguments of the par ties ................................ ................................ ................ 62 
7.6.2.2    Main arguments of third parties  ................................ ................................ .............. 63 
7.6.2.3    Evaluation by the Panel  ................................ ................................ ......................... 64 
7.6.2.3.1    Whether the USDOC acted inconsistently with Article  6.2 in not disclosing, 
until its final determination, that it had accepted the Tenaris financial statements on the 
record  ................................ ................................ ................................ .............................. 64 
7.6.2.3.2    Whether the USDOC acted inconsistently with Article  6.4 in not disclosing, 
until its final determination, that it had accepted the Tenaris financial statements on the 
record and that it was using those statements in deter mining CV profit  ................................ ....67 
7.6.2.3.3    Whether the USDOC acted inconsistently with Article  6.9 in not disclosing, 
until its final determination, that it had accepted the Tenaris financial statements on the 
record and that it relied on those statements in determining CV profit  ................................ ......68 
7.6.2.4    Conclusion  ................................ ................................ ................................ ........... 70 
7.6.3    Whether the USD OC acted inconsistently with Articles  6.4 and 6.9 in connection 
with the disclosure of certain communications  ................................ ................................ .......71 
7.6.3.1    Main arguments of the parties  ................................ ................................ ................ 71 
7.6.3.2    Main arguments of third parties  ................................ ................................ .............. 72 
7.6.3.3    Evaluation by the Panel  ................................ ................................ ......................... 72 
7.7   Whether the USDOC's decision to limit its examination to NEXTEEL and HYSCO was 
inconsistent with Articles 6.10 and 6.10.2 of the Anti -Dumping Agreement  ............................... 74 
7.7.1    Provisions at issue  ................................ ................................ ................................ ...74 
7.7.2    Factual background  ................................ ................................ ................................ ..75 
7.7.3    Main arguments of the parties  ................................ ................................ ................... 75 
7.7.4    Main arguments of the third parties  ................................ ................................ ........... 75 WT/DS488/ R 
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  7.7.5    Evaluation by the Panel  ................................ ................................ ............................ 76 
7.7.5.1    Article 6.10 of the Anti -Dumping Agreement  ................................ ............................ 76 
7.7.5.1.1    The USDOC's determination that it would be "impracticable" to examine all 
known exporters  ................................ ................................ ................................ ................ 76 
7.7.5.1.2    The USDOC's decision to limit its examination to two mandatory respondents ............ 78 
7.7.5.2    Article 6.10.2 of the Anti -Dumping Agreement  ................................ .......................... 79 
7.7.6   Conclusion  ................................ ................................ ................................ .............. 82 
7.8   Whether the USDOC acted inconsistently with Article 12.2.2 of the Anti -Dumping 
Agreement by failing to provide reasons for rejecting certain arguments  ................................ ...82 
7.8.1    Provisions at issue  ................................ ................................ ................................ ...82 
7.8.2    Main arguments of the parties  ................................ ................................ ................... 82 
7.8.3    Main arguments of third parties  ................................ ................................ ................. 83 
7.8.4    Evaluation by the Panel  ................................ ................................ ............................ 83 
7.8.4.1    The USDOC's alleged failure to address the Kor ean respondents' arguments 
concerning the use of the Tenaris profit data  ................................ ................................ ......... 85 
7.8.4.2    The USDOC's alleged failure to address NEXTEEL's arguments that it was not 
affiliated with POSCO, Company A, and Company B  ................................ ............................... 87 
7.8.5    Conclusion  ................................ ................................ ................................ .............. 88 
7.9   Whether the USDOC acted inconsistently with Article X:3(a) of the GATT 1994 in t he 
administration of US laws and regulations  ................................ ................................ ............. 88 
7.9.1    Provisions at issue  ................................ ................................ ................................ ...89 
7.9.2    Main arguments of the parties  ................................ ................................ ................... 89 
7.9.3    Main arguments of the third -parties  ................................ ................................ ........... 90 
7.9.4    Evaluation by the Panel  ................................ ................................ ............................ 90 
7.9.4.1    Whether the USDOC's alleged deviation from established agency practice for 
determining CV profit is within the Panel's terms of reference  ................................ .................. 90 
7.9.4.2    Whether the USDOC fai led to administer 19 C.F.R. § 351.301 in a uniform and 
reasonable manner  ................................ ................................ ................................ ............ 92 
7.9.5    Conclusion  ................................ ................................ ................................ .............. 94 
7.10   Consequential claims un der Articles 1, 9.3, and 18.4 of the Anti -Dumping 
Agreement, Article VI of the GATT 1994, and Article XVI:4 of the WTO Agreement  ..................... 94 
7.11   Korea's claim under Article I:1 of the GATT 1994  ................................ .......................... 95 
7.11.1    Provision at issue  ................................ ................................ ................................ ...95 
7.11.2    Main arguments of the parties  ................................ ................................ ................. 95 
7.11.3    Main arguments of the third parties  ................................ ................................ .......... 95 
7.11.4    Evaluation by the Panel  ................................ ................................ .......................... 96 
7.11.4.1    Whether Korea's claims un der Article I:1 of the GATT 1994 is within our terms 
of reference  ................................ ................................ ................................ ...................... 96 
7.11.4.2    The USDOC's alleged denial of an opportunity for the Korean respondents to 
comment on the Tenaris financial stat ements  ................................ ................................ ........ 97 
7.11.5    Conclusion  ................................ ................................ ................................ ............ 98 
8   CONCLUSIONS AND RECO MMENDATIONS  ................................ ................................ . 98 
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additional Working Procedures of the Panel concerning business confidential 
information  A-7 
ANNEX  B 
ARGUMENTS OF KOREA  
Contents  Page  
Annex B -1 Executive Summary of the First Written Submission of Korea  B-2 
Annex B -2 Executive Summary of the Oral Statements of Korea at the First Panel Meeting  B-10 
Annex B -3 Executive Summary of the Second Written Submission of Korea  B-14 
Annex B -4 Executive Summary  of the Oral Statements of Korea at the Second  Panel 
Meeting  B-22 
ANNEX  C 
ARGUMENTS OF THE UNITED STATES  
Contents  Page  
Annex  C-1 Executive Summary of the First Written Submission of the United  States  C-2 
Annex  C-2 Executive Summary of the Oral Statement s of the United States at the 
First Panel Meeting  C-10 
Annex  C-3 Executive Summary of the Second Written Submission of the United  States  C-14 
Annex  C-4 Executive Summary of the Oral Statements of the United States at the 
Second  Panel Meeting  C-22 
ANNE X D 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex D -1 Executive Summary of the Arguments of China  D-2 
Annex D -2 Integrated  Executive Summary of the Arguments of the European Union  D-4 
Annex D -3 Executive Summary of the Arguments of Turkey  D-8 
ANNE X E 
PROCEDURAL R ULING  
Contents  Page  
Annex E-1 Procedural ruling on the United States' request to partially open the 
substantive meetings for public observation  E-2 
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  ANNEX F  
INTERIM REVIEW  
Contents  Page  
Annex F-1 Interim Review  F-2 
 
 
 
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  CASES CITED IN T HIS REPORT  
Short title  Full case title and citation  
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January 2015  
Argentina – Poultry 
Anti-Dumping Duties  Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from 
Brazil , WT/DS241/R , adopted 19 May 2003, DSR 2003:V, p. 1727  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from  New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175  
Canada – Welded Pipe  Panel Report, Canada – Anti-Dumping Measures on Imports of Certain 
Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and M atsu, WT/DS482/R  and Add.1, adopted 
25 January  2017 
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October 2002, DSR 2002:VIII, p. 3045  (Corr.1, DSR 2006:XII, p. 5473)  
China – Broiler Products  Panel Report, China  Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States , WT/DS427/R  and Add.1, adopted 
25 September 2013, DSR 2013:IV, p. 1041  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on 
Grain Oriented Flat -Rolled Electrical Steel from the United States , 
WT/DS414/AB/R , adopted 16 November 2012, DSR 2012:XII, p. 6251  
China – GOES  Panel Report, China – Countervailing an d Anti -Dumping Duties on Grain 
Oriented Flat -Rolled Electrical Steel from the United States , WT/DS414/R  
and Add.1, adopted 16 November 2012, upheld by Appellate Body Report 
WT/DS414/AB/R, DSR 2012:XII, p. 6369  
China – HP-SSST (Japan) / 
China – HP-SSST (EU ) Appellate Body Reports, China – Measures Imposing Anti -Dumping Duties on 
High-Performance Stainless Steel Seamless Tubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST")  from the European Union , 
WT/DS454/AB/R  and Add.1 / WT/DS460/AB/R  and Add.1, adopted 
28 October 2015  
China – HP-SSST (Japan) / 
China – HP-SSST (EU)  Panel Reports, China – Measures Imposing Anti -Dumping Duties on High -
Performance Stainless Steel Seamless T ubes ("HP -SSST") from Japan / 
China – Measures Imposing Anti -Dumping Duties on High -Performance 
Stainless Steel Seamless Tubes ("HP -SSST") from the European Union , 
WT/DS454/R  and Add.1 / WT/DS460/R , Add.1 and Corr.1, adopted 
28 October 2015, as modified by  Appellate Body Reports WT/DS454/AB/R / 
WT/DS460/AB/R  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII , p. 3295  
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22 February 2012, as modified by 
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R / 
WT/DS398/AB/R, DSR 2012:VII, p. 3501  
China – X-Ray Equipment  Panel Report,  China – Definitive Anti -Dumping Duties on X -Ray Security 
Inspection Equipment from the European Union , WT/DS425/R  and Add.1, 
adopted 24 April 2013, DSR 2013:III, p. 659  
EC – Bed Linen  Panel Report, European Communities – Anti-Dumping Duties on Imports of 
Cotton -Type Bed Linen from India , WT/DS141/R , adopted 12 March 2001, as 
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001 :VI, p.  2077 
EC – Chicken Cuts  Appellate Body Report, European  Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R , WT/DS286/AB/R , adopted 
27 September 2005, and Corr.1, DSR 2005:XIX, p.  9157 
EC – Fasteners (China)  Appella te Body Report, European Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China , WT/DS397/AB/R , 
adopted 28 July 2011, DSR 2011:VII, p. 3995  WT/DS488/ R 
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  Short title  Full case title and citation  
EC – Fasteners (China) 
(Article  21.5 – China)  Appellate Body Report, European  Communities – Definitive Anti -Dumping 
Measures on Certain Iron or Steel Fasteners from China – Recourse to 
Article  21.5 of the DSU by China , WT/DS397/AB/RW  and Add.1 , adopted 
12 February 2016  
EC – Fasteners (China) 
(Article  21.5 – China)  Panel Report, European Communities – Definitive Anti -Dumping Measures on 
Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the 
DSU by China , WT/DS397/RW  and Add.1 , adopted 12 February 2016, as 
modified by Appellate Body Report WT/DS397/AB/RW  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  
EC – IT Products  Panel Reports, European Communities and its member States – Tariff 
Treatment  of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted 21 September 2010, DSR 2010:III, 
p. 933 
EC – Salmon (Norway)  Panel Report, European Communities – Anti-Dumping Measure on Farmed 
Salmon from Norway , WT/DS337/R , adopted 15 January 2008, and Corr.1, 
DSR 2008:I, p. 3  
EC – Selected Customs Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Tube or Pipe Fittings  Appellate Bo dy Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , 
adopted 18 August 2003, DSR 2003:VI, p. 2613  
EC – Tube or Pipe Fittings  Panel Report, European Communities – Anti-Dumping Duties  on Malleable 
Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/R , adopted 
18 August  2003, as modified by Appellate Body Report WT/DS219/AB/R, 
DSR 2003:VII, p. 2701  
EC and certain member 
States  – Large Civil Aircraft  Appellate Body Report, European Co mmunities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7  
Egypt – Steel Rebar  Panel Report, Egypt – Definitive Anti -Dumping Measures on Steel Rebar from 
Turkey , WT/DS211/R , adopted 1 October 2002, DSR 2002:VII, p. 2667  
EU – Biodiesel (Argentina)  Appellate Body Report, European Union – Anti-Dumping Measures on 
Biodiesel from Argentina , WT/DS473/AB/R  and Add.1, adopted 
26 October  2016 
EU – Biodiesel (Argentina)  Panel Report,  European Union – Anti-Dumping Measures on Biodiesel from 
Argentina , WT/DS473/R  and Add.1, adopted 26 October 2016, as modified 
by Appellate Body Report WT/DS473/AB/R  
EU – Footwear (China)  Panel Report, European Union – Anti-Dumping Measures on Certain Fo otwear 
from China , WT/DS405/R , adopted 22 February 2012, DSR 2012:IX, p. 4585  
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25 November 1998, 
DSR 1998:IX, p.  3767 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R , adopted 17 November 2000, 
DSR 2000:XI, p. 5295  
India – Patents (US)  Appellate Body Report, India – Patent Protection f or Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, 
DSR 1998:I, p. 9  
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12 January 2000, 
DSR 2000:I, p. 3  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 
20 December 2005, DSR 2005:XXII, p. 10853  
Mexico – Anti-Dumping 
Measures on Rice  Panel Report, Mexico – Definitive Anti -Dumping Measures on Beef and Rice, 
Complaint with Respect to Rice , WT/DS295/R , adopted 20 December 2005, 
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII, 
p. 11007  
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High 
Fructose Corn Syrup (HFCS) from the United States – Recourse to 
Article  21.5 of the DSU  by the United States , WT/DS132/AB/RW , adopted 
21 November 2001, DSR 2001:XIII, p. 6675  WT/DS488/ R 
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  Short title  Full case title and citation  
Mexico – Olive Oil  Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from 
the European Communities , WT/DS341/R , adopted 21 October 2008, 
DSR 2008:IX, p. 3179  
Thailand – H-Beams  Panel Report, Thailand – Anti-Dumping  Duties on Angles, Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , WT/DS122/R , 
adopted 5 April 2001, as modified by Appellate Body Report 
WT/DS122/AB/R, DSR 2001:VII, p. 2741  
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing Duties on Certain Products from China , WT/DS379/AB/R , 
adopted 25 March 2011, DSR 2011:V, p. 2869  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties o n Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19 December 2002, DSR 2002:IX, 
p. 3779 
US – Carbon Steel (India)  Appellate Body Report, United States – Countervailing Measures on Certain 
Hot-Rolled  Carbon Steel Flat Products from India , WT/DS436/AB/R , adopted 
19 December 2014, DSR 2014:V, p. 1727  
US – Carbon Steel (India)  Panel Report, United States – Countervailing Measures on Certain Hot -Rolled 
Carbon Steel Flat Products from India , WT/DS436/R  and Add.1, adopted 
19 December 2014, as modified by Appellate Body Report WT/DS436/AB/R, 
DSR 2014:VI, p. 2189  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application 
of Zeroing Methodology , WT/DS350/AB/R , adopted 1 9 February 2009, 
DSR 2009:III, p. 1291  
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 Ju ly 2005, DSR 2005:XVI, p. 8131  
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Lamb  Appellate Body Report,  United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, 
p. 4051 
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Repor t, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina , WT/DS268/AB/R , 
adopted 17 December 2004, DSR 2004:VII, p. 3257  
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article  21.5 – Argentina)  Panel Report, United States – Sunset Reviews of Anti -Dumping Measures on 
Oil Country Tubular Goods from Argentina  – Recourse to Article 21.5  of the 
DSU by Argentina, WT/DS268/RW, adopted 11 May 2007, as modified by 
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX, p. 36 09 
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Report, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recourse to 
Article  21.5 of the DSU by Canada , WT/DS277/AB/RW , adopted 9 May 200 6, 
and Corr.1, DSR 2006:XI, p. 4865  
US – Upland Cotton  Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R , 
Add.1 to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate 
Body Report WT/DS267/AB/R, DSR 2005:II, p. 299  
US – Washing Machines  Panel Report, United States – Anti-Dumping and Countervailing Measures on 
Large Residential Washers from Korea , WT/DS464/R  and Add.1, adopted 
26 September 2016, as modified by Appellate Body Report WT/DS464/AB/R  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United Stat es – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW , adopted 31 August 2009, DSR 2009:VIII, p. 3441  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 11 - 
 
  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
Anti-Dumping Agreement  Agreemen t on Implementation of Article VI of the GATT 1994  
BCI Business Confidential Information  
CV Constructed value  
CV profit  The amount for profit used in constructed normal value  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Gove rning the Settlement of Disputes  
GATT 1994  General Agreement on Tariffs and Trade 1994  
OCTG  Oil country tubular goods  
POI Period of investigation  
SG&A  Sales, general, and administrative expenses  
USCIT  United States Court of International Trade  
USDOC  United States Department of Commerce  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing  the World Trade Organization  
 WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 12 - 
 
  1  INTRODUCTION  
1.1  Complaint by Korea  
1.1.  On 22 December 2014 , Korea  requested consultations with the United States  pursuant to 
Article 4 of the Understanding on Rules and Procedures Gover ning the Settlement of 
Disputes  (DSU) , Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994), 
and Article 17 of the Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping 
Agreement)  with respect to the measures and claims set out below.1 
1.2.  Consultations were hel d on 21 January 2015 , but failed to resolve the dispute . 
1.2  Panel establishment and composition  
1.3.  On 23 February 2015 , Korea  requested the establishment of a panel pursuant to Article s 4.7 
and 6 of the DSU , Article XXIII of the GATT 1994, and Article 17.4 of th e Anti -Dumping Agreement 
with standard terms of reference.2 At its meeting on 25 March 2015 , the Dispute Settlement 
Body (DSB) established a panel pursuant to the request of Korea , in accordance with Article  6 of 
the DSU.3 
1.4.  The Panel's terms of reference ar e the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Korea  in document 
WT/DS 488/5  and to make such findings as will assist the DSB in making th e 
recommendations or in giving the rulings provided for in those agreements.4 
1.5.  Following the agreement of the parties, the Panel was composed on 13 July 2015 as follows5: 
Chairperson:  Mr John Adank  
 
Members:   Mr Abd El Rahman Ezz El Din Fawzy  
   Mr Gustav B rink 
 
1.6.  On 5 September 2016, the Chairperson informed the Chairman of the DSB that, in light of his 
appointment as Director of the Legal Affairs Division of the WTO Secretariat, he had decided to 
resign forthwith from the Panel. Following the resignation of the Chairperson, the parties on 
15 September 2016 agreed on the appointment of a new Chairperson. Accordingly, the 
composition of the Panel is as follows6: 
Chairperson:  Mr Crawford Falconer  
 
Members:   Mr Abd El Rahman Ezz El Din Fawzy  
   Mr Gustav Brink  
 
1.7.  Canada, China, the European Union, India, Mexico, the Russian Federation , and Turkey  
notified their interest in participating in the Panel proceedings as third parties.7 
                                                
1 Korea's request for consultations, WT/DS488/1 (Korea's consultations request).  
2 Korea's request for the establishment of a panel, WT/ DS488/5  (Korea's panel request) . 
3 DSB, Minutes of meeting held on 25 March 2015, circulated on 1 May 2015, W T/DSB/M/359.  
4 Constitution note of the Panel, WT/DS488/6.  
5 Constitution note of the Panel, WT/DS488/6.  
6 Note by the Secretariat, WT/DS488/8.  
7 Constitution note of the Panel, WT/DS488/6.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  1.3  Panel proceedings  
1.3.1   General  
1.8.  After consultation with the parties, the Panel adopted its Wo rking Procedures8 and timetable 
on 30 October 2015 . The timetable was revised during the course of the panel proceeding in light 
of subsequent developments.9 
1.9.  The Panel began its work on this dispute later than it would have wished due to staff 
constraints in the WTO Secretariat. The Panel held a first substant ive meeting with the parties 
on 20-21 July 2016 . A session with the third parties took place on  21 July 2016 . Following a delay 
as a result of the need to appoint a new Chairperson, t he Panel held a se cond substantive meeting 
with the parties on 2-3 November 2016 . On 16 December 2016 , the Panel issued the descriptive 
part of its Report to the parties. The Panel issued its Interim Report to the parties on 5 April 2017 . 
The Panel issued its Final Report t o the parties on 10 May 2017 . 
1.3.2    Additional w orking procedures on Business Confidential Information (BCI)  
1.10.   After consultation with the parties, the Panel adopted, on 30 October 2015, additional 
working procedures for the protection of BCI.10 
2  FACTUAL ASPECTS  
2.1  The measures at issue  
2.1.  Korea challenges  the "laws, regulations, administrative procedures and other measures "11 
through which the United States maintains a "viability test" in anti -dumping investigations, 
administrative reviews, and other segments of anti -dump ing proceedings  as such, and as applied 
in the investigation  initiated on 29 July 2013 which is at issue in this dispute  (underlying 
investigation) .12 
2.2.  Further, Korea challenges certain aspects of the final anti-dumping measure imposed by the 
United States o n imports of oil country tubular goods (OCTG) from Korea following a final 
determination of dumping by the United States Department of Commerce ( USDOC ) in the 
underlying investigation.13 Korea also challenges certain conduct of the USDOC during the course 
of the underlying investigation.  
2.3.  In addition, Korea challenges the USDOC 's determination  dated 22 February 2016  in a 
remand proceeding (remand determination) , which was issued while this dispute was pending 
before the Panel.14 The remand proceeding was  under taken  by the USDOC following a decision by 
                                                
8 Working Procedures, Annex A -1. 
9 The timetable was revised on 12  November 2015, 8 April 2016, 16 September 2016, 13 October 2016, 
and 15 December 2016.  
10 Additional Working Procedures Concerning Business Confidential Information,  Annex A -2. 
11 Korea asserts that these "other measures" include any other related or subseq uent measures that 
enable or implement the so -called "viability test " in anti -dumping investigations, administrative revi ews, and 
other segments of anti -dumping proceedings.  (Korea's first written submission, para. 33 and fn 58).  
12 Korea's first written su bmission, paras. 33 -40. 
13 Korea's first written submission, para. 42.  In particular, Korea challenges the imposition of 
anti-dumping duties on OCTG pursuant to the following instruments: (a) USDOC, Certain oil country tubular 
goods from the Republic of Kor ea, Final Determination  of sales at less than fair value and negative final 
determination of critical circumstances, United States Federal Register , Vol. 79, No. 138 (18 July 2014), 
p. 41983 ( Final Determination), (Exhibit  KOR-24); (b) USDOC, Issues and Final Decision Memorandum  for the 
Final Affirmative Determination in the less than fair value investigation of certain oil country tubular goods 
from the Republic of Korea, 10 July 2014 ( Final Decision Memorandum), (Exhibit KOR -21); and (c) USDOC, 
Certain Oi l Country Tubular Goods  from certain countries : Antidumping Duty Orders; and Certain  Oil Country 
Tubular Goods From the  Socialist Republic of Vietnam:  Amended Final Determination of sales at less than fair 
value, United States Federal Register , Vol. 79, No . 175 (10 September 2014), p. 53691  (Anti-Dumping Duty 
Order), (Exhibit  KOR-59). 
14 Korea's second written submission, para. 357; opening statement at the second meeting of the Panel, 
para. 89.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 14 - 
 
  the United States Court of International Trade (USCIT) on review of the same USDOC final 
determination of dumping challenged by Korea in this dispute. The USCIT found certain aspects of 
that determination to be contrary to US laws and regulations , and remanded that determination to 
the USDOC , directing it to reconsider those aspects of the determination  that were  found to be  
contrary to US laws and regulations . 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.   Korea requests the Panel to find as follows15: 
a. With respect to the "viability test": 
i. the "viability test" is inconsistent with Article 2.2 of the Anti -Dumping Agreement as 
such because it imposes a rigid quantitative test under which a third -country market 
is automatically disqualified as a comparison market  for determining normal value  if 
the respondents ' sales to that market are less than 5% of its export sales volume to 
the United States ; and 
ii. the USDOC acted inconsistently with Article 2.2 of the Anti -Dumpi ng Agreement by 
applying the "viability test" in the underlying investigation and disqualify ing the 
respondents ' sales to third -country markets  in determining the normal value  only 
because the volume of these sales constituted less than 5% of the volume of  
respondents' export sales to the United States.  
b. With respect to the USDOC's determination  of dumping  in the underlying  investigation:  
i. the USDOC acted inconsistently  with the chapeau  of Article 2.2.2 of the 
Anti-Dumping Agreement because it did not use act ual data of the respondents to 
calculate the respondents' constructed value  (CV) profit rate16, although the 
respondents' actual home market and third -country market profit data was available 
on the record of the investigation ; 
ii. the USDOC acted inconsistentl y with Article s 2.2.2(i)  and (iii) of the Anti -Dumping 
Agreement because it interpreted and applied "same general category of products" in 
an impermissibly narrow manner such that it was not broader than  its definition of 
"like products "; 
iii. the USDOC acted i nconsistently with Article 2.2.2(iii) of the Anti -Dumping Agreement 
because it failed to calculate a "profit cap" as required by that Article. By failing to 
calculate a profit cap, the USDOC also failed to ensure that the CV profit was 
"reasonable" as requ ired under Article 2.2 ;  
iv. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti -Dumping Agreement 
because the use of Tenaris as a source of CV profit data did not constitute a 
"reasonable method " and did not reflect the profit normally realized  by other 
exporters or producers on sales of products in the domestic market of the country of 
origin ; 
v. the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping Agreement 
because it did not make a fair comparison between the export price and the normal 
value as a result of the failure to make due allowances for significant differences 
between the Korean respondents and Tenaris that affected price comparability ; 
vi. the USDOC acted inconsistently with Article 2.3 of the Anti -Dumping Agreement by 
improp erly disregarding NEXTEEL 's export prices to the Customer17 without a proper 
                                                
15 Korea's first written submission, para s. 277-280; response to  Panel question No. 40, para. 13.  
16 Article 2.2.2 refers to the methodologies that an investigating authority shall use in determining the 
amount for profit in constructed normal value. We refer to this profit amount as "CV profit" in this Report.  
17 The pa rties refer to [[***]]  and/or [[***]]  as the "Customer". As indicated in paragraph 7.135  we 
refer to them as Company A and Company B.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 15 - 
 
  finding of "association" or  "compensatory agreement" , and without conducting any 
assessment of whether those prices were "unreliable ";  
vii. the USDOC acted inconsistently with Article 2.2.1.1  of the Anti -Dumping Agreement  
because it did not calculate NEXTEEL 's costs on the basis of  the records kept by 
NEXTEEL , based on an erroneous determination that NEXTEEL was associated with 
its supplier , when NEXTEEL's cost records satisfied the req uirements of this 
provision ; and 
viii. the USDOC acted inconsistently with Article 12.2.2  of the Anti -Dumping Agreement  
because the final determination in the underlying  investigation did not contain all 
relevant information on the reasons that led to the imposi tion of anti-dumping 
duties. In particular, the final determination did  not provide sufficient or reasoned 
explanations regarding the USDOC 's improperly narrow definition of "same general 
category ", its selection of the Tenaris financial statements as a CV  profit data source, 
and its finding of affiliation between NEXTEEL and its supplier and customer, 
especially in light of opposing evidence presented by the Korean respondents.  
c. With respect to the proceedings in the underlying  investigation : 
i. the USDOC acte d inconsistently with Articles 6.2, 6.4, and 6.9  of the Anti -Dumping 
Agreement  by failing to make a determination regarding the placement of the 
Tenaris financial data on the record until its final determination, when it was too late 
for the Korean respond ents to prepare presentations based on th at data and to 
defend their interests regarding an issue that was relevant to the USDOC 's dumping 
margin determinations for the  Korean respondents ;  
ii. the USDOC acted inconsistently with Articles 6.4 and 6.9  of the An ti-Dumping 
Agreement  by failing to disclose several letters that it had received from various  
government and  industry representatives until immediately before the deadline for 
interested parties to submit their final presentations to the USDOC, depriving t he 
Korean respondents of sufficient opportunity to defend their interests ; and 
iii. the USDOC acted inconsistently with Articles  6.10 and 6.10.2  of the Anti -Dumping 
Agreement  because the USDOC provided no reasonable basis to conclude that it only 
had resources to examine two mandatory respondents and provided no reasoned 
explanation for why it was unable to examine any voluntary respondents.  
d. In addition, Korea requests the Panel to find that the United States failed to comply with 
its obligations under Article I  of the GATT 1994 because the USDOC 's treatment of 
Korean respondents vis-à-vis respondents in other parallel OCTG investigations resulted 
in an advantage to OCTG products from other countries that was not extended 
immediately and unconditionally to OCTG p roduced in Korea . Furthermore, Korea 
requests the  Panel to find that the USDOC 's conduct was inconsistent with Article X:3(a) 
of the GATT 1994 because the USDOC 's administration of laws, regulations, decisions , 
and rulings was not uniform, impartial, or re asonable.  
e. Korea requests that, as a consequence of the findings requested above, the Panel find 
that the United States has acted inconsistently with Articles 1, 9.3, and 18.4 of the 
Anti-Dumping Agreement, Article VI of the GATT 1994, and  Article XVI:4 of the 
Marrakesh  Agreement Establishing the World Trade Organization  (WTO Agreement) . 
f. With respect to the USDOC's remand determination, Korea requests the Panel to find 
that: 
i. the USDOC acted inconsistently with the chapeau  of Article 2.2.2 of the 
Anti-Dumping  Agreement because it did not  use actual data pertaining to the sales of 
the like product in the ordinary course of trade ; WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 16 - 
 
  ii. the USDOC acted inconsistently with Article 2.2.2(i) and (iii) of the Anti -Dumping 
Agreement because it relied on an impermissibly na rrow definition of the "same 
general category of products "; 
iii. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti -Dumping Agreement 
because by determining the profit rates of the Korean respondents on the basis of 
the profits earned by Tenaris  and OAO TMK, which had no production or sales of 
OCTG in Korea, it failed to use a "reasonable" method to calculate the profit rates of 
the Korean respondents;  
iv. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti -Dumping Agreement 
because it  calculated a profit cap based on the average of the profit rates in the 2012 
financial statement of Tenaris and the profit rates of  OAO TMK; and 
v. the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping Agreement 
because instead of rejecting the Tenaris financial data or accounting for the 
differences between Tenaris and the Korean respondents, the USDOC averaged the 
Tenaris profit rate with that of another foreign producer that suffered from the same 
flaws as Tenaris.  
3.2.  Korea  further requests, pur suant to Article 19.1 of the DSU that  the Panel recommend that 
the United States  bring its measures into conformity with the A nti-Dumping Agreement, the 
GATT  1994, and the WTO Agreement . 
3.3.  The United States asserts that the USDOC remand determination challen ged by Korea is 
outside the Panel's terms of reference. The United States  requests the Panel to reject Korea 's 
claims in this dispute in their entirety.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provi ded to the 
Panel in accordance with paragraph 19 of the Working Procedures adopted by the Pan el (see 
Annexes B-1 to B -4 and C -1 to C -4). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of  China, the European Union , and Turkey are reflected in their executive 
summaries, provided in accordance with paragraph 20 of the Working Procedures adopted by the 
Panel (see Annexes D-1 to D-3). Canada, India, Mexico , and the Russian Federation  did not submit 
written or oral arguments to the Panel.  
6  INTERIM REVIEW  
6.1.  On 5 April 2017, the Panel issued its Interim Report to the parties. On 19 April 2017, Korea 
and the United States each submitted written requests for the Panel to review precise aspects of 
the Interim Report. Neither party requested an interim review meeting. On 27 April 2017, both 
parties submitted comments on the other party's requests for review.  
6.2.  The parties' requests made at the interim review stage as well as the Panel's discussion and 
disposition of those requests are set out in Annex F -1.  
7  FINDINGS  
7.1  General pr inciples regarding treaty interpretation, the standard of review, and 
burden of proof  
7.1.1   Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the 
existing provisions of the covered agreements "in accor dance with customary rules of 
interpretation of public international law". Article  17.6(ii) of the Anti -Dumping Agreement similarly WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 17 - 
 
  requires panels to interpret that Agreement's provisions in accordance with the customary rules of 
interpretation of public international law.18 It is generally accepted that the principles codified in 
Articles  31 and 32 of the Vienna Convention on the Law of Tre aties are such customary rules.  
7.1.2   Standard of review  
7.2.  Article  11 of the DSU provides, in relevant part, that:  
[A] panel should make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements.  
In addition, Article  17.6 of the Anti -Dumping Agreement se ts forth the special standard of review 
applicable to disputes under the Anti -Dumping Agreement:  
 
(i) in its assessment of the facts of the matter, the panel shall determine whether 
the authorities' establishment of the facts was proper and whether their e valuation of 
those facts was unbiased and objective. If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned;  
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance 
with customary rules of interpretation of public international law. Where the panel 
finds that a relevant provision of the Agreement admits of more than one permissible 
interpr etation, the panel shall find the authorities' measure to be in conformity with 
the Agreement if it rests upon one of those permissible interpretations.  
Thus, Article  11 of the DSU and Article  17.6 of the Anti -Dumping Agreement together establish the 
standard of review we will apply with respect to both the factual and the legal aspects of the 
present dispute.  
 
7.3.  The Appellate Body has explained that where a panel is reviewing an investigating authority's 
determination, the "objective assessment" standard in  Article  11 of the DSU requires a panel to 
review whether the authorit y has provided a reasoned and adequate explanation as to : (a) how 
the evidence on the record supported their factual findings; and ( b) how those factual findings 
support the overall dete rmination.19 In the context of Article  17.6(i) of the 
Anti-Dumping  Agreement, the Appellate Body has explained that while the text of this provision is 
couched in terms of an obligation on a panel, in effect it define s when an investigating authority 
can be  considered to have acted inconsistently with the Anti -Dumping Agreement in the course of 
its "establishment" and "evaluation" of the relevant facts.20 Therefore, a panel must assess if the 
establishment of the facts by the investigating authority was prope r and if the evaluation of those 
facts by that authority was unbiased and objective.21 If these broad standards have not been met, 
a panel must hold the investigating authority's establishment or evaluation of the  facts to be 
inconsistent with the Anti -Dump ing Agreement.22 
7.4.  In reviewing an investigating authority's determination, 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 limit its examination to the evidence th at was before the investigating authority during the 
course of the investigation23 and must take into account all such evidence submitted by the parties 
to the dispute.24 At the same time, a panel must not simply defer to the conclusions of the 
                                                
18 Article  17.6(ii) of the Anti -Dumping Agreement also provides that if a panel finds that a provision of 
the Anti -Dumping Agreement admits of more than one permissible interpretation, it shall uphold a measure 
that rests upon one of those interpretations.  
19 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS , para. 186; and US – 
Lamb , para. 103.  
20 Appellate Body Report, US – Hot-Rolled Steel , para. 56.  
21 Appellate Body Report, US – Hot-Rolled Steel , para. 56.  
22 Appellate Body Report, US – Hot-Rolled Steel , para. 56.  
23 Article 17. 5(ii) requires a panel to examine the matter base d on the facts made available to the 
authorities.  
24 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , paras. 187  and 188. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 18 - 
 
  investigating  authority; a panel's examination of those conclusions must be "in -depth" and "critical 
and searching".25  
7.5.  The Appellate Body has clarified a panel's standard of review of the facts pursuant to the 
above provisions in the following terms:  
It is well establi shed that a panel must neither conduct a de novo review nor simply 
defer to the conclusions of the national authority. A panel's examination of those 
conclusions must be critical and searching, and be based on the information contained 
in the record and th e explanations given by the authority in its published report. A 
panel must examine whether, in the light of the evidence on the record, the 
conclusions reached by the investigating authority are reasoned and adequate. What 
is "adequate " will inevitably de pend on the facts and circumstances of the case and 
the particular claims made, but several general lines of inquiry are likely to be 
relevant. The panel's scrutiny should test whether the reasoning of the authority is 
coherent and internally consistent. T he panel must undertake an in -depth examination 
of whether the explanations given disclose how the investigating authority treated the 
facts and evidence in the record and whether there was positive evidence before it to 
support the inferences made and con clusions reached by it. The panel must examine 
whether the explanations provided demonstrate that the investigating authority took 
proper account of the complexities of the data before it, and that it explained why it 
rejected or discounted alternative exp lanations and interpretations of the record 
evidence. A panel must be open to the possibility that the explanations given by the 
authority are not reasoned or adequate in the light of other plausible alternative 
explanations, and must take care not to assu me itself the role of initial trier of facts, 
nor to be passive by "simply  accept[ing]  the conclusions of the competent 
authorities ".26 
7.1.3   Burden of proof  
7.6.  The general principles applicable to the allocation of the burden of proof in WTO dispute 
settlement requ ire that a party claiming a violation of a provision of a WTO Agreement must assert 
and prove its claim.27 Therefore, as the complaining party in this proceeding, Korea bears the 
burden of demonstrating that the challenged aspects of the measures at issue a re inconsistent 
with the Anti -Dumping Agreement. The Appellate Body has stated that a complaining party will 
satisfy its burden when it establishes a prima facie  case, namely a case which, in the absence of 
effective refutation by the defending party, requ ires a panel, as a matter of law, to rule in favour 
of the complaining party.28 Finally, it is generally for each party asserting a fact to provide proof 
thereof.29 
7.2  Whether the "viability test " is inconsistent with Article 2.2 of the Anti -Dumping 
Agreement  
7.7.  US law provides that where domestic market sales cannot be used to determine normal 
value, third-country export sales of the foreign like product can be used for this purpose, subject 
to certain conditions.30 One of these conditions, which we refer to as the  "viability test", is set out 
in 19 U.S.C. § 1677b (a)(1)(B)(ii), and provides that third-country export sales of the foreign like 
product can be used for determining normal value if such sales are 5% or more of the quantity or 
                                                
25 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93.  
26 Appellate Body Report, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 93  (quoting 
Appellate  Body Report, US – Lamb , para. 106) . (emphasis from the original quote; fn omitted)  
27 Appellate Body Report, US – Wool Shirts and Blouses , p. 16. 
28 Appellate Body Report, EC – Hormone s, paras. 98  and 104. 
29 Appellate Body Report, US – Wool Shirts and Blouses , p. 16. 
30 Under 19 U.S.C. §  1677b(a)(1)(B)(ii), the USDOC is permitted to use third -country sales for normal 
value determination where three conditions are fulfilled: ( a) the third-country sales price is representative; 
(b) the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold by the 
exporter or producer in such third  country is 5 % or more of the aggregate quantity (or value) of the subj ect 
merchandise sold in the United States or for export to the United States; and (c) the USDOC does not 
determine that the particular market situation in such other third  country prevents a proper comparison with 
the export price or constructed export pri ce. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 19 - 
 
  value of sales of the subject merchandise to or in the United States.31 Korea refers to this 
requirement under the "viability test " as the "minimum quantitative threshold".  
7.8.  Korea brings two claims regarding the "viability test " under Article 2.2 of the Anti -Dumping 
Agreement. First, it contends that Article 2.2 of the Anti -Dumping Agreement, unlike the "viability 
test" provided for under US law, does not stipulate that an investigating authority may use 
third-country export sales to determine the normal value only when such a minimum qua ntitative 
threshold is met.  Korea claims that the existence of such a threshold in US law under the "viability 
test", which is not found in  the Anti -Dumping Agreement, renders the "viability test " "as such" 
inconsistent with Article 2.2. Second, Korea clai ms that the "viability test " was inconsistent with 
Article  2.2 "as applied" in the underlying investigation . 
7.9.  In the underlying investigation, the USDOC, after concluding that neither HYSCO nor 
NEXTEEL had a viable home market32, found in its final determina tion, on the basis of application 
of the "viability test ", that neither HYSCO nor NEXTEEL had a viable third -country market during 
the period of investigation  (POI) , and therefore proceeded to determine normal value on the basis 
of constructed normal value .33 
7.2.1   Provision  at issue  
7.10.   Article 2.2 reads:  
When there are no sales of the like product in the ordinary course of trade in the 
domestic market of the exporting country or when, because of the particular market 
situation or the low volume of the sales in the d omestic market of the exporting 
country [*], such sales do not permit a proper comparison, the margin of dumping 
shall be determined by comparison with a comparable price of the like product when 
exported to an appropriate third country, provided that this price is representative, or 
with the cost of production in the country of origin plus a reasonable amount for 
administrative, selling and general costs and for profits.  
[*fn original] Sales of the like product destined for consumption in the domestic marke t of the 
exporting country shall normally be considered a sufficient quantity for the determination of the 
normal value if such sales constitute 5 per cent or more of the sales of the product under 
consideration to the importing Member, provided that a low er ratio should be acceptable where 
the evidence demonstrates that domestic sales at such lower ratio are nonetheless of sufficient 
magnitude to provide for a proper comparison.  
7.2.2   Whether  the "viability test " is as such inconsistent with Article  2.2 of the 
Anti-Dumping Agreement  
7.2.2.1   Main arguments of the parties  
7.11.   Korea  argues that the minimum quantitative threshold for use of third -country sales in 
determining normal value in US law is an additional requirement not contemplated in the 
Anti-Dumping Agreement and is  therefore inconsistent with Article 2.2.34 According to Korea, the 
existence of a choice between the use of constructed normal value and third -country sales to 
                                                
31 The USDOC regulations implementing the statute provide that:   
In general . The Secretary [of the USDOC] will c onsider the exporting country or a 
third country as constituting a viable market if the Secretary is satisfied that the 
sales of the foreign like product in that country are of sufficient quantity to form 
the basis of normal value.  
(19 C.F.R. § 351.404(b)(1)  (emphasis original) ) 
The regulations further explain that sufficient quantity "normally" means that the aggregate quantity (or 
if quantit y is not appropriate, value) of the foreign like product sold by an exporter or producer in a country is 
5% or more of the aggregate quantity (or value) of its sales of the subject merchandise to the United States.  
(19 C.F.R. § 351.404(b)(2)).  
32 This concl usion is not at issue in this dispute.  
33 Final Decision Memorandum, (Exhibit KOR -21), p.  14. 
34 Korea's first written submission, para s. 57-59 (referring to Appellate Body Report s, India – 
Patents  (US), para. 45 ; and Mexico – Anti-Dumping  Measures  on Rice , para. 315).  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  determine normal value does not absolve the United States of its obligation to ensure that its l aws, 
regulations, and administrative procedures relating to each of these methods are consistent with 
Article 2.2.35  
7.12.   The United States contends that because the use of third -country sales as a method to 
determine normal value is itself optional, Article 2. 2 permits Members to use their own internal 
criteria to decide whether to use that method or not.36 The United States submits that even if 
Article 2.2 did not permit an investigating authority to set its own criteria, the term "appropriate 
third country" in  the provision allows the authority to select a suitable third  country for purposes of 
normal value determination by reference to indices such as volume of sales.37  
7.2.2.2   Main arguments of third parties  
7.13.   The European Union  submits that an investigating authority' s discretion to opt for either 
third-country sales prices or constructed normal value in determining normal value under 
Article  2.2 is contextually informed by footnote 2. Further, the absence of a sufficient volume of 
exports of the like product to an app ropriate third  country could justify a finding that the price of 
those exports was not "representative".38  
7.2.2.3   Evaluation by the Panel  
7.14.   The main issue before us is whether the fulfilment of a minimum quantitative threshold as a 
condition for use of third -countr y sales to determine normal value is inconsistent with Article 2.2 of 
the Anti -Dumping Agreement.  
7.15.   We begin our analysis by considering the requirements of Article 2.2. The text of Article 2.2 
makes it clear that a choice exists between the use of third -country sales and constructed normal 
value for the determination of normal value. Article 2.2 provides that where certain circumstances 
set out in the provision preclude the use of home market sales in determining normal value, "the 
margin of dumping shall b e determined by comparison with a comparable price of the like product 
when exported to an appropriate third country, provided that this price is representative or with 
the cost of production in the country of origin plus a reasonable amount for administra tive, selling 
and general costs and for profits" .39 The use of the word "or", in the relevant part of Article 2.2, 
implies that Members have a choice between third-country export prices and the constructed 
normal value  for purposes  of normal value determina tion. The dictionary meaning of "or" is 
"introducing the second of two, or all but the first or only the last of several, alternatives".40 
Article  2.2 is therefore clearly intended to provide Members with alternatives to home market sales 
prices for normal value determination to ensure that an anti -dumping investigation can be 
completed. In this regard, the Appellate Body has stated  that where normal value cannot be 
determined on the basis of home market sales, Article 2.2 specifies two "alternative bases" f or 
calculation of normal value.41  
7.16.   That there is a free choice between the two methods is confirmed by the language of 
Article  VI:1(b) of the GATT 1994, which provides an option between "either" the highest 
comparable price for the like product for export t o any third  country in the ordinary course of trade 
"or" the cost of production of the product in the country of origin plus a reasonable addition for 
selling cost and profit. We note that the parties agree that Article 2.2 allows  Members a choice 
between the two alternate methods and that there is no hierarchy between the two options.42 
                                                
35 Korea's opening statement at the first meeting of the Panel, paras. 25 -27. 
36 United States' first written submission, para. 45.  
37 United States' second written submission, para. 9 (referring to Appellate Body Report, US – 
Anti-Dumping and Cou ntervailing Duties (China) , para. 552).  
38 European Union's third -party submission, para. 9.  
39 Emphasis added . 
40 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2, 
p. 2016.  
41 Appellate Body Report, EC – Tube or Pipe Fittings , paras. 93 -95. 
42 Korea's fir st written submission, para. 54; response to Panel question No. 42, para. 21; and 
United  States' first written submission, para s. 44 and 45. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.17.   While Korea agrees that Members have a choice between the two methods and that no 
hierarchy exists between them, it contends that the criteria for making that choice are alr eady set 
out in Article 2.2 and cannot be altered or added to.43 The United States argues, on the other 
hand, that even if Article 2.2 did not permit a Member to set its own criteria, the term "appropriate 
third country" in the provision allows it to select  a suitable third  country for purposes of normal 
value determination.44  
7.18.   We disagree with Korea that the criteria for choosing  between the two methods are set out 
in Article 2.2.  Article 2.2 sets out the criteria for  use of either of the two method s. Howeve r, 
criteria for the use of the two methods are not the same as criteria for choosing between  those 
two methods.  In the process of arriving at a choice between the two methods, an investigating 
authority will assess the criteria for use of the methods to se e if they  can be satisfied . That will 
show whether either or both of the two methods can be used, but will not necessarily determine  
which to use.  In providing for a choice, Article 2.2 neither expressly limits nor directs how the 
authority should reach th at choice. Thus , the authority is free to choose which method to use  
based on its own criteria , should it choose to have them . Therefore, we consider that Article 2.2 
does not preclude an investigating authorit y from establish ing its own criteria for choosing which 
method to use.  
7.19.   Should a Member decide to use third -country export prices as normal value , the criteria for 
use of third -country sales  in Article 2.2, requir ing use of a "comparable" price of the like product 
exported to an "appropriate" third co untry, which  price must be "representative" , must be 
satisfied . However, this does not affect an investigating authority's freedom to choose  whether  or 
not to use third-country sales  as a basis for determining normal valu e. Moreover, Article 2.2 does 
not require that Members explain the basis of their choice between the two methods.  
7.20.   We therefore find that Article 2.2 does not impose any limitation on criteria that a Member 
may establish for deciding whether to use one or the other of the alternative method s and that the  
imposition of the 5% threshold as a criterion for use of third -country sales in US law is thus not 
inconsistent "as such" with Article 2.2 of the Anti -Dumping Agreement.45  
7.2.3   Whether  the "viability test" as applied in the underlying investigati on is 
inconsistent with Article 2.2 of the Anti -Dumping Agreement  
7.2.3.1   Main arguments of the parties  
7.21.   Korea's principal arguments are set out below:  
a. The USDOC automatically excluded from consideration the Korean respondents' 
third-country market sales that did n ot meet the 5% threshold without any regard to 
whether the prices of these sales were representative in accordance with Article  2.2 of 
the Anti -Dumping Agreement.46  
b. Moreover, the USDOC's questionnaire deprived Korean respondents of the opportunity to 
submi t third -country sales data or describe its third -country market sales based on a 
rigid application of the "viability test ".47  
7.22.   The United States contends that Article 2.2 does not require the use of third -country sales 
where the conditions for use of constr ucted normal value as a method for determining normal 
value are satisfied . It further argues that Article  2.2 does not require that an investigating 
authority use or seek third -country sales data. In any event, the USDOC did not prohibit 
                                                
43 Korea's response to Panel question No. 1, paras. 2 and 3.  
44 United States' second written submission, para. 9 (referring to Appellate Body Report, US – 
Anti-Dumping and Countervailing Duties (China) , para. 552).  
45 We do not consider it necessary to assess whether there are grounds to maintain an "as such" claim 
becaus e the measure at issue does not appear, in any instance, to be inconsistent with Article 2.2.  
46 Korea's first written submission, para. 66.  
47 Korea's first written submission, para. 66.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  respondents from s ubmitting data and no evidence exists that the USDOC would have refused 
third-country sales data had it been submitted.48 
7.2.3.2   Evaluation by the Panel  
7.23.   Article 2.2 does not impose any obligation on a Member to examine whether a respondent's 
third-country export p rices are representative if it has opted to use constructed normal value to 
determine normal value. If a Member has decided not to use third -country exports to determine 
normal value for a particular reason, including because it does not consider that mark et to be 
viable, nothing in Article 2.2 requires it to nonetheless assess whether all the conditions for use of 
that method set out in the provision are fulfilled.  
7.24.   As discussed under paragraphs 7.15-7.19 above, the use of third -country sales as a method 
to determine normal value is optional and a Member may choose, for its own reasons, to not use 
it. We have found that the "viability test " is not, as such, inconsistent  with Article 2.2. Therefore, 
we find that the USDOC in applying that test  in the underlying investigation and concluding on the 
basis of that application that it would not use third -country sales for determining normal value, did 
not act inconsistently wi th Article 2.2.  
7.2.4   Conclusion  
7.25.   For the foregoing reasons, we find that Korea has not established that the "viability test " is 
inconsistent with Article 2.2 of the Anti -Dumping Agreement , either as such, or as applied in the 
underlying investigation . 
7.3  Whether th e USDOC' s determination of profit rates for the Korean respondents in 
the final and remand determination s is inconsistent with Articles  2.2.2 and 2.4 of the 
Anti-Dumping Agreement  
7.26.   In its first written submission, Korea claimed that the USDOC's profit rate  determination in 
the final determination in the underlying investigation was inconsistent with the chapeau  of 
Article s 2.2.2, 2.2.2(i) , and 2.2.2(iii) of the Anti -Dumping Agreement. Korea also claimed that the 
USDOC's failure to make adjustments to the pr ofit rates of the Korean respondents in this 
determination resulted in a violation of Article 2.4 of the Anti -Dumping Agreement.   
7.27.   This final determination was challenged before the US Court of International Trade (USCIT), 
which issued a remand order direct ing the USDOC to, inter alia , reconsider certain aspects of its 
profit rate determination in the underlying investigation.49 The USDOC initiated a remand 
investigation pursuant to this order, and on 22 February 2016  (that is , after Korea had already 
filed i ts panel request and its first written submission in these proceedings ) issued its remand 
determination.50 This determination was affirmed by the USCIT in August 2016. The profit rate for 
the Korean respondents was reduced from 26.11% in the final determina tion to 16.24% in the 
remand determination due to revisions in the methodology used to determine this profit rate.51 
7.28.   Korea considers this remand determination to be within o ur terms of reference, and 
the USDOC's profit rate determination therein to be incon sistent with the chapeau  of Article s 2.2.2, 
2.2.2(i), 2.2.2(iii) , and 2.4 of the Anti -Dumping Agreement. The United States argues, for the 
reasons set out  below, that the remand determination is outside our terms of reference, and asks 
us to make no ruling s in this regard.  
                                                
48 United States' first written submission, para. 61.  
49 US Court of Int ernational Trade, Husteel Co. Ltd., Nexteel Co. Ltd., and Hyundai Hysco v. 
United  States, Commerce 's final determination in antidumping investigation sustained in part and remanded in  
part to reconsider selection of mandat ory respondents and constructed value profit margin , Slip Op. 15 -100, 
(Exhibit KOR -25), p. 84.  
50 USDOC, Final Determination pursuant to court remand, Husteel Co. Ltd., et al., v. United States, 
Ct. No. 14 -215, Slip Op. 15 -100 ( USDOC 's Remand Determination ), (Exhibit KOR -69), p. 85.  
51 USDOC 's Remand Determination, (Exhibit KOR -69), p. 85. The United States confirmed during the 
second substantive meeting that a new anti -dumping order specifying new anti -dumping duty rates, which had 
change d as result of the remand determination, has been publ ished in the US Federal Register.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.29.   In our evaluation of Korea's  claims  regarding the USDOC's final and remand determination s 
of profit rates , we will first address Korea's claims with respect to the final determination. Then, 
we will examine whether the remand determinatio n falls within our terms of reference. Only if we 
find that it does will we proceed to address Korea's claims regarding this determination.  
7.3.1   Provisions at issue  
7.30.   Article 2.2.2 of the Anti -Dumping Agreement provides:  
For the purpose of paragraph 2, the amoun ts for administrative, selling and general 
costs and for profits shall be based on actual data pertaining to production and sales 
in the ordinary course of trade of the like product by the exporter or producer under 
investigation. When such amounts cannot be determined on this basis, the amounts 
may be determined on the basis of:  
(i) the actual amounts incurred and realized by the exporter or producer in 
question in respect of production and sales in the domestic market of the 
country of origin of the same general category of products;  
(ii) the weighted average of the actual amounts incurred and realized by other 
exporters or producers subject to investigation in respect of production and 
sales of the like product in the domestic market of the country of ori gin; 
(iii) any other reasonable method, provided that the amount for profit so 
established shall not exceed the profit normally realized by other exporters or 
producers on sales of products of the same general category in the domestic 
market of the country  of origin.  
7.31.   Article 2.4 of the Anti -Dumping Agreement provides:  
A fair comparison shall be made between the export price and the normal value. This 
comparison shall be made at the same level of trade, normally at the ex -factory level, 
and in respect of sal es made at as nearly as possible the same time. Due allowance 
shall be made in each case, on its merits, for differences which affect price 
comparability, including differences in conditions and terms of sale, taxation, levels of 
trade, quantities, physica l characteristics, and any other differences which are also 
demonstrated to affect price comparability. [*] In the cases referred to in paragraph  3, 
allowances for costs, including duties and taxes, incurred between importation and 
resale, and for profits a ccruing, should also be made. If in these cases price 
comparability has been affected, the authorities shall establish the normal value at a 
level of trade equivalent to the level of trade of the constructed export price, or shall 
make due allowance as war ranted under this paragraph. The authorities shall indicate 
to the parties in question what information is necessary to ensure a fair comparison 
and shall not impose an unreasonable burden of proof on those parties.  
[*fn original] It is understood that som e of the above factors may overlap, and authorities shall 
ensure that they do not duplicate adjustments that have been already made under this provision.  
7.3.2   USDOC's profit rate determination  in the underlying investigation  
7.32.   In the underlying investigation, the  USDOC constructed the normal value of the Korean 
respondents based on their cost of production . In doing so, it determined the profit rate for these 
respondents using the profit data of a surrogate company, Tenaris, rather than the profit data of 
the Kore an respondents whose normal value was being constructed. Korea claims that the 
USDOC's rejection of the profit data of the Korean respondents and its use of the profit data of 
Tenaris were inconsistent with Article 2.2.2 of the Anti -Dumping Agreement, and specifically that 
the USDOC acted inconsistently with the following requirements set out in that provision:  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  a. The chapeau  of Article 2.2.2 because:  
i. the USDOC had actual data on record pertaining to profits realized by the Korean 
respondents on home market sa les of the like product but failed to use it; and  
ii. the USDOC had actual data on record pertaining to profits realized by the Korean 
respondents on third -country sales of the like product but again failed to use it.  
b. Articles 2.2.2(i) and 2.2.2(iii) because t he USDOC applied an impermissibly narrow 
interpretation of the term "same general category of products" which affected its ability 
to determine profits on the basis of these provisions.  
c. Article 2.2.2(iii) because the USDOC failed to calculate a profit cap and also because its 
use of the Tenaris  profit data to determine the profit for the Korean respondents was not 
a "reasonable method" within the meaning of that provision.  
d. Article 2.2 because as a consequence of its failure to determine profits consistently  with 
Article 2.2.2(iii), the USDOC failed to ensure that the profit amount used in constructing 
normal value was a "reasonable amount".  
e. Article 2.4 because the USDOC, having decided to use the Tenaris profit rate for 
constructing the Korean respondents' n ormal value,  failed to make due allowance for the 
difference between that constructed normal value, which reflected the Tenaris profit 
rate, and the export price, which reflected the Korean respondents' own profit rates, and 
make appropriate adjustment.  
7.33.   The United States rejects Korea's claims.  
7.3.2.1   Whether the USDOC 's failure to use "actual data" as a CV profit source is 
inconsistent with Article  2.2.2  
7.3.2.1.1   Main arguments of the parties  
7.34.   Korea's  main arguments are set out below:  
a. Low volume of sales is not a valid r eason under the chapeau  of Article 2.2.2 for an 
investigating authority to refuse to use the respondents' actual data to determine 
CV profit .52 Therefore, the USDOC applied an improper basis for disregarding the Korean 
respondents' actual data.  
b. Moreover, th e USDOC had access to actual profit data pertaining to the like product from 
both the respondents' home market and third -country market sales.  Only when this 
actual data is not available would the USDOC be able to use one of the alternative 
methods provide d under the subparagraphs of Article  2.2.2 to determine the CV profit.53 
7.35.   The main arguments of the United States  are as follows:  
a. Neither of the two Korean respondents had a viable home or third -country market during 
the period of investigation, as a result of which their home and third -country market 
                                                
52 Korea's first written submission, para. 76 (referring to Appellate Body Report, EC – Tube or Pipe 
Fittings , para . 101).  
53 Korea's first written submission, para. 77 (referring to Response of Hyundai HYSCO to Section A of  
the Department 's 27 August 2013 Questionnaire , 17 September 2013 , (Exhibit KOR -60) (BCI), p. A -2, 
Response of NEXTEEL to the Department 's 27 August 2013 Questionnaire , 17 September 2013 , 
(Exhibit  KOR-61) (BCI), p. A -2; HYSCO Cost Verification Exhibit, CVE  15 March 2014 , (Exhibit KOR -27) (BCI); 
and NEXTEEL Cost Verification Exhibit, CVE 8  March  2014, (Exhibit KOR -28) (BCI)).  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  sales could not serve as a basis for normal value determination, including with respect to 
the CV profit.54  
b. In addition, actual profit data pertaining to sales in the ordinary course of trade of the 
like product  in the domestic market requir ed to determine the CV profit did  not exist in 
the record of the investigation at issue.55 
c. The chapeau  of Article 2.2.2 does not obligate an investigating authority to consider 
third-country sales for purposes of determining CV profit.56 
7.3.2.1.2   Main arguments of third parties  
7.36.   The European Union  submits that the USDOC was e ntitled to use one of the 
three  alternative methods provided in subparagraphs (i) -(iii) of Article  2.2.2 to the extent that it 
first ascertained that actual sales, gen eral, and administrative expenses ( SG&A ) and profit data for 
sales in the ordinary course of trade did not exist for the exporters and the like products under 
investigation.57 
7.3.2.1.3   Evaluation by the Panel  
7.37.   The chapeau  of Article 2.2.2 of the Anti -Dumping Agreemen t requires that , in constructing 
normal value,  the amounts for  profits determined for an exporter or producer be based on "actual 
data pertaining to production and sales in the ordinary course of trade of the like product". Only 
when the profit amounts  "cannot be determined on this basis" is an investigating authority 
permitted to determine profit amounts on the basis of the alternative methods set out in 
Article s 2.2.2(i) -(iii) of the Agreement. In the underlying investigation, the USDOC concluded that 
it could not establish the CV profit amounts for the Korean respondents on the basis of their 
"actual data pertaining to production and sales in the ordinary course of trade of the like product", 
i.e. OCTG. The USDOC reached this conclusion based on its deter mination that the Korean 
respondents had no viable home market sales of the like product. Korea claims that the USDOC's 
failure to use the Korean respondents' "actual data" as the basis for determining CV profit is 
inconsistent with the chapeau  of Article 2.2.2. The United States disagrees with Korea, and 
contends  that the USDOC had a proper basis for not using the respondents' actual data for 
determining CV profit  amounts . The issue before us is whether the USDOC acted inconsistently 
with the chapeau  of Article 2.2.2 because it did not use the Korean respondents' "actual data" 
pertaining to production and sales of the like product in the ordinary course of trade in either their 
domestic or third -country markets,  as the basis for determining their CV profit.   
7.38.   In addressing this issue, we will consider the following:  
a. whether  the USDOC was permitted to reject the actual data pertaining to the Korean 
respondents' domestic market  sales of the like product during  the period of 
investigation, because these sales we re made in "low volumes";  
b. whether  there was, in the USDOC's record in the underlying investigation, actual profit 
data pertaining to the respondents' domestic market sales of the like product ; and  
c. whether  the use of the word "profits" in the chapeau  of Art icle 2.2.2 suggests that when 
an exporter makes a loss rather than a profit on domestic sales of the like product, the 
data pertaining to such losses, even if "actual", need not be considered by the 
investigating authority.  
                                                
54 United States' first written submission, para. 73 (referring to  Final Decision Memorandum, 
(Exhibit  KOR-21), p. 14). 
55 United States ' first written submission, para. 89 (referring to USDOC, NEXTEEL Sales Verification 
Report, 29 May 2014 , (Exhibit USA -9) pp. 16  and 17; USDOC  HYSCO Sales Verification Report, 5 June 2014 , 
(Exhibit USA -8) pp. 22  and 23; HYSCO 's section A questionnaire r esponses, 17 September 2013, 
(Exhibit  USA-6) (BCI), p. A -2 and exhibit A -1; and NEXTEEL 's section  A questionnaire response s, 
17 September 2013,  (Exhibit USA -7) (BCI), p. A -2 and exhibit A -1). 
56 United States' response to Panel question No. 7, para. 11.  
57 European Union's third -party submission, para. 15.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.3.2.1.3.1   The USDOC's rejection of  actual data pertaining to the Korean 
respondents'  domestic market sales of the like product during  the period of 
investigation because these sales were made in "low volumes"  
7.39.   The chapeau  of Article 2.2.2 does not contain any explicit textual limitation on the use of 
actual data pertaining to sales made in low volumes as a basis for CV profit determination. The 
chapeau  reads as follows:  
For the purpose of paragraph 2, the amounts for administrative, selling and general 
costs and for profits shall be based on actual data pertaining to production and sales 
in the ordinary course of trade of the like product by the exporter or producer under 
investigation.  
It is clear from the use of the word "shall" that the investigating authority is required to base the 
CV profit on  actual data pertaining to production and sales in the ordinary course of trade of the 
like product , assuming such data exist s. There is n othing in the text to the effect that if those sales 
were made in low volumes, an investigating authority is permitted  to disregard them as a basis for 
CV profit , provided such sales were made in the ordinary course of trade.  
 
7.40.   The Appellate Body in EC – Tube or Pipe Fittings  reached a similar conclusion. The issue 
before the Appellate Body in that case was whether an inve stigating authority must exclude data 
from low -volume sales when determining the amounts for SG&A and profits under the chapeau  of 
Article 2.2.2, having disregarded such low -volume sales for normal value determination under 
Article 2.2. The Appellate Body found that:  
[I]t is meaningful for the interpretation of Article 2.2.2 that Article 2.2 specifically 
identifies low -volume sales in addition to  sales outside the ordinary course of trade. In 
contrast to Article 2.2, the chapeau of Article 2.2.2 explicitly excludes only sales 
outside the ordinary course of trade. The absence of any qualifying language related 
to low volumes in Article 2.2.2 implies that an exception for low -volume sales should 
not be read into Article 2.2.2.58 
Thus, the Appellate Body conclud ed that a requirement  that low -volume sales be disregarded as a 
basis for determining SG&A and profits cannot be read into the text of Article 2.2.2.59  
 
7.41.   The United States contends that the findings in EC – Tube or Pipe Fittings are inapplicable to 
this dis pute because the issue before the Appellate Body in that case was whether an investigating 
authority must exclude  data pertaining to low -volume sales when determining the amounts for 
SG&A and profits under the chapeau  of Article 2.2.2. We understand the Un ited States to argue 
that the issue in this dispute, in contrast, is whether an investigating authority must include , or 
perhaps  may exclude , data pertaining to low -volume sales when determining the amounts for 
profit under the chapeau  of Article 2.2.2. Ho wever, the United States' argument in this regard is 
contrary to the Appellate Body's clear statement in EC – Tube or Pipe Fittings that if actual profit 
data for sales in the ordinary course of trade exist for the exporter and the like product under 
investigation, an investigating authority must use that data in constructing normal value, and it 
may not  construct normal value by reference to different data or by using an alternative method.60 
We therefore disagree with the United States, and consider the Ap pellate Body's findings in EC – 
Tube or Pipe Fittings clearly relevant to th e issue before us . 
7.42.   We note that t he panel in EC – Salmon  (Norway)  also addressed the question of whether an 
investigating authority must include  data pertaining to low -volume sales  when determining the 
amounts for profit under the chapeau  of Article 2.2.2. The facts in EC – Salmon  (Norway)  are 
similar to those in the instant dispute. In that case, the European Community had excluded data 
pertaining to domestic sales made in low volu mes when determining the profit for constructed 
normal value. The issue before the panel was whether that exclusion was consistent with the 
                                                
58 Appellate Body Report, EC – Tube or Pipe Fittings , para. 98.  (emphasis original; fn omitted)  
59 Appellate Body Report, EC – Tube or Pipe Fittings , para. 98.  
60 Appellate Body Report, EC – Tube or Pipe Fittings , para. 97.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  chapeau  of Article  2.2.2.61 The panel in that case, agreeing with the views  of the Appellate Body in 
EC – Tube or Pip e Fittings , concluded that it was not.62 
7.43.   The United States also argues that the Appellate Body in EC – Tube or Pipe Fittings  did not 
explain why low -volume sales in the domestic market are rejected as a basis for normal value 
determination because they do n ot permit proper comparison, but data derived from the same 
sales should be accepted for purposes of CV profit determination under Article 2.2.2.63 It further 
argues that the Appellate Body did not address why data from low -volume sales, found not to 
permit  a proper comparison in the context of Article 2.2, could nonetheless achieve the objective 
of permitting a proper comparison in the context of Article 2.2.2.64 
7.44.   We recognize the logic behind the United States' arg ument. We understand the 
United  States to ar gue that the price pertaining to sales made in low -volumes in the domestic 
market is discarded for purposes of normal value determination under Article 2.2 because it is 
considered to not permit a proper comparison with the export price. To require that da ta from the 
same sales be used to determine CV profit and SG&A under Article 2.2.2 for purposes of 
constructing normal value would seem to reintroduce the same improper comparison through the 
constructed normal value. This is, in terms of overall coherence  of Article 2, somewhat perplexing.  
But this does not allow an interpretation that does not fully comport with the express language of 
Article 2.2.2.  
7.45.   Under Article 2.2, upon the identification of low -volume sales, an investigating authorit y is 
required to  either construct normal value or use third -country export prices as normal value. 
Therefore, the identification of low -volume sales serves as a trigger for an investigating authorit y 
to use an alternative to the price of those sales for normal value deter mination but not necessarily 
to exclude the  components of the price  pertaining to those sales from that determination. If an 
investigating authority opts to construct normal value, nothing in Article 2.2 suggests that it is 
required to , or may,  exclude dat a derived from the rejected low -volume sales from that 
construction.  Further, Article 2.2.2 requires that only sales that are in the ordinary course of trade  
be used as a basis for CV profit determination. Thus, only data from such sales, even if in low 
volumes, can be used in constructing normal value. Therefore, what is discarded for normal value 
determination under Article 2.2 is the price of low-volume sales  but what is accepted for purposes 
of normal value construction under Article 2.2.2 is the amount  for profit and SG&A on those 
low-volume sales that are in the ordinary course of trade . 
7.46.   To the extent that low -volume sales might be considered to generate a normal value that 
will not permit proper comparison with the export price, excluding data from su ch sales that are 
not in the ordinary course of trade as a basis for CV profit and SG&A determination under the 
chapeau  of Article 2.2.2 addresses, at least in part, the  overall coherence issue referred to above.   
7.47.   Thus, w hile we see the general logic behin d the United States' argument, we cannot, in light 
of prior Appellate Body and panel findings read out of the text of the chapeau  that the CV profit 
has to be based on the respondents' actual data for sales of the like product in the ordinary course 
of tra de, even if those sales were made in low volumes. We thus conclude that the chapeau  of 
Article 2.2.2 did not permit the USDOC to reject the actual data pertaining to the Korean 
respondents' domestic market sales of the like product in the period of investi gation because these 
sales were made in low volumes.  
7.3.2.1.3.2   Alleged lack of actual profit data pertaining to the respondents' domestic 
market sales of the like product , in the USDOC's record in the underlying investigation   
7.48.   The United States argues that the USDO C was unable to use the preferred method set out 
in the chapeau  of Article 2.2.2 to determine CV profit, as actual data pertaining to the Korean 
respondents' sales in the ordinary course of trade of the like product was not in the record of the 
investigati on at issue. In particular, the United States maintains that the actual profit data 
                                                
61 Panel Report, EC – Salmon (Norway ), para. 7.297.  
62 Panel Report, EC – Salmon (Norway ), para. 7.304  (referring to Appellate Body Report, EC – Tube or 
Pipe Fittings , paras. 93 -102 and fn 99) . 
63 United States' first written submission, para. 80.  
64 United States' first written submission, para. 85.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  pertaining to the respondents' domestic market sales that was on the record did not relate to the 
like product, OCTG.65  
7.49.   As a threshold matter, we note that neither in the U SDOC's final determination nor in its 
preliminary determination is there any reference to this alleged lack of relevant data as a reason 
for its inability to use the preferred method for CV profit determination. The USDOC attributed its 
inability to determ ine CV profit using the preferred method exclusively  to the absence of a "viable 
home or third -country market".66 
7.50.   The USDOC's findings on the absence of a viable domestic or third -country market in its 
final determination cite the Korean respondents' questi onnaire responses.67 In these questionnaire 
responses, the respondents, HYSCO and NEXTEEL, acknowledge  that they do not have viable 
markets, but also clearly state that they have made "some sales of the foreign like product in the 
home market during the POI ".68 
7.51.   In support of its assertion regarding the unavailability of actual profit data for the like 
product, the United States refers to certain sales verification reports in which  the respondents are 
reported to have stated that the products they sold in the home market were not sold as OCTG.69 
However, neither the preliminary nor final determinations contain any conclusions drawn by the 
USDOC regarding availability of data for the like product on the basis of those reported 
statements. On the contrary, in its preliminary determination, the USDOC states that:  
In order to determine whether there was a sufficient volume of sales in the home 
market to serve as a viable basis for calculating NV, we compared HYSCO's and 
NEXTEEL's volume of home market sales of the fo reign like product  to the volume of 
U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(B) of the 
Act. For both HYSCO and NEXTEEL, we found that the aggregate volume of U .S. sales, 
and, thus, HYSCO's and NEXTEEL's sales in the home market were not viable.70 
7.52.   This finding also formed the basis of the USDOC's decision, in its final determination, to not 
use the preferred method to determine CV profit.71 The United States has not identified any finding 
in the USDOC's preliminary or final d eterminations that HYSCO and NEXTEEL made no sales of the 
like product in the home market, and further that it was because of the absence of data pertaining 
to sales of the like product in the home market that the USDOC had rejected the preferred method 
as a basis for determining CV profit.72 We therefore dismiss, as ex post rationalization , the 
United  States' argument that the USDOC could not use the p referred method to determine 
CV profit because the record  did not contain  any data pertaining to sales of t he like product in the 
home market .73 
                                                
65 United States' first written submission, para. 89 (referring to USDOC, NEXTEEL Sales Verification 
Report, 29 May 2014 , (Exhibit USA -9) pp. 16  and 17; USDOC, HYSCO Sales Verification Report, 5 June 201 4, 
(Exhibit USA -8) pp. 22  and 23; HYSCO 's section A questionnaire r esponse s, 17 September 2013, 
(Exhibit  USA-6) (BCI), p. A -2 and exhibit A -1; and NEXTEEL 's section  A questionnaire response s, 
17 September  2013,  (Exhibit USA -7) (BCI), p. A -2 and exhibit A -1). 
66 Final Decision Memorandum, (Exhibit KOR -21), p. 14.  
67 Final Decision Memorandum, (Exhibit KOR -21), pp. 20  and 21 and fns 68 and 72 (referring to 
HYSCO's section A questionnaire response s, 17 September 2013 , (Exhibit USA -6) (BCI),  p. A-2; and NEXTEEL's  
section A questionnaire response s, 17 September 2013 , (Exhibit USA -7) (BCI) , p. A -2, among others).  
68 HYSCO's section A questionnaire response s, 17 September 2013 , (Exhibit USA -6) (BCI), p. A-2; and 
NEXTEEL's section A questionnaire response s, 17 Septembe r 2013 , (Exhibit USA -7) (BCI), p. A-2. 
69 United States' first written submission, para. 89 (referring to USDOC,  NEXTEEL Sales Verification 
Report, 29 May 2014, (Exhibit USA -9) pp. 16  and 17; and USDOC, HYSCO Sales Verification Report, 
5 June 2014, (Exhibit  USA-8) pp. 22  and 23); 
70 USDOC, Decision Memorandum for the Negative Preliminary  Determination of sales at less than fair 
value, negative  Preliminary Determination of critical circumstances, and  postponement of Final Determination 
in the less-than-fair-value investigation of certain oil country tubular goods from the  Republic of Korea, 
14 February 2014  (Preliminary Decision Memorandum ), (Exhibit KOR -5), p.  20. (emphasis added)  
71 Final Decision Memorandum, (Exhibit KOR -21), p.  14. 
72 United States' response to Panel question No. 43, paras. 8 -10. 
73 In this regard, the Appellate Body has clarified that a Member is precluded from providing an ex post  
rationale during the panel proceedings to justify the investigating authority's determination, and that an 
invest igating authority's determinations must be evaluated in light of the rationale provided 
 WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.53.   In light of this and given the mandatory nature of the obligation in the chapeau  of 
Article  2.2.2 to use actual data as a basis for CV profit, we conclude that if unavailability of the 
data for the like product was a re ason for the USDOC's inability to use that method, it should have 
set out that reason in its determination.  
7.3.2.1.3.3    Rejection of data showing [[***]]  in determining the amounts for "profits" 
for constructed normal value  
7.54.   The United States argues that the USDOC  was unable to use the respondents' actual data as 
a basis for CV profit because their sales of "non -prime OCTG" in the domestic market were made 
at a [[***]]  and [[***]]  cannot form the basis for CV profit under the chapeau  of Article 2.2.2.74 
7.55.   As noted in para graph 7.49, in its final determination the USDOC attributed its inability to 
determine CV profit using the preferred method exclusively  to the absence of a "viable home or 
third-country market".75 We find no ment ion in the USDOC's findings of the [[***]] -making 
nature of the respondents' domestic sales as a reason for its inability to use the preferred method. 
The record also does not reflect a determination by the USDOC that the Korean respondents' sales 
of "non -prime OCTG" in the domestic market were made at a [[***]] . We understand the United 
States to argue, in response to our specific question76 in this regard, that having already rejected 
the Korean respondents' actual data pertaining to their home market sale s as a basis for CV profit 
determination because those sales were not viable, the USDOC was not required to determine 
whether that data could not be used for CV profit determination on other grounds.77 However, as 
noted above, the United States has argued i n these proceedings that it did not determine CV profit 
based on the Korean respondents' actual data pertaining to home market sales because these 
sales were made at a [[***]] . We therefore must determine  if this reasoning was used by the 
USDOC in the unde rlying investigation or is ex post rationalization  by the United States  in these 
proceedings . The United States has not identified where in its determination the USDOC  relied  on 
this conclusion as a reason for not using the preferred method to calculate CV  profit . We therefore 
reject this justification offered by the United States as ex post  rationalization.  
7.56.   Based on the foregoing reasons, we find that the United States has not offered any valid 
justification for the USDOC's failure to use the respondents'  actual data pertaining to the 
respondents' domestic market sales as a basis for CV profit. We therefore conclude that in failing 
to use the preferred method as basis for CV profit calculation, the United States acted 
inconsistently with its obligations un der the chapeau  of Article 2.2.2.   
7.57.   Having  already concluded that the USDOC had no basis to reject the "actual data" 
pertaining to domestic sales of the like product in the ordinary course of trade , we do not find it 
necessary to resolve the question whethe r the USDOC should have determined CV profit on the 
basis of the profit derived by the Korean respondents from third -country markets in order to 
comply with the chapeau  of Article 2.2.2.  We, therefore, exercise judicial economy on this claim.  
7.3.2.1.4   Conclusion  
7.58.   For the foregoing reasons, we find that the United States acted inconsistently with its 
obligations under the chapeau  of Article 2.2.2 because:  
a. The lack of viable home market sales is not a permissible ground for rejecting the 
Korean respondents' actual data  as a basis for determination of CV profit;  
b. Nothing in the USDOC's determinations indicates that it rejected the Korean 
respondents' actual data because there were no domestic sales of the like product; and  
                                                                                                                                                  
contemporaneously by that investigating authority. ( Appellate Body Report, US – Carbon Steel (India) , 
para. 4.273 (referring to Panel Report, US – Carbon Steel (India) , para. 7.154) ). 
74 United States' response to Panel question No. 12, paras. 37 -39. 
75 Final Decision Memorandum, (Exhibit KOR -21), p.  14. 
76 United States' response to Panel question No. 45, paras. 13 and 14.  
77 United States' response to Panel question No. 45 , paras. 13 and 14.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  c. Nothing in the USDOC's determinations indicates t hat it rejected the Korean 
respondents' actual data because the respondents made a [[***]]  rather than a profit.  
7.59.   We exercise judicial economy of Korea's claim that the USDOC acted inconsistently with the 
chapeau  of Article 2.2.2 because it did not use actu al data of the respondents to determine its 
CV profit rate although the respondents' third -country market profit data was available on the 
record of the underlying investigation.  
7.3.2.2   Whether  the USDOC 's interpretation and application of  "same general category 
of products"  was inconsistent with Articles  2.2.2(i) and 2.2.2(iii)  
7.3.2.2.1   Main arguments of the parties  
7.60.   Korea  argues that the USDOC erroneously interpreted and applied the term "same general  
category of products" so narrowly that it did not consider non -OCTG pro ducts, such as line pipe 
and standard pipe, as falling within the "same general category" as OCTG.78 Based on this narrow 
interpretation, the USDOC rejected Article  2.2.2(i) as a basis to calculate CV profit and also 
determined that it could not calculate a  profit cap under Article 2.2.2(iii).79 
7.61.   In response, the United States  contends that t he USDOC defined "same general category of 
products" more broadly than "like product" so as to include drill pipe and OCTG that fell outside 
the scope of the investigation  such as stainless steel tubular products.80 
7.3.2.2.2   Main arguments of third parties  
7.62.   The European Union  submits that while Article  2.2.2 does not provide any elaboration as to 
the definition of "the same general category of products" , its chapeau  and overall struct ure provide 
guidance in this regard.81 It notes that the panel in Thailand – H-Beams found that where the 
preferred method in the chapeau  cannot be used for purposes of determining an amount for profit 
in the constructed normal value on the basis of actual data of the exporter or producer under 
investigation for the like product, subparagraphs (i) and (ii) respectively provide for the database 
to be broadened, either as to the product (i.e. the same general category of products produced by 
the producer or ex porter in question) or as to the producer (i.e. other producers or exporters 
subject to investigation in respect of the like product), but not both. The European Union 
maintains that t he Thailand – H-Beams panel confirm ed that the intention of these provis ions is to 
obtain results that approximate, as closely as possible, the price of the like product in the ordinary 
course of trade in the domestic market of the exporting country.  
7.3.2.2.3   Evaluation by the Panel  
7.63.   Article 2.2.2(i) of the Anti -Dumping Agreement provid es for profit rate determination on the 
basis of the actual amounts incurred and realized by the exporter or producer in question in 
respect of production and sales in the domestic market of the country of origin of the  "same 
general category of products ". Article 2.2.2(iii) provides for profit rate determination on the basis 
of any other reasonable method, provided that the amount for profit so established shall not 
exceed the "profit cap ", which is  the profit normally realized by other exporters or produc ers on 
sales of " products of the same general category " in the domestic market of the country of origin. 
Therefore, in order to make a profit determination under Article 2.2.2(i) or to calculate a profit cap 
under Article 2.2.2(iii), an investigating autho rity must determine which products fall within the 
same general category of products.  
7.64.   In the underlying investigation, the USDOC found that non -OCTG pipe products 
manufactured by the Korean producers, such as line pipe and standard pipe, were not in the s ame 
general category of products as the product under consideration, OCTG. The USDOC stated that it 
could therefore not determine the CV profit rate for the Korean respondent HYSCO using actual 
                                                
78 Korea's first written submission, para. 79.  
79 Korea's first written submission, para. 88.  
80 United States' first written submission, para. 91.  
81 European Union's third -party submission, para. 18 (referring to Panel Report, Thailand – H-Beams , 
para. 7.112).  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  amounts incurred by that producer in respect of production and  sales in the domestic market of 
the country of origin of the same general category of products, as provided for in Article  2.2.2(i).82 
In addition, the USDOC determined that it could not calculate the profit cap called for in 
Article  2.2.2(iii) because it did not have domestic market profit data for other exporters and 
producers of products of the same general category in Korea.83 
7.65.   Korea challenges the USDOC's definition of the same general category of products in the 
underlying investigation, asserting  that the USDOC's focus on down hole applications as the 
defining factor of products constituting the same general category of products as OCTG resulted in 
a definition that is narrower than the USDOC's definition of the foreign like product.84 Therefore, a 
produ ct that is a like product, based on the USDOC's definition of the foreign like product, could be 
excluded from  the sam e general category of products. The United States disagrees with Korea, 
and asserts that the USDOC defined the same general category of pr oducts more broadly, rather 
than more narrowly, than the like product. The issue before us therefore is whether the USDOC  
properly determined the scope of the relevant "same general category of products", and thus 
whether its conclusions were consistent wi th its obligations under Articles 2.2.2(i) and ( iii).  
7.66.   We note that there is no definition of the term "same general category of products" in 
Article 2.2.2(i) or (iii) of the Anti -Dumping Agreement. However, as previous panels have noted, 
and as both parti es agree, the scope of the same general category of products must be understood 
to be  broader, not narrower than that of the like product, as defined by the investigating 
authority.85 We agree with th is conclusion , which is consistent with our own views in this regard.  
7.67.   Bearing in mind th is understanding , we turn to examine how the USDOC defined the same 
general category of products in the underlying investigation. We note that the USDOC defined the 
same general category of products by reference to the functi onality of the foreign like product. In 
particular, in its final determination, the USDOC stated that:  
While we do not consider line pipe and standard pipe to be in the same general 
category of products as OCTG, we do find that the general category of prod ucts that 
encompass the subject casing and tubing would not be limited to just the foreign like 
product . Rather it would include other tubular products that go into the exploration 
and production of oil and gas. These would be products that would exhibit t he same 
fundamental characteristics for down  hole applications , and they would include 
subject  OCTG, non -scope OCTG such as stainless steel tubular products, and drill 
pipes.86 
7.68.   The USDOC thus defined products in the same general category as the like product  as those 
exhibiting "the same fundamental characteristics for down  hole applications" as the foreign like 
product  i.e. tubular products that are used in the exploration and production of oil and gas . 
However, as the United States has confirmed in these pr oceedings, the USDOC's definition of the 
foreign like product is co -extensive with the definition of the product under consideration in the 
underlying investigation, and the product under consideration definition itself is not limited to pipe 
products that  can be used for down  hole applications.87 The USDOC defined the product under 
consideration as follows:  
The merchandise covered by the investigations is certain oil country tubular goods 
("OCTG"), which are hollow steel products of circular cross -section, including oil well 
casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy),  
whether seamless or welded, regardless of end finish (e.g., whether or not plain end, 
threaded, or threaded and coupled) whether or not conforming to Ame rican Petroleum 
Institute ("API") or non -API specifications, whether finished (including limited service 
OCTG products) or unfinished (including green tubes and limited service OCTG 
                                                
82 Final Decision Memorandum, (Exhibit KOR -21), p. 19.  
83 Final Decision Memorandum, (Exhibit KOR -21), p. 21.  
84 Korea's second written submission, paragraph 158.  
85 Panel Reports, EC – Bed Linen , para. 6.60; and Thailand – H-Beams , para. 7.112. See also 
United  States' first written submission, para. 95;  and Korea's first written submission, para. 83.  
86 Final Decision Memorandum, (Exhibit KOR -21), p.  19. (emphasis added)  
87 United States' second written submission, para. 28  and fn  55. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  products), whether or not thread protectors are attached. The scope of the  
investigations also covers OCTG coupling stock.  
Excluded from the scope of the investigations are: c asing or tubing containing 
10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and 
unattached thread protectors.88 
7.69.   Thus, the produ ct under consideration  as defined by the USDOC, and by implication, the 
foreign like product  which is co -extensive with that definition , do not incorporate  any express 
limitation based on whether the pipe products in question  can be used for down  hole appl ications . 
Based on the foregoing, we conclude that the USDOC's record shows that the foreign like product 
was not limited to pipe products that could be used for down  hole applications. However, the same 
general category of products, as defined by the USDO C, does incorporate such a limitation.89  
7.70.   Our conclusion  is confirmed by the clarification provided by the USDOC itself in a parallel 
investigation of OCTG from Ukraine, which was initiated based on the same petition  as the 
underlying investigation.90 The de finition of the product under consideration in that investigation 
was identical to that in the underlying investigation, and included "reject" products that cannot be 
used in oil and gas well applications. The USDOC clarified the scope of the product under  
consideration in the Ukraine investigation as follows:  
[T]he plain language of the scope of the investigation indicates that a failure to meet 
the requirements for OCTG applications  does not render merchandise outside the 
scope, provided that merchandise meets the physical characteristics described in the 
scope. The scope specifically states that certain OCTG is included "whether or not 
conforming to…API or non -API specifications  …". We also note that the scope of the 
investigation includes unfinished OCTG  (including green tubes) which is "prime" 
merchandise which cannot be used in OCTG applications  until it undergoes additional 
processing. Taken together, the scope language clearly covers a variety of goods 
produced as OCTG which may not currently meet est ablished OCTG specifications for 
use in OCTG -specific applications.  On this basis, we find that, whether or not 
Interpipe's merchandise failed inspection  and therefore did not meet 
API specifications, it was still produced as OCTG, entered the United State s as OCTG 
and is still OCTG, even if identified as damaged or otherwise unusable as prime 
merchandise.91 
The USDOC further stated that:  
 
While it is reasonable to assume that use of OCTG in oil and gas well applications is 
the primary intended purpose of OC TG, the scope does not limit or otherwise require 
                                                
88 USDOC, Notice of Initiation in OCTG Investigation , United States Federal Register , Vol. 78, No. 145 
(29 July 201 3), p. 45505 ( Initiation Notice ), (Exhibit KOR -2), p.  45512.  
89 According to the United States, the USDOC determined that "[the foreign like produc t as well as] the 
same general category of products in the investigation should exhibit characteristics for [down  hole] 
applications". (United States' response to Panel question no. 49, para. 22) . 
90 We consider that the clarification provided by the USDOC in the context of the Ukraine investigation 
can properly be considered in understanding the scope of the product under consideration, and consequently 
the like product, in the underlying investigation. Both investigations were initiated based on the same p etition 
and covered the same scope of imported products. ( Petitions for the imposition of anti -dumping and 
countervailing d uties on OCTG from certain countries , 2 July 2013 , (Exhibit KOR -1)). Further, the Initiation 
Notification sets out the scope language  for both the  underlying  investigation and the Ukraine investigation, 
among others, under a single heading entitled "Scope of the Investigations", which also supports this 
understanding.  (Initiation Notice, (Exhibit KOR -2), p.  45506).  
91 USDOC , Certain oil country tubular goods  from Ukraine, Final Determination of sales at less than fair 
value  and negative final determination of critical circumstances, United States Federal Register , Vol. 7 9, 
No. 138 (18 July 201 4), p. 41969 , (Exhibit KOR -75), p. 9  (emphasis  added) . In US practice, the "scope of the 
investigation" refers to the product under consideration.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  that goods manufactured as OCTG be used in that capacity  in order to be considered 
subject merchandise.92 
There is no dispute between the parties that pipe products that fail to meet the "requirements for 
OCTG applications" or products which do not "currently meet established OCTG specifications for 
use in OCTG -specific applications" cannot be used for down  hole applications.  
 
7.71.   As noted, in our view, the foreign like product was not limited to pipe products t hat could be 
used for down  hole applications , which understanding is confirmed by the clarification from the 
Ukraine investigation which shows that pipe products that could not be used for down  hole 
applications were within the definition of the product un der consideration, and by implication, the 
foreign like product.  
7.72.   We recall our view that the same general category of products includes the like product, 
and, as both parties also agree, is broader than the like product.93 Therefore, if the like product is  
not limited to pipe products  used for down  hole applications, the same general category of 
products, which is broader than and includes the like product, cannot be limited to pipe products 
used for down  hole applications . In other words, the same general category of products cannot  
exclude pipe products that do not  exhibit the same fundamental characteristics for down  hole 
applications  and are not used for down  hole applications. Yet, the USDOC excluded such products  
from the same general category of produ cts in the underlying investigation . We therefore conclude  
that the USDOC defined the same general category of products  more narrowly than it defined  the 
like product  by excluding from the definition of the same general category those pipe products not 
used for down  hole applications  that fell within the definition of the like product . 
7.73.   The United States attempts to distinguish the USDOC's clarification  in the Ukraine OCTG 
investigation by noting that the pipe products that were the subject of that clarifica tion were sold 
to the US market as OCTG and therefore came  within the scope of the investigation. In contrast, 
the pipe products sold by the Korean respondents in Korea were "not sold as OCTG" and for that 
reason were not within the scope of the investigat ion. Therefore, the USDOC did not define the 
same general category of products more narrowly than the like product.94 We consider it irrelevant 
that the pipe products sold by the Korean respondents in Korea were not sold as OCTG , given that  
the USDOC's defi nition of the product under consideration  (which we recall was the same for both 
investigations)  is not limited to products that are "sold as OCTG" . We therefore reject th is 
argument from the United States . 
7.74.   Based on the definition of the product under cons ideration in the underlying investigation, 
as well as the USDOC's clarification of th at same definition in the parallel investigation of OCTG 
from Ukraine, and the fact that the United States has acknowledged that the product under 
consideration is co-extensive with the like product, we find that the USDOC defined the same 
general category of product s more narrowly than the like product . 
7.75.   For the foregoing reasons, we conclude that having relied on an impermissibly narrow 
definition of the "same general cate gory of products" as the basis for not calculating CV profit 
under Article 2.2.2(i) and for not calculating the profit cap under Article 2.2.2(iii), the USDOC 
acted inconsistently with its obligations under those provisions. In particular, we find that the  
United States acted inconsistently with its obligations under Articles 2.2.2(i) and (iii) because the 
USDOC defined the same general category of products more narrowly than the like product by 
excluding OCTG not used for down  hole applications , which was part of the like product as defined 
by the USDOC . Thus, the USDOC had no proper basis for its conclusions that the methods under 
Article 2.2.2(i) could not be used, and that the profit cap called for in Article 2.2.2(iii) could not be 
calculated.  
                                                
92 USDOC , Certain oil country tubular goods  from Ukraine, Final Determination of sales at less than fair 
value  and negative final determination of critical circumstances, United States Federal Register , Vol. 7 9, 
No. 138 (18 July 201 4), p. 41969 , (Exhibit KOR -75), p p. 9 and  10. (emphasis added)  
93 Panel Reports, EC – Bed Linen , para. 6.60; and Thailand – H-Beams , para. 7.112. See also 
United  States' first writt en submission, para. 95;  and Korea's first written submission, para. 83.  
94 United States' second written submission, para. 29.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.3.2.3   Whether  the USDOC's use of profit data from the Tenaris financial statement s in 
constructing normal value was a "reasonable method" within the meaning of 
Article  2.2.2(iii)  
7.3.2.3.1   Main arguments of the parties  
7.76.   Korea  maintains that:  
a. It is impermissible to calculate a dumpi ng margin by comparing an export price to a 
normal value which predominantly represents the profit of enterprises, such as Tenaris, 
that do not operate in the exporting country.95  
b. Further, subparagraphs (i) -(iii) of Article  2.2.2 are intended to approximat e the price of 
the like product in the ordinary course of trade in the domestic market of the exporting 
country.96  
c. The USDOC relied on the profit rate of Tenaris despite the existence on the record of 
various CV profit sources that originated from the expo rting country, Korea.97 
d. The profit of Tenaris is fundamentally not comparable with profits realized by the Korean 
respondents.98 
7.77.   The United States  contends that:  
a. The USDOC's use of the Tenaris financial statement s to calculate CV profit resulted from 
a reaso ned consideration of the evidence before it. The CV profit it calculated was 
"rationally directed at approximating what the profit of a producer of the like product 
would have been if the like product had been sold in the ordinary course of trade in the 
domestic market of the exporting country".99 
b. The average profit experience of Tenaris is representative of OCTG sales across a broad 
range of different geographic markets as it sells OCTG in significant quantities and in 
virtually every market in which OCTG i s sold.100 
c. In any case, Article  2.2 expressly permits the use of sales that are destined for 
consumption in markets other than the exporting country in determining normal value. 
In addition, Article  2.2.2(iii) does not limit the use of "any reasonable method " to a 
particular country or market.101 
d. Moreover, Article  2.2.2 recognizes that where data specific to the product under 
consideration and the exporting country is unavailable, an investigating authority needs 
to find a reasonable proxy from data available i n the record.102  
e. Korea's request for establishment of a panel does not include a claim that the USDOC's 
use of the Tenaris profit data as a basis for CV profit determination does not constitute a 
reasonable method within the meaning of Article 2.2.2(iii).103 
                                                
95 Korea's first written submission, para. 130.  
96 Korea's first written submission, para. 131 (referring to Panel Report, Thailand  – H-Beams , 
para. 7.113).  
97 Korea's first written submission, para. 135 (referring to Fina l Decision Memorandum, 
(Exhibit  KOR-21), p.  20). 
98 Korea's second written submission, para s. 185-192. 
99 United States' first written submission, para. 123 (referring to Panel Report, EU – Biodiesel  
(Argentina) , para .7.337 ). 
100 United States' first written submission, para. 126 (referring to Fina l Decision Memorandum, 
(Exhibit  KOR-21), p.  20). 
101 United States' first written submission, para. 130.  
102 United States' first w ritten submission, para. 131.  
103 United States' comments on Korea's response to Panel question No. 53, paras. 41 -48. WT/DS488/ R 
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  7.3.2.3.2   Main arguments of third parties  
7.78.   The European Union  submits that while the Anti -Dumping Agreement does not define the 
exact scope of what constitutes a "reasonable method" under Article  2.2.2, the intention of the 
subparagraphs under Article  2.2.2 is to obt ain results that approximate as closely as possible the 
price of the like product in the ordinary course of trade in the domestic market of the exporting 
country.104  
7.79.   Turkey  doubts whether the use of the profit data of a non-Korean corporation, that had 
neither production nor sales in the Korean market, is consistent with Article  2.2.2(iii).105 Further, it 
considers that the profit cap is a means to test the reasonability of the method employed under 
Article  2.2.2(iii).106 
7.3.2.3.3   Evaluation by the Panel  
7.80.   Before we can ex amine the merits of Korea's claim that the USDOC's determination of 
CV profit based on the Tenaris profit data does not constitute a "r easonable method" under 
Article  2.2.2(iii), we will ascertain whether Korea's panel request includes that claim, and that  it 
therefore falls within our terms of reference and the scope of this dispute.107 On its face, Korea's 
panel request  does not set out any express  reference to a claim that the USDOC's determination of 
CV profit based on the Tenaris profit data does not con stitute a "r easonable method" under 
Article  2.2.2(iii). Korea's considers that this claim nevertheless fall s within our terms of reference.  
7.81.   Article 6.2 of the DSU requires, in relevant part, that the panel request "provide a brief 
summary of the legal basi s of the complaint sufficient to present the problem clearly" . The panel 
request must therefore identify, by way of a brief summary, the "legal basis of the complaint" and 
that summary must be "sufficient to present the problem clearly".  
7.82.   The question befor e us is whether Korea's panel request sets out the requisite  "legal basis 
of the complaint" with respect to the claim at issue. We consider it clearly established that a panel 
request contains "a brief summary of the legal basis of the complaint" if it : (a) identifies the legal 
provision which allegedly has been violated ; and (b) clearly specifies how or why that provision 
has been violated in terms of the obligations set out in therein.108 If the provision allegedly 
violated contains multiple obligations, th e specific obligation that has allegedly been violated must 
be clear on the face of the panel request.109 Further, the compliance of a panel request with 
                                                
104 European Union's third -party submission, paras. 21  and 22 (referring to Panel Report, Thailand – 
H-Beams , para. 7.11 4). 
105 Turkey's third -party submission, para. 12.  
106 Turkey's third -party submission, para. 9.  
107 Panels are not permitted to address legal claims falling outside their terms of reference. The terms of 
reference of a panel define the scope of the dispute. (Appellate Body Report, Mexico – Anti-Dumping Measures 
on Rice , para. 152) . Pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the 
request for the establishment of a panel. Article 6.2 of the DSU sets forth the requirements applicable to such 
requests . 
108 The Appellate Body in EC – Selected Customs Matters  found that:  
[T]he legal basis of the complaint, namely, the "claim" pertains to the specific 
provision of the covered agreement that contains the obligation alleged to be 
violated. A brief summary of the legal basis of the complaint required by Article 6.2 
of the DSU aims to explain succinctly how or why the measure at issue is 
considered by the complaining Member to be violating the WTO obligation in 
question.  
(Appellate Body Report, EC – Selected Cu stoms Matters , para. 130  (emphasis original) ) 
109 In Korea – Dairy , the Appellate Body observed  that while the identification of treaty provisions 
claimed to have been violated by the respondent is a minimum prerequisite for the presentation of the legal 
basis of the complaint, such identification may not always be enough. In certain circumstances, such as, where 
the treaty provisions identified establish not one single, distinct obligation but rather multiple obligations, the 
listing of articles of an agreem ent, in and of itself, may fall short of the standard of clarity in Article 6.2. 
(Appellate Body Report, Korea – Dairy , para. 124). In China – Raw Materials , the Appellate Body found that "to 
the extent that a provision contains not one single, distinct ob ligation, but rather multiple obligations, a panel 
request might need to specify which of the obligations contained in the provision is being challenged" . 
(Appellate Body Report, China – Raw Materials , para. 220).  WT/DS488/ R 
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  Article  6.2 must be determined on the merits of each case, consider ing the panel request as a 
whole, and  in the light of attendant circumstances.110  
7.83.   Bearing these principles  in mind, we turn to examine whether Korea's panel request 
satisfies the requirements of Article 6.2 with respect to the claim at issue. The panel request 
states, in relevant part:  
II. USDOC'S CALCULATION OF CONSTRUCTED VALUE ("CV") PROFIT  
Korea considers the USDOC's calculation of constructed value ("CV") profit in its 
anti-dumping investigation of Oil Country Tubular Goods from Korea,  which was based 
on information contained in the financ ial statements of Tenaris SA (a global producer 
incorporated under the laws of Luxembourg with no record of sales or production in 
the Korean home market), to be inconsistent with the following provisions of the 
Anti-Dumping Agreement:   
3. Articles 2.2.2(i ) and 2.2.2(iii) because the USDOC applied an 
impermissibly narrow interpretation of the term "same general category of 
products." The USDOC's application of the term "same general category of 
products" resulted in a scope of products that was essentially identical to the 
scope of the term "like product."  
4. Article 2.2.2(iii) because the USDOC declined to examine whether the 
profit rate that it calculated exceeded "the profit normally realized by other 
exporters or producers on sales of products of the sam e general category in the 
domestic market of the country of origin," and it did not provide any legal basis 
for disregarding this requirement.  
5. Article 2.2 because the USDOC did not take any steps to ensure that its 
calculated CV profit was "reasonable."  In fact, the CV profit that the USDOC 
calculated far exceeded all other potential CV profit rates on the record, 
including the profit margins that U.S. producers earned on their sales of OCTG 
in the United States.111 
7.84.   We find that Korea's request for establi shment of a panel does not set out  a claim that the 
USDOC's determination of CV profit based on the Tenaris profit data does not constitute a 
"reasonable method" under Article 2.2.2(iii). We reach this conclusion based on the following 
considerations:  
a. Korea's panel request  does not expressly state that the USDOC acted inconsistently with 
Article 2.2.2(iii) because it did not determine the CV profit on the basis of any other 
"reasonable method", within the meaning of that provision. The requirements of due 
process and orderly procedure dictate that claims must be stated explicitly and clearly in 
WTO dispute settlement. This is the only way that the panel, other parties, and 
third parties will understand that a specific claim has been made, be aware of its 
dimensions, and have an adequate opportunity to address and respond to it.112  
b. Korea's panel request does expressly state  claims on the violation of the profit cap 
requirement in Article 2.2.2(iii) and the "reasonable amount for profit" requirement in 
Article 2.2, but does not refer to the "reasonable method" obligation in Article 2.2.2(iii). 
We consider  that, as previous panels have found , the requirement that the CV profit be 
determined on the basis of a "reasonable method" is a separate and distinct obligati on in 
                                                
110 Appellate Body Report, US – Carbon Steel , para. 127.  
111 Emphasis original.  
112 Appellate Body Reports, Chile – Price Band System , para. 164; and India – Patents  (US), para. 94.  WT/DS488/ R 
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  Article  2.2.2(iii).113 We are of the view that a claim alleging violation of that independent 
obligation should therefore have been separate ly set out in Korea's panel request.114  
7.85.   Korea maintains  that the panel request contains the claim at issue, and m akes two main 
arguments in this regard. First, Korea contends that paragraphs II.3 and II.4 of its panel request, 
read together with the chapeau  of paragraph II, set out that claim consistent with the 
requirements of Article 6.2 of the DSU. Korea asserts t hat paragraphs  II.3 and II.4 identify 
Article  2.2.2(iii) as the relevant provision against which it alleges a violation. In particular, it 
contends that paragraph II.4 explains that the USDOC's manner of determining profit is 
inconsistent with Article 2.2. 2(iii), while the chapeau  of paragraph II further indicates that the 
profit so determined is inconsistent with Article 2.2.2(iii) because it was based on information in 
the Tenaris financial statements.115 Korea cites findings by the Appellate Body and prior  panels, in 
support of its argument that a panel request must be construed "as a whole" and not in 
isolation.116 It notes, in particular, that the panel in Mexico – Anti-Dumping Measures on Rice  
found that the "accompanying narrative" and the provisions of t he Anti -Dumping Agreement 
identified in the panel request made it clear what the claim being raised was.117  
7.86.   We disagree with Korea that the claim at issue can be inferred from its panel request, even 
when read as a whole. We do not agree  that it can be infe rred from paragraphs II.3 and II.4 of 
Korea's panel request read together with the chapeau  of paragraph II that it is the "reasonable 
method" obligation under Article 2.2.2(iii) that has allegedly been violated.  
7.87.   Korea argues  that paragraph II.3 of its pan el request , read together with the chapeau of 
section II , sets forth  a claim that the USDOC's calculation of CV profit, based on the Tenaris 
financial statements, was inconsistent with Articles  2.2.2(i) and (iii) because the USDOC  
interpreted and applied a n impermissibly narrow definition of the same general category of 
products . Korea also argues that paragraph II.4 , read together with the chapeau  of Section  II, sets 
forth a claim that the  USDOC's calculation of CV profit, based on the Tenaris financial st atements, 
was inconsistent with Article 2.2.2(iii) because the USDOC did not examine whether the profit rate 
it had calculated exceeded "the profit normally realized by other exporters or producers on sales of 
products of the same general category in the d omestic market of the country of origin" . 
7.88.   The legal basis for the alleged inconsistency of the USDOC's CV profit determination with 
Article 2.2.2(iii) , set out in the panel request,  is two -fold. In  paragraph II.3, Korea identifies the 
USDOC's narrow interp retation and application of the definition of the "same general category of 
products ", and in paragraph II.4, it  identifies  the USDOC's failure to examine whether the profit 
calculated exceeded the profit cap. Nowhere in its panel request does Korea identi fy the legal basis 
for an alleged inconsistency with Article 2.2.2(iii) as the USDOC's failure to determine the CV profit 
on the basis of a "reasonable method" within the meaning of that provision. As noted above118, the 
obligation that the CV profit be dete rmined using a "reasonable method" is a separate obligation 
under Article 2.2.2(iii) . Thus, if an inconsistency with that obligation  is alleged , it must be clearly , 
if not  expressly , set out in the panel request .119 As Korea failed to clearly or expressly se t out the 
alleged violation in its panel request, we con clude  that Korea's panel request does not set out a 
claim alleging that the USDOC acted inconsistently with the "reasonable method" obligation in 
Article 2.2.2(iii).  
                                                
113 Panel Reports, EU – Footwear (China) , para. 6.52; and Thailand – H-Beams , para. 7.125.  
114 This consideration is consisten t with the Appellate Body's findings that a mere identification of the 
legal provision in the panel request where that provision sets out multiple obligations, is not sufficient to meet 
the standard of Article 6.2 and in such a case a panel request might n eed to specify which of the obligations 
contained in the provision is being challenged.  (Appellate Body Reports, China – Raw Materials , para. 220; and 
Korea – Dairy , para. 124).  
115 Korea's response to Panel question No. 53, paras. 41 and 42.  
116 Korea's respo nse to Panel question No. 53, para. 43 (referring to Appellate Body Report, EC – 
Selected Customs Matters , para. 168; and  Panel Report, Mexico – Anti-Dumping Measures on Rice , 
para. 7.31).  
117 Korea's response to Panel question No. 53, para. 43 (referring to  Panel Report, Mexico – 
Anti-Dumping Measures on Rice , para. 7.31).  
118 See para. 7.84b  above.  
119 We recall in this regard that paragraph II.5 of the panel request, which is the only appearance of the 
word "reasona ble" refers to whether the calculated profit rate was, itself, reasonable, and not to whether the 
method by which that profit rate was calculated was reasonable.  WT/DS488/ R 
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  7.89.   Second, Korea argues that its claim under the "reasonabl e method" obligation of 
Article  2.2.2(iii) is covered by the claim under Article  2.2 set out  in paragraph II.5 of its panel 
request .120 In paragraph II.5, Korea contends that the USDOC's determination of CV profit was 
inconsistent with Article 2.2 because the USDOC did not take any steps to ensure that the 
CV profit it determined was "reasonable". We understand Korea to argu e that this claim under 
Article  2.2 covers its asserted claim under the "reasonable method" obligation of Article 2 .2.2(iii), 
because use of a "reasonable method" is one of the "steps" under Article 2.2.2 to ensure the 
reasonableness of the CV profit determined for purposes of Article 2.2.121 
7.90.   We are not persuaded that Korea's claim under Article 2.2 can be understood to cover a 
claim alleging inconsistency with the "reasonable method" obligation of Article  2.2.2(iii). In our 
view,  a failure to comply with the "reasonable method" obligation is not the only error that could 
lead to the determination of an amount of profit t hat is not "reasonable" under Article 2.2. F or 
instance, f ailure to act consistently with  the chapeau  of Article 2.2.2, Articles 2.2.2(i) and 2.2.2(ii), 
as well as with the profit cap obligation in Article 2.2.2(iii), could equally have led to the same 
result. Thus, a  claim under Article 2.2 does not imply a claim under the "reasonable method" 
obligation of Article 2.2.2(iii) , and nothing in Korea's panel request  gives rise to such an 
implication . Korea's panel request does not state, in connection with the  claim under Article 2.2, 
that the CV profit determined by the USDOC was not "reasonable" because the method used by 
the USDOC to determine that profit did not constitute a "reasonable method".122 Indeed, it does 
not mention the method by which that profit w as determined at all.  
7.91.    Korea's panel request also does not suggest that the claim under Article 2.2 covered claims 
pertaining to inappropriate application of all methods for CV profit determination set out under 
Article 2.2.2, such that a claim pertaining to the "reasonable method" under Article  2.2.2(iii) was 
necessarily c overed as one among those methods. Indeed, the fact t hat Korea's  panel request  
enumerated claims pertaining to the inappropriate application of certain methods for CV profit 
determination  under Article 2.2.2 , separately from its claim under Article 2.2, but omitted any 
reference to the "reasonable method" obligation of Article 2.2.2(iii) , supports our view that its 
claim under Article 2.2 does not cover claims pertaining to inappropriate a pplication of all methods 
for CV profit determination set out under Article 2.2.2  and, in particular, does not cover a claim 
pertaining to the "reasonable method" obligation of Article 2.2.2(iii).123 
7.92.   We therefore conclude that the reference to "reasonable am ount of profit" in Article 2.2 
does not suffice to persuade us that a claim challenging the reasonableness of the amount of profit 
determined covers a purported claim concerning the reasonable method  requirement in 
Article  2.2.2(iii). We find that this cla im is simply not specified in Korea's panel request , and 
therefore, Korea's allegation of inconsistency with the  "reasonable method " obligation under 
Article  2.2.2(iii)  is not properly before us .  
7.93.   Korea further argues that the United States has not demonst rated any prejudice arising 
from Korea's panel request and would likely not have objected to the claim at issue had the Panel 
not raised a question in this regard during the second substantive meeting.124  
7.94.   We recall  that we have an obligation to decide on is sues concerning our jurisdiction, even if 
the parties to the dispute remain silent on those issues and if necessary, on our own motion, in 
order to satisfy ourselves that we have authority to proceed.125 We c onsider that even if the 
                                                
120 Korea's response to Panel question No. 53, paras. 50 -53. 
121 Korea's response to Panel questio n No. 53, para. 52 (referring to Panel Report, EC – Bed Linen , 
para. 6.96).  
122 Indeed, in its written submissions, Korea argues that it was the USDOC's failure to comply with the 
profit cap obligation in Article 2.2.2(iii) that led to the determination of a  CV profit which was not "reasonable" 
under Article 2.2. (Korea's first written submission, paras. 119 and 277(b)(iii)).  
123 In particular, in paragraphs II.I and II.2, Korea makes claims pertaining to inappropriate application 
of the method provided for in the chapeau  of Article 2.2.2. In paragraph II.3, it brings a claim under 
Article s 2.2.2(i) and 2.2.2(iii) regarding the erroneous interpretation and application of the term "same general 
category of products", and in paragraph II.4, it raises a claim regar ding failure to comply with the profit cap 
obligation in Article 2.2.2(iii). Korea does not bring any separate and distinct claim under the "reasonable 
method" obligation of Article 2.2.2(iii).  Korea has also not brought any claim under Article 2.2.2(ii).  
124 Korea's response to Panel question No. 53, paras. 54 -56. 
125 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36.  WT/DS488/ R 
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  United  States had not obj ected to Korea's claim , it would still have been appropriate for us to 
determine whether we had jurisdiction  to address and  dispose of the claim at issue , regardless of 
whether or not there was any evidence of prejudice to the United States . We therefore r eject 
Korea's argument in this regard.  
7.95.   Considering that the "reasonable method" obligation in Article 2.2.2(iii) is a separate and 
distinct obligation in that provision and that Korea has failed to properly  allege a violation of that 
obligation in its pan el request, we find that Korea's panel request does not include a claim that the 
USDOC acted inconsistently with that obligation. We therefore, reject as falling outside our 
jurisdiction, Korea's claim that the USDOC's use of profit data from the Tenaris f inancial 
statement s in constructing normal value is not a "reasonable method" within the meaning of 
Article  2.2.2(iii).  
7.3.2.4   Whether  the USDOC act ed inconsistently with Article  2.2.2(iii) and Article  2.2 by 
failing to calculate and apply a profit cap  
7.3.2.4.1   Main argum ents of the parties  
7.96.   Korea's  principal arguments are set out below:  
a. The USDOC's failure to calculate and apply a profit cap constitutes a per se  violation of 
Article  2.2.2(iii).126 That failure also contravenes Article  2.2 of the Anti -Dumping 
Agreement as tha t provision imposes an obligation to calculate a "reasonable amount for 
profits".127 
b. Assuming that unavailability of data constitutes a valid justification for failing to calculate 
and apply a profit cap, the USDOC's determination that it was unable to calcu late a profit 
cap would still be inconsistent with Article  2.2.2(iii) because it is premised on an 
impermissibly narrow definition of the "same general category of products".128 
7.97.   The United States  contends that:  
a. The data required for calculation of the profit  cap under Article 2.2.2(iii) was not 
available as there were no sales of products of the same general category in Korea.129  
b. Further, Article  2.2.2(iii) does not always require the calculation of a profit cap.130 
7.3.2.4.2   Main arguments of third parties  
7.98.   The European U nion submits that the application of a "profit cap" is a mandatory 
requirement whenever an investigating authority determines to use "any other reasonable 
method" under Article  2.2.2(iii). The presence of the profit cap in subparagraph (iii) and the 
absenc e of any cap in subparagraphs (i) and (ii) demonstrate that there is an additional element in 
subparagraph (iii) that needs to be satisfied.131 
7.99.   Turkey submits that an investigating authorit y is expected under Article  2.2.2 to determine 
the "reasonable amount " for profit as required under Article  2.2.132 
                                                
126 Korea's first written submission, paras. 110 and 114.  
127 Korea's first written submission, paras. 111 , 112, and 119 (ref erring to Panel Reports, EC – Bed 
Linen , para s. 6.96-6.98 and Thailand – H-Beams , para. 7.125).  
128 Korea's first written submission, para. 120.  
129 United States' first written submission, para. 88.  
130 United States' first written submission, para. 115 (referr ing to Panel Report, US – Upland Cotton , 
paras . 7.1377  and 7.1378).  
131 European Union's third -party submission, paras. 21  and 22 (referring to Panel Report, Thailand – 
H-Beams , para. 7.124).  
132 Turkey's third -party submission, para. 8.  WT/DS488/ R 
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  7.3.2.4.3   Evaluation by the Panel  
7.100.   In its final determination, the USDOC found that it could not calculate the profit cap called 
for in Article  2.2.2(iii) because it did not have domestic market profit data for other expor ters and 
producers of the same general category of products in Korea.133 The principal legal issue before us 
is whether the USDOC's failure to calculate and apply a profit cap is inconsistent with 
Article  2.2.2(iii) and Article 2.2 of the Anti -Dumping Agreem ent. 
7.101.   The text of Article 2.2.2(iii) makes it clear that the determination of the profit cap is 
mandatory. When the CV profit cannot be determined using the preferred method set out in the 
chapeau  of Article 2.2.2, subparagraph (iii) allows the use of "any other reasonable method" for 
determining the amount of profit, provided that the amount determined does not exceed the profit 
cap, which is "the profit normally realized by other exporters or produc ers on sales of products of 
the same general category in t he domestic market of the country of origin".  
7.102.   The mandatory nature of the obligation to determine and apply a profit cap flows from the 
use of the imperative "shall not" in Article 2.2.2(iii). In addition, previous panels have found that 
both conditions, " any other reasonable method" and the profit cap, must be fulfilled in order for 
the determination of an amount for profit to be consistent with Article  2.2.2(iii).134 
7.103.   The United States contends that the USDOC examined whether there were producers who 
sold pr oducts of the same general category in the domestic market whose data might have been 
used to calculate the profit cap.135 However, no such data existed in the record, and it was 
therefore unable to calculate the profit cap.136 
7.104.   We understand the situation that  the United States presents as one in which the USDOC 
attempted to calculate the profit cap but was unable to do so because it lacked data pertaining to 
sales of products of the same general category in the domestic market. We recall, however, that 
we have  concluded137 in this dispute that the USDOC wrongly defined the "same general category 
of products" more narrowly than the like product  in the underlying investigation . Based on that 
same conclusion, we consider that the USDOC's finding that it did not have  profit data pertaining 
to sales of the same general category of products was similarly erroneous. This was because the 
USDOC's conclusion that it lac ked data was premised on an erroneous definition of the same 
general category of products . Therefore, even  assuming that a lack of data might otherwise justify 
failure to calculate and apply a profit cap, the USDOC's failure to do so in the underlying 
investigation is not justified.  We therefore find that by failing to calculate and apply a profit cap , 
which  is mandatory under Article 2.2.2(iii), in the underlying investigation, the USDOC acted 
inconsistently with its obligations under that provision.  
7.105.   Korea also argues that the USDOC's failure to calculate a profit cap is inconsistent with 
Article  2.2 of the An ti-Dumping Agreement, which imposes an obligation to calculate a "reasonable 
amount " for profits.138 
7.106.   The text of Article 2.2.2 indicates that the preferred and alternative methods set out in its 
chapeau  and subparagraphs (i) -(iii), respectively, are used for  purposes of determining "a 
reasonable amount " for SG&A and for profits within the meaning of Article 2.2 of the Anti -Dumping 
Agreement. This is clear from the use of the phrase " [f]or the purpose of paragraph 2" in the 
chapeau  of Article 2.2.2. Previous p anels have found that the methods set out in Article  2.2.2, 
including the use of "any other reasonable method" subject to a profit cap under subparagraph (iii) 
                                                
133 Final Decision Memor andum, (Exhibit KOR -21), p. 21.  
134 Panel Report s, EU – Footwear (China) , paras. 6.52, 6.55, and 7. 300; Thailand – H-Beams , 
para. 7.125; and EC – Bed Linen , paras. 6.97 and 6.98. 
135 United States' first written submission, para. 120.  
136 United States' first wr itten submission, para. 88.  
137 In para. 7.75 above . 
138 Korea's first written submission, paras. 111 , 112, and 119 (referring to Panel Reports, EC – Bed 
Linen , para s. 6.96-6.98 and Thailand – H-Beams , para. 7.125).  WT/DS488/ R 
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  of that provision, are outlined for purposes of fulfilling this obligation under Article  2.2.139 We 
agree with that conclusion.  
7.107.   In light of th e foregoing, we conclude that if the methods under Article 2.2.2 are not 
properly applied, the resulting profit amount would no longer be reasonable under Article 2.2. We 
therefore find that in the absence of a p rofit cap, the profit that the USDOC determined was not a 
"reasonable amount" within the meaning of Article 2.2 of the Anti -Dumping Agreement.  
7.108.   We find that the United States acted inconsistently with its obligations under 
Article  2.2.2(iii) because:  
a. It failed to calculate and apply a profit cap , which is mandatory under that provision.  
b. The USDOC's determination that no profit data pertaining to the same general category 
of products was available cannot justify its failure to calculate and apply the profit c ap, 
as it erroneously  define d the same general category  of products .  
7.109.   We also conclude that the USDOC's failure to calculate a profit cap led it to act 
inconsistently with its obligation under Article  2.2 of the Anti -Dumping Agreement to use a 
"reasonable amount for profits" in the construction of normal value  for the Korean respondents in 
the underlying investigation . 
7.3.2.5   Whether the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping 
Agreement by failing to make due allowance for differences in th e profit rates reflected 
in the constructed normal value and the export price  
7.110.   Korea contends  that because the USDOC used the profit rate of Tenaris in constructing the 
normal value of the Korean respondents, their constructed normal value reflected the Tenaris 
profit rate , while their export price reflected their own profit rate. In Korea's view, this difference 
in the constructed normal value and the export price of the Korean respondents affected price 
comparability, and the USDOC should have made due all owance , by making appropriate 
adjustments. Korea asserts that by failing to do, the USDOC acted inconsistently with Article 2.4 of 
the Anti -Dumping Agreement.  
7.3.2.5.1   Main arguments of the parties  
7.111.   Korea  argues that the profit rate of Tenaris was not compa rable to that of the two 
Korean  respondents because: first, Tenaris focused on the premium segment of the OCTG market, 
whereas the Korean respondents participated in the low -grade end of the market; second, 
Tenaris' s scale of operations was far bigger than that of the Korean respondents; and third, 
Tenaris and the two Korean respondents operated at different levels of trade. Therefore, in Korea's 
view, the USDOC should have attempted to make adjustments to the 26.11% profit rate of 
Tenaris, which was used in the con structed normal value  determined for the Korean 
respondents .140  
7.112.   Korea acknowledges that the Korean respondents did not make a specific request to  the 
USDOC seeking adjustments to the normal value or export price based on this difference in profit 
rates.141 However, Korea notes that because the USDOC did not make an affirmative 
determination that it would use the Tenaris profit rate until it issued its final determination, the 
Korean respondents did not know that the USDOC would use this profit rate.142 Thus, the y could 
not request such an adjustment.  
7.113.   The United States  contends that the profit component of a constructed normal value is not 
a difference that affects price comparability, and hence is not relevant to the fair comparison 
obligation under Article  2.4.143 The United States also disputes the three grounds advanced by 
                                                
139 Panel Reports , EC – Bed Linen , para. 6.96; and Thailand – H-Beams , para. 7.121.  
140 Korea's first written submission, para. 153.  
141 Korea's response to Panel question No. 20, para. 71.  
142 Korea's response to Panel question No. 20, para. 72.  
143 United States' first written s ubmission, para. 141.  WT/DS488/ R 
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  Korea as to why the profit rate of Tenaris was not comparable to that of the Korean 
respondents.144 Finally, the United States submits that the respondents in the underlying 
investigation never r equested the USDOC to make any adjustments between the constructed 
normal value and the export price, and notes that an investigating authority does not have an 
obligation to accept unsubstantiated requests for adjustments between the normal value and the 
export price.145 
7.3.2.5.2   Evaluation by the Panel  
7.114.   Korea asserts that there was a "massive disparity" in the profit rate recorded by Tenaris 
and that recorded by the Korean respondents, with the Tenaris profit rate being much higher than 
that of these respondents.146 Korea alleges that this disparity was attributable to the inherent 
differences between Tenaris and these respondents, which are noted in paragraph 7.111  above.147 
Thus, in Korea's view, having decided to use the Tenaris profit rate in constructing the normal 
value, the USDOC should have made due allowance for this difference between the constructed 
normal value, which reflected Tenaris's high profit rate, and the export price, which reflected the 
Korean respondents' own, lower  profit rates. In particular, Korea argues that the USDOC should 
have attempted to adjust the 26.11% profit rate of Tenaris used in the constructed normal 
value.148 
7.115.   In this regard, we have already found that the USDOC acted inconsistently with:  
a. the chapeau  of Article 2.2.2 of the Anti -Dumping Agreement by failing to determine the 
Korean respondents' profit rate on the basis of their actual data pertaining to production 
and sales of the like product in the ordinary course of trade;  
b. Article 2.2.2(i) and (iii) of the Anti -Dumping Agreement by incorrectly defining the 
"same general category of products"; and  
c. Article 2.2.2(iii) of the Anti -Dumping Agreement by failing to calculate a profit cap.  
7.116.   It follows, from these findings, that the USDOC did not dete rmine the profit rate of the 
Korean respondents in a manner consistent with its obligations under the Anti -Dumping 
Agreement  in constructing normal value . We do not find it necessary to decide whether the USDOC 
should have made adjustments to a CV profit r ate that was itself determined in a manner 
inconsistent with US obligations under the Anti -Dumping Agreement. Hence, we exercise judicial 
economy with respect to  Korea's Article 2.4 claim.149 
7.3.2.6   Conclusion s 
7.117.   For the foregoing reasons , we find that the USDOC acte d inconsistently with the chapeau  
and subparagraphs (i) and (iii) of Article 2.2.2 and with Article 2.2 of the Anti -Dumping Agreement  
in constructing normal value in the underlying investigation . We exercise judicial economy with 
respect to  Korea's claim u nder Article 2.4 of the Anti -Dumping Agreement.  
7.3.3   The USDOC's profit rate determination in the remand investigation  
7.118.   Korea expressed its intent to challenge the USDOC's remand determination at the first 
substantive meeting and particularly in its closing stat ement at that meeting, but it did not identify  
the claims that it intended to make  with respect to th e remand  determination.150 Korea identified 
                                                
144 United States' first written submission, paras. 142 -145; and response to Panel question No. 22, 
para. 66. 
145 United States' first written submission, para. 147.  
146 Korea's first written submission, para. 154.  
147 Korea's first written s ubmission, paras. 146 -152 and 154.  
148 Korea's first written submission, para. 153.  
149 It is well settled in WTO jurisprudence that a panel is not required to address each and every claim. 
Instead, a panel is only required to address those claims that are nec essary t o resolve a dispute. 
(Appellate  Body Report, Argentina – Import Measures , para. 5.190) . 
150 Korea's closing statement at the first meeting of the Panel, para. 10.  WT/DS488/ R 
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  some of these claims in its second written submission and the others in its opening statement at 
the second subst antive meeting.  
7.119.   In its second written submission, Korea claimed that the USDOC's profit rate determination 
in the remand investigation (new profit rate determination) was inconsistent with:  
a. the chapeau  of Article 2.2.2 of the Anti -Dumping Agreement becaus e the USDOC refused 
to use actual data pertaining to the sales of the like product in the ordinary course of 
trade;  
b. Article s 2.2.2(i) and (iii) of the Anti -Dumping Agreement because the USDOC relied on 
an impermissibly narrow definition of the "same genera l category of products"; and  
c. Article 2.2.2(iii) of the Anti -Dumping Agreement because the USDOC calculated a profit 
cap based on the average of the profit rates in the 2012 financial statement of Tenaris 
and the profit rates of a Russian producer/exporter of OCTG, namely, OAO TMK.  
7.120.   In its opening statement at the second substantive meeting, Korea claimed that the 
USDOC's new profit rate determination was also inconsistent with Article 2.2.2(iii) of the 
Anti-Dumping Agreement because the USDOC did not determi ne the CV profit rate on the basis of 
a reasonable method, as required by this provision.151 In addition, Korea claimed that the USDOC 
acted inconsistently with Article 2.4 of the Anti -Dumping Agreement in the remand investigation 
by failing to make adjustme nts to this CV profit rate.152 As indicated  above, we will address these 
claims only if we find the remand determination , and Korea's claims with respect to it , to be within 
our terms of reference. We therefore turn first to the parties' arguments on this fu ndamental 
question of our jurisdiction.  
7.3.3.1   Main arguments of the parties  with respect to the Panel's jurisdiction  
7.121.   Korea  notes that measures enacted subsequent to panel establishment may, in certain 
circumstances, fall within a panel's terms of reference, and states that considering the close nexus 
between this remand determination and the final determination expressly identified in its panel 
request , the USDOC's remand determination, which was issued after this P anel was establish ed, is 
within our terms of ref erence.153 Further, Korea asserts that the remand determination is covered 
by its panel request because that request challenges "[a]ny related measure" in the proceeding 
entitled Oil Country Tubular Goods from the Republic of Korea, including the anti -dumpin g 
investigation itself as well as " all administrative reviews, new shipper reviews, changed 
circumstances reviews, sunset reviews, and other segments of the proceeding". These references, 
in Korea's view, are broad enough to cover the remand determination.  
7.122.   The United States  submits that we cannot rule on the remand determination because it 
was not in existence at the time this P anel was establish ed, and was not subject to consultations 
between the parties.154 In addition, the United States asserts that Korea' s claims with respect to 
the remand determination are wholly new claims, considering the differences in the methodologies 
used by the USDOC to determine the CV profit rate in the final determination  and in the remand 
determination .155  
                                                
151 Korea's opening stat ement at the second meeting of the Panel, para.  81. In its respon se to our 
questions following the second substantive meeting, Korea clarified that it was making this claim, and cited to 
its second written submission and its opening statement at the second substantive meeting to assert that it 
had already presented this  claim in these prior submissions. (Korea's response to Panel question No. 40, 
para. 13). We do not find any reference to this claim in Korea's second written submission but do find such a 
reference in its opening statement at the second substantive meetin g. 
152 Korea's opening stat ement at the second meeting of the Panel, para.  89. 
153 Korea's response to Panel question No. 39, para. 1.  
154 United States' response to Panel question No. 40, para. 4.  
155 United States' response to Panel question No. 40, para. 5.  WT/DS488/ R 
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  7.3.3.2   Evaluation by the Pane l 
7.123.   In accordance with Article 7.1 of the DSU, and as set out in paragraph 1.4 above, our 
terms of reference require us to examine the "matter referred to the DSB" by Korea in its panel 
request. Article 6.2 of the DSU, which sets  out the requirements applicable to panel requests, 
states that such a request shall:  
[I]ndicate whether consultations were held, identify the specific measures at issue and 
provide a brief summary of the legal basis of the complaint sufficient to present  the 
problem clearly.  
Thus, Article 6.2 imposes two distinct requirements : first , to identify the specific measures at 
issue, and second, to provide a brief summary of the legal basis of the complaint, or the claims.156 
It is well -established that these two elements, the measure(s) and the claim(s)  together, comprise 
the "matter referred to the DSB".157 Therefore, if we conclude  either that the USDOC's remand 
determination falls outside the scope of the specific measures identified in Korea's panel request , 
or that Korea's claims with respect to the remand  determination differ from the legal basis of the 
complaint set out in that request, we will find that Korea's claims regarding this determination fall 
outside the "matter referred to the DSB" and thus, outside  our terms of reference. In addressing 
these issues, we are mindful that fulfilment of the two requirements set out in Article 6.2 is not a 
mere formality.158 Instead, the se requirements serve a two -fold purpose of forming the basis of a 
panel's terms of ref erence and of ensuring due process by informing the respondent and third 
parties of the matter brought before a panel.159 
 
7.124.   We commence our analysis by considering  whether the remand determination is covered 
as a specific measure at issue in Korea's panel req uest. If we find that it is not, then we will have 
no jurisdiction to examine the USDOC's remand determination , and it will be unnecessary to 
examine whether we also lack jurisdiction because Korea's claims with respect to this 
determination differ from th e legal basis of the complaint that it set out in its panel request.160  
7.125.   In deciding whether the remand determination is covered as a specific measure at issue by 
Korea's panel request we have to resolve  two issues. First, whether th e remand  determination ca n 
be challenged in these panel proceedings even though it did not exist at the time this Panel was 
established . Second, whether the following italicised text in Korea's panel request is broad enough 
to cover the remand determination as a specific measure a t issue even though the request makes 
no express reference to it161: 
Any related measure  in the proceeding entitled Oil Country Tubular Goods from the 
Republic of Korea,  including the anti -dumping investigation itself as well as all 
administrative reviews, n ew shipper reviews, changed circumstances reviews, sunset 
reviews, and other segments of the proceeding .162 
7.126.   We recall that the use of the term "specific measures at issue" in Article 6.2 of the DSU 
suggests that, as a general rule, the measures falling withi n a panel's terms of reference must be 
measures that were in existence at the time of panel establishment.163 However, there are 
                                                
156 See, e.g. Appellate Body Reports, Argentina – Import Measures , para. 5.39; and US – Carbon Steel , 
para. 125.  
157 See, e.g . Appellate Body Reports, Guatemala – Cement  I, paras. 69 -76; US – Carbon Steel , 
para. 125; US – Continued Zeroing , para. 160; and EC and certain member States – Large Civil Aircraft , 
para. 639. 
158 Appellate Body Report, Australia – Apples , para. 416 . 
159 Appellate Body Report s, Australia – Apples , para. 416; and US – Carbon Steel , para. 126.  
160 In addition, the United States contends that consi dering that the remand determination was not 
subject to any consultations between the parties, it falls outside our jurisdiction. It will be  unnecessary to 
examine whether the remand determination falls outside our terms of reference for this reason if we are to 
conclude that the remand determination is not covered as a specific measure at issue in Korea's panel request.  
161 See, e.g. Appellate Body Report, Chile – Price Band System , para. 144. 
162 Underlining original; italics added.  
163 Appellate Body Report, EC – Chicken Cuts , para. 156.  WT/DS488/ R 
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  exceptions to this general rule.164 In particular, the Appellate Body recognized in EC – Chicken 
Cuts, that in certain limited circ umstances, measures that were not in existence at panel 
establishment may be found to fall within a panel's terms of reference.165 One such circumstance 
is when a measure that comes into existence after panel establishment amends the original 
measure, but do es not change its essence.166 In that case, the amended measure will fall within 
the panel's terms of reference , provided the panel request is broad enough to cover that 
determination.  
7.127.   Korea argues that the remand determination is within our terms of referen ce because it 
supplemented and reaffirmed the final determination of the USDOC and did not change its 
essence.167 Korea considers the situation here to be analogous to that in US – Washing Machines , 
where the panel found a remand determination  issued after p anel establishment  to be within its 
terms of reference  because it  supplemented and reaffirmed the original determination .168 
7.128.   We will examine the relation between the remand determination and the final 
determination to determine  whether the remand determinati on changes the essence of the  final 
determination .169 If we find that it does, we will conclude that the remand determination falls 
outside our terms of reference.  
7.129.   We recall that in the final determination the USDOC determined CV profit of 26.11% based 
on the Tenaris financial statements. Further, the USDOC concluded that it could not calculate a 
profit cap, consistent with Article 2.2.2(iii) of the Anti -Dumping Agreement, because the Korean 
exporters or producers made no sales of products of the same general  category in the domestic 
market. The USCIT, in its remand order, directed the USDOC  to reconsider certain aspects of the 
CV profit rate calculation  used in the dumping margin analysis in the final determination.170  
                                                
164 Appellate Body Reports, EC – Selected Customs Matters , para. 184; and US – Zeroing (Japan) 
(Article  21.5 – Japan ), para. 125. These reports of the Appellate Body discuss the type of exceptions that may 
apply to this general r ule. 
165 Appellate Body Report, EC – Chicken Cuts , para. 156.  
166 Appellate Body Report, EC – Chicken Cuts , para. 156 (referring to Appellate Body Report, Chile – 
Price Band System , paras. 126 -144). Following this Appellate Body report, a number of WTO panels have 
sought to examine whether a measure not in existence during panel establishment is within its terms of 
reference by examining whether such a measure changes the essence of the measure that was expressly 
identified in the panel request. (See, e.g. Pane l Reports, EC – IT Products , paras. 7.139 and 7.142; and 
China  – Raw Materials , para. 7.15).  
167 Korea's response to Panel question No. 39, para. 1; and comments on United States' response to 
Panel question No. 39, para. 8.  Korea does not argue that we shoul d find the remand determination to be 
within our terms of reference even if it changes the essence of the final determination.  
168 Korea's response to Panel question No. 39, para. 1  (citing Panel Report, US – Washing Machines , 
para. 7.249) . 
169 In this regard,  we note that in its report in US – Zeroing (Japan) (Article  21.5 – Japan ), the 
Appellate  Body found a measure not in existence at the time of panel establishment to be within the panel's 
terms of reference without specifically examining whether that measu re changed the essence of the original 
measure. However, that case, unlike the one before us, concerned a compliance proceeding under Article 21.5 
of the DSU. The Appellate Body's finding in that case was informed by its view that in a compliance proceedin g, 
Article 6.2 of the DSU must be read in light of the specific function of Article 21.5 proceedings and that the 
"specific measures at issue" to be identified in such proceedings are measures that have a bearing on 
compliance with the recommendations and rulings of the DSB. (Appellate Body Report, US – Zeroing (Japan) 
(Article  21.5 – Japan ), para. 122). As this is not an Article 21.5 proceeding, the question of compliance with 
DSB recommendations and rulings does not arise. Hence, we consider that whether the remand determination 
changed the essence of the final determination is the principal question to be resolved in determining whether 
it is within our terms of reference. Korea does not argue otherwise.  
170 USDOC 's Remand Determination, (Exhibit KOR -69), p . 1. The USCIT instructed the USDOC to: (a)  
either remove the financial statements of Tenaris  from the record and not use them in the CV profit calculation, 
or, alternatively, rectify the alleged prejudice from acceptance of such statements; (b) either exc lude from 
consideration or, alternatively, explain the relevance of market conditions and testing and certification 
requirements to the determination of which products are in the same general category of merchandise as oil 
country tubular goods; and (c) either calculate and apply a profit cap or, alternatively, explain why the data on 
the record could not  be used to calculate a "facts available" profit cap under 19 U.S.C. 1677b(e)(2)(B)(iii).  
While the USCIT also directed the USDOC to reconsider the issue o f whether the two selected 
mandatory respondents, were representative of the Korean industry, this aspect of the remand determination 
is not challenged by Korea in these proceedings.  WT/DS488/ R 
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  7.130.   The USDOC initiated a remand investigatio n pursuant to that order, where it re-opened the 
record to allow all interested parties to submit new factual information and comments on the issue 
of CV profit, and interested parties did submit such information and comments.171 In its evaluation 
of the evi dence, the  USDOC172: 
a. using a different  methodology , determin ed a CV profit rate  of 16.24% based on  an 
average of profit rates in the 2012 financial statements of Tenaris and a Russian 
company OAO TMK ; 
b. unlike the final determination, the USDOC calculate d a profit cap  on the basis of "facts 
available ", taking into account the profits earned by Tenaris and OAO TMK in the global 
market  and calculating the profit cap as the average of those profit rates ; and  
c. provided further  explanation regarding the factors that the USDOC considered in 
reaching its determination regarding the scope of the products that were in the same 
general category of products as OCTG.  
7.131.   Based on the above, it is clear that:  
a. the factual evidence on the USDOC's record in the remand investigation insofar as the 
issue of CV profit rate is concerned is not the same as that in the underlying 
investigation , as it includes  additional evidence and comments provided by interested 
parties173; 
b. the USDOC's evaluation of that evidence in the remand investigatio n, and in particular, 
the methodology used to determine the CV profit rate and the calculation of a profit cap , 
differed from the underlying investigation174; and  
c. the USDOC's explanation regarding the  factors that it considered in reaching its 
determination regarding  the scope of the same general category of products is not the 
same as in the underlying investigation  as it provides  additional explanation beyond that 
in the underlying investigation.175 
7.132.   These changes in the evidentiary record and in the USDOC's e valuation of that record and 
consequent determinations in our view show that the remand determination  changed the essence 
of the USDOC's final determination . We do not consider that the remand determination can be said 
to retain the essence of the final de termination simply because the USDOC reached the same 
ultimate conclusions , albeit at different rates,  as to the existence of dumping as it did in the final 
determination.176 We recall that a determination of the existence of dumping requires a calculation 
which must be based on the evidence before the investigating authority, and carried out 
consistently with the requirements of the A nti-Dumping  Agreement. Where, as here, the 
underlying facts and the methodology used in the determination of normal value are different, 
resulting in different margins of dumping , we do not agree that the essence of the original 
determination is unchanged.  
7.133.   Therefore, we do not consider that the references  in Korea's panel request , including that 
to "[a]ny related measure" or "ot her segments of the proceeding" permit  it to challenge the 
USDOC's remand determination , because that determination changes the essence of the final 
determination expressly identified in Korea's panel request. Hence, we consider it unnecessary to 
                                                
171 USDOC 's Remand Determination, (Exhibit KOR -69), p. 2; and USDOC, Remand  Notice, 
18 September  2015, (Exhibit KOR -53), p. 1.  
172 USDOC 's Remand Determination , (Exhibit KOR -69), pp. 3, 11 -14, and 61.  
173 USDOC 's Remand Determination , (Exhibit KOR -69), p. 9. 
174 USDOC 's Remand Determination, (Exhibit KOR -69), p p. 14-24; Final Decision Memorandum, 
(Exhibit KOR-21), p p. 19-23 
175 USDOC 's Remand Determination, (Exhibit KOR -69), p p. 11-14; Final Decision Memorandum, 
(Exhibit  KOR-21), p p. 16-19. 
176 We find support for this view in the Appellate Body report in EC – Chicken Cuts , where the 
Appell ate Body considered that a subsequent measure, not identified in the panel request, could not be said to 
be covered by the panel's terms of reference simply because it had the same effect as the original measure 
and brought about the same result. (Appellat e Body Report, EC – Chicken Cuts , para. 160).  WT/DS488/ R 
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  decide whether these phrases were broad yet sufficiently precise to cover the remand 
determination as a specific measure at issue.177 In sum, we conclude that the remand 
determination falls outside the specific measures at issue covered by Korea's panel request, and 
thus outside our terms of reference.  
7.134.   For the foregoing reasons , we conclude that we have no jurisdiction to examine Korea's 
claims with respect to the remand determination. Moreover , we do not find it necessary to decide  
whether we also lack jurisdiction t o address Korea's claims regarding this determination because : 
(a) Korea brings new claims that are different from the legal basis of the complaint that it set out 
in its panel request178; and (b) the remand determination was not subject to consultations 
between the parties.  
7.4  Whether the USDOC's decision to construct NEXTEEL's export price was inconsistent 
with Article 2.3 of the Anti-Dumping Agreement  
7.135.   Under US law, the USDOC is permitted to reject the transaction export price and instead 
construct the export price whe re the exporter or foreign producer's export sales are to an affiliated  
purchaser.179 In the underlying investigation, the USDOC concluded  that NEXTEEL was affiliated 
with the following three entities, which we refer to collectively, together  with N EXTEEL, as the 
"concerned entities ": 
a. POSCO, which supplied NEXTEEL with steel coils used in the production of OCTG180; 
b. [[***]] , a [[***]]  that purchased OCTG from NEXTEEL, and in which [[***]]  
(Company A)181; and 
c. [[***]] , the [[***]]  US affiliate of [[***]] , through which Company A  exported 
OCTG produced by NEXTEEL to US customers  (Company B182).183 
                                                
177 We note Korea's view that a ruling on the remand determination will contribute to the prompt 
settlement of this dispute, consistent with the objectives set out in Article 3.3 of the DSU. (Korea's response to  
Panel question No. 39, paras. 9 and 12 ). However, the goal of prompt settlement of disputes does not  take 
precedence over the clear definition of our jurisdiction in accordance with the DSU. In any event, we do not 
agree with Korea's view.  We have found c ertain aspects of the USDOC's final determination to be inconsistent 
with the United States obligations, and as a consequence, the United States may ultimately be recommended 
to bring its measures into conformity with its obligations.  The remand determinat ion may or may not be an 
element of any implementation of that recommendation.  In any event, Korea will have the opportunity to 
initiate appropriate action under Article 21.5 of the DSU if it considers that t he measures taken by the 
United  States to comply  with that recommendation are insufficient or themselv es inconsistent with the 
United  States'  obligations. Therefore, we do not consider that our decision to not examine the remand 
determination affects the prompt settlement of this dispute.  
178 In this rega rd, while we do not make a separate ruling  on whether Korea's claims  with respect to the 
remand determination differ from the legal basis of the complaint set out in its panel request, we do have 
some concerns about Korea's decision to not identify the cla ims that it was seeking to make with respect to the 
remand determination till a very late stage in the proceedings, despite having an opportunity to do so earlier. 
We recall that in its closing statement at the first substantive meeting, Korea asked us to rule on the remand 
determination, which had been issued by the USDOC by that time, as it considered it to be inconsistent with 
the United States' obligations under the Anti -Dumping Agreement. (Korea's closing statement at the 
first meeting of the Panel, pa ra. 10). However, as mentioned above, Korea waited till its opening statement at 
the second substantive meeting to present all of its claims. We consider that the due process objectives, 
intrinsic in Article 6.2 of the DSU, could be better served if Korea identified the claims that it was seeking to 
make with respect to the remand determination at the earliest possible opportunity, rather than wait till the 
second substantive meeting to identify all of its claims in this regard.  
179 Korea's first written subm ission, para. 6; and USDOC, Affiliation Memorandum for the Final 
Affirmative Determination in the less than fair value investigation of certain oil country tubular goods from the 
Republic of Korea, 10 July 2014 ( USDOC 's Affiliation Memorandum ), (Exhibit KO R-43) (BCI), p. 5.  
180 USDOC 's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
181 USDOC 's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 4.  
182 In order to ensure, to the extent feasible, that this Report is comprehensible to those without access 
to BCI, and to ensure consistency, we refer to [[***]]  as Company A and [[***]]  as Company B in this 
Report.  
183 USDOC 's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 4.  WT/DS488/ R 
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  7.136.   Both p arties agree that through this conclusion of affiliation under US law, the USDOC in 
effect sought to find  "association … between the exporter and the importer or a third party", within 
the meaning of Article 2.3 of the Anti -Dumping Agreement.184 Having found association between 
the concerned entities, the USDOC rejected the transaction export price of NEXTEEL to Company A  
and constructed  the export price  instead.185 
7.137.   Korea argues that in doing so, the USDOC acted inconsistently with Article 2.3 because , 
first, the USDOC's association determination was not one that an unbiased and objective 
investigating authority could have reached on the basis of the record evidence , and thus, the 
USDOC constructed the export price without making a proper determination of association 
between the concerned entities .186 Second, in Korea's view, even where association exists , an 
investigating authority is  in addition  required to determine whe ther the export price is actually 
unreliable because of such association, as the export price may be reliable even in such cases .187 
But the USDOC failed to make such a determination . 
7.4.1   Provision at issue  
7.138.   Article  2.3 of the Anti -Dumping Agreement reads:  
In cas es where there is no export price or where it appears to the authorities 
concerned that the export price is unreliable because of association or a compensatory 
arrangement between the exporter and the importer or a third party, the export price 
may be cons tructed on the basis of the price at which the imported products are first 
resold to an independent buyer, or if the products are not resold to an independent 
buyer, or not resold in the condition as imported, on such reasonable basis as the 
authorities ma y determine.  
7.4.2   Factual background  
7.139.   The USDOC addressed whether there was association between t he concerned entities 
through an examination  of affiliation under US law , which specifies that affiliation exists between 
"[a]ny person who controls any other person  and such other person".188 In turn, a person shall be 
considered to control another person "if the person is legally or operationally in a position to 
exercise restraint or direction over the other person".189 The USDOC first examined whether 
NEXTEEL was affi liated with POSCO  under US law , by examining whether POSCO was legally or 
operationally in a position to exercise restraint or direction, i.e. control over NEXTEEL.  
7.140.   The USDOC explained that in its analysis , it would first consider whether these two entitie s 
had a close supplier relationship, considering POSCO's status as a supplier of steel coils to 
NEXTEEL.190 The threshold issue in finding  whether there was such a close supplier relation was 
whether either the buyer, i.e. NEXTEEL o r the supplier, i.e. POSCO , was  reliant on the other.191 
Further, if such reliance existed, the USDOC would consider whether one of the parties was in a 
position to exercise direction or restraint over the other.192 However, the USDOC would not find 
affiliation on this basis unless the  relationship between the entities had the potential to affect 
decisions concerning the production, pricing or cost of the subject merchandise or foreign like 
                                                
184 Korea's response to Panel question No. 28, para. 88; and United Sta tes' response to P anel 
question  No. 28, para. 76.  
185 In this Report, we use the term "affiliation" when we describe the USDOC's own analysis of the 
record evidence, or what the USDOC did, in determining whether there was "affiliation" between the concerned 
entities, under US  law. We use the term "association" when describing the obligations under the Anti -Dumping 
Agreement, and in deciding whether the USDOC met these obligations.  
186 Korea's first written submission, paras. 160  and 161; response to Panel question No. 30(a), par a. 94.  
187 Korea's response to Panel question No. 30(a), para. 97.  
188 Customs duties, General Provisions, United States Code , Title 19, Section 167719 USC 1677 (33 ) G, 
(Exhibit KOR -55). See also United States' response to Panel question No. 28, para. 75.  
189 19 USC 1677 (33), (Exhibit KOR -55). See also United States' response to Panel question No. 28, 
para. 75.  
190 USDOC's Affiliation Memorandu m, (Exhibit KOR -43) (BCI), p. 2. See also 19 C.F.R. § 351.102(b)(3) , 
(Exhibit KOR -52), p. 211.  
191 USDOC's Affiliation Memor andum, (Exhibit KOR -43) (BCI), p. 2.  
192 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  product, i.e. OCTG.193 Having set out the criteria that it would apply in examining  whether 
NEXTEEL  and POSCO were affiliated, the USDOC  proceeded to evaluate the record evidence to 
determine whether these criteria were met , and concluded , for the reasons described in 
paragraphs 7.152 -7.153  below , that NEXTEEL and POSCO were affiliated with each other.  
7.141.   The USDOC then turned to examine whether NEXTEEL was affiliated with Company A  and 
Company B . The USDOC noted that Company A  was a  [[***]]  of POSCO.194 The USDOC also 
found that Company B  was [[***]]  by Company A .195 The USDOC did not separate ly examine  
whether Company A  and Company B  were in a position to exercise restraint or direction over 
NEXTEEL. Instead, having already concluded  that NEXTEEL was affiliated with POSCO, the USDOC 
concluded that NEXTE EL was also affiliated with these two entities in which [[***]] . Thus, the 
USDOC concluded  that there was association between the concerned entities.  
7.4.3   Main arguments of the parties  
7.142.   Korea  asserts that Article 2.3 of the Anti -Dumping Agreement requires an inv estigating 
authority to meet two cumulative requirements before it is permitted to construct the export price, 
both of which the USDOC failed to meet. First, the USDOC constructed the export price without 
making a proper association determination, contrary  to its obligations under Article  2.3. Second, 
the USDOC "mechanically conclu[ded]" that because of association  between the concerned 
entities, NEXTEEL's export price to Company A  was unreliable.196 That is, it did not affirmatively 
determine whether or not NEXTEEL's export price was actually unreliable, which Korea maintains is 
required under Article 2.3. In this regard, Korea states that NE XTEEL submitted evidence to 
the USDOC showing that its export price was reliable notwithstanding any association betwee n the 
concerned entities , but the USDOC ignored this evidence.197  
7.143.   The United States  rejects both arguments. First, the United States argues that the USDOC 
made a proper finding of association , based on the record evidence. Second, noting that Article 2.3 
of the Anti -Dumping Agreement provides that it should "appear[]" to the investigating authority 
that the export price is unreliable because of association, the United States asserts that this means 
that once an investigating authority properly finds associat ion, it may take the view that the 
export price is unreliable because of that association, without a separate determin ation that the 
export price is actually unreliable.198  
7.4.4   Main arguments of the third parties  
7.144.   The European Union  submits that association itse lf could be a sufficient basis under 
Article  2.3 to construct the export price, and that this provision does not impose an additional 
obligation to determine whether the export price is actually unreliable because of such 
association.199 However, if the evid ence on record shows that an export price is reliable despite 
association, an unbiased and objective investigati ng authority would be required to take that 
evidence into account.200 
7.4.5   Evaluation by the Panel  
7.145.   We will commence our analysis by considering the nat ure of  obligations imposed by 
Article  2.3 of the Anti -Dumping Agreement on an investigating authority. Then, we will examine 
whether that provision, as we understand it, was complied with by the USDOC in the underlying 
investigation.  
                                                
193 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  See also 19 C.F.R. § 351.102(b)(3) , 
(Exhibit KOR -52), p. 211.  
194 USDOC's Affiliation Memoran dum, (Exhibit KOR -43) (BCI), p. 4.  
195 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 4.  
196 Korea's second written submission, para. 242.  
197 Korea's second written submission, para. 244.  
198 United States' first written submission, para. 155.  
199 Europ ean Union's third -party submission, para. 41.  
200 European Union's third -party submission, para. 43.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.146.   Article 2.3 permits an  investigating authority to disregard the transaction export price and 
construct the export price where, inter alia , "it appears to the authorities concerned that the 
export price is unreliable because of association " between the expor ter and the importer or a 
third party.  In our view, it is clear that an investigating authority must have grounds for the view 
that there is association. If there is no association , the export price cannot appear to be unreliable 
to the investigating authority "because of" ass ociation.201 
7.147.   While it is clear that the appearance of unreliability must be because of association, the 
text of Article 2.3 does not require any "determination", let alone a determination  as to the 
reliability  of the export price . If such a determination  had been intended, in our view Article 2.3 
would have been drafted differently, to require, for example, that the investigating authority 
determine or demonstrate that the export price is unreliable because of association . Instead, it 
provides that export pri ce may be constructed where it "appear s to the authorities" that the export 
price is unreliable. The verb "appear" has different definitions but we find the definition "seem to 
the mind, be perceived as, be considered" to be the most appropriate in respect  of the text of 
Article 2.3.202 The adjective "unreliable" is defined as  "not reliable ".203 "Reliable" in turn is defined 
as "in which reliance or confidence may be put, trustworthy".204 Thus to us, the use of the terms 
"appear to the authorities" and "unreliabl e" in Article  2.3 denotes  a situation in which, because of 
the association at issue, the investigating authority perceives the export price not to be 
trustworthy.  Of course, a n investigating authority  must have grounds for this view: it is always 
obliged  to establish facts properly and evaluate them in an unbiased and objective manner. 
Nothing in our understanding  of Article 2.3 would suggest , however, a ny separate requirement to 
make a "determination " as to the reliability of the export price . 
7.148.   It is also c lear, in our view, that Article 2.3 does not allow  an investigating authority to 
construct  export price whenever  there is  association. If that were the case,  we would again have 
expected Article 2.3 to have been drafted differently, to require, for instanc e, that an investigating 
authority may construct the export price whe re there is association.205 An investigating authority 
could not  simply ignore  evidence before  it suggesting that the export price is reliable 
notwithstanding association and go on to const ruct the export price without considering such 
evidence.  As noted above, a n investigating authority has an obligation to establish facts properly 
and evaluate them in an unbiased and objective manner , which entails the consideration of 
relevant evidence on  the issues before it .206  
7.149.   Korea argues that, in the underlying investigation , the USDOC erred in finding association 
between the concerned entities, and ignored evidence presented by NEXTEEL showing that its 
export price to Company A  was reliable notwithsta nding the USDOC's finding of association. 
Therefore, we must consider both the finding of association, and whether the evidence to which 
Korea refers is relevant to the question of the reliability of the export price in the circumstances of 
the underlying investigation, such that the USDOC's failure to consider it undermines its decision 
to construct the export price.  Specifically, we will address the following two questions:  
a. Whether  the USDOC's conclusion of association between the concerned entities  was 
inconsistent with Article 2.3 . 
                                                
201 Article 2.3 of the Anti -Dumping Agreement also recognizes that an export price may appear to be 
unreliable to the investigating authority  because of a "com pensatory arrangement" between the exporter and 
the importer or a third party. Both parties agree, however, that in the underlying investigation, the USDOC 
found association and not a compensatory arrangement between the concerned entities.  
202 Shorter Oxfor d English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 101 . 
203 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 3456. 
204 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2521.  
205 The United States agrees that a finding of association will not necessarily suffice to meet the 
requirements under Article 2.3. (United States' response to Panel question No. 33, pa ra. 81) . 
206 We recall  that in reviewing the USDOC's determination  under Article 17.6(i) of the Anti -Dumping 
Agreement , we are required to examine whether its establishment of the facts was proper and whether its 
evaluation of those facts was unbiased and ob jective.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  b. Whether the USDOC erred in not considering evidence of the reliability of NEXTEEL's 
export price.  
7.4.5.1   Whether the USDOC's conclusion of association between the concerned entities 
was inconsistent with Article 2.3  
7.4.5.1.1   Meaning of "assoc iation" under Article 2.3  
7.150.   Article 2.3 does not define association . The dictionary  definitions of "association" include 
"action of joining or uniting for a common purpose; the state of being so joined".207 These 
definitions are not limiting, and thus " associa tion" may arise from formal legal ties or far less 
structured and non -binding relationships.  But it is clear from the overall context of Article 2.3 that 
the remedy for the appearance  of unreliability resulting from association  provided for in that Article  
is the  constructi on of the export price on the basis of the price at which the exported merchandise 
is first resold to an independent  buyer. This strongly suggests that  a lack of independent action is 
central to the  nature of "association " and gives rise to the problem Article 2.3 seeks to remedy.   
7.151.   "Independent" is defined as "not subject to the authority or control of any person, country,  
etc.; free to act as one pleases, autonomous".208 Thus, for purposes of Article 2.3, association may 
be understood to me an a lack of autonomy to act as one pleases or the presence  of authority or 
control over a person.  Therefore , we consider that , at a minimum,  there may be association for 
purposes of Article  2.3 where an exporter and the importer or a third party do not ac t 
independently of one another . Based on this understanding, a situation in which export sales are 
between associated entities, as opposed to independent  entities, may constitute the problem 
Article 2.3 seeks to remedy : the appearance of unreliability of e xport price  resulting from 
association . In considering  the USDOC's conclusion of affiliation in the underlying investigation, we 
will consider whether it was consistent with this understanding of association.  
7.4.5.1.2   The USDOC's conclusions regarding association  
7.152.   In the underlying investigation, the USDOC reached its conclusions regarding association  
on the basis of US law provisions governing a finding of affiliation , which under US law is based on 
control . The basis of these conclusions  is described in paragraphs  7.139 -7.141  above. In 
examining  whether NEXTEEL was affiliated with POSCO  based on the evidence before it , the 
USDOC made the following intermediate factual findings:  
a. POSCO supplied NEXTEEL with "v irtually all" of the steel coil, the main input used in the 
production of OCTG , used by NEXTEEL209; 
i. [[***]] % of the steel coil purchased by NEXTEEL during the POI was from POSCO;  
ii. [[***]] % of steel coils consumed by NEXTEEL during the POI was from POSCO; and  
iii. Steel coils sourced from POSCO accounted for [[***]] % of NEXTEEL's total cost for 
manufacturing OCTG.  
b. [[***]]  to NEXTEEL related to the production of OCTG210; 
c. [[***]]  of NEXTEEL's US sales were made through [[***]]211; 
d. POSCO had a history of working closely on-site with NEXTEEL departments and providing 
marketing assistance and other promotional activities for the benefit of NEXTEEL.212 
                                                
207 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 137 . 
208 Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 1, p. 1362.  
209 USDOC's Affiliat ion Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
210 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
211 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
212 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  POSCO continued to provide marketing support to NEXTEEL during the POI, and POSCO 
and NEXTEEL shared technology and market infor mation pertaining to OCTG.213 
7.153.   On the basis of these factual findings the USDOC reached the following overall conclusion 
regarding the relationship between POSCO and NEXTEEL214: 
The combination of [POSCO's] involvement on both the production and sales side 
creates a unique situation where POSCO is operationally in a position to exercise 
restraint or direction over NEXTEEL in a manner that affects the pricing, production, 
and sale of OCTG. Being in a position both to establish the primary input cost and 
[[***]]  enables POSCO to influence the cost of inputs and additionally to [[***]] . 
The preamble to the [USDOC's] regulations state s that section 771(3) of the [US 
Tariff] Act , which refers to a person being "in a position to exercise restraint or 
direction," focuse s the [USDOC] on the ability to exercise "control" rather than the 
actuality of control over specific transactions. In this case, by playing the role [[***]]  
supplier and , [[***]]  POSCO is in a rather unique position to exercise restraint or 
control over N EXTEEL.  
7.154.   In addition, as stated above, the USDOC concluded that NEXTEEL was affiliated with 
Company A and Company B  because of POSCO's [[***]] . 
7.155.   In reviewing the USDOC's finding of affiliation, which served as its conclusion regarding 
association between the  concerned entities  for purposes of Article 2.3 , we recall that pursuant to 
our standard of review, we must examine whether, in light of the evidence and arguments before 
it, the conclusions reached by the USDOC are such as could be reached by an unbi ased and 
objective investigating  authority .215 Further, considering th at the USDOC's overall conclusion was 
based on several intermediate factual findings, not only must we examine each of these findings, 
to the extent necessary, but we must also consider whether  these findings, taken as a whole, 
supported the USDOC's overall conclusion.216 This means that even were we to conclude  that an 
intermediate factual finding or a particular piece of evidence m ight not, viewed in isolation, 
support the USDOC's overall conclu sion, if taken as whole, they support that conclusion, we must 
uphold it.  
7.156.   Korea contends that in reaching its intermediate factual findings, the USDOC ignored 
alternative explanations of the record evidence, as well as other evidence which undermined these  
findings. In particular, Korea argues that:  
a. in examining  the extent to which NEXTEEL sourced its steel coil supply from POSCO, the 
USDOC failed to consider that NEXTEEL had alternative sources from which it purchased 
and consumed steel coils during the PO I. The USDOC also drew improper inferences 
from the nature of the services provided by [[***]]  to NEXTEEL during the production 
process of OCTG;  
b. the USDOC failed to consider evidence regarding marketing and technology collaboration 
between NEXTEEL and POSC O that undermined its findings ; and  
c. the USDOC failed to consider that the volume of NEXTEEL's US sales through Company A 
and Company B  was on the [[***]] . 
Korea also questions the linkage between the  intermediate  factual findings and the overall 
conclusion  reached by the USDOC. We will examine each of these arguments below.  
 
7.157.   In addition, Korea contends that the USDOC acted inconsistently with the  relevant US law 
provisions governing findings of affiliation based on control .217 Korea asserts that such a violat ion 
                                                
213 USDOC's Affiliat ion Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
214 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 4.  
215 See paras . 7.3-7.5 above . 
216 See, e.g. Appellate Body Report s, US – Softwood Lumber VI (Article  21.5 – Canada) , para. 94; and 
US – Countervailing Duty Investigation on DRAMS , para. 157. 
217 Korea's response to Panel question No s. 65(a) and (b), para. 78.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  of US law led to a violation of Article 2.3 of the Anti -Dumping Agreement in this case, because 
having decided to find association under Article 2.3 on the basis of US law, the USDOC was 
required to comply with the requirements of US law.218 Thus, Korea essentially requests us to 
determine whether the USDOC's conclusion regarding association or affiliation was consistent with 
US law.  
7.158.   As a panel  established under the DSU, our role is to determine the consistency of the 
United States' measures with its obl igations under, in this instance, Article 2.3 of the Anti -Dumping 
Agreement and not under US law. It is not our role, nor are we competent, to  review  the 
consistency of the USDOC's findings  with governing US law. Therefore, it would be entirely 
inappropria te for us to review  whether the USDOC complied with US law in its examination of 
affiliation based on control , and we will not do so . At the same time, however, we must consider 
the consistency of the United States' measure  with Article 2.3  on the basis of  the conclusions 
reached by the USDOC . We may not engage in a de novo  review of the evidence and arguments 
that were before the USDOC to determine whether it could have found association under Article 
2.3 on some other basis than that on which it reached i ts conclusions .  
7.159.   Keeping these considerations in mind, we will proceed in the following manner: We will 
first review the USDOC's intermediate factual findings, and whether taken as a whole, these 
findings support the USDOC's overall conclusion re garding af filiation. Then, we will examine 
whether this overall conclusion was a sufficient basis for a conclusion that there was association 
between the concerned entities within the meaning of Article 2.3 of the Anti -Dumping 
Agreement.219 
7.4.5.1.2.1   NEXTEEL 's purchase s and con sumption of steel coils during the POI and 
USDOC 's inferences based on  the nature of services provided by [[ ***]] to NEXTEEL 
during the production process of OCTG  
7.160.   In the underlying investigation, the USDOC considered the role of POSCO in the production 
of OCTG by NEXTEEL. The USDOC noted tha t POSCO supplied NEXTEEL with "virtually all"  of the 
steel coils used to produce OCTG and that steel coils purchased from other sources were 
negligible.220 Further, the USDOC found that [[***]]  to NEXTEEL related to the pr oduction of 
OCTG.  
7.161.   Korea argues that the USDOC failed to consider submissions made by NEXTEEL that it had 
alternative sources of supply available to it, and that it had, in fact, used steel coils sourced from 
other suppliers during the period of investigati on.221 The United States notes, and the record 
confirms , that the USDOC did not ignore this evidence, but nonetheless found that POSCO 
accounted for [[***]] % of NEXTEEL's consumption of steel coils in the POI and [[***]] % of its 
total POI purchases of steel coils.222 As stated above, the USDOC did not conclude that POSCO 
supplied NEXTEEL with all steel coils used in the production of OCTG223, and the evidence does 
                                                
218 Korea's response to Panel question No s. 65(a) and (b), para. 80.  
219 Noting the USDOC's co nclusion that "[b]eing in a position to establish the primary input cost and 
[[***]]  enables POSCO to influence the cost of inputs and additionally to [[***]] ", Korea asserts that this 
statement shows that instead of determining association between NEXTEEL  and POSCO on the basis of control, 
as it sought to do, the USDOC determined association on the basis of the [[***]]  exercised by POSCO over 
[[***]] . (Korea's second written submission, para. 235). Considering that our role is not to adjudge the 
consistenc y of this conclusion with US law, we do not find it necessary to consider whether the concept of 
[[***]]  is consistent with that of control, under US law.  
220 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
221 Korea's first written submission, p ara. 171 (referring to NEXTEEL Rebuttal Brief, 23 June 2014 , 
(Exhibit KOR -42) (BCI), pp. 63  and 64); response to Panel question No. 61, para. 65.  
222 United States' comments on Korea's response to Panel question No. 61, para. 52 (citing USDOC's 
Affiliation M emorandum, (Exhibit KOR -43) (BCI), p. 3).  
223 We recognize that just because a buyer purchases its inputs predominantly or even exclusively from 
a single seller does not necessarily mean that the buyer and seller do not act independently of each other. 
Other wise, association between a buyer and seller would exist whenever the seller has a monopoly on the 
production and sale of a particular input used in the production of the product being investigated. However, 
this was not the only basis of the USDOC's concl usion in the underlying investigation.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 54 - 
 
  support the finding  that the USDOC did make.224 Thus, the USDOC did not ignore  evidence or 
arguments b efore it . 
7.4.5.1.2.2   Marketing and technology collaboration between POSCO and NEXTEE L 
7.162.   The USDOC found that POSCO had a history of working closely with NEXTEEL, providing 
marketing assistance and conducting other promotional activities for NEXTEEL's benefit.225 The 
USDO C also found that POSCO continued to provide marketing support to NEXTEEL and both 
companies shared technology and market information pertaining to OCTG.226 The USDOC relied on 
evidence furnished by the domestic industry in making this finding.227  
7.163.   That eviden ce relates to technical consulting provided by POSCO to NEXTEEL, technical 
checks provided by POSCO on finished products, joint development of new materials and POSCO's 
takeover of NEXTEEL's overseas public relations campaign, as well as NEXTEEL's acknowle dgement 
that "mutual cooperation" between NEXTEEL and POSCO boosted its competitiveness, and would 
continue in the future.228 In addition, a [[***]]  between NEXTEEL and POSCO provides for [[***  
229]].230 Korea does not question the reliability of this evidence  in these proceeding s. 
7.164.   Korea argues that the evidence relied on by the USDOC could not have supported the 
USDOC's intermediate factual finding of marketing and technology collaboration between NEXTEEL 
and POSCO, and that the USDOC ignored evidence other than  these that could have undermined 
its conclusions regarding association .231 First, Korea notes that the record evidence showed that 
POSCO shared technology and market information pertaining to OCTG with other companies with 
which it did business, and that in stances of such cooperation were not exclusive between POSCO 
and NEXTEEL but in line with normal supplier -customer relations , and asserts that  this evidence 
was not considered by the USDOC  in its analysis.232 
7.165.   Korea essentially argues that evidence of marketi ng and technology collaboration between 
NEXTEEL and POSCO could have probative value only if these two entities had an exclusive  
collaborative relationship. We find nothing  in the notion of association as we understand it for 
purposes of Article 2.3 that w ould suggest that the lack of an exclusive relationship means that the 
evidence is not probative on the question of association or cannot support the  inferences drawn by 
the USDOC on the basis of th is evidence . Indeed, an exporter may have associations wit h multiple 
entities, in which case, the relationship between the exporter and any one of those entities will not 
be exclusive. Yet, that relationship may nonetheless suffice to show association for purposes of  
Article 2.3.  
7.166.   Second, Korea notes that the [[***]] was not [[***]]  and there were no [[***]]  
agreements between POSCO and NEXTEEL.233 Korea has failed to explain why the fact that an 
agreement regarding various aspects of the relations between two companies is not [[***]]  
                                                
224 Similarly, we do not consider that evidence that [[***]]  to NEXTEEL to be sufficient, in and of itself, 
to show that there was association between NEXTEEL and POSCO.  
225 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
226 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
227 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 3  and fns 18 and 19  (referring to 
evidence in Exhibit USA -17 as well as a [[***]]  between NEXTEEL and POSCO contai ned in Exhibit USA -46 
(BCI) ). 
228 U.S. Steel Deficiency Comments, 20 November 2013, (Exhibit USA -17), attachment C, pp. 3 -5; and 
Korea's response to Panel question No. 64, para. 68.  
229 NEXTEEL confirmed that this actually occurred, stating that [[ ***]]. (NEXT EEL's supplemental 
section D questionnaire responses, 23 December 2013, (Exhibit USA -46) (BCI), p. 24).  
230 United States' response to Panel question No. 66, para. 43 (quoting [[***]]  between NEXTEEL and 
POSCO, NEXTEEL's supplemental section D questionnaire responses, 23 December 2013, (Exhibit USA -46) 
(BCI), pp. 1 and 2).  
231 See, e.g. Korea's response to Panel question No. 64, para. 69.  
232 For example, as noted by Korea, NEXTEEL submitted that it cooperated with POSCO as part of the 
[[***]] , but that 1600 comp anies participated in that program and that POSCO itself partnered with 400 
companies as part of that program. (Korea's first written submission, para. 180;  and NEXTEEL Rebuttal Brief, 
23 June 2014 , (Exhibit KOR -42) (BCI), p. 67). See also Korea's first wr itten submission, paras. 179  and 180 
(referring to NEXTEEL Rebuttal Brief, 23 June 2014 , (Exhibit KOR -42) (BCI), pp. 63 -69); and response to Panel 
question No. 64, paras. 69 and 71.  
233 Korea's comments to the United States' response to Panel question No. 66 , para. 100.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  demonstrates that it is not rele vant to the question of association between those companies.  
Indeed, as we understand it, association  for purposes of Article 2.3 can exist without any formal 
agreement, much less a [[***]]  agreement. Accordingly, w e are not persuaded that an objective 
and unbiased investigating authority could not have found, on the basis of th e evidence  in 
question , that there was marketing and technological collaboration between NEXTEEL and POSCO 
with respect to OCTG, or that these two entities did not act independently of each other in the 
production and sale of OCTG.  
7.4.5.1.2.3   [[***]] in US sales through Company A  and Company B234 
7.167.   The USDOC found that [[***]] .235 However, Korea notes that NEXTEEL's US sales through 
Company A and Company B  [[***]]  throughout the POI.236 In particular, while in the first half of 
POI, NEXTEEL sold [[***]]  of its OCTG, by volume, through Company A  and B, that percentage  
[[***]]  to [[***]]  in the second half of POI.237 Korea argues that the [[***]]  proportion of 
sales through these entities contradicts the no tion that NEXTEEL was controlled by Company A and 
Company B.  
7.168.   The USDOC recognized t hat the proportion of NEXTEEL's sales through Company A and 
Company B  [[***]]  during the POI in its evaluation238: 
[W]e note that while POSCO's [[***]]  the Department must mak e its decision 
regarding affiliation and its impact for purposes of sales and cost based on the POI , 
the period of time being examined.  
7.169.   Thus it is clear that the USDOC did consider this issue . However, we recall the USDOC's 
conclusion that POSCO was in a position to [[***]]  and that by playing the role of [[***]]  
supplier and [[***]]  Company A  [[***]]  POSCO was in a position to exercise restraint or 
direction over NEXTEEL was based, in part, on the fact that POSCO through Company A and 
Company B  sold a [[***]] of finished products to the United States.239 While a more thorough 
discussion of whether the [[***]]  in sales through these entities at the end of the POI affected its 
view that POSCO was in a position to exercise restraint or direction over NEXTEEL would have 
been desirable, the USDOC 's assessment was based on the data for the POI.  During the entire POI 
the volume of exports to the United States that NEXTEEL made through Company A  and Company 
B was a [[***]]  [[***]] , notwithstanding the [[***]]  at the end of the POI . 
7.4.5.1.2.4   The USDOC's overall conclusion  of associatio n within the meaning of 
Article  2.3 
7.170.   Korea has failed to demonstrate that the evidence relied on by the USDOC did not support 
its intermediate factual findings. The question that we now turn to is whether the USDOC's overall 
conclusion of affiliation between the concerned entities was reasonably based on these 
intermediate factual findings and whether this conclusion  sufficed to demonstrate "association" 
between the exporter and the importer or a th ird party, within the meaning of Article 2.3 of the 
Anti-Dumping Agreement . 
7.171.   We recall that the USDOC's overall conclusion, as set out in paragraph 7.153  was that 
there was affiliation based on control between NEXTEEL and POSCO because:  
a. The combination of POSCO's involvement on both the production and sales side created 
a unique situation where POSCO was operationally in a position to exercise restraint or 
                                                
234 We understand from Korea's response to our questions that NEXTEEL's exports through both 
Company A and Company B  [[***]]  during and after the period of investigation.  (Korea's response to Panel 
question No. 63, para. 66) . 
235 USDOC's Affiliati on Memorandum, (Exhibit KOR -43) (BCI), p. 3.  
236 Korea's response to Panel question No. 31, para. 107.  
237 Korea's response to Panel question No. 31, para. 107.  The volume of sales through these entities 
[[***]]  further after the POI .  
238 USDOC's Affiliation Me morandum, (Exhibit KOR -43) (BCI), p. 4.  
239 USDOC's Affiliation Memorandum, (Exhibit KOR -43) (BCI), p. 4.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 56 - 
 
  direction over NEXTEEL in a manner that affected the pricing, production, and sale of 
OCTG.  
b. Being in a position to establish the primary input cost and [[***]]  enabled POSCO to 
influence the cost of inputs and additionally to [[***]] . 
c. By playing the role [[***]]  supplier and [[***]]  POSCO was in a rather unique 
position to exerc ise restraint or control over NEXTEEL.  
7.172.   The USDOC also concluded that there was affiliation between NEXTEEL , Company A , and 
Company B  because of POSCO's [[***]] . 
7.173.   We recall that the USDOC reached this conclusion based on : (a) undisputed evidence of 
marketing  and technology collaboration between POSCO and NEXTEEL, including through a 
[[***]]  that [[***]] ; and (b) evidence of POSCO's direct and indirect involvement in NEXTEEL's 
production and sale of  OCTG . We recall our view that w here the exporter and the impo rter or a 
third party are joined or united for a common purpose, this may suggest that they do not act 
independently of one another, but are instead, dependent on each other, and thus  are associated  
within the meaning of Article  2.3 of the Anti -Dumping Agr eement. We consider that the USDOC's 
overall conclusion of affiliation between POSCO and NEXTEEL sufficed to demonstrate that they 
were joined or united for a common purpose , and thus there was "association" between the 
exporter and the importer or a third  party, within the meaning of Article 2.3 of the Anti -Dumping 
Agreement.  
7.174.   We further consider that the USDOC's conclusion of affiliation between NEXTEEL and 
Company A and B sufficed to demonstrate that they were joined or united for a common purpose, 
and t hus there was  "association" between the exporter and the importer or a third party, within 
the meaning of Article 2.3 of the Anti -Dumping Agreement. It remains undisputed that POSCO had 
[[***]]  and [[***]] . Indeed, in its questionnaire response before the USDOC, Company B  stated 
that it was [[***]] .240 Because these entities were [[***]]  of POSCO, we consider that the 
conclusion  of association between NEXTEEL and POSCO  sufficed as a basis to find that these 
entities, like POSC O, did not act independently of  NEXTEEL.  
7.175.   Therefore, we consider that the USDOC 's conclusions regarding the relationship between 
the concerned entities  were supported by the evidence, and sufficed to satisfy the requirement of 
Article 2.3 that there be  association between the exporter and the importer or a third party.  
7.4.5.2   Whether the USDOC erred in not considering evidence allegedly pertaining to 
the reliability of the export price   
7.176.   During the underlying investigation , NEXTEEL  presented  evidence  to the USDOC, which 
Korea allege s showed that N EXTEEL's export  price was reliable despite association between the 
concerned entities:  
a. evidence  that NEXTEEL's relationship with both POSCO and its relationship with the 
Company A  predated the relationship between POSCO and Company A ; 
b. sales agreement betwe en NEXTEEL, Company A  and a US customer that predated 
POSCO's affiliation with Company A , and the terms of which remained unchanged since 
POSCO [[***]] , and even into the POI;  
c. Company A testified that [[***]]  was not directly or indirectly involved in the sales 
negotiation or sale of OCTG between NEXTEEL and Company A ; and  
d. NEXTEEL's sales through Company A  [[***]]  throughout the period of investigation, 
demonstrating that neither POSCO nor Company A  was in a position to control  
NEXTEEL 's sales.  
                                                
240 Company A supplemental questionnaire response s, 14 March 2014 , (Exhibit KOR -89) (BCI), p. A -7. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 57 - 
 
  Korea argues  that the USDOC erred in ignoring this evidence.  
 
7.177.   Considering that  NEXTEEL's relationship with POSCO, Company A , and Company B  
predated POSCO's [[***]]  in Company A , and [[***]]  in Company B,  in Korea's view, there was 
no effect on NEXTEEL's  export price.241 The United  States disagrees with Korea's assertion, stating 
that because NEXTEEL's export price to Company  A was set on a short -term basis, this export 
price was not set on terms that existed prior to POSCO's [[***]]  in Company A  and Company 
B.242 The record supports the United States ' assertion  in this regard.  
7.178.   First, the sales agreement between NEXTEEL, Company A , and a US customer cited by 
Korea does not state [[***]] , but rather provides for [[***]] . This shows that the export price 
during the POI was no t set on terms that existed prior to POSCO's affiliation with Company A or 
Company B . This is further confirmed by Company A 's questionnaire response243: 
[[***]]  
7.179.   Thus, while the sale agreement appears to predate the affiliation between POSCO and 
Company A,  the export price during the POI was not based on the terms in that agreement, but on 
a [[***.]]244 Therefore, we are of the view that NEXTEEL's export price to Company A  could have 
appeared unreliable to the investigating authority, without a separate evaluat ion of the timing of 
NEXTEEL's relationship with POSCO, Company A , and Company B.   
7.180.   In addition, during the underlying investigation, Company A  testified that [[***]]  was not 
directly or indirectly involved in the sales negotiation s or sale of OCTG between NEXTEEL and 
Company A. However, we recall that [[***]]  had an [[***]]  in Company A,  and the USDOC 
found that Company A  and Company B  were affiliated with NEXTEEL on this basis. Considering that 
Company A and Company B  were affiliated with NEXTEEL, we consi der that NEXTEEL's export price 
to Company A  could have appeared unreliable to the investigating authority, without a separate 
evaluation of whether [[***]]  was involved , directly or indirectly , in the export sales made by 
NEXTEEL.  
7.181.   Finally, Korea refers t o the fact that NEXTEEL's sales of OCTG through Company A  [[***]]  
in the POI. We have already found above that the USDOC considered this fact in finding affiliation. 
It is not clear,  however,  and Korea has not shown, the relevance of this fact to the reliability of 
NEXTEEL's export prices.  
7.182.   Therefore, we consider that Korea has not demonstrated that the USDOC erred in not 
considering evidence allegedly showing that the export price was reliable notwithstanding the 
association  between NEXTEEL, POSCO , and the  concerned entities.   
7.4.6   Conclusion  
7.183.   For the foregoing reasons, we find that Korea has not demonstrated  that the USDOC acted 
inconsistently with Article 2.3 of the Anti -Dumping Agreement in the underlying investigation.  
7.5  Whether the USDOC's decision to reject t he price at which NEXTEEL purchased steel 
coils from POSCO  was inconsistent with A rticle 2.2.1.1  of the Anti -Dumping Agreement   
7.184.   In constructing the normal value for NEXTEEL on the basis of its cost of production, the 
USDOC rejected the price that NEXTEEL p aid to POSCO for the principal input, steel coils 
(NEXTEEL's steel coil purchase price) , on the ground that NE XTEEL and POSCO were 
affiliated  entities. Korea contends that t he USDOC 's rejection of  this price, reflected in NEXTEEL's 
records, on the ground t hat these records did not "reasonably reflect the costs associated with the 
                                                
241 See, e.g. Korea's response to Panel question No. 67, paras. 84 -86. 
242 United States' comments on Korea's response to Panel question No. 67, para. 65.  
243 Company A supplemental questionnaire response s, 14 March 2014 , (Exhibit KOR -89) (BCI), p. A-15. 
244 We note that NEXTEEL did not argue before the USDOC that its  export price was reliable regardless 
of whether there was association because the price at which it sold OCTG to Company A  was set on terms  
determined prior to POSCO's affiliation with Company A . WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 58 - 
 
  production and sale" of OCTG, was inconsistent with Article 2.2.1.1 of the 
Anti-Dumping  Agreement.245 
7.5.1   Provision at issue  
7.185.   Article 2.2.1.1 reads, in part, as follows:  
For the purpose o f paragraph  2, costs shall normally be calculated on the basis of 
records kept by the exporter or producer under investigation, provided that such 
records are in accordance with the generally accepted accounting principles of the 
exporting country and reas onably reflect the costs associated with the production and 
sale of the product under consideration.  
7.5.2   Factual background  
7.186.   As discussed above, i n the underlying investigation, the USDOC found that POSCO was 
affiliated with NEXTEEL. To consider whether, in thi s situation, NEXTEEL's  steel coil purchase price 
should be used in constructing normal value, the USDOC calculated the weighted -average price of 
POSCO's steel coil sales to unaffiliated customers246, and compared NEXTEEL's steel coil purchase 
prices (transfe r price s) with POSCO's cost of production of OCTG and with the price s at which 
POSCO sold this product to unaffiliated customers.247  
7.187.   The USDOC found that the transfer prices of all [[***]]  examined grades of steel coils 
were above POSCO's corresponding cost  of production.248 However,  it found that POSCO had sold 
[[***]]  of the [[***]]  examined grades to unaffiliated customers at prices that were [[***]]  
than the  corresponding transfer pri ce to NEXTEEL .249 The USDOC used the prices of these [[***]]  
grades to the unaffiliated customers  in constructing the normal value of NEXTEEL , rather than 
NEXTEEL's steel coil purchase price .250 
7.5.3   Main arguments of the parties  
7.188.   Korea  argues that the USDOC acted inconsistently with Article 2.2.1.1 by rejecting 
NEXTEEL's steel coil purc hase price because : (a) the USDOC's finding of affiliation between 
NEXTEEL and POSCO was erroneous; and ( b) there was no evidence on the record of the 
underlying investigation indicating that NEXTEEL's records did not reasonably reflect the costs 
associate d with production and sale of OCTG. In this regard, Korea acknowledges that the USDOC 
examined NEXTEEL's steel coil purchase price to assess whether it was an arm's length price. 
However, Korea contends that in considering whether a producer's records reas onably reflect the 
costs associated with production and sale of the product under consideration, an investigating 
authority is required to assess whether the producer's records are reliable, and not whether the 
costs reflected in those records are reliable .251 In Korea's view, the USDOC did not examine, as 
part of this arm's length test, whether NEXTEEL's records  were reliable, and thus had no proper 
basis under Article 2.2.1.1 to reject NEXTEEL's steel coil purchase price.  
7.189.   The United States  contends that the  USDOC disregarded NEXTEEL's steel coil purchase 
price because NEXTEEL's records did not reasonably reflect the costs associated with production 
and sale of OCTG.252 The United States notes that the USDOC reached this conclusion  based on : 
(a) a proper findin g of affiliation ; as well as ( b) an arm's length test which compared NEXTEEL's 
steel coil purchase price with POSCO's  cost of production and POSCO's steel coil sales price to 
                                                
245 In this regard, there is no dispute between the parties t hat NEXTEEL's records were kept in 
accordance with Korean GAAP, as provided in Article 2.2.1.1.  
246 USDOC, Constructed Value calculation adjustments for the Final Determination,  
10 July 2014 (USDOC's Constructed Normal Value Memorandum ), (Exhibit USA -39) (BC I), p. 3. 
247 USDOC's Constructed Normal Value Memorandum, (Exhibit USA -39) (BCI), p. 3.  
248 USDOC's Constructed Normal Value Memorandum, (Exhibit USA -39) (BCI), p. 3.  
249 USDOC's Constructed Normal Value Memorandum, (Exhibit USA -39) (BCI), p. 3.  
250 USDOC's Const ructed Normal Value Memorandum, (Exhibit USA -39) (BCI), p. 3.  
251 See, e.g. Korea's second written submission, para. 235.  
252 United States' second written submission, para. 54.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 59 - 
 
  other unaffiliated customers. The United States asserts that this provided a suff icient basis under 
Article 2.2.1.1 to reject NEXTEEL's steel coil purchase price.  
7.5.4   Main arguments of the third parties  
7.190.   The European Union  argues that the use of the term "normally" in Article  2.2.1.1 means 
that an investigating authority is permitted to dep art from the norm, which is to calculate costs 
based on the exporter or producer's records provided the two express conditions provided in this 
Article are met.253 However, the investigating authority must explain why it departed from this 
norm.254 
7.5.5   Evaluation by the Panel  
7.191.   The issue before us is whether the USDOC 's reject ion of  NEXTEEL's steel coil purchase 
price, on the ground that NEXTEEL's records did not "reasonably reflect the costs associated with 
production and sale of" OCTG , was consistent with  Article 2 .2.1.1 of the Anti -Dumping Agreement. 
Korea presents two main arguments in support of its claim. First, the USDOC's finding of affiliation 
between POSCO and NEXTEEL was not proper and hence did not provide a basis under 
Article  2.2.1.1 to disregard NEXTEEL 's steel coil purchase price. Second, even assuming this 
finding of affiliation was proper, there was still no basis under Article 2.2.1.1 to reject this price  
because NEXTEEL's records reasonably reflected costs associated with the production and sale of 
the product under consideration . The United States disagrees with both arguments presented by 
Korea.255 
7.192.   We begin by noting that nothing in Article 2.2.1.1 sets out any criteria or consideration for 
determining whether the " records kept by the exporter or pro ducer under investigation  … 
reasonably reflect the costs associated with the production and sale of the product under 
consideration ". It certainly does not address questions of affiliation among companies. The issue 
before us with respect to this claim is thus not whether the USDOC 's finding of affiliation was 
consistent with Article 2.2.1.1 , but whether its rejection of  NEXTEEL's steel coil purchase price on 
the ground that its records did not reasonably reflect the costs associated with production and sal e 
of OCTG  was consistent with that provision . Indeed, Korea appears to recognize that there is no 
basis for concluding  that the USDOC's affiliation finding was inconsistent with Article 2.2.1.1 , as it 
makes no argument in this regard . Instead, Korea argues  that because the USDOC's finding  of 
affiliation between NEXTEEL and POSCO was inconsistent with Article 2.3 of the Anti -Dumping 
Agreement, it could not provide a basis under Article 2.2.1.1 to reject NEXTEEL's steel coils 
purchase price.256 
7.193.   We have already concluded  above that the USDOC's conclusion on  affiliation was sufficient 
with respect to the requirements of Article 2.3 of the Anti -Dumping Agreement  regarding 
association . Korea makes no other argument under Article 2.2.1.1 challenging the USDOC's findi ng 
of affiliation, and thus there is no basis for us to find error in  USDOC 's conclusion that, as affiliated 
companies,  NEXTEEL and POSCO did not have an independent buyer -supplier  relationship. The 
issue that we have to consider is whether the USDOC acted  inconsistently with Article 2.2.1.1 
                                                
253 European Union's third -party submission, para. 46.  
254 European Union's third -party submission, para. 46.  
255 With respect to Korea's second argument, the United States submits that while in its panel request 
Korea stated that the USDOC acted inconsistently with this provision "because due to its erroneous finding of 
affiliation " between NEXTEEL and POSCO, the USDOC failed to calculate costs on the basis of the records kept 
by the exporter or producer, as required under Article 2.2.1.1, it is now arguing that the Panel should find that 
the USDOC violated this requirement even if its findin g of affiliation  was proper. (United States' second written 
submission, para. 53 (emphasis added by the United States) ). However, the United States does not argue that 
Korea is precluded from making this argument under Article 6.2 of the DSU. In any case, we do not consider 
that this argument by Korea deviates from the legal basis of its Article 2.2.1.1 claim, as set out in its panel 
request. Korea was not required to set out its arguments in the panel request, and is free to present this 
argument in the pa nel proceedings. Moreover, t he reference in the panel request to the erroneous finding of 
affiliation between NEXTEEL and POSCO merely identifies the factual basis on which the USDOC made its 
determination, which was that NEXTEEL and POSCO were affiliated under US law. The legal basis of Korea's 
claim was, and continues to be, that the USDOC acted inconsistently with Article 2.2.1.1 by failing to calculate 
costs on the basis of the exporter or producer's, i.e. NEXTEEL's records.  
256 See, e.g. Korea's first wr itten submission, para. 186; and opening statement at the first meeting of 
the Panel, para. 111. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  when it disregarded the price at which NEXTEEL purchased steel coils from POSCO based on its 
findings that (a)  POSCO was an associated supplier ; and (b) the price at which POSCO sold 
[[***]]  grades of steel coils to NEX TEEL was [[***]]  than the price at which it sold them to non -
affiliated customers.  
7.194.   Article 2.2.1.1 does not permit an investigating authority to disregard an exporter 's or 
producer's record costs because it considers such costs to be unreasonable or to not  be a cost that 
the exporter or producer would incur under normal circumstances.257 In EU – Biodiesel  
(Argentina) , the panel and Appellate Body recognized that the focus of this condition is on the 
exporter 's or producer's records  and on whether these record s reasonably reflect the costs 
incurred by the exporter or producer.258 The focus is not on whether the reported costs are 
themselves reasonable.259  
7.195.   However, the issue in this case  is whether an investigating authority is permitted to 
disregard the price refl ected in an exporter 's or producer's records for the purchase of an input 
from an asso ciated or non -independent supplier , when this price is found t o be [[***]]  that 
supplier 's arm 's length prices. In other words, is an investigating authority permitted to  conclude, 
in such a circumstance, that the exporter 's or producer's records do not "reasonably reflect" the 
cost associated with production and sale of the product under consideration?  While the panel and 
Appellate Body reports in EU – Biodiesel  (Argentin a) are relevant to our consideration , this issue  
was not raised in that dispute, and has not been directly addressed in any previous case.  
7.196.   The Appellate Body in EU – Biodiesel  (Argentina) clarified that the phrase "reasonably 
reflect" means that the record s of the exporter or producer must suitably and sufficiently 
correspond to or reproduce  the costs that have a genuine  relationship with the production and sale 
of the specific product under consideration.260 The panel in EU – Biodiesel  (Argentina) , noting th at 
the ordinary meaning of "reflect" is "to reproduce, esp. faithfully or accurately; to depict" and the 
ordinary meaning of "reasonable" , the adjective underlying the adverb "reasonably"  which 
modifies the verb "reflect" , is "rational or sensible, in acco rdance with reason, and fair and 
acceptable in amount", found that the requirement that the records reasonably reflect  the incurred 
costs means that the records "must depict all the costs [the producer] has incurred in a manner 
that is – within acceptable limits – accurate and reliable".261  
7.197.   However, this does not mean that the figures reported in an exporter 's or producer's 
records must be accepted for purposes of constructing normal value without further consideration 
in all cases. Both t he panel and the Ap pellate Body in EU – Biodiesel  (Argentina) recognized that if 
the prices recorded in an exporter 's or producer's records do not reflect arm's length prices, an 
investigating authority may find that the records, insofar as those prices are concerned, do not  
"reasonably reflect" the costs associated with production and sale of the product under 
consideration.262 In such a situation, the investigating authority would be entitled to disregard 
those prices when determining the exporter 's or producer's cost of prod uction.  Thus, we consider 
that when the transactions between the exporter or producer and an associated or 
non-independent entity are found not to be at arm's length, the costs reflected in the exporter 's or 
producer's records cannot be said to be "accurat e or reliable" or "suitably and sufficiently 
correspond" to, i.e. reasonably reflect, the costs associated with production and sale of the product 
under consideration.  
7.198.   To examine  whether such transactions are or are not at arm's  length , and therefore 
wheth er the reported  prices  should be used in constructing normal value , an investigating 
authority would have to examine the transactions in question.  This is what the USDOC did in the 
underlying investigation. The USDOC calculated the weighted -average price o f POSCO's steel coil 
sales to unaffiliated customers, and compared NEXTEEL's steel coil purchase price s (transfer 
                                                
257 Appellate Body Report, EU – Biodiesel  (Argentina) , paras. 6.30 and 6.37.  
258 Appellate Body Report, EU – Biodiesel  (Argentina) , para. 6.20 ; Panel Report,  EU – Biodiesel  
(Argentina) , paras. 7.230 and 7.231 . 
259 Appellate Body Report, EU – Biodiesel  (Argentina) , para. 6.37; Panel Report, EU – Biodiesel 
(Argentina) , para. 7.242  
260 Appellate Body Report, EU – Biodiesel  (Argentina) , paras. 6.20 and 6.22. (emphasis added ) 
261 Panel Report, EU – Biodiesel  (Argentina) , paras. 7.229 -7.232.  
262 Appellate Body Report, EU – Biodiesel  (Argentina) , para. 6.33; Panel Report , EU – Biodiesel  
(Argentina) , fn 400.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 61 - 
 
  prices) with POSCO's cost of production of OCTG and with the price s at which POSCO sold steel 
coils to unaffiliated customers. The USDOC found  that the prices of [[***]]  grades of steel coils 
purchased by NEXTEEL from POSCO were [[***]]  the prices at which POSCO sold these grades of 
steel coils to other non -affiliated customers . In our view, it was not unreasonable for the USDOC to 
conclude that  NEXTEEL's steel coil purchase s were not at arm's length prices, and therefore that 
NEXTEEL's records did not reasonably reflect the costs associated with the production and sale of 
OCTG  within the meaning of Article 2.2.1.1.  In this regard, we note that K orea does not dispute 
that an investigating authority may conduct an arm's  length test in this context .263 However, Korea 
asserts that an arm's  length test cannot be used to assess whether the costs reflected in the 
exporter or producer's records reflect som e "hypothetical costs" which the investigating authority 
considers to be more reasonable than the costs actually incurred by the producer or exporter.264 
We agree . As discussed above,  the enquiry under Article 2.2.1.1 is not whether cost s reported in 
the pro ducer or exporter's records are reasonable. But this is not the question the USDOC was 
addressing in this case. In the underlying investigation, the USDOC did not compare NEXTEEL's 
steel coils purchase price with some "hypothetical" reasonable cost or pric e. Instead, the USDOC 
compared the actual price at which POSCO sold steel coils to NEXTEEL with the actual price at 
which POSCO sold steel coils to non -affiliated customers , and concluded that the former was 
[[***]]  the latter.  
7.199.    In light of the above, we c onclude that the USDOC did not act inconsistently with 
Article  2.2.1.1 in the underlying investigation when it rejected the price at which NEXTEEL 
purchased [[***]]  grades of steel coils from POSCO that were found to be [[***]]  POSCO's 
arm's length prices to non -affiliated customers .265 
7.200.   For the foregoing reasons , we conclude that the USDOC did not act inconsistently with the 
second condition in Article 2.2.1.1 in concluding that NEXTEEL's records did not reasonably reflect 
the costs associated with production  and sale of OCTG, and rejecting NEXTEEL's steel coil purchase 
price for purpose s of constructing normal value.  
7.6  Whether the USDOC acted inconsistently with Article s 6.2, 6.4 , and 6.9 of the 
Anti-Dumping Agreement   
7.201.   As discussed above, i n its final determina tion in the underlying investigation, the USDOC 
determined the CV profit for the Korean respondents on the basis of the Tenaris profit data. It did 
not, however, make known to interested parties  that it had accepted that data on the record or 
that it had r elied on that data for purposes of CV profit determination until the final determination.  
7.202.   On 17 June 2014, one day before the deadline to submit case briefs in the underlying 
investigation , the USDOC posted to the record266 a letter signed by 57 US Senators  dated 
15 May 2014. On 23 June 2014, the same day as the deadline to submit rebuttal briefs , the 
USDOC posted to the record a letter signed by 155 Members of the US House of Representatives 
dated 10 June 2014.267 These letters , as well as other letters from US lawmakers, local 
government leaders , and industry representatives  and memoranda to the file describing phone 
calls and meetings with US lawmakers and industry representatives, set out  concerns regarding 
the USDOC 's preliminary determination and the impa ct of OCTG imports on the domestic market in 
the United States.268 We refer collectively to these letters and memoranda as the 
"communications".  
7.203.   Korea makes the following claims under Articles  6.2, 6.4, and 6.9 of the Anti -Dumping 
Agreement:  
                                                
263 Korea's response to Panel question No. 68, para. 88.  
264 Korea's response t o Panel question No. 68, para. 88.  
265 We note that there is no claim in this dispute regarding the USDOC's choice of information on steel 
input costs to use in constructing normal value for the Korean respondents, and we express no views on that 
issue.  
266 As we understand, i n USDOC practice, all interested parties have access to all information posted to 
the non -confidential record, which was the case with the communications  at issue here.   
267 Letter dated 10 June 2014 from various members of US Congress and O ther Memoranda , 
(Exhibit  KOR-22); and Letter  dated 15 May 2014  from various senators, (Exhibit KOR -23). 
268 Letter dated 10 June 2014 from various members of US Congress and Other Memoranda , 
(Exhibit  KOR-22). WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
- 62 - 
 
  a. The USDOC acted  inconsistently with Articles  6.2, 6.4 , and 6.9 in not disclosing, until its 
final determination, its decision to accept the Tenaris financial data on the record  of the 
underlying investigation ; and  
b. The USDOC acted inconsistently with Articles  6.4 and 6.9 of the Anti -Dumping 
Agreement in not posting to the record certain communications  in a timely manner.  
7.6.1   Provisions at issue  
7.204.   Article  6.2 of the Anti -Dumping Agreement provides:  
Throughout the anti -dumping investigation all interested parties shall have a fu ll 
opportunity for the defence of their interests. To this end, the authorities shall, on 
request, provide opportunities for all interested parties to meet those parties with 
adverse interests, so that opposing views may be presented and rebuttal arguments  
offered. Provision of such opportunities must take account of the need to preserve 
confidentiality and of the convenience to the parties. There shall be no obligation on 
any party to attend a meeting, and failure to do so shall not be prejudicial to that 
party's case. Interested parties shall also have the right, on justification, to present 
other information orally.  
7.205.   Article  6.4 of the Anti -Dumping Agreement provides:  
The authorities shall whenever practicable provide timely opportunities for all 
interest ed parties to see all information that is relevant to the presentation of their 
cases, that is not confidential as defined in paragraph 5, and that is used by the 
authorities in an anti -dumping investigation, and to prepare presentations on the 
basis of th is information.  
7.206.   Article  6.9 of the Anti -Dumping Agreement provides:  
The authorities shall, before a final determination is made, inform all interested 
parties of the essential facts under consideration which form the basis for the decision 
whether to apply  definitive measures. Such disclosure should take place in sufficient 
time for the parties to defend their interests.  
7.6.2   Whether  the USDOC act ed inconsistently with Articles  6.2, 6.4 , and 6.9 in 
connection with the Tenaris financial statements  
7.6.2.1   Main arguments  of the parties  
7.207.   Korea's  main arguments are as follows:  
a. The USDOC did not afford Korean  respondents  an opportunity to present evidence in  
defence  of their interests under Article 6.2 because they  had no notification from the 
USDOC that the Tenaris financial  statements submitted by U.S. Steel , which Korean 
respondents contended  were submitted untimely, were properly on the record.269  
b. The Tenaris financial statements constitute  "relevant" information under Article  6.4, and 
the USDOC failed to notify the Korean respondents of its decision to accept the Tenaris 
financial data and failed to provide the Korean respondents with any opportunity to 
prepare presentations regarding such data, in consistently with Article  6.4.270 
                                                
269 Korea's first written submission, paras.  189, 203 and 204 (referring to  Appellate Body Report, US – 
Oil Country Tubular Goods Sunset Reviews , para. 241 ); opening statement at the first meeting of the Panel, 
para. 115.  
270 Korea's first written submission, paras. 205  and 206 (referring to  Appellate Body R eport, EC – Tube 
or Pipe Fittings , para. 145; and Panel Reports, EC – Salmon (Norway) , para. 7.769; and EC – Fasteners 
(China) (Article  21.5 – China) , para. 7.89).  WT/DS488/ R 
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  c. Finally, the USDOC's decision to accept the Tenaris financial statements on the record 
constitutes an "essential fact" which was not disclosed in sufficient time before the final 
determination, inconsistently with Article  6.9. In addition, the USDOC's reliance on the 
Tenaris financial statements was an essential fact that was not disclosed to interested 
parties in sufficient time before the final determination, inconsistently with Article  6.9.271 
7.208.   The United States  argues that:  
a. The Korean  respondents had the opportunity , which they  utilized , to challenge  the 
Tenaris financial data . They submitted written arguments against its use on several 
occasions , as well as oral arguments at the USDOC hearing.272 Therefore, the USDOC 
provided Korean respondents a full opportunity to defend their interests under 
Article  6.2. 
b. The USDOC did notify the respondents , in its preliminary determination , that it had 
accepted the Tenaris financial data and examined it as one of three possible options for 
CV profit. In addition, a ll interested parties had access to the Tenaris fina ncial 
statements once U.S. Steel filed the information  on the record , four months before the 
final determination.273 Therefore, the Korean respondents did see all the information, 
which was relevant to the presentation of their case, and were able to , and di d, prepare 
presentations responding to it in accordance with Article  6.4.274  
c. Korea's  allegations that "whether the USDOC would accept the placement of the Tenaris 
financial statements on the record" and the "USDOC's reliance on the financial 
statements" were essential fact s conflate "essential facts" with an investigating 
authority's deliberations and conclusions.275 Article  6.9 does not require an authority to 
disclose its reasoning or conclusions. Therefore, the USDOC was not required to inform 
the responden ts that it had chosen to accept the financial statements submitted by the 
petitioners or that it would  rely on the information in those statements.276 
7.6.2.2   Main arguments of third parties  
7.209.   The European Union  makes the following arguments:  
a. Whether an investigating authority's decision to accept a party's submission into the 
record could, in itself, be considered "information" within the meaning of  Article  6.4, is 
questionable.277 Whether an investigating authority's decisions pertaining to the 
formation of the record could, in themselves be considered as "essential facts" is also 
questionable. A document which formed the basis for the profit rate calculation would, 
however, set out "essential facts".278 
b. Where the authority's decision shifts significantly between the prel iminary and final 
determinations due to the submission of new essential facts, it may not suffice that such 
                                                
271 Korea's first written submission, para. 212.  
272 United States' first written submission, pa ras. 206 and 208 (referring to AJU BESTEEL Case Brief,  
18 June 2014, (Exhibit USA -18), pp. 5 -7; HUSTEEL Case Brief, 18 June  2014, (Exhibit USA -19), pp. 17 -24; 
HYSCO Rebuttal Brief , 24 June 2014 (complete) , (Exhibit US A-25), pp. 34 -41; HYSCO Case Brief , 
19 June 2014, (Exhibit USA -24), pp. 41 -55; NEXTEEL Case Brief , 19 June 2014, (Exhibit USA -22); NEXTEEL 
Rebuttal Brief , 24 June 2014, (Exhibit USA -23); and OCTG Hearing Transcript , 26 June 2014 , (Exhibit KOR -32) 
pp. 112-122).  
273 United States' first written sub mission, para. 212 (referring to Appellate Body Report, EC – Fasteners 
(China) (Article  21.5 – China) , paras . 5.121 -5.123).  
274 United States' first written submission, para. 214.  
275 United States' first written submission, para. 216.  
276 United States' first w ritten submission, paras. 219  and 220 (referring to Panel Reports, China – 
GOES , para. 7.407; US – Oil Country Tubular Goods Sunset Reviews (Article  21.5 – Argentina) , para. 7.148; 
and EC – Salmon (Norway) , para. 7.808).  
277 European Union's third -party subm ission, para. 57 (referring to Appellate Body Report, EC – 
Fasteners (China) , para. 480). 
278 European Union's third -party submission, para. 62.  WT/DS488/ R 
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  facts are on the record of the investigation, but the investigating authority 's reliance on 
them may need to be additionally disclosed.279 
7.6.2.3   Evaluation by the Panel  
7.210.   For purposes of its preliminary determination, the USDOC had considered determining the 
CV profit on the basis of the Tenaris profit data as one of several options . However, it did not do so 
for two reasons: (a) the Tenaris data did not relate  to production or sales of OCTG in the home 
market ; and (b) it was based on a research paper the accuracy of which was questionable. 
Ultimately, in its preliminary determination, the USDOC determined CV profit for HYSCO based on 
sales of non -OCTG pipe prod ucts in Korea,  and for NEXTEEL using the audited financial statements 
of six Korean OCTG producers.280 The USDOC noted  in the preliminary determination that it 
intended to continue exploring  other possible options for determining CV profit for both 
responden ts.281  
7.211.   After the preliminary determination, the USDOC issued a supplemental questionnaire to 
NEXTEEL282, to which NEXTEEL submitted a response. Subsequently, the petitioner in the 
underlying investigation, U.S. Steel , made a submission under 19  C.F.R. § 351.3 01(c)(1)(v), 
purportedly to rebut, clarify , or correct factual information contained in that questionnaire 
response. U.S. Steel 's submission  included Tenaris's audited financial statements.283 In response, 
NEXTEEL requested the USDOC to remove the Tenaris fi nancial data from the record, asserting 
that it had been filed past the deadline for such submissions.284 The USDOC did not respond 
separately to that request, but in its final determination noted that the Tenaris financial 
statements were properly on the re cord and went on to determine the CV profit, for both HYSCO 
and NEXTEEL, on the basis of that data.285  
7.212.   The principal legal issue before us is whether the USDOC, in not disclosing its acceptance 
of the Tenaris financial statements on the record until its fin al determination, failed to:  
a. provide a full opportunity for respondents to defend their interests in accordance with 
Article  6.2;  
b. provide timely opportunities for Korean respondents to see all non-confidential 
information relevant to the presentation of their cases  and to prepare presentations on 
the basis of this information  in accordance with Article  6.4; and  
c. disclose "essential facts under consideration which form the basis for the decision 
whether to apply definitive measures " in a timely manner in accordance with Article  6.9. 
7.6.2.3.1   Whether  the USDOC act ed inconsistently with Article  6.2 in not disclosing, 
until its final determination, that it had accepted the Tenaris financial  statements  on the 
record  
7.213.   Korea argues that the USDOC's failure to notify its acc eptance of the Tenaris financial 
statements on the record until the final determination precluded the Korean respondents from : (a) 
launching a "full -scale argument"286; and (b) submitting factual information rebutting the content 
                                                
279 European Union's third -party submission, para. 65 (referring to Appellate Body Report s, China – 
HP-SSST (Japan)  / China – HP-SSST (EU) , para. 5.130).  
280 Preliminary Decision Memorandum, (Exhibit KOR -5), p. 22.  
281 Preliminary Decision Memorandum, (Exhibit KOR -5), p. 22.  
282 USDOC,  Third supplemental s ection D questionnaire to NEXTEEL , 20 February 2014 , 
(Exhibit  KOR-18) (BCI).  
283 U.S. Steel Submission of Tenaris Audit Report , 21 March 2014 , (Exhibit  KOR-19). 
284 NEXTEEL Request to reject untimely new factual information , 27 March 2014 , (Exhibit KOR -20). 
285 Final Decision Memorandum, (Exhibit KOR -21), pp. 28  and 29. 
286 Korea's second written submission, para. 285; opening statement at the first meeting of the Panel, 
para. 115.  WT/DS488/ R 
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  of those statements287, and th us denied them the opportunity to defend their interests under 
Article  6.2.  
7.214.   Article  6.2 of the Anti -Dumping Agreement provides, in relevant part, that "throughout the 
anti-dumping investigation all interested parties shall have a full opportunity for the defence of 
their interests". It is understood that while Article  6.2 imposes a general duty on an investigating 
authority to ensure that interested parties have a full opportunity throughout an anti -dumping 
investigation for the defence of their interests,  it does not give specific guidance on the type of 
procedural steps an investigating authority should take in ensuring the rights of interested 
parties.288  
7.215.   We are not persuaded that because USDOC did not disclose its acceptance of the Tenaris 
financial stat ements on the record until the final determination, the Korean respondents were 
prevented from launching a "full -scale argument".289 The record shows that the Korean 
respondents did, in fact, make several submissions commenting on the substantive aspects of the 
Tenaris profit data and arguing against its use in determining CV profit.290 Thus, it is clear that the 
Korean respondents were aware of the data in question, did have opportunities to present 
arguments against its use as a basis for CV profit determinat ion, and did make use of those 
opportunities.  
7.216.   Korea also contends that without notice of an affirmative decision by the USDOC that the 
Tenaris data was properly on the record, the Korean respondents were not "permitted to" submit 
factual information to sup port their arguments against the use of that data as a basis for CV profit 
determination.291 In particular, Korea asserts that the Korean respondents could not make factual 
submissions in response to the Tenaris financial statements (rebuttal facts) because those 
statements were submitted in contravention of the governing relevant USDOC regulation, 
19 C.F.R. § 351.301. Korea contends that even though U.S. Steel stated that it was submitting the 
Tenaris financial statements under 19 C.F.R. § 351.301(c)(1)(v), the submission was not 
consistent with the requirements of that provision because it did not "rebut, clarify or correct" 
factual information in NEXTEEL's Supplemental Questionnaire Response .292 
7.217.   The facts on the record of these proceedings do not support Kore a's assertion that the 
Korean respondents were precluded from presenting rebuttal facts unless the USDOC notified them 
of its acceptance of those statements on the record. We are also not persuaded that the Korean 
respondents were prevented from presenting  rebuttal facts because the Tenaris statements were 
submitted in contravention of the governing relevant USDOC regulation. As described above, after 
the preliminary determination, the USDOC issued a supplemental questionnaire to NEXTEEL293, in 
reply to which  NEXTEEL submitted its response. The United States relies on US regulation 
19 C.F.R. § 351.301(c)(1)(v). That regulation provides that an interested party, other than the 
original submitter of a supplemental questionnaire response – here U.S. Steel – has o ne 
opportunity to submit factual information to rebut, clarify , or correct factual information contained 
in that questionnaire response within a specified time -frame. Korea has not pointed to any other 
conditions for such a submission in this regulation.  
7.218.   The regulation further provides that the original submitter of the supplemental 
questionnaire response – here NEXTEEL – has one opportunity to submit a sur -rebuttal containing 
                                                
287 Korea's second written submission, paras. 285 and 293; first written submission, paras. 189, 203 
and 204 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241 ). 
288 Panel Reports, Argentina – Poultry Anti -dumping Duties , para. 7.160; and Guatemala – Cement II , 
para. 8.162  
289 Korea's opening statement at the first meeting of the Panel, para. 115.  
290 United States' first written submission, paras. 206 and 208 (referring to AJU BESTEEL Case Brief,  
18 June 2014, (Exhibit USA -18), pp. 5 -7; HUSTEEL Case Brief, 18 June  2014, (Exhibit USA -19), pp. 17 -24; 
HYSCO Rebuttal Brief , 24 June 2014 (complete) , (Exhibit USA -25), pp. 34 -41; HYSCO Case Brief , 
19 June 2014, (Exhibit USA -24), pp. 41 -55); NEXTEEL Case Brief , 19 June 2014,  (Exhibit USA -22); NEXTEEL 
Rebuttal Brief , 24 June 2014,  (Exhibit USA -23); and OCTG Hearing Transcript , 26 June 2014 , (Exhibit KOR -32) 
pp. 112-122).  
291 Korea's s econd written submission, para. 294.  
292 Korea's response to Panel question No. 69, paras. 96 -99. 
293 USDOC,  Third supplemental s ection D questionnaire to NEXTEEL , 20 February 2014 , 
(Exhibit  KOR-18) (BCI).  WT/DS488/ R 
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  factual information to rebut, clarify, or correct the interested party's rebutta l, clarification , or 
correction to its supplemental questionnaire response, within seven days of the filing of such a 
rebuttal, clarification, or correction. Again, Korea has not pointed to any other conditions for such 
a submission in this regulation. U.S. Steel submitted the Tenaris financial statements under 
19 C.F.R. § 351.301(c)(1)(v), purporting to rebut, clarify , or correct factual information contained 
in NEXTEEL's Supplemental Questionnaire Response .294 As we understand it, NEXTEEL, as the 
original s ubmitter of the supplemental questionnaire response, could have submitted rebuttal 
facts. NEXTEEL did not do so.295 
7.219.   Korea does not dispute the United States' description of the operation of 19 C.F.R. 
§ 351.301(c)(1)(v). Rather, Korea argues that NEXTEEL did not file a sur -rebuttal because the 
Tenaris financial statements did not constitute rebuttal information under 19 C.F.R. 
§ 351.301(c)(1)(v) and the provision for sur -rebuttal was therefore, not applicable.296 We are not 
convinced by Korea's argument. Whether  or not the Tenaris financial statements were submitted 
consistently with the governing regulation was a decision for the USDOC to make in its capacity as 
investigating authority, and not for NEXTEEL. NEXTEEL did, in fact, object to the U.S. Steel 
submissi on as inconsistent with the governing regulation. However, Korea has not shown that 
anything in the USDOC regulation requires that, having chosen to object to the Tenaris 
statements' submission, NEXTEEL was thereby automatically precluded from also respond ing to 
the substance of those statements. Apparently, it was their choice to await a decision on that 
objection, which was not forthcoming from the USDOC, rather than seek to make their own 
sur-rebuttal submission. Pending a decision, NEXTEEL, even if it b elieved that the Tenaris financial 
statements should be rejected, was not, in any formal sense, prevented from taking the 
opportunity to counter the contents of that submission, without prejudice to its objections to the 
USDOC's acceptance of those stateme nts. Moreover, even if the USDOC erred in not responding to 
NEXTEEL's objection, a question which is outside our purview, we fail to see how NEXTEEL was 
precluded from at least attempting to file a sur -rebuttal.  
7.220.   Korea further argues that NEXTEEL did not fi le a sur -rebuttal under 
19 C.F.R.  351.301(c)(1)(v) because to do so would have amounted to acknowledging that the 
Tenaris financial statements constituted rebuttal information under that provision and were 
therefore on the record.297 Korea has failed to expl ain how NEXTEEL was precluded from filing a 
sur-rebuttal and stating that its submission did not amount to an acknowledgement that the 
Tenaris financial statements had been properly submitted. We agree with the United States that 
NEXTEEL could have request ed that the USDOC reject the U.S. Steel submission because it was 
improperly submitted while, at the same time arguing in the alternative that the USDOC should 
accept the sur -rebuttal information should it decide to accept the U.S. Steel submission.298 In this 
regard, we recall that Article 6.2 requires that an investigating authority provide opportunities  for 
interested parties to defend their interests. We consider the fact that NEXTEEL did not act to 
defend its own interests in the underlying investigation  cannot b e equated with a failure by 
the USDOC to provide opportunities to interested parties to defend their interests.299 
7.221.   Korea also argues that 19  C.F.R. § 351.301(c)(1)(v) permitted only the submitter of the 
original factual information to submit rebutta l facts, and therefore only NEXTEEL, and not HYSCO, 
would have been able to submit such rebuttal facts under these regulations.300 The United States 
submits that HYSCO and other Korean respondents could also have filed such rebuttal facts 
"generally" under 19 C.F.R. § 351.301.301 Korea denies that HYSCO and other Korean respondents 
had an opportunity to submit rebuttals under the relevant provisions  because 19 C.F.R. § 351.301 
only permits parties to present arguments that the record is deficient, and does not permit parties 
to submit unsolicited factual information.302 
                                                
294 U.S. Steel Submission of Tenaris Audit Report , 21 Ma rch 2014 , (Exhibit KOR -19), p. 1. 
295 United States' response to Panel question No. 70, paras. 44 -46. 
296 Korea's response to Panel question No. 69, paras. 96 -98. 
297 Korea's response to Panel question No. 69, para. 99.  
298 United States' comments on Korea's respo nse to Panel question No. 69, para. 75.  
299 See Panel Report, Egypt – Steel Rebar , para. 7.88.  
300 Korea's comments on the United States' response to Panel question No. 70 (a), para. 102  and fn 96. 
301 United States' response to Panel question No. 70(a), para . 47. 
302 Korea’s c omments on the United States'  response to panel question no. 70, para. 103.  WT/DS488/ R 
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  7.222.   We recall, however, that Korea's claim under Article 6.2 does not raise the question 
whether the USDOC regulation  in question, 19 C.F.R. § 351.301, prevented Korean respondents 
from making factual submissions to rebut the Tenaris financial statements. Rather, Korea's claim is 
that the absence of  a USDOC notification of its acceptance of those statements on the record until 
its final determination  prevented them from doing so. Korea has pointed to no  specific evidence to 
show that NEXTEEL, or for that matter, any other Korean respondent, was prevented from filing 
sur-rebuttal evidence in response to the submission of the Tenaris financial statements only 
because the USDOC had not notified its acceptan ce of the Tenaris data on the record. In particular, 
Korea has not identified any US laws or procedures or any specific requirement imposed by the 
USDOC in the underlying investigation that made the filing of rebuttal facts by the Korean 
respondents condit ional upon prior notification by the USDOC of its acceptance of the Tenaris 
financial statements on the record. Korea has also failed to identify any instance in the course of 
the underlying investigation where the USDOC declined to accept rebuttal facts f rom the Korean 
respondents by invoking 19 C.F.R. § 351.301 or any other provision of US domestic law, or for 
that matter, even without invoking any legal provision.  
7.223.   As Korea has failed to demonstrate that the USDOC's failure to notify the Korean 
responden ts that it had accepted the Tenaris financial statements on the record until its final 
determination prevented the Korean respondents from launching a "full -scale argument" and 
submitting rebuttal facts, we conclude that Korea has failed to establish that the USDOC acted 
inconsistently with Article  6.2 in this regard.  
7.6.2.3.2   Whether  the USDOC act ed inconsistently with Article  6.4 in not disclosing, 
until its final determination, that it had accept ed the Tenaris financial statements on the 
record  and that it was u sing those statements in determining CV profit  
7.224.   As w e understand  it, Korea's  claim under Article 6.4  is that, because the Korean 
respondents were not informed that the USDOC  had accept ed the Tenaris financial statements on 
the record until the final determi nation, they were not provided a timely opportunity to prepare 
presentations on the basis of the fact that the Tenaris financial statements were being used by 
the USDOC.303 
7.225.   Article  6.4 requires an investigating authority to  provide interested parties timely 
opportunities to see all non -confidential information that is relevant to the presentation of their 
cases  and that is used by that authority  in the anti -dumping investigation , and to prepare 
presentations  on the basis of this information . We see nothing in  Article 6.4  that would suggest 
that an investigating authorit y must "inform"  interested parties of procedural decisions  to accept 
and/or use certain information in the anti -dumping investigation.  In any event, we fail to see how 
a procedural decision to accept and/or use certain information itself would constitute "information 
that is relevant to the  presentation" of an interested part y's case. 
7.226.   Korea characterizes the Tenaris financial statements as the "information" that is "relevant" 
to the presentation of the Korean respondents' cases and which was "used" by the investigating 
authority in the anti -dumping investigation.304 We do not disagree with this characterisation. 
However, Korea is not arguing that the Korean respondents did not have timely opportunit ies to 
see the Tenaris profit data and prepare presentations on that basis. Rather, Korea is arguing that 
the "information" the Korean respondents did not have timely opportunities to see , and to prepare 
presentations on the basis of , is the decision by th e USDOC to accept and/or use the Tenaris 
financial data on the record.  
7.227.   Korea also argues that the USDOC's failure to notify the interested parties that it had 
accepted the Tenaris financial statements on the record until its final determination precluded t he 
Korean respondents from submitting rebuttal facts305, and thus denied them the opportunity to 
prepare presentations on the basis of those statements, as required under Article  6.4. We have 
rejected Korea's claim  that the USDOC's failure to notify the inte rested parties that it had accepted 
the Tenaris financial statements on the record until its final determination precluded the Korean 
                                                
303 Korea's opening statement at the first meeting of the Panel, para. 116.  
304 Korea's first written submission, para. 206.  
305 Korea's second written submission, para. 293 . WT/DS488/ R 
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  respondents from submitting rebuttal facts . Therefore, there is no basis for Korea's argument in 
this regard.   
7.228.   Based on th e foregoing, we conclude  that Korea has not established that, in not disclosing 
until its final determination, that it had accepted  the Tenaris financial data on the record and was 
using that data for determining CV profit, the USDOC failed to provide time ly opportunities for 
Korean respondents to see all non-confidential information relevant to the presentation of their 
cases used by the USDOC and to prepare presentations on the basis of this information.  
7.6.2.3.3   Whether  the USDOC act ed inconsistently with Article  6.9 in not disclosing, 
until its final determination, that it had accept ed the Tenaris financial statements on the 
record and that it relied on those statements in determining CV profit  
7.229.   We have before us two main questions  in regard to this claim:  
a. whether  the USDOC's reliance on the Tenaris profit rate  in determining CV profit 
constitutes an "essential fact" within the meaning of  Article  6.9, whose disclosure was 
therefore required under that provision;  and 
b. whether the USDOC's acceptance  of the Tenaris fin ancial statements on the record 
constitutes an "essential fact" within the meaning of Article  6.9, whose disclosure was 
therefore required under that provision . 
7.230.   We understand from Korea's submissions that the  "acceptance on the record" of a 
submission containing financial statements by the USDOC means a  decision to include that 
submission on the record of the investigation . We understand the USDOC's "reliance" on the 
submitted financial statements  in determining CV profit to be  a decision to use the substan ce of 
that submission in making its determination.  In view of that differe nce, we will evaluate these 
two questions  separately.  
7.231.   Article  6.9 provides that:  
The authorities shall, before a final determination is made, inform all interested 
parties of the e ssential facts under consideration which form the basis for the decision 
whether to apply definitive measures. Such disclosure should take place in sufficient 
time for the parties to defend their interests.  
It is well accepted that Article  6.9 does not req uire the investigating authority to disclose its 
decisions or conclusions.306 
 
7.232.   Article  6.9 requires the disclosure of essential facts "under consideration", which form the 
basis for the decision whether to apply definitive measures. That the essential facts,  which must 
be disclosed are "under consideration" at the time of their disclosure, implies that the investigating 
authority has not yet reached conclusions regarding its reliance on them at that stage. We agree 
with the views of the panel  in EC – Salmon ( Norway)  that essential facts for purposes of Article 6.9 
are not only those facts that support a determination, but rather are the body of facts essential to 
any determination  that are being considered in the process of analysis and decision -making by the 
investigating authority.307 That panel further observed that:  
[I]n our view, the essential facts to be disclosed under Article  6.9 are not affected by 
the substance of the determination an investigating authority may ultimately make. 
Indeed, they cannot be, as the essential facts to be disclosed are those "under 
consideration that form the basis of the decision" – that is, the disclosure of essential 
facts precedes  the decision. Thus, at the time of the Article 6.9 disclosure, no decision 
                                                
306 Panel Report, China – GOES , para. 7.407.  
307 Panel Report, EC – Salmon (Norway) , para. 7.796.  WT/DS488/ R 
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  has yet been taken, and, it seems to us, the disclosure of essential facts may not 
enable an interested party to foresee the ultimate decision.308 
7.233.   Given that the final determination may be affected by further arguments or information 
submitted after the Article 6.9 disclosure , the investigating authority  cannot be required to include  
conclusions in that disclosure.  This view is in keeping with the panel's statement  in EC – Salmon 
(Norway)  that the requirement in Article  6.9 for disclosure of "essential facts" is not necessarily 
satisfied by the disclosure of the investigating authority's  conclusions on issues of fact  that must 
be resolved before a decision to apply definitive measures is taken.309 
7.234.   Turning first to the question whether the USDOC's reliance on the Tenaris profit data  to 
determine CV profit constitutes an "essential fact", as we have stated, the USDOC's reliance on the 
Tenaris profit data to determine CV profit constitutes a decision to use that data in its 
determination.  In light of the foregoing, we are of  the view t hat Article  6.9 requires an 
investigating authority to disclose only the essential facts and not its reasoning or its 
conclusions.310 Given that the USDOC's reliance on the Tenaris profit data to calculate profit 
constitutes its conclusion to use that data ( as opposed to other data it had before it) in calculating 
CV profit, in our view,  that reliance was not an essential fact within the meaning of Article  6.9, and 
there was therefore no obligation on the USDOC  to disclose it. 
7.235.   We next consider the question wh ether the USDOC's acceptance of the Tenaris profit data 
on the record of the underlying investigation constitutes an "essential fact" within the meaning of 
Article  6.9.  
7.236.   Korea argues that the acceptance of the Tenaris profit data on the record constitutes an 
"essential fact" because : (a) that data was "under consideration" as evidenced by the USDOC 's 
decision to rely on it to calculate CV profit ; and ( b) it formed the basis for the decision whether to 
apply definitive measures as the use of that data was th e most important factor that raised the 
respondents' dumping margins from a preliminary de minimis  to a positive final margin.311  
7.237.   The question raised by Korea's assertion is whether the acceptance of the Tenaris profit 
data on the record rather than the Tenaris profit data  itself was an essential fact under 
consideration. There is no issue in Korea's claim regarding whether the Tenaris profit data  itself 
was an essential fact.  What is pertinent to deciding Korea's claim is therefore not whether the 
Tenaris d ata was a fact under consideration by the USDOC for the determination of CV profit, but 
whether "the acceptance of that data on the record" was a fact under consideration for that 
determination. We are of the view that the acceptance of the Tenaris profit data on the record 
does not constitute an "essential fact " within the meaning of Article  6.9. 
7.238.   We recall  that what facts are essential is decided by reference to the determinations that 
must be made by the investigating authority.312 In the context of Article  2.2.2(iii ), the essential 
facts were those that were under consideration as forming the basis for the USDOC's  CV profit 
determination. While data which is used in the CV profit determination  is substantively relevant to 
that determination, the fact of  acceptance of that data on the record  is not. This is because the 
fact of acceptance of data on the record, unlike the data itself, cannot be used in making the 
CV profit determination. The fact of acceptance of a submission on the record, even given that the  
submission contained the Tenaris profit data that was ultimately relied on, is not required  to 
understand the basis for the USDOC's CV profit determination, because the fact of acceptance of 
the submission on the record has no substantive relevance to the  CV profit determination. We do 
not consider that the fact of acceptance of the Tenaris profit data on the record was substantively 
relevant to the content of the USDOC's findings  on the CV profit and therefore, to the content of its 
findings on the dumpin g margin. The fact of acceptance of the Tenaris profit data therefore did not 
underlie  the USDOC's final findings and conclusions in respect of any of the three essential 
                                                
308 Panel Report, EC – Salmon (Norway) , para. 7.796.  (emphasis added)  
309 Panel Report, EC – Salmon (Norway) , para. 7.806.  
310 United States' first written submission , para. 219.  
311 Korea's response to Panel question No. 36, para. 123.  
312 Appellate Body Report, China – GOES , para. 241 . WT/DS488/ R 
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  elements – dumping, injury and causation – that must be present for application of de finitive 
anti-dumping measures.313 
7.239.   Our conclusion in this regard  is consistent with the views  of the Appellate Body in China – 
GOES : 
In order to apply definitive measures at the conclusion of countervailing and anti -
dumping investigations, an investigating a uthority must find dumping or subsidization, 
injury and a causal link between the dumping or subsidization and the injury to the 
domestic industry. What constitutes an "essential fact" must therefore be understood 
in light of the content of the findings needed to satisfy the substantive obligations with 
respect to the application of definitive measures under the Anti -Dumping Agreement 
and the SCM Agreement, as well as the factual circumstances of each case.  
Hence, in the context of the second sentence of A rticles  3.2 and 15.2, we consider 
that the essential facts that investigating authorities need to disclose are those that 
are required to understand the basis for their price effects examination , leading to the 
decision whether or not to apply definitive m easures, so that interested parties can 
defend their interests.314  
7.240.   Moreover, in our view,  the acceptance of the Tenaris profit data on the record forms part 
of the authority's consideration or reasoning with regard to that data, which is not subject to the 
disclosure  obligation  under Article  6.9. It is well accepted that  the Article 6.9 disclosure obligation 
does not apply to the reasoning of the  investigating authority , but to the "essential facts " that 
form the factual basis for that reasoning.315  
7.241.   Korea als o argues that the acceptance of the Tenaris profit data on the record constitutes 
an essential fact because it defined the universe of sources that the USDOC was considering for its 
CV profit determination. In particular, it enabled the USDOC to determine CV profit on the basis of 
the Tenaris profit data, which according to Korea, in and of itself, also constitutes an "essential 
fact" that must be disclosed under Article  6.9. Korea argues that the USDOC's failure to disclose its 
acceptance of the Tenaris pr ofit data on the record is, therefore, tantamount to its failure to 
disclose the Tenaris profit data itself as an "essential fact".316  
7.242.   The acceptance of the Tenaris profit data on the record would not mean that the USDOC 
would necessarily consider that data  as the basis for its CV profit determination. Acceptance of a 
submission on the record by an authority does not necessarily mean that the content s of that 
submission become  "essential fact s under consideration" which form the basis for its decision 
whethe r to apply definitive measures. Even if the USDOC had disclosed its acceptance of the 
Tenaris profit data on the record, that disclosure in itself would not have identified the Tenaris data 
as an "essential fact ".  
7.243.   Based on the foregoing, we conclude that Korea has not established that the USDOC's 
acceptance of the Tenaris profit data on the record constituted an "essential fact"  within the 
meaning of Article  6.9. We therefore find that the USDOC did not act inconsistently with Article  6.9 
in not disclosing  its acceptance of that data on the record until its final determination.  
7.6.2.4   Conclusion  
7.244.   For the foregoing reasons, regarding Korea's claims under Articles  6.2 and 6.4  of the 
Anti-Dumping Agreement , we find that:  
                                                
313 In Mexico – Olive Oil , the Panel observed that, in the context of the SCM Agreement, "essential facts" 
are the "specific facts that und erlie the investigating authority's final findings and conclusions in respect of the 
three essential elements – subsidization, injury and causation – that must be present for application of 
definitive measures" . (Panel Report, Mexico – Olive Oil , para. 7.1 10). 
314 Appellate Body Report, China – GOES , paras. 241  and 242. (fns omitted; emphasis added)  
315 Panel Report, China – GOES , para. 7.407.  
316 Korea's second written submission, para. 302.  WT/DS488/ R 
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  a. The USDOC did not act inconsistently with Arti cle 6.2 because Korea has not established 
that the USDOC, by not notifying its acceptance on the record of the Tenaris financial 
statements, prevented the Korean respondents from making factual submissions to 
counter the contents of those statements, thus denying them a full opportunity for the 
defence of their interests.  
b. The USDOC did not act inconsistently with Article  6.4 because:  
i. it was not required under that provision to inform interested parties of its decision to 
accept  and/or use  the Tenaris finan cial statements on the record; and  
ii. Korea has failed to establish a legal or factual basis for its assertion that the 
USDOC's failure to disclose that it had accept ed the Tenaris financial statements on 
the record prevented the Korean respondents from maki ng factual submissions to 
counter the substance  of those statements .  
7.245.   Regarding Korea's claim under Article  6.9, we find that:  
a. the USDOC's decision to rely on the  Tenaris profit data to determine CV profit did not 
constitute an "essential fact" within the meaning of Article  6.9 and the USDOC was 
therefore not required to disclose that reliance by Article  6.9; and  
b. the USDOC 's acceptance of the Tenaris profit data on the record did not constitute an 
"essential fact" within the meaning of Article  6.9 and the U SDOC was therefore not 
required to disclose that  acceptance by Article  6.9. 
7.6.3   Whether  the USDOC act ed inconsistently with Articles  6.4 and 6.9 in connection 
with the disclosure of certain communications   
7.6.3.1   Main arguments of the parties  
7.246.   Korea  argues that  the US DOC's delay in disclosing certain  communications was 
inconsistent with Articles  6.4 and 6.9 of the Anti -Dumping Agreement.317 According to Korea, 
these communications constituted "relevant" information used by the investigating authority  in the 
anti-dumping investigation under Article  6.4, as well as "essential facts under consideration" within 
the meaning of Article 6.9 that formed the basis for the USDOC's decisions.318 
7.247.   The United States  contends that Korea fails to explain why the communications at issue 
constituted information that was "relevant" to the presentation of the respondents ' cases, or how 
the information would have been "used" by USDOC in its investigation.319 Korea also fails to 
demonstrate that the communications at issue constitute "essential fac ts" under consideration that 
formed the basis for USDOC 's decision to apply definitive measures.320 Moreover, the record shows 
that the Korean respondents had ample opportunity to and did respond to the relevant letters from 
the US lawmakers and industry rep resentatives .321 Further, the United States asserts that it is 
evident from the face of Korea's panel request that it does not include a claim that the USDOC's 
delay in disclosing the communications in question was inconsistent with Article s 6.4 and 6.9 of 
the Anti -Dumping Agreement. Therefore, the Panel should find that this claim falls outside its 
terms of reference.322 
                                                
317 Korea's first written submission, paras. 216 and 224 ; opening stateme nt at the first meeting of the 
Panel, para. 121 (referring to Letter dated 10 June 2014 from various members of US Congress and Other 
Memoranda , (Exhibit KOR -22)). 
318 Korea's first written submission, para. 221; second written submission, para. 314.  
319 United States' first written submission, para. 226.  
320 United States' first written submission, para. 226.  
321 United States' first written submission, para. 228 . 
322 United States' comments on Korea's response to Panel question No. 75, paras. 85 and 86.  WT/DS488/ R 
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  7.6.3.2   Main arguments of third parties  
7.248.   As regards  Korea's claim under Article  6.4, the European Union  submits that the Panel 
should first examine wh ether the content of the letters was relevant from the 
respondents'  standpoint and whether it related to a required step in the analysis, such as to the 
determination of normal value.323 The next issue is whether the investigating authority allowed 
"timely o pportunities" for the respondents to see the information and prepare presentations on the 
basis of it.324 As regards Korea's claim under Article  6.9, it is doubtful that a letter that merely 
expresses support for a certain outcome of the investigation consti tutes an essential fact, however 
important its signatories might be. Article  6.9 could only be relevant if such a letter provides new 
essential facts which formed the basis of the final determination.325 
7.6.3.3   Evaluation by the Panel  
7.249.   The principal legal issue s before us are whether the timing of the placement of certain 
communications  on the record deprived Korean respondents of timely opportunities to see 
non-confidential information that was relevant to the presentation of their cases that was used by 
the USDOC, inconsistently with Article 6.4, and whether the communications at issue constituted 
"essential facts" within the meaning of Article 6.9 which were not disclosed to interested parties in 
a timely fashion. Before addressing these questions, however, we cons ider it necessary  to 
ascertain whether Korea's panel request includes a claim that that the timing of USDOC's posting 
of these communications to the record resulted in inconsisten cy with those provisions.  
7.250.   We recall  that a panel request must identify, by w ay of a brief summary, the "legal basis of 
the complaint" and that summary must be "sufficient to present the problem clearly". We also 
recall that compliance with DSU Article 6.2 must be assessed on the face of the panel request and 
on the merits of each case, considering  the panel request as a whole, and in the light of attendant 
circumstances.326  
7.251.   Korea's panel request  states, in relevant part:  
IV. PROCEDURAL CLAIMS UNDER THE ANTI -DUMPING AGREEMENT AND THE  
GATT 1994  
Korea further considers that the USDOC's  actions taken in the course of its 
anti-dumping investigation of Oil Country Tubular Goods from Korea  failed to protect 
the respondents' due process rights and were otherwise inconsistent with procedural 
obligations under the following provisions of the  Anti-Dumping Agreement or 
GATT  1994:  
1. Articles 6.2, 6.4, and 6.9 of the Anti -Dumping Agreement because the USDOC 
did not inform interested parties of its decision to accept the petitioners' submission of 
Tenaris SA's financial statements for inclusion in the record after all regulatory 
deadlines for the submission of new factual information had passed.  
a. Because the USDOC did not address Korean respondent's request to remove the 
untimely submission from the record until its Final Determination, the 
respon dents were not granted a full opportunity to defend their interests under 
Article 6.2.  
b. By failing to respond to Korean respondent's request to remove the untimely 
submission from the record or to clarify whether the financial statements were 
properly ad mitted to the official administrative record, the USDOC did not 
ensure an opportunity for Korean respondents to prepare presentations on the 
basis of this information under Article 6.4.  
                                                
323 European Union's third -party submission, para. 70.  
324 European Union's third -party submission, para. 71.  
325 European Union's third -party submission, para. 72.  
326 Appellate Body Report, US – Carbon Steel , para. 127.  WT/DS488/ R 
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  c. Because the USDOC did not respond to Korean respondents' requests o r clarify 
whether the financial statements were properly on the record, and because the 
USDOC used the Tenaris SA financial statements to calculate anti -dumping 
margins for the Korean respondents for the first time in the Final Determination, 
the USDOC fai led to inform interested parties of "essential facts" that formed 
the basis of its decision to apply definitive measures under Article 6.9.327 
7.252.   On its face, Korea's panel request  does not mention the communications at issue at all.  
The only "brief summary" wi th respect to claims under Articles 6.4 and 6.9 relates to the facts 
surrounding the submission, acceptance , and disclosure of the Tenaris financial data. We thus find 
it difficult to see how the panel request can be understood to set forth a claim that th e timing of 
the USDOC's posting of the communications at issue to the record  was inconsistent with 
Articles  6.4 and 6.9 of the Anti -Dumping Agreement.328 At a minimum, we would have expected 
some reference to the facts surrounding the alleged violation in co nnection with the 
communications as  brief summary of the legal basis of the complaint, giving some indication of 
how or why Korea considered the measure at issue to be inconsistent with Articles 6.4 and 6.9 in 
this regard. However, in this case, there is n othing on this point in the panel request at all. The 
panel request does not even mention the communications in question , much less give  any 
indication of the nature of any violation of Articles 6.4 and 6.9  in connection with those 
communications . We there fore conclude that Korea's panel request does not set out  a claim that 
the USDOC acted inconsistently with Articles  6.4 and 6.9 of the Anti -Dumping Agreement  in 
connection with the communications at issue .  
7.253.   Korea contends , however,  that the circumstances s urrounding the USDOC's treatment of 
the communications  in question do not constitute a claim, but are "evidence" to support the claim, 
identified in its panel request, that the USDOC failed to comply with Articles 6.2, 6.4 , and 6.9 in 
the course of the und erlying investigation.329 Korea submits that  in its panel request, it described 
certain instances in which the USDOC's actions were inconsistent with these provisions as evidence 
supporting that claim. It contends that having enumerated certain  evidence in i ts panel request 
does not preclude it from presenting additional evidence in these proceedings , because a party is 
under no obligation to identify, in its panel request, all the evidence that it intends to advance to 
support its claims.330 
7.254.   We understand Korea's position to be that it was not precluded from relying on the facts 
surrounding the communications in question as additional evidence supporting the claim of 
violation of Articles 6.2, 6.4 , and 6.9 set out in its panel request. We are not persuaded by K orea's 
argument. We do not agree that Korea's panel request set out a general claim that "the USDOC 
failed to comply with Articles 6.2, 6.4 and 6.9 in the course of the underlying investigation". As is 
clear from the text of the panel request,  Korea's clai m is that the USDOC acted inconsistently with 
Articles 6.2, 6.4 , and 6.9 of the Anti -Dumping Agreement because it did not inform interested 
parties of its decision to accept the petitioners' submission of Tenaris SA's financial statements for 
inclusion in the record after all regulatory deadlines for the submission of new factual information 
had passed . We recall that the panel request serves an important function of giving notice to 
Members of the substance of the dispute.  In light of the limiting nature o f Korea's summary of its 
claim, we fail to see, and Korea has fail ed to explain, how the circumstances surrounding the 
USDOC's treatment of the communications  in question could be relevant "evidence" to support 
that claim.331 In particular, Korea has not sho wn how an alleged delay in disclos ing the 
communications  in question has any relevance to the question of the USDOC's alleged failure to 
                                                
327 Emphasis original.  
328 Korea's first written submissi on, paras. 216 and 224; second wri tten submission, paras. 314 
and 316; and opening statement at the first meeting of the Panel, para. 119 . 
329 We note that in its arguments presented over the course of these proceedings, as part of 
submissions referred to in footnote  328 above,  Korea has argued that the USDOC's delay in disclosing certain 
letters from US lawmakers was inconsistent with  Articles  6.4 and 6.9 of the Anti -Dumping Agreement. 
However, in its response to Panel question No. 75, it characterizes the USDOC's delay in disclosing certain 
letters from US lawmakers as evidence in support of its claim that the USDOC acted inconsistently with 
Article 6.2 in addition to  Articles 6.4 and 6.9 of the Anti -Dumping Agreement.  (Korea's response to Panel 
question No.  75, para. 108).  
330 Korea's response to Panel question No. 75, paras. 108  and 109. 
331 Similarly, Korea's claims under Articles 6.2, 6.4 , and 6.9, set out under paragraphs 1  (a)-(c) of its 
panel request, pertain to the USDOC's co nduct in relation to the Tenaris financial statements.  WT/DS488/ R 
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  give Korean respondents a full opportunity to defend their interests under Article 6.2, to provide 
timely opportunities  to see relevant information and prepare presentations on the basis of this 
information under Article 6.4, or to disclose "essential facts" concerning the acceptance of the 
Tenaris data under Article 6.9. Moreover, Korea has expressly argued in these proce edings that 
the USDOC's alleged delay in disclosing the communications  in question violated Articles 6.4 and 
6.9, and has requested us to make a finding in this regard.332 In light of the foregoing, we reject 
the notion that the circumstances surrounding the  treatment of the communications in question 
are merely evidence in support of a claim of violation of Articles 6.2, 6.4 , and 6.9.   
7.255.   Korea's allegation s in connection with the communications in question constitute an 
entirely new claim , based on different f acts and legal arguments, that were not set forth in the 
panel request. A s discussed above, the USDOC's alleged delay in disclosure of the communications  
in question is not covered by the claims set out in Korea's panel request .  
7.256.   We find that Korea's claim  that the USDOC acted inconsistently with Article 6.4 because it 
failed to post the communicatio ns in question to the record in a timely fashion, and failed to 
disclose these communications as essential facts pursuant to Article 6.9 falls outside our terms  of 
reference because it is not set out in Korea's panel request.333 We will therefore make no findings 
in this regard.  
7.7  Whether the USDOC's decision to limit its examination to NEXTEEL and HYSCO  was 
inconsistent with  Articles 6.10 and 6.10.2 of the Anti -Dump ing Agreement  
7.257.   In the underlying investigation, the USDOC concluded that it would be impracticable to 
examine all known exporters and producers of the subject merchandise because of the large 
number of exporters or producers involved in the investigation a nd in light of its limited 
resources.334 The USDOC selected NEXTEEL and HYSCO as the two mandatory respondents  for 
examination . Korea claims that the USDOC acted inconsistently with Article 6.10 of the 
Anti-Dumping Agreement by limiting its examination to only these two exporters , and also acted 
inconsistently with Article 6.10.2 of the Agreement by failing to individually examine the voluntary 
respondents.  
7.7.1   Provisions at issue  
7.258.   Article  6.10 of the Anti -Dumping Agreement provides:  
The authorities shall, as a rule, determine an individual margin of dumping for each 
known exporter or producer concerned of the product under investigation. In cases 
where the number of exporters, producers, importers or types of products involved is 
so large as to make such a deter mination impracticable, the authorities may limit their 
examination either to a reasonable number of interested parties or products by using 
samples which are statistically valid on the basis of information available to the 
authorities at the time of the s election, or to the largest percentage of the volume of 
the exports from the country in question which can reasonably be investigated.   
Article  6.10.2 of the Anti -Dumping Agreement further provides:  
 
In cases where the authorities have limited their examin ation, as provided for in this 
paragraph, they shall nevertheless determine an individual margin of dumping for any 
exporter or producer not initially selected who submits the necessary information in 
time for that information to be considered during the c ourse of the investigation, 
                                                
332 Korea's first written submission, paras. 216, 224 , and 277(c)(ii).  
333 Panels are not permitted to address legal claims falling outside their terms of reference. The terms of 
reference of a panel defin e the scope of the dispute. (Appellate Body Report, Mexico – Anti-Dumping Measures 
on Rice , para. 152) . Pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the 
request for the establishment of a panel. Article 6.2 of the DSU se ts forth the requirements applicable to such 
requests.  
334 USDOC, Antidumping duty investigation of certain oil country tubular goods from the Republic of 
Korea: Respondent Selection Memorandum, 26 August 2013 ( Respondent Selection Memorandum ), 
(Exhibit  KOR-3), p. 6.  WT/DS488/ R 
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  except where the number of exporters or producers is so large that individual 
examinations would be unduly burdensome to the authorities and prevent the timely 
completion of the investigation. Voluntary responses shall not be di scouraged.  
7.7.2   Factual background  
7.259.   In the underlying investigation, the USDOC issued a Respondent Selection Memorandum 
(Exhibit KOR -3) in which it explained why it considered that the individual examination of all 
known Korean exporters would be impracticable. It stated that it was selecting the two Korean 
exporters, NEXTEEL and HYSCO which together accounted for the largest volume of subject 
imports from Korea into the United States,  for individual examination .335 The USDOC also issued a 
Treatment of Voluntary Re spondents Memorandum (Exhibit KOR -50) in the underlying 
investigation, in which it explained why it would be unduly burdensome to individually examine 
voluntary respondents, i.e. exporters other than NEXTEEL and HYSCO which submitted voluntary 
responses  to the USDOC questionnaire .336 
7.7.3   Main arguments of the parties  
7.260.   Korea  makes two main arguments under Article 6.10. First, Korea argues that the USDOC 
did not provide a reasoned explanation as to why it would be impracticable to examine all known 
exporters, and fu rther, why it would be practicable to examine only two exporters.337 Second, 
Korea notes that where it is impracticable to examine all known exporters, Article 6.10 permits an 
investigating authority to limit its examination to either : (a) a reasonable numbe r of interested 
parties or products by using samples which are statistically valid on the basis of information 
available to the investigating authority  at the time of the selection (first method) or, in the 
alternative ; (b) the largest percentage of the vo lume of exports from the country in question which 
can reasonably be investigated (second method). Korea asserts that the USDOC relied on the first  
method  in the underlying investigation , but did not properly comply with this method.338 In 
particular, the US DOC failed to explain  why only two Korean respondents constituted  a reasonable  
number  of exporters to be examined , and did not limit its examination on the basis of a 
statistically valid sample.339 Regarding its claim under Article 6.10.2, Korea asserts  that the 
USDOC failed to provide any explanation as to why it would be "unduly burdensome" to 
individually examine voluntary respondents.340 
7.261.   The United States  asserts that in its Respondent Selection Memorandum, the USDOC 
adequately explained why it would be imp racticable to examine all known exporters.341 The 
United  States further submits that the USDOC's record shows that the USDOC relied on the second 
rather than the first method for limiting its examination provided for in Article 6.10.342 According 
to the United  States, the USDOC fully complied with this second method.  
7.262.   The United States maintains that the "Treatment of Voluntary Respondents Memorandum" 
explained why it would be unduly burdensome to individually examine voluntary respondents in 
light of its resou rce constraints , and thus there is no violation of Article 6.10.2 . 
7.7.4   Main  arguments of the third parties  
7.263.   The European Union  submits that a decision under Article 6.10.2 to not determine 
individual dumping margins for voluntary respondents cannot be arbitrary , and the authority must 
                                                
335 Respondent Selection Memorandum, (Exhibit KOR -3), p. 8. 
336 USDOC, Treatment of Voluntary Respondents Memorandum , 30 December 2013 , (Exhibit KOR -50), 
p. 6. 
337 Korea's second written submission, para. 265.  
338 Korea's second written submission, para.  273. 
339 Korea's first written submission, para. 232;  response to Panel question No. 37(a) and (b), para.  128. 
340 Korea's first written submission, para. 236.  
341 United States' first written submission, paras. 186 and 188.  
342 United States' second written subm ission, para. 58.  WT/DS488/ R 
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  explain why the number of voluntary respondents would make it unduly burdensome to make an 
individual examination and prevent the timely completion of the investigation.343 
7.7.5   Evaluation by the Panel  
7.7.5.1   Article 6.10 of the Anti -Dumping Agr eement  
7.264.   Korea's Article 6.10 claim raises the following two principal issues:  
a. Was the USDOC's explanation as to why it would be "impracticable" to examine all 
known exporters sufficient to discharge its obligation under Article 6.10?  
b. Did the USDOC act incon sistently with Article 6.10 by failing to properly limit its 
examination in accordance with one of the methods provided under this provision ? 
7.7.5.1.1   The USDOC 's determination that it would be "impracticable" to examine all 
known exporters  
7.265.   The first sentence of A rticle 6.10 establishes the general rule that an investigating 
authority shall determine an individual margin of dumping for each known exporter  or producer  of 
the product under investigation. However, the second sentence , recognizing that this may not be 
possible in all cases,  permits an investigating authority to deviate from the general rule where it 
would be "impracticable" to do so , and provides for individual examination of a limited number of 
exporters . Article 6.10 further provides for two methods o f choosing the limited number of 
exporters for individual examination.344 However, Article 6.10 contains no guidance on how large 
the number of exporters must be in order for an investigating authority to limit its examination  to 
a smaller number. Instead, i t specifies that the number of exporters must be "so large" as to make 
an individual determination "impracticable ". This is necessarily a judgment which must be made by 
the investigating authority in each case in which it limits the individual examination,  based on the 
relevant facts and circumstances.  
7.266.   In the underlying investigation, the USDOC provided the following explanation as to why it 
would be impracticable to examine all known exporters of the product under investigation345: 
Because of the large numbe r of known exporters or producers involved in this 
investigation, and after careful consideration of our resources, we conclude that it 
would not be practicable in this antidumping duty investigation to examine all known 
exporters and producers of the subj ect merchandise as identified in the Petition and 
the CBP import data. Antidumping and Countervailing Duty (AD/CVD) Operations 
Office 7, the office to which this antidumping duty investigation is assigned, does not 
currently have the resources to examine a ll such exporters or producers. We find that 
the number of potential respondents identified in the CBP data is large relative to the 
resources available to AD/CVD Operations Office 7 and Import Administration that can 
be dedicated to the investigation. Thi s office is conducting numerous concurrent 
antidumping duty proceedings, which place a constraint on the number of analysts 
that can be assigned to this case. Not only do these other cases present a significant 
workload, but the deadlines for a number of t he cases coincide or overlap with 
deadlines in this antidumping proceeding. In addition, because of the significant 
workload throughout Import Administration, we do not anticipate receiving additional 
resources to devote to this antidumping proceeding.346 
Thus, the USDOC's decision  to limit the individual examinations was based on the following 
considerations: (a) there were a large number of exporters  or producers  involved in the underlying 
investigation; and (b) the USDOC lacked the resources to examine all  such exporters  or producers , 
considering that the relevant  office  was conducting numerous concurrent anti -dumping 
                                                
343 European Union's third -party submission, para. 84.  
344 See, e.g. Panel Report, EC – Salmon (Norway) , para. 7.162.  
345 Respondent Selection Memorandum, (Exhibit KOR -3), pp. 6  and 7. 
346 Fns omitted.  WT/DS488/ R 
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  proceedings and the deadline for a number of the cases coincided or overlapped with deadlines in 
the underlying investigation.  
 
7.267.   Korea contend s that the USDOC did not provide a reasoned and adequate explanation as 
to why the number of exporters was so large so as to render individual examination of all these 
exporters impracticable.347 Korea also asserts that the USDOC 's resource constraints do no t 
evidence the existence of "any extraordinary circumstances" in the underlying investigation 
considering that such constraints are faced by investigating authorities on a regular basis.348 In 
Korea's view, institutional resource constraints  are not unique t o the investigation at issue and 
cannot be the basis for a conclusion that it is impracticable to examine all known exporters  or 
producers . Finally, Korea submits that the USDOC did not explain why it would be impracticable to 
examine more than two respond ents, which Korea contends is required by Article 6.10.349 We are 
not persuaded by these arguments .  
7.268.   First, Korea itself acknowledges  that the USDOC explained that the number of exporters 
was large relative to the resources at its disposal.350 Whether or not Korea agrees with the 
explanation, it is clear that the USDOC did explain its conclusion that the number of exporters was 
so large so as to render individual examination of all of them impracticable. It is not clear to us, 
and Korea does not explain, what e lse the USDOC could have said in this regard .  
7.269.   Second, nothing in the text of Article 6.10 supports Korea's position  that an investigating 
authority may limit individual  examination only when "extraordinary circumstances" exist. In  our 
view, the text is cl ear that the trigger for limiting individual examination is the existence of a large 
number of exporters . Article 6.10 contains no mention of extraordinary circumstances as a 
relevant consideration, and we see no basis to read such a consideration into the  text. Similarly, 
nothing in Article 6.10 suggests that examination of all exporters may only be found to be 
"impracticable" for reasons that are unique to the investigation at issue. The text of Article 6.10 
simply does not support Korea's position  that i nstitutional resource constraints, of the kind cited by 
the USDOC, cannot be a ground for  such limited examination .351 
7.270.   Our conclusion is consistent with the views of the panel in EU – Footwear (China)  on an 
analogous question . There the panel was considering  whether , under Article 6.10.2 of the 
Anti-Dumping Agreement, an investigating authority was justified in citing institutional resource 
constraints and administrative burden as the reason why it would be "unduly burdensome" to 
examine voluntary responses f iled by exporters who were not selected for individual examination. 
That panel concluded as follows352: 
These are precisely the criteria set forth in Article  6.10.2 which an investigating 
authority may cite in order to justify declining to grant individual e xamination 
requests. To the extent China is arguing that it would not, in fact, have been unduly 
burdensome, and that the Commission could, and should, have allocated its available 
resources so as to enable it to undertake the individual examinations reque sted, we 
reject China's argument. Even assuming China is correct that the Commission had 
sufficient resources, and/or could have allocated its available resources differently, we 
consider that it would be entirely inappropriate for us to interfere in this manner in an 
investigating authority's conduct of anti -dumping investigations.  
7.271.   Article 6.10.2  is drafted differently from Article 6.10 , allowing voluntary responses to not 
be examined if to do so would be "unduly burdensome". Article 6.10, on the other ha nd, allows 
limited examination if it is impracticable to examine all known exporters. However, the underlying 
rationale of the panel's finding in EU – Footwear (China)  applies here as well. In particular, both 
provisions permit some flexibility in examinin g a limited subset of all exporters of the product 
                                                
347 Korea's second written submission, para. 2 67. 
348 Korea's second written submission, para. 267.  
349 Korea's second written submission, para. 265.  
350 Korea's second written submission, para. 267.  
351 Indeed, it would seem to us that this is the most likely reason for an investigating authority to 
consider  examining all known exporters to be impracticable, given that an anti -dumping investigation is 
complex and must be completed within 12 months, as a rule, and no more than 18 months in any case, under 
Article  5.10.  
352 Panel Report, EU – Footwear (China) , para. 7.146.  WT/DS488/ R 
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  under investigation in certain circumstances. Indeed, we see no reason why institutional resource 
constraints are not equally valid as a basis for a limited examination under Article 6.10 as they are 
for not examining voluntary respondents under Article 6.10.2. Thus, we consider that the USDOC's 
reliance on institutional resource  constraints  as the reason why it was impracticable to examine all 
known exporters  was not inconsistent with Article 6.10.  
7.272.   Finally , we see nothing in the first sentence of Article 6.10 that would impose an obligation 
on an investigating authority to specifically explain why it would be impracticable to examine more 
than a particular number of respondents, in this case two. The second  sentence of Article 6.10 
consists of  two parts, with the first specifying the circumstances in which it may be impracticable 
to examine all known exporters  (the number is "so large") , and the second setting out  the 
methods for choosing the exporters to be  individually examined when not all are examined. We 
consider that the second part of the second sentence, rather than the first part , is relevant to the 
number of exporters to be selected for limited examination. If the investigating authority selects 
the exporters subject to individual examination in a manner consistent with the methods 
prescribed in the second part of the second sentence of Article 6.10, we do not see why that 
authority would have to provide a separate explanation o f why it is practicabl e to examine only the 
number of exporters  in the resulting pool . Therefore, we consider that  the USDOC was not 
required to specifically explain why it was practicable to examine only two exporters, and not 
more.  
7.273.   Thus, for the reasons discussed above, we co nclude that USDOC's explanation on why it 
would be impracticable to examine all known exporters of the product under investigation was not 
inconsistent with Article 6.10.  
7.7.5.1.2   The USDOC 's decision to limit its examination to two mandatory respondents  
7.274.   The second  sentence of Article 6.10 sets out two alternative selection methods for an 
investigating authority to use in deciding which exporters it will individually examine when it does 
not examine all exporters of the product under investigation. First, the invest igating authority may 
limit its examination to a reasonable number of interested parties by using samples which are 
statistically valid on the basis of information available to th at authority  at the time of the selection. 
Second, and in the alternative, it  may limit its examination to the largest percentage of the volume 
of exports from the country in question which can reasonably be investigated.  
7.275.   In connection with the second method, we recall that  the panel in EC – Salmon (Norway) 
concluded that the volu me of sales that may be reasonable for an investigating authority to 
investigate is a question that must be assessed on a case -by-case basis, taking into account all the 
relevant facts that are before the investigating authority, including the nature and t ype of the 
interested parties, the products involved and the investigating authority's own investigating 
capacity and resources.353 We share this understanding of the type s of factors that would be 
relevant to considering  an investigating authority's complia nce with this second method of 
selection provided in Article 6.10  and will apply it in this dispute .  
7.276.   Before we turn to that question, however, we must resolve a factual question. Korea 
maintains that the USDOC relied on the first method, selecting exporte rs for limited examination 
on the basis of a statistically valid sample, while the United States asserts that the USDOC relied 
on the second method. T he USDOC 's decision is clearly set forth in its Respondent Selection 
Memorandum : 
In selecting respondents in this antidumping duty investigation, the [USDOC] finds 
that, given its limited resources, it is most appropriate to select the exporters or 
producers accounting for the largest volume of the subject merchandise that can 
reasonably be examined .354 
In our v iew, it is undisputable that the USDOC used the second method, selecting producers 
accounting for the largest percentage of the volume of exports that it could reasonably investigate , 
                                                
353 Panel Report, EC – Salmon (Norwa y), para. 7.188.  
354 Respondent Selection Memorandum, (Exhibit KOR -3), p. 7. (emphasis added)  WT/DS488/ R 
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  that is, t he two Korean exporters who accounted for the largest volume o f imports of the subject 
merchandise into the United States from Korea, during the POI.355 
 
7.277.   Notwithstanding the clear statement by the USDOC in this regard, Korea insists that the 
USDOC used the first method . Korea asserts that the USDOC select ed the number of exporters it 
considered it could examine  rather than limiting its examination to the largest percentage of the 
volume of exports.356 Korea appears to be of the view that the USDOC used the first  method 
because it did not state that it could only reasonabl y investigate X% of the total volume of exports 
into the United States and instead stated that it could  reasonably investigate the two exporters 
who accounted for the largest volume of exports. We disagree.  The limited examination allowed for 
under Article  6.10 is, necessarily, of exporters, not of a volume of exports. It is self -evident that a 
dumping margin cannot be determined  for the "largest percentage of the volume of the exports" 
from the subject country , but only for exporters which  account for that  volume of exports.357 This 
is what the USDOC did in the underlying investigation.358 Korea does not dispute that NEXTEEL 
and HYSCO were, in fact, the two largest exporters of OCTG into the United States.  
7.278.   Therefore, we conclude that the USDOC did not act incon sistently with Article 6.10 in this 
regard.  
7.7.5.2   Article 6.10.2 of the Anti -Dumping Agreement  
7.279.   In the underlying investigation, certain Korean exporters  not selected for individual 
examination  by USDOC requested such individual examination as voluntary responden ts. The 
USDOC did not individually examine any of these voluntary respondents, conclud ing that to do  so 
would be unduly burdensome and would inhibit the timely completion of the underlying 
investigation.359 Korea asserts that the USDOC's explanation of why i t would be "unduly 
burdensome" to individually examine the voluntary respondents was not reasoned and adequate, 
and that the USDOC therefore acted inconsistently with Article 6.10.2.  
7.280.   Article 6.10.2 establishes a general require ment that an investigating au thority determine 
an individual margin of dumping for any exporter or producer not selected for individual 
examination which submits the necessary information in time for it to be considered during the 
course of the investigation. However, there is an exce ption to this general rule. W here the number 
of exporters or producers is so large that individual examination would be "unduly burdensome" to 
the investigating authority and prevent the timely completion of the investigation, the authority 
need not undert ake individual examination of exporters or foreign producers who voluntarily 
submit the necessary information. However, Article 6.10.2  does not identify any circumstance in 
which , or criteria for determining whether , individual examination of voluntary res pondents would 
be unduly burdensome.  
7.281.   In deciding not to individually examine any of the voluntary respondents, the USDOC 
noted the complex factual issues that it had to address in examining the responses filed by the two 
                                                
355 United States' comments on Korea's response to Panel question No. 77, para. 90.  
356 Korea's response to Panel question  No. 77, para. 112.  
357 We note that Article 9.4 of the Anti -Dumping Agreement establishes a method for determining a 
dumping margin for exporters not selected for individual examination under Article 6.10 . That method is based 
on the dumping margins determi ned for the exporters which are selected. Pursuant to Article 9.4, the margin 
for unexamined exporters  cannot exceed either : (a) the weighted average dumping margin of the exporters 
selected for limited examination ; or (b) where the anti -dumping duty is ca lculated on the basis of a prospective 
normal value, the difference between the prospective normal value of the exporters who are selected for 
limited examination, and the export price of those who are not . Thus, it is clear that to apply an anti -dumping 
measure in an appropriate amount to unexamined exporters, the investigating authority must determine the 
dumping margin s for the exporters selected for limited examination  (or normal value s, in the case of a 
prospective normal value system).  
358 To the extent  Korea is arguing that the USDOC was required to first determine what was the largest 
volume of exports of the subject merchandise into the United States it could investigate, and then consider 
which exporters accounted for that volume, we see no basis for  such sequencing in the text of Article 6.10.  In 
any event, such a sequence would not work as a selection methodology, since as discussed above, it is 
exporters that are examined, not a volume of exports. The impracticability of examining all exporters is a 
function of the number of exporters, not of the volume of exports.  
359 USDOC, Treatment of Voluntary Respondents Memorandum , 30 December 2013 , (Exhibit KOR -50), 
p. 7. WT/DS488/ R 
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  mandatory respondents, observed tha t it had already issued extensive supplemental 
questionnaires to the m, and stated that it expected to issue additional ones.360 The USDOC then 
went on to explain why it would be unduly burdensome to examine the voluntary responses filed 
by certain Korean res pondents:  
In addition to the work involved in examining the two mandatory respondents in this 
investigation, the [USDOC] has also considered its available resources in light of its 
current workload, to determine whether examining Husteel, IUIN and/or SeAH as 
voluntary respondents would be unduly burdensome and inhibit timely completion of 
the investigation. We note that our workload has not decreased since our selection of 
mandatory respondents. AD/CVD Enforcement Office VI, the office to which this 
antidum ping duty investigation is assigned, is conducting numerous concurrent 
antidumping and countervailing duty proceedings, which place a constraint on the 
number of analysts that can be assigned to this investigation. Specifically, Office VI is 
currently cond ucting eight investigations and approximately 20 administrative reviews 
(some covering multiple companies), one remand proceeding, and one 
ant-circumvention inquiry. Not only do these other proceedings present a significant 
workload, but the deadlines for a number of these proceedings coincide and/or 
overlap with deadlines in this investigation. In light of the significant workload 
throughout Enforcement and Compliance, which includes numerous investigations 
(including 11 concurrent AD and CVD investigation s on OCTG from various countries), 
we do not anticipate receiving additional resources to devote to this proceeding.  
The complications presented by this particular investigation have created an additional 
burden on the Department's already strained resourc es. As noted above, the 
Department is currently handling 11 concurrent AD and CVD investigations on OCTG 
from various countries, as well as other numerous AD and CVD investigations and 
reviews. Therefore, individual examination of an additional company or companies, 
which typically requires multiple rounds of supplemental questionnaires and extensive 
analysis in order to calculate accurate weighted -average dumping margins for the 
voluntary respondents, would be unduly burdensome and inhibit timely completio n of 
this investigation. The Department has already extended the preliminary 
determination to the maximum extent allowable by law, based on the significant 
challenges posed by the collection and examination of information and data for the 
two mandatory res pondents. Even with the additional time afforded by a full extension 
of the preliminary determination, we would not be able to individually examine an 
additional company or companies, because an examination of an additional 
respondent would place an additi onal burden on our already strained resources and 
present the possibility of additional complex issues. Critically, individual examination 
of an additional company or companies would require separate verifications in Korea 
and in some cases the United Stat es, which would extend the time required for 
overseas travel, as well as the accompanying verification reports and data analysis, 
which in turn would add to the Department's burden and further strain its resources. 
Each of these steps would place additiona l administrative burden on the Department 
and inhibit the timely completion of this investigation. 361 
7.282.   Thus, the USDOC 's conclusion that it would be unduly burdensome to individually examine 
the voluntary respondents was based on:  
a. complexities unique to the underlying investigation , including c omplexity of legal issues 
in the case and administrative issues such as  travel time that would be needed for the 
verification of the sales records of additional Korean respondents, if selected;  
b. time constraints faced by  the USDOC , which had already extended the preliminary 
determination to the maximum extent allowable under US law; and  
                                                
360 USDOC,  Treatment of Voluntary Respondents Memorandum , 30 December 2013 , (Exhibit KOR -50), 
p. 6. 
361 USDOC,  Treatment of Voluntary Respondents Memorandum , 30 December 2013 , (Exhibit KOR -50), 
pp. 6 and 7. (fns omitted)  WT/DS488/ R 
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  c. resource constraints faced by the USDOC.  
7.283.   Korea asserts that the USDOC did not provide "any basis" for its conclusion that 
examination of additional voluntary respondents would have increased  the administrative burden 
on its increasingly limited resources .362 As a factual matter, the clear statements set out above  
lead us to a different conclusion . In our view, the USDOC did provide the basis on which it made  
this conclusion, even if Korea disagrees with that basis.  
7.284.   Insofar as Korea is challenging the quality of the explanation for the USDOC 's conclusion  
that it would be unduly burdensome to examine voluntary responses , Korea makes two main 
arguments . First, that the USDOC failed to explain why it was unable to examine at least some, if 
not all, of the voluntary respondents363, and s econd, the reasons cited by the USDOC as to why it 
would be unduly burdensome to individually examine the voluntary respondents were "largely 
similar" to the reasons cited by USDOC as to why it would be impracticable to examine all known 
exporters.364 
7.285.   First, t he USDOC  explicitly stated that it could individually examine none of the voluntary 
respondents for the reasons it gave. We see no thing in Article 6.10.2 that would require an 
investigating authority to explain why it cannot individually examine some  voluntary respondents  
in a situation where it has decided it cannot individually examine any of them. The explanation f or 
why it can individually examine none of them suffices to explain why it cannot individually examine 
some of them.   
7.286.   Second, Article 6.10.2 comes into play "[i]n cases where the authorities have limited their 
examination" under Article 6.10, having found that the number of exporters, producers, importers , 
or types of products involved is so large as to make individual examination of all of them  
impracticable. Therefore, the question whether it would be unduly burdensome to individually 
examine voluntary re spondents will arise only after an investigating authority has already found it 
impracticable to make an individual determination for each known exporter. There  may well be 
situations where the investigating authority finds it impracticable to examine all known exporters 
but does not find it unduly burdensome to examine at least some voluntary responses. Thus, the 
Article 6.10.2 question of whether it would be "unduly burdensome" to individually examine 
voluntary respondents  is separate from, and not answer ed by, the conclusion that  it is 
"impracticable" to examine all known exporters.  
7.287.   However, Article 6.10.2 does not preclude that the factual circumstances making it 
impracticable to examine all known exporters may also affect whether it would be unduly 
burdensome to individually examine voluntary respondents. In both cases, an investigating 
authority deviates from the norm, which is to determine an individual margin of dumping for all 
known exporters. To us, it is not surprising that a justification for the  second deviation, under 
Article 6.10.2, may overlap and share elements with the justification for the first deviation under 
Article 6.10. Thus, an investigating authority's explanation for why it would be unduly burdensome 
to examine voluntary responses w ill not be insufficient merely because of such similarities. 
Therefore, we consider that the fact that the USDOC's explanation for why it was unduly 
burdensome to individually examine any voluntary respondents also cited time and resource 
constraints, and thus was "largely similar" to its explanation for why it was impracticable to 
individually examine all known exporters, does not establish any inconsistency with 
Article  6.10.2.365 
7.288.   In any event , the USDOC also considered other elements in concluding that it would be 
unduly burdensome to individually examine voluntary respondents , including events that arose 
subsequent to the selection of the two mandatory respondents , namely, the challenges it was 
facing in examining the ir responses , and time constraints that  it would face were it to  individual ly 
examin e voluntary respondents.  
                                                
362 Korea's first written submission, para. 236; second written submission, para. 280.  
363 Korea's first written submission, para. 2 36; second written submission, para. 280.  
364 Korea's second written submission, para. 280.  
365 We note in this regard the views of the panel in EU – Footwear (China) , that institutional resource 
constraints and administrative burden may be a valid reason for an investigating authority to find it "unduly 
burdensome" to individually examine voluntary respondents.  WT/DS488/ R 
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  7.289.   In sum, we are not convinced that the USDOC's explanation o f why it would be unduly 
burdensome to individually examine the voluntary respondents was not reasoned and adequate, 
and insuf ficient to discharge its obligations under Article 6.10.2. The USDOC explained why, in 
light of its institutional resource constraints, as well as challenges faced by the USDOC in the 
underlying investigation, it was unable to make this individual examinat ion, and we consider that 
this explanation was consistent with its obligations under this provision. Therefore, we reject 
Korea's claim that USDOC acted inconsistently with Article 6.10.2 of the Anti -Dumping Agreement.  
7.7.6   Conclusion  
7.290.   For the foregoing reasons , we find that Korea has not established that the USDOC acted 
inconsistently with Article s 6.10 and 6.10.2 of the Anti -Dumping Agreement.  
7.8  Whether the USDOC acted inconsistently with  Article 12.2.2 of the Anti -Dumping 
Agreement by failing to provide reasons  for rejecting certain arguments  
7.291.   Korea claims that the USDOC acted inconsistently with Article 12.2.2 of the Anti -Dumping 
Agreement by failing to provide, either in the public notice, or through a separate report, the 
"reasons for the acceptance or rejectio n of relevant arguments or claims made by the exporters 
and importers". In particular, Korea contends that the USDOC failed to provide the reasons for the 
rejection of the following arguments made by the Korean respondents366: 
a. arguments concerning the approp riateness of determining the CV profit rate of the 
Korean respondents on the basis of the Tenaris financial statements; and  
b. arguments that contradicted the facts based on which the USDOC found NEXTEEL to be 
affiliated with Company A and Company B.  
7.8.1   Provisio ns at issue  
7.292.   Article  12.2.2 of the Anti -Dumping Agreement provides, in pertinent part:  
A public notice of conclusion or suspension of an investigation in the case of an 
affirmative determination providing for the imposition of a definitive duty or the 
accep tance of a price undertaking shall contain, or otherwise make available through a 
separate report, all relevant information on the matters of fact and law and reasons 
which have led to the imposition of final measures or the acceptance of a price  
undertaki ng, due regard being paid to the requirement for the protection of 
confidential  information. In particular, the notice or report shall contain the 
information described in subparagraph  2.1, as well as the reasons for the acceptance 
or rejection of relevant  arguments or claims made by the exporters and importers, 
and the basis for any decision made under subparagraph 10.2 of Article  6. 
7.8.2   Main arguments of the parties  
7.293.   Korea 's principal arguments are set forth below:  
a. The USDOC failed to include, in its public no tice, reasons for rejecting relevant 
arguments made by Korean respondents regarding the inappropriateness of using the 
Tenaris financial data to determine the CV profit for the Korean respondents, in light of 
the substantial differences between the compani es.367 
b. The USDOC  failed to address arguments that contradict the facts that it relied upon in 
making its determination of affiliation between NEXTEEL, POSCO, Company A , and 
Company  B.368 
                                                
366 Korea's first written submission, paras. 228  and 229. 
367 Korea's first written submission, para. 228.  
368 See, e.g. Korea's first written submission, pa ra. 229.  WT/DS488/ R 
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  7.294.   The United States  makes the following arguments:  
a. If the investigating aut hority does not consider an issue of fact or law to be material to 
its determination, Article  12.2.2 does not require it to address that issue in its public 
notice.369 
b. The USDOC's Issues and Decision Memorandum includes a detailed analysis of the 
reasoning b ehind the USDOC's determination to use the Tenaris financial data in the final 
determination.370  
c. The Issues and Decision Memorandum and accompanying confidential affiliation 
memorandum provide the factual findings that led the USDOC to find that NEXTEEL, 
POSCO, Company A , and Company B were associated for the purposes of the 
anti-dumping determination.371 
7.8.3   Main arguments of third parties  
7.295.   The European Union  considers it undisputed that the Tenaris profit data  used to establish a 
profit rate, and the findings  on affiliation, were "relevant information" and "material" in the 
meaning of Article  12.2.372 The main issue is, therefore, whether the USDOC 's reasons for 
rejecting or accepting the Korean respondents' arguments were "set forth in sufficient detail".373 It 
notes  however, that previous panels have found that where the investigating authority has 
contravened a substantive requirement under the Anti -Dumping Agreement, the question of 
whether the notice is sufficient under Article  12.2.2 is immaterial.374 
7.8.4   Evaluation by  the Panel  
7.296.   Article 12.2.2 of the Anti -Dumping Agreement, and in particular its second sentence, 
provides that a public notice of conclusion of an investigation, in case of an affirmative 
determination to impose definitive duty, shall contain, or otherwise make available through a 
separate report, "the reasons for the acceptance or rejection of relevant arguments or claims 
made by the exporters and importers".375 It is clear on the face of the provision  that an 
investigating authority is not required to provid e the reasons for rejecting all arguments made by 
the exporters and importers , but the "relevant" ones. In addressing Korea's claim under 
Article  12.2.2, we will therefore consider:  
a. whether these arguments were adequately addressed by the USDOC in the rele vant 
documents, in this case, the Issues and Decision Memorandum and the Affiliation 
Memorandum376;  
b. whether the arguments made by the Korean respondents were "relevant" within the 
meaning of Article  12.2.2.  
7.297.   Article 12.2.2 does not specify the type of argume nts that may be considered "relevant " 
within the meaning of  this provision. But a clearer understanding of how a WTO panel should 
                                                
369 United States' first written submission, para. 232 (referring to Appellate Body Report, China – GOES , 
para. 256 , and Panel Report, EC – Tube or Pipe Fittings , para. 7.422).  
370 United States' first written submission, para. 235 (referring to Final  Decision Memorandum, 
(Exhibit  KOR-21), pp. 14 -23). 
371 United States' first written submission, para. 238.  
372 European Union's third -party submission, para. 77 (referring to Panel Report, EU – Footwear (China) , 
para. 7.844).  
373 European Union's third -party su bmission, para. 77 (referring to Panel Report , China – X-Ray 
Equipment , para. 7.472).  
374 European Union's third -party submission, para. 75 (referring to Panel Report, EC – Bed Linen , 
para. 6.261).  
375 In this regard, Article 12.2.2 does not only refer to obli gations that apply in case of a public notice of 
conclusion in case of an affirmative determination providing for the imposition of a definitive duty, but also 
refers to a public notice of suspension of an investigation . 
376 There is no dispute between the p arties that these are the relevant documents for purposes of our 
analysis.  WT/DS488/ R 
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  determine  the relevance of an argument in this context emerges when Article 12.2.2 is read as a 
whole and in the context of Article 12.2 of the Anti -Dumping Agreement.  
7.298.   Article 12.2  is the chapeau  of Article 12.2.2  and provides guidance for our understanding  
of the second sentence of Article 12.2.2.377 Article 12.2 provides, inter alia , that a public notice of 
an affirmative final d etermination shall set forth, or otherwise make available through a separate 
report, in sufficient detail , the findings and conclusions reached on all issues of fact and law 
considered material by the investigating authority. It is generally understood that an issue of fact 
or law considered material by an investigating authority includes any  issue that has arisen in the 
course of the investigation that must necessarily be resolved by the investigating authority to be 
able to reach its determination.378 Furth ermore, the facts that an investigating authority may 
consider material to its determinations are circumscribed by the framework of the substantive 
provisions of the Anti -Dumping Agreement.379 
7.299.   Article 12.2.2 elaborates on these obligations. Th us, Article 12. 2.2 captures the principle 
that those parties whose interests are affected by the imposition of final dumping duties are 
entitled to know, as a matter of fairness and due process, the facts, law , and reasons that have led 
to the imposition of definitive du ties.380 In particular, the requirement under the first sentence of 
Article 12.2.2 , that the public notice or the separate report contain "all relevant information on the 
matters of fact and law and reasons which have led to the imposition of final measures" , 
establishes a requirement to disclose "relevant" information, including the matrix of facts, law , and 
reasons that logically fit together to render the decision to impose final measures.381 It is by 
requiring the disclosure of "all relevant information" in  this regard, that Article 12.2.2 seeks to 
guarantee that interested parties are able to pursue judicial review of a final determination as 
provided in Article 13 of the Anti -Dumping Agreement.382 
7.300.   Thus,  the arguments that are "relevant" under Article 12.2.2 are those that pertain to 
issues of facts and law that must be resolved  in an investigating authority's decision to impose 
final measures. Therefore, in considering  the relevance of argument s for purposes of 
Article  12.2.2 , we will look to  whether those ar guments pertain to issues of facts and law that 
must be resolved in the investigation at issue and are therefore necessarily material .383 
7.301.   Article 12.2.2 requires that the investigating authority provide the reasons for the 
acceptance or rejection of relevant  arguments. In this regard, we agree with the view s of the panel 
in China – X-Ray Equipment that the reasons for rejecting or accepting such arguments should be 
set forth in sufficient detail to allow the exporter or importer to understand why their argume nts 
were treated as they were, and to assess whether or not the investigating authority's treatment of 
the relevant issue was consistent with domestic law and/or WTO law.384 However, we do not 
understand  Article 12.2.2 to impose a formalistic obligation to i dentify each and every relevant 
argument and explicitly  provide the reasons for accepting or rejecting each such argument. 
Instead, in our view, the obligation to provide reasons for rejecting or accepting arguments will be 
satisfied if the exporter or imp orter could clearly understand how its arguments were treated by 
the investigating authority from the explanations given by the investigating authority in resolving 
the issue to which they pertain.  We now turn to the issue before us . 
                                                
377 See, e.g. Panel Reports, China – X-Ray Equipment , para. 7.458;  and EU – Footwear (China) , 
para. 7.844.  
378 See, e.g. Panel Reports, China – Broiler Products , para. 7.327; and EU – Footwear (China) , 
para. 7.844.  
379 Appellate Body Report, China – GOES , para. 265.  
380 Appellate Body Report, China – GOES , para. 258.  
381 Appellate Body Report, China – GOES , para. 258.  
382 Appellate Body Report, China – GOES , para. 258.  
383 Our approach in this reg ard is consistent with that followed by previous panels which evaluated 
specific claims concerning the investigating authority's alleged failure to provide reasons for the rejection of 
relevant arguments or claims made by the exporters and importers. (See,  e.g. Panel Report, China – X-Ray 
Equipment , para. 7.472) . 
384 Panel Report, China – X-Ray Equipment , para. 7.472.  WT/DS488/ R 
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  7.8.4.1   The USDOC's alleged fa ilure to address the Korean respondents' arguments 
concerning the use of the Tenaris profit data  
7.302.   We recall that i n the underlying investigation, the USDOC determined CV profit for the 
Korean respondents on the basis of the profit rate of Tenaris and not th e profit rate of the Korean 
respondents. In their submissions to the USDOC, the Korean respondents made several arguments 
against the USDOC's use of the Tenaris profit data for CV profit determination , alleging significant 
differences between Tenaris and t he Korean respondents, their products, their sales and 
production volumes , and their customer bases.   
7.303.   Korea asserts that the USDOC acted inconsistently with Article  12.2.2 because it failed to 
include, in its public notice, any reasons for rejecting releva nt arguments made by the Korean 
respondents regarding the inappropriateness of using the Tenaris financial data to determine the 
Korean respondents' CV profit rate. Korea argues, in particular, that the USDOC did not provide 
reasons for rejecting the Korea n respondents' arguments that:  
a. OCTG shares more similarities with non -OCTG pipe products than with the OCTG 
products sold by Tenaris;  
b. the products that the Korean respondents sold in the home market were not physically 
similar to those sold by Tenaris;  
c. the structure and scale of Tenaris's business operations was so different to that of the 
Korean companies as to make Tenaris not comparable to the Korean respondents for 
purposes of calculating CV profit;  
d. the different position of Tenaris in the distribution chain as compared to the Korean 
respondents rendered Tenaris's profit not comparable to the Korean respondents' profits; 
and 
e. differences in the customer bases of Tenaris and the Korean respondents rendered the 
Tenaris profit rates not comparable to the Kor ean respondents' profit  rates.385  
7.304.   The USDOC stated, in its Final Decision Memorandum , that in selecting a profit from 
available record evidence it may not find a profit source that reflects both production and sales in 
the home market of the exporting count ry as well as the foreign like product. Its choice of a profit 
source would, therefore, depend on factors such as the level of specialization of the foreign like 
product, the percentage of sales of the foreign like product or same general category of produ cts, 
among others.386 The USDOC also noted that, in the underlying investigation, it chose to 
determine CV profit on the basis of the Tenaris profit data and not the Korean respondents' profit 
data for the following reasons: ( a) as OCTG is a specialized prod uct, CV profit needed to be 
determined on the basis of a source which most closely reflected the profits pertaining to sales of 
OCTG; and ( b) the Tenaris profit data is representative of sales of OCTG across a broad range of 
geographic markets , while the K orean respondents' profit data reflects profit o n non-OCTG 
products that cannot reasonably be considered to fall in the same general category as OCTG.387 
7.305.   Korea alleges  that the USDOC failed to give reasons for rejecting  the first of the specific 
arguments ab ove. The submissions Korea cites in this regard do not show that the Korean 
respondents argued  that OCTG shares more similarities with non -OCTG pipe products than with 
the OCTG products sold by Tenaris .388 Korea refers to submissions in which  the Korean 
respondents argued that OCTG and the non -OCTG pipe products that they sold in the home 
market fall within the same general category of products. They did not argue, however, that OCTG 
is more similar to non -OCTG than it is to the OCTG products sold by Tenaris.389 Therefore, Korea 
                                                
385 Korea's first written submission, para. 228; second written submission, para. 324.  
386 Final Decision Memorandum, (Exhibit KOR -21), p. 15.  
387 Final Decision Memorandum, (Exhibit KOR -21), pp. 21 and 23.  
388 Korea's second written submission, para. 324 (referring to HYSCO Rebuttal Brief , 24 June 2014 , 
(Exhibit KOR -80), pp. 17 -21; and NEXTEEL Rebuttal Brief , 23 June 2014 , (Exhibit KOR -79) (BCI) , pp. 18 -21). 
389 The Korean respondents did argue that determining "CV profit  rate that reflects home market 
experience for sales of steel pipe products that is far more representative" than the financial data of 
 WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  has not established that the Korean respondents made the argument in question before the 
USDOC in the underlying investigation, and we are of  the view that Korea has thus failed to 
establish a prima  facie case of violation of Article 12. 2.2 in this respect.   
7.306.   Korea's second argument is that the  Korean respondents presented arguments relate d to 
the alleged lack of comparability between the profit data of Tenaris and the Korean respondents 
due to differences in the companies' products, scale  of production, position in the distribution chain 
and customer bases in support of their view that Tenaris was not an appropriate source for 
determination of CV profit of the Korean respondents.  The USDOC made the following statements 
in this context390: 
We believe due to the nature of this product that it is more consistent with the statute 
to calculate profit using a company that mainly sells either the identical product or, 
alternatively, merchandise that is in the same general category of products. Becau se 
Tenaris is an OCTG producer that sells OCTG in significant quantities, and in virtually 
every market in which OCTG is sold, we find its average profit experience is 
representative of sales of OCTG across a broad range of different geographic markets. 
As the profit from its financial statements is predominantly of OCTG, it reflects more 
precisely the profit on products identical to the subject merchandise. While we would 
prefer to use the financial statements of an OCTG producer that primarily produces 
and sells OCTG in Korea, such information is not available. The financial statements of 
the six Korean producers ' reflect sales of OCTG almost exclusively to the U.S., and 
predominantly sales of non -OCTG pipe products and other non -pipe products.  
The USDOC w ent on to state that it " consider[ed] it important … to have a profit reflective of the 
specialized nature of OCTG products", that it had " analy zed the data for all possible CV profit 
sources" and the record of the underlying investigation showed that a pr ofit figure from those not 
selected would predominantly reflect profit of non -OCTG products that could not reasonably be 
considered to be of the same general category of merchandise. It concluded that it was consistent 
with US law to calculate profit using  a company that mainly produced and sold the merchandise 
under consideration, and considering that Tenaris met these criteria, it was using its financial 
statements to determine the profit rate of the Korean respondents.391  
 
7.307.   In considering whether the USDOC  provided reasons for rejecting these arguments, we 
will, as stated above, consider whether the Korean respondents were, or should have been able to , 
clearly understand from the public notice or report how their arguments were treated by that 
authority. In  this regard,  in our view, it is clear from the USDOC's determination that it considered 
that it had to choose between two options: determining CV profit rate on the basis of sources that 
met its criteria, i.e. profit of a company that mainly produced and sold the merchandise under 
consideration, or alternatively determining CV profit rate on the basis of sources that did not meet 
its criteria. The USDOC noted that "[w]hile [it] would prefer to use the financial statements of an 
OCTG producer that primarily  produce[d] and [sold] OCTG in Korea" that information was not 
available. Having decided that it was important to have a "profit reflective of the specialized nature 
of OCTG products", and having found that the profit from the Tenaris  financial statements was 
predominantly of OCTG, the USDOC considered it appropriate to use that data notwithstanding the 
alleged lack of comparability between that data and the Korean respondents' profit data . In this 
regard, we recall that we are considering whether the USDOC  provided reasons for rejecting the 
Korean respondents' arguments, and not the substantive consistency of the USDOC's decision with 
the Anti -Dumping Agreement.392 In our view, the USDOC's explanation allowed the Korean 
respondents to understand why their arg uments regarding the inappropriateness of determining 
                                                                                                                                                  
companies, such as Tenaris, that have no production or known sales in Korea. However, this is a different 
argument from the one that Korea asserts that the Korean respondents made. Here, the Korean respondents 
objected to the use of the Tenaris data as a basis for determining CV profit not because the OCTG products 
sold by Tenaris were less similar to OCTG than non -OCTG pipe products, as Korea contends they argued, but 
because the Tenaris data pertained to OCTG sales outside of Korea. See HYSCO Rebuttal Brief , 24 June 2014 , 
(Exhibit KOR -80), p.  22; and NEXTE EL Rebuttal Brief , 23 June 2014 , (Exhibit KOR -79) (BCI) , p. 22.  
390 Final Decision Memorandum, (Exhibit KOR -21), p. 21.  
391 Final Decision Memorandum, (Exhibit KOR -21), p. 23.  
392 We recall that we have found that the USDOC's substantive determination concerning  which products 
fell within the same general category of products was inconsistent with its obligations under Article s 2.2.2(i) 
and (iii). WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  CV profit based on the Tenaris profit data  were rejected . We therefore consider that Korea has 
failed to demonstrate that the USDOC acted inconsistently with Article 12.2.2 in this regard.393  
7.8.4.2   The USDOC's  alleged failure to address NEXTEEL's arguments that it was not 
affiliated with POSCO , Company A , and Company B  
7.308.   Korea  argues that the USDOC failed to address the following arguments made by 
NEXTEEL394: 
a. NEXTEEL did not purchase steel coils [[***]]  from POSCO395;  
b. NEXTEEL's collaboration with POSCO did not create an affiliation because such a 
collaboration was part of  either joint research projects that were common in the 
industry, or a broader national program that involved thousands of companies396; and  
c. the USDOC  should not have disregard ed NEXTEEL's export price to Company A  because 
this price was reliable.397 
7.309.   As discussed above, Korea's view that the USDOC failed to address NEXTEEL 's argument 
that it did not  purchase steel coils [[***]]  from POSCO  is incorrect as a matter of fact. The 
USDOC did recognize that NEXTEEL purchase d steel coils from sources other than POSCO.398 Thus, 
there is no factual basis for Korea's claim.  
7.310.   We examined Korea's  argument  that NEXTEEL's collaboration with POSCO did not create 
an affiliati on because that collaboration was part of  either joint research projects that were 
common in the industry, or a broader national program that involved thousands of companies  in 
evaluating its claim under Article 2.3 of the Anti -Dumping Agreement. We noted  that this 
argument  presumes that association under Article 2.3 may only exist if the associated entities 
have an exclusive relationship . However, we concluded that there is no such requirement under 
Article 2.3.399 It follows, in our view , that the USDOC did  not have to resolve whether the 
relationships in question were exclusive, and therefore the argument was not relevant within the 
meaning of Article 12.2.2 , and the USDOC was not required to provide reasons for rejecting it.  
7.311.   Korea has failed to identify an y arguments by  NEXTEEL before the USDOC that its export 
price to Company A  was reliable, notwithstanding association  in the context of its  claim under 
Article 12.2.2. Korea refers to  NEXTEEL's Supplemental Questionnaire Response, but does not 
identify wher e such arguments were actually  made.400 Korea's approach would require the Panel to 
review the relevant documents , identify  any argument s pertaining to the reliability of the export 
price notwithstanding association , and then decide whether the USDOC set out  reasons for 
rejecting such argument(s) in the relevant documents . This would be tantamount to the Panel 
making a case for Korea.401 In our view, Korea has failed to make a prima facie  case of violation  in 
this regard.   
                                                
393 In this regard, we recall that we found that Korea's panel request does not set out  a claim that the 
USDOC's determ ination of CV profit based on the Tenaris profit data does not constitute a "reasonable method" 
under Article 2.2.2(iii) and  therefore made no findings on the substance of Korea's arguments in that regard.  
Whether the USDOC should have considered the Korea n respondents' arguments regarding the differences 
between Tenaris and the Korean respondents is an issue which goes to the substantive question of whether the 
USDOC's choice of the Tenaris profit data as a basis for determining CV profit was consistent wi th 
Article  2.2.2(iii).  
394 Korea's response to Panel question No. 76, para. 110.  
395 Korea's first written submission, para. 229 . 
396 Korea's second written submission, para. 328.  
397 Korea's second written submission, para. 329 (referring to Company A supplementa l questionnaire 
response s, 14 March 2014 , (Exhibit KOR -89) (BCI) ). 
398 See para s. 7.160 -7.161  above.  
399 See para. 7.165  above.  
400 Korea's second written submission, para. 32 9 and fn 227.  
401 We recall that in respect of its Article 2.3 claim, Korea referred to specific "evidence" presented by 
NEXTEEL that allegedly showed that its export prices to Company A  were, in fact reliable. (Korea's second 
written submission, para. 245; response to Panel question No. 31, para. 103) . However, Korea has not 
 WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.8.5   Conclusion  
7.312.   For the foregoing reasons, we conclude  that Korea has not established that the USDOC 
acted inconsistently with Article  12.2.2 by failing to provide the reasons for rejecting:  
a. an argument that Korea n respondents  did not make, i.e. that OCTG shares more 
similarities with non -OCTG pipe  products than with the OCTG products sold by Tenaris;  
b. an argument that Korea failed to identify in these proceedings, i.e. that t he USDOC 
should not disregard NEXTEEL's export price to [[***]]  because these export prices 
were reliable ; 
c. arguments made by t he Korean respondents concerning the appropriateness of 
determining the CV profit rate of the Korean respondents on the basis of the Tenaris  
financial statements, in particular:  
i. the products that the Korean respondents sold in the home market were not 
physically similar to those sold by Tenaris;  
ii. the structure and scale of Tenaris' s business operation was so different to that of the 
Korean companies as to make Tenaris not comparable to the Korean respondents for 
purposes of calculating CV profit;  
iii. the differe nt position of Tenaris in the distribution chain as compared to the Korean 
respondents rendered Tenaris' s profit not comparable to the Korean 
respondents'  profits; and  
iv. differences in the customer bases of Tenaris and the Korean respondents rendered 
the Ten aris profit rates not comparable to the Korean respondents' profit  rates. 
d. arguments that contradicted the facts based on which the USDOC found NEXTEEL to be 
affiliated with [[***]] , and in particular  NEXTEEL's arguments that : 
i. NEXTEEL did not purchase steel  coils [[***]]  from POSCO; and 
ii. NEXTEEL's collaborations  with POSCO did not create an affiliation between them 
because they were either joint research projects that were common in the industry, 
or were part of a much broader national program that involved t housands of 
companies . 
7.9  Whether t he USDOC acted inconsistently with  Article X:3(a) of the GATT 1994  in the 
administration of US laws and regulations  
7.313.   Korea presents two separate factual bases for its claim that the USDOC failed to administer 
US laws and regu lations in a uniform, impartial and reasonable manner, as required by 
Article  X:3(a) of the GATT 1994:  
a. First, Korea notes that in its final determination, the USDOC determined the CV profit of 
the Korean respondents based on the profits earned by Tenaris, but the profits earned 
by this company had no relationship with profits earned in the Korean market.402 Korea 
submits that by determining the profits this way, the USDOC acted contrary to its 
"established agency practice" of determining CV profit on the basi s of sources located in 
the home market of the exporter or producer under investigation , without providing any 
justification for this departure .403 Korea also asserts  that the USDOC deviated from this 
                                                                                                                                                  
identified any "arguments" made by NEXTEEL in this regard. If the exporter or the importer does not make an 
"argument", the obligation on an investigating authority to provide reasons fo r accepting or rejecting relevant 
"arguments" would obviously not apply.  
402 Korea's first written submission, para. 265.  
403 Korea's first written submission, paras. 260, 265 and 275.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  practice because of "political influence" exerted by diff erent lobbying groups, including 
US lawmakers.404 
b. Second, Korea contends that US domestic regulation 19 C.F.R. § 351.301, which 
establishes deadlines under the US system for submission of new factual information, 
and establish es deadlines for rebuttal s for each type of submission, was administered 
differently by the USDOC in the underlying investigation than in a parallel investigation 
on OCTG from Turkey (Turkish investigation) .405 
7.9.1   Provisions at issue  
7.314.   Article X:3(a) of the GATT 1994 provides:  
Each contracting party shall administer in a uniform, impartial and reasonable manner 
all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of 
this Article.  
Article X:1 of the GATT 1994, referred to in Article X:3(a), provides:  
 
Laws, regula tions, judicial decisions and administrative rulings of general application, 
made effective by any contracting party, pertaining to the classification or the 
valuation of products for customs purposes, or to rates of duty, taxes or other 
charges, or to req uirements, restrictions or prohibitions on imports or exports or on 
the transfer of payments therefor, or affecting their sale, distribution, transportation, 
insurance, warehousing inspection, exhibition, processing, mixing or other use, shall 
be published  promptly in such a manner as to enable governments and traders to 
become acquainted with them.  
7.9.2   Main arguments of the parties  
7.315.   Korea  asserts  that Article X:3(a) of the GATT 1994 imposes three independent obligations 
on a Member with respect to the administr ation of its laws, regulations, judicial decisions and 
administrative rulings of general application (laws and regulations) , namely, to administer them 
in a: (a) uniform; (b) impartial ; and (c) reasonable manner. Korea contends  that the USDOC acted 
inconsi stently with each of these three obligations because it failed to administer US anti -dumping 
laws and regulations in either a uniform or impartial or reasonable manner. Korea presents two 
separate factual bases for its claim under this provision, as noted above.  
7.316.   First, Korea contends that by determining the CV profit of the Korean respondents on the 
basis of profits earned by Tenaris, a company which had no production or sales in Korea, the 
USDOC failed to administer its laws and regulations in:  
a. a uniform manner , because it acted contrary to its established practice of determining 
profits on the basis of sources located in the home market of the exporter or producer 
under investigation406; 
b. a reasonable  manner , because it did not have a rational basis to deviat e from this 
practice407; and 
c. an impartial manner , because, in Korea's view, the USDOC's decision to deviate from 
this practice, and accept the Tenaris  financial statements  for profit determination was 
attributable solely to political pressure exerted by diff erent lobbying groups, including 
US lawmakers.408 
                                                
404 Korea's first written submission, paras. 268 -273. 
405 Korea's response to P anel question No. 78, para. 114; second written submission, para. 345.  
406 Korea's first written submission, para. 265.  
407 Korea's first written submission, para. 275.  
408 Korea's first written submission, para. 275.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.317.   Second,  Korea contends that the USDOC failed to administer 19 C.F.R. § 351.301 in409: 
a. A uniform  manner , because in the Turkish investigation, in which the Tenaris  financial 
statements were also considered as a source for calculating the profit amount, the 
USDOC gave the Turkish respondents an opportunity to submit  factual comments on this 
data410, but failed to provide a similar opportunity to the Korean respondents in the 
underlying investigation.411 
b. A reasonable  manner , because the USDOC provided no reasonable explanation for the 
difference in how it dealt with the Tenaris  financial statement in the underlying 
investigation and in the Turkish investigation.  
7.318.   The United States contends that Korea does not challenge t he administration of US laws 
and regulations, but instead challenges the substance of the USDOC's determination.412 Therefore, 
in the United States' view, Korea's claim in this regard falls outside the scope of Article X :3(a). 
With respect to the specific is sues raised by Korea, the United States submits:  
a. Regarding uniformity : 
i. Korea has not shown that the facts in the Turkish inve stigation were similar to 
those  in the underlying investigation such that the same decisions under  
19 C.F.R.  § 351.301 were warrant ed.413  
ii. While laws need to be administered uniformly, practice need not, and thus Korea's 
argument, which is based on the USDOC's alleged deviation from past practice 
concerning determination of profits, must be rejected.414 
b. Korea does not provide any evidence  to support its view that US laws and regulations  
were not applied in an impartial  manner , and speculates about  the impact of supposed 
political pressure on the USDOC's decision.415 
c. The United States has shown, through its arguments under Article  2.2.2 of th e 
Anti-Dumping Agreement, that the USDOC's decision to use  the Tenaris  financial 
statements to determine CV profit was reasonable.416 
7.9.3   Main  arguments of the third -parties  
7.319.   The European Union  comments that the nature of issues raised by Korea under 
Article  X:3(a) of the GATT 1994 can be resolved under the substantive provisions of the 
Anti-Dumping Agreement rather than under this provision.417 
7.9.4   Evaluation by the Panel  
7.9.4.1   Whether the USDOC's alleged deviation from established agency practice for 
determining CV profit is within the Panel's terms of reference  
7.320.   The United States does not contend that the first factual basis of Korea's Article X:3(a) 
claim falls outside our jurisdiction. However, whether we have jurisdiction to address this aspect of 
Korea's Article X:3(a) c laim is a question that we have to decide for ourselves, even though  the 
parties did not raise it . Thus, we commence our analysis by addressing this question.  
                                                
409 Korea does not argue that the USDOC failed  to administer 19 C.F.R. § 351.301 in an impartial 
manner. (See, e.g. Korea's first written submission, paras.  267-273). 
410 Korea's first written submission, paras. 255 and 264.  
411 Korea's first written submission, paras. 255 and 264.  
412 United States' first written submission, para. 250.  
413 United States' first written submission, para. 258.  
414 United States' first written submission, para. 257.  
415 United States' first written submission, para. 261.  
416 United States' first written submission, para. 264.  
417 Europea n Union's third -party submission, para. 89.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.321.   The first basis of Korea's Article X:3(a) claim asserts that the USDOC deviated from 
"established  agency practice" of determining CV profit on the basis of sources located in the home 
market of the exporter or producer under investigation. We see no reference in Korea's panel 
request to th is first basis of its claim . Korea's panel request states, in p ertinent part : 
IV. PROCEDURAL CLAIMS UNDER THE ANTI -DUMPING AGREEMENT AND THE 
GATT  1994 
Korea further considers that the USDOC's actions taken in the course of its anti -
dumping investigation of Oil Country Tubular Goods from Korea  failed to protect the 
respondents' due process rights and were otherwise inconsistent with procedural 
obligations under the following provisions of the  Anti-Dumping Agreement or 
GATT  1994:  
… 
5. Article X:3 of the GATT 1994 because the USDOC permitted petitioners to place 
Tenaris SA's financial statements on the record after the expiration of the regulatory 
time limit for submission of new factual information, while the USDOC applied its 
regulatory deadlines for the submission of new factual information with respect to 
other partie s and other submissions . Consequently , the USDOC failed to administer its 
regulations in a uniform, impartial, and reasonable manner.418 
7.322.   We recall that Article 6.2 of the DSU requires that a panel request "present the problem 
clearly" by plainly connecting t he challenged measure with the provision of the covered agreement 
claimed to have been infringed , and that  the narrative of a panel request functions to explain 
succinctly how or why the measure at issue is considered by the complaining Member to be 
violat ing the WTO obligation in question. We also recall that we must determine compliance with 
the requirements of Article 6.2 on the merits of each case, considering the panel request as a 
whole, and in light of attendant circumstances.  
7.323.   The narrative part of K orea's panel request, and in particular the first sentence of 
paragraph  5 identifies, without qualification, the USDOC's decision to permit the petitioners to 
place the Tenaris  financial statement s on the record after the expiration of the regulatory 
time-limit for submission of "new factual information" , as the basis of Korea's Article X:3(a) claim . 
This relates to the second factual basis of Korea's claims, i.e. the allegedly different 
administration  of 19 C.F.R. § 351.301 in the Turkish and the underlyin g investigation.419 We recall 
that 19 C.F.R.  § 351.301 establishes rules for the submission of new factual information, and the 
second factual basis for Korea's claim relate s to the alleged difference in the USDOC's treatment of 
what Korea considers to be "n ew factual information" within the meaning of this US domestic 
regulation, the Tenaris financial statements , in the two investigations .420 Korea states that 
"[c]onsequently" , that is, as a consequence of its decision to accept the Tenaris data in the 
underly ing investigation,  the USDOC failed to administer its regulation in a uniform, impartial and 
reasonable manner. Thus, Korea connects what it seeks to challenge, the USDOC's application of 
regulatory deadlines for the submission of new factual informatio n, with Article X:3 of the 
GATT  1994.  
7.324.   We see no reference in paragraph 5, or in the panel request  as a whole, to the USDOC's 
alleged deviation from established agency practice of determining profits on the basis of sources 
located in the home market of the e xporter under investigation. Korea's panel request ma kes no 
reference whatsoever to this factual basis in connecting the conduct or action that it seeks to 
challenge with t he provisions of Article X :3(a). Therefore, we see no basis to conclude that Korea 
                                                
418 Emphasis added.  
419 This becomes even clearer on reading Korea's first written submission . (Korea's first written 
submission, paras. 263 and 275 ). In addition, Korea stated in its second written submission that i t was 
challenging, inter alia , the US regulations governing the submission and acceptance of new factual information. 
In its response to our questions at the second substantive meeting, it specifically identified this regulation as 
19 C.F.R. § 351.301. (Ko rea's second written submission, para. 344; response to Panel question No. 78, 
para. 114).  
420 Korea's response to Panel question No. 78, para. 114.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  intended to challenge the USDOC's conduct  under Article X:3(a) on this first factual basis , and this 
aspect of , Korea's Article X:3(a) claim fall s outside our terms of reference. We will thus limit our 
analysis to the second factual basis for Korea's claim.  
7.9.4.2   Whether  the USDOC failed to administer 19 C.F.R. § 351.301 in a uniform and 
reasonable manner  
7.325.   Korea argues that the USDOC failed to administer 19 C.F.R. § 351.301  in a uniform or 
reasonable manner because of differences in the administration of this regul ation in the underlying 
investigation and in the Turkish investigation.421 In particular, in the Turkish investigation, where 
USDOC also considered whether to determine the CV profit of the Turkish respondents on the basis 
of the Tenaris  financial statements , the USDOC explicitly stated that it was "placing [ Tenaris's ] 
financial statements on the record  of the antidumping duty investigation of OCTG from Turkey as a 
possible alternative for the calculation of CV profit for the final determination".422 The USDOC went 
on to invite all interested parties to submit factual information to rebut, clarify , or correct the 
Tenaris financial statements by the stipulated deadline  or rebuttal facts , in accordance with 
US regulation 19 C.F.R. § 351.301(c)(4).423 
7.326.   Korea submits t hat, in contrast, in the underlying investigation the USDOC did not place 
the Tenaris financial statements "on the record" of this investigation, and did not invite interested 
parties to submit r ebuttal facts . Korea asserts that 19 C.F.R. § 351.301 prohibi ted the Korean 
respondents from submitting such rebuttal  facts until the USDOC conveyed to them a formal 
decision placing  the Tenaris  financial statements "on the record" of the underlying investigation.424 
Therefore, in Korea's view, the USDOC denied an opp ortunity to the Korean respondents to submit 
rebuttal facts in the underlying investigation while granting the respondents in the Turkish 
investigation an opportunity to do so.  
7.327.   The United States asserts that it is not the case that the Tenaris financial st atements would 
be "on the record" of the underlying investigation only when and if the USDOC notified the 
interested parties  that these statements were on the record of the investigation.425 The 
United  States submits that these statements were on the record of the underlying investigation 
once they were submitted, until and unless the USDOC made a decision to remove them.426 
Further, the United States argues  that Korea's view that the Korean respondents did not have an 
opportunity to submit rebuttal  facts is incorrect, and the respondents did have such an 
opportunity.427 The difference between the underlying investigation and the Turkish investigation is 
that because of different factual circumstances, the interested parties in the Turkish investigation 
had this o pportunity to submit rebuttal facts under US regulation , 19 C.F.R. § 351.301(c)(4), 
whereas the Korean respondents in the underlying investigation had this opportunity under 
different US regulation s, 19 C.F.R. § 351.301 and 19 C.F.R. § 351.301(c)(1)(v).  
7.328.   There is no dispute between the parties that the Tenaris  financial statements were 
available  to the Korean respondents in the underlying investigation, just as they were available  to 
the respondents in the Turkish investigation. The dispute is with respect t o whether the Korean 
respondents in the underlying investigation  had an opportunity to submit rebuttal facts  or whether 
they were treated differently from the interested parties in the Turkish investigation  in this regard.  
7.329.   The United States explains that in the Turkish investigation, it was the USDOC itself, rather 
than an interested party, that introduced the Tenaris financial statements into the record of the 
underlying investigation. When the USDOC itself introduces factual information in the record of an 
investigation, at any time during the proceeding, US regulation 19 C.F.R. § 351.301(c)(4) requires 
it to provide interested part ies one opportunity to submit factual information to rebut, clarify , or 
                                                
421 Korea's response to Panel question No.  78, para. 114.  
422 USDOC,  Memorandum of placement of the Tenaris finan cial statemen ts on the record of the 
Turkish  OCTG investigation , 12 May 2014 , (Exhibit KOR -49).  
423 USDOC,  Memorandum of placement of the Tenaris financial statemen ts on the record of the 
Turkish  OCTG investigation , 12 May 2014 , (Exhibit KOR -49). 
424 Korea's response to Panel question No. 69, para. 93.  
425 United States' response to Panel question No. 71, para. 48.  
426 United States' response to panel question No. 72, para. 49.  
427 United States' response to Panel question No. 72, para. 53.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  correct that information within a stipulated deadline .428 This is wh at the USDOC did in the 
Turkish  investigation when it notified interested parties that it had placed the information on the 
record and gave them seven days to submit rebuttal  facts.  
7.330.   We recall that the Tenaris financial statements were submitt ed by U.S. Steel in the 
underlying investigation, in the context of a rebuttal to information submitted by NEXTEEL in 
response to a supplemental questionnaire from the USDOC , pursuant to a different US regulation 
19 C.F.R. § 351.301(c)(1)(v) .429 We further r ecall that, as described  in paragraph 7.218  above,  
within ten days of the submission of a supplemental questionnaire response, an interested party 
other than the submitter of that questionnaire response is permitted, under this  regulation, one 
opportunity to submit factual information to rebut, clarify , or correct factual information contained 
in that questionnaire response. The original submitter of the supplemental questionnaire response 
then has an automatic time of seven day s to sur -rebut, clarify , or correct the information 
submitted by this interested party.430 In the underlying investigation, U .S. Steel invoked this 
provision and stated that it was submitting the Tenaris financial statement as factual information 
to rebut, c larify, or correct information contained in NEXTEEL's Supplemental Questionnaire 
Response.431 Thus, NEXTEEL had seven days to provide rebuttal facts .432 There was no need for 
the USDOC to solicit rebuttal facts  from the Korean respondents . In addition, accordi ng to the 
United States, HYSCO and other Korean respondents, which  were not the original submitters of the 
information, could also file rebuttal  information , under 19 C.F.R. § 351.301 .433 However, neither 
NEXTEEL nor any other Korean respondent  took advantag e of this opportunity by making any 
submissions in this regard.  
7.331.   Therefore, the United States maintains that the interested parties in the two 
investigations  had the same opportunity to submit rebuttal facts , albeit under different 
US regulations. Hence, in  the United States' view, there was no differential treatment . Korea does 
not dispute the United  States' description of the requirements under 19 C.F.R. § 351.301(c)(4) 
and 19 C.F.R. §  351.301(c)(1)(v)434, but denies that NEXTEEL  or other Korean respondents had 
an opportunity to submit rebuttal facts under those provisions.  Korea also states that 
19 C.F.R.  § 351.301 only permits parties to present arguments that the record is deficient, and 
does not permit parties to submit unsolicited factual information, bu t does not present evidence in 
support of this view.  
7.332.   Korea acknowledges that the USDOC did not decline to accept any rebuttal facts proffered 
by Korean respondents  by citing these regulations .435 Korea does not challenge the US regulations 
per se , but only t he alleged different application in this case . Yet, because it is clear that the 
USDOC did not in fact apply these regulations to prevent Korean respondents from making rebuttal 
facts436, Korea apparently  bases its argument on an  assumption that had the Kore an respondents 
sought to submit such facts , the USDOC would have invoked 19 C.F.R. § 351.301 and rejected it. 
Moreover, Korea proffers no evidence to demonstrate that 19 C.F.R. § 351.301 prohibited the 
Korean respondents from submitting such rebuttal facts  until the USDOC conveyed to them a 
formal decision to place the Tenaris financial statements on the record of the underlying 
investigation. We cannot find a violation of Article X:3(a) of the GATT 1994 on the basis of Korea's  
counter -factual assumption of  how a domestic regulation might have been applied . 
                                                
428 United States' response  to Panel question No. 72, para. 52.  
429 United States' response to Panel question No. 72, para. 51.  
430 United States' response to Panel question No. 72, para. 51.  
431 United States' response to Panel question No. 72, para. 51.  
432 United States' response to Pane l question No. 72, para. 51.  
433 See, e.g. United States' response to Panel question No. 70, para. 47.  
434 However, Korea asserts that 19 C.F.R. § 351.301(c)(1)(v) was not applicable in the underlying 
investigation.  
435 Korea's response to Panel question No. 69,  para. 102.  
436 Korea argues that if it were to submit factual information on Tenaris within the seven day 
sur-rebuttal period granted under 19 C.F.R. § 351.301(c)(1)(v), that would be tantamount to acknowledging 
that the Tenaris financial statements were "o n the record" and therefore, subject to sur -rebuttal. (Korea's 
response to Panel question No. 69, para. 99). This suggests to us that NEXTE EL did have an option to 
submit  factual information on Tenaris but chose  not to submit it. This undermines Ko rea's ar gument that 
19 C.F.R. §  351.301(c)(1)(v) prohibited NEXTEEL from filing factual information on Tenaris.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.333.   The fact that the opportunity to provide rebuttal facts  was available to interested parties 
under different US domestic regulations in the Turkish and in the underlying investigation  does not 
establish  that the Korean respondents in the underlying investigation were treated differently from 
the interested parties in the Turkish investigation . On the basis of the foregoing , we conclude that 
Korea has not shown that the USDOC failed to administer 19 C.F.R. §  351.301 in a uniform or 
reasonable manner.  
7.9.5   Conclusion  
7.334.   For the foregoing reasons , we conclude that:  
a. Korea's claim under Article X:3(a)  of the GATT 1994  that the USDOC failed to administer 
US laws and regulations in a uniform, impartial and reasonable manne r because it acted 
contrary to its established agency practice of determining CV profit on the basis of 
sources located in the home market of the exporter or producer under investigation, and 
because this decision was attributable to political influence, f alls outside our terms of 
reference and we make no findings in that regard . 
b. Korea has not established that the USDOC  acted inconsistently with Article X:3(a) of the 
GATT 1994 because it  failed to administered its domestic regulation 19 C.F.R. § 351.301 
in a uniform or reasonable manner.  
7.10  Consequential claims under Articles 1, 9.3 , and 18.4 of the Anti -Dumping 
Agreement, Article VI of the GATT 1994 , and Article XVI:4 of the WTO Agreement  
7.335.   Korea claims that as a consequence of the USDOC's violation of the subst antive and 
procedural obligations set out in the Anti -Dumping Agreement, the United States also acted 
inconsistently with Articles 1, 9.3 , and 18.4 of the Anti -Dumping Agreement.437 In particular, 
Korea argues that the USDOC acted inconsistently with:  
a. Article 1 of the Anti -Dumping Agreement because it failed to ensure that the underlying 
investigation was initiated and conducted in accordance with this Agreement;  
b. Article 9.3 of the Anti -Dumping Agreement because the margin of dumping determined 
by the USDOC w as inconsistent with Articles 2.2, 2.2.1.1, 2.2.2, 2.3 , and 2.4 of this 
Agreement, and thus the anti -dumping duty imposed by the USDOC was necessarily in 
excess of a margin of dumping determined consistently with Article 2 of this Agreement; 
and 
c. Article 18 .4 of the Anti -Dumping Agreement because by maintaining the "viability test", 
which is inconsistent with Article 2.2 of the Anti -Dumping Agreement, the USDOC failed 
to take all necessary steps, to ensure the conformity of its laws, regulations and 
administ rative procedures with the provision of this Agreement.  
In addition, Korea claims that because the USDOC acted inconsistently with the Anti -Dumping 
Agreement, it acted inconsistently with Article VI of the GATT 1994.438 Further, as consequence of 
this, the USDOC also acted inconsistently with Article XVI:4 of the WTO Agreement.439 The 
United  States requests that we reject each of Korea's consequential claims.  
 
7.336.   We reach the following conclusions regarding Korea's claims under Articles 1, 9.3, and 
18.4 of the An ti-Dumping Agreement:  
a. Having found substantive violation s of Article s 2.2.2, 2.2.2(i) , and 2.2.2(iii)  of the 
Anti-Dumping Agreement , we do not find it necessary to address Korea's consequential 
claims under Articles 1 and 9.3 of the Anti -Dumping Agreement  to secure a positive 
resolution to this dispute , and we t herefore exercise judicial economy on these claims.   
                                                
437 Korea's first written submission, paras. 238 -241. 
438 Korea's first written submission, para. 243 . 
439 Korea's first written submission, para. 244.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  b. Korea's consequential claim under Article 18.4 of the Anti -Dumping Agreement is 
dependent on a finding that the "viability test" is inconsistent w ith Article 2.2 of the 
Anti-Dumping Agreement. Having  found that the "viability test" is not inconsistent with 
Article 2.2 of the Anti -Dumping Agreement , there is no basis for a finding of a 
consequential violation of Article 18.4, and we reject Korea's cl aim.  
7.337.   With respect to Korea's claim under Article VI of the GATT 1994, Korea simply asserts  that 
the USDOC acted inconsistently with Article VI of the GATT 1994 , without identifying either  in its 
panel request or in its written submissions the specific par agraphs or the specific obligations under 
these paragraphs that it seeks to challenge.440 We would expect Korea, as the complainant in this 
dispute, to identify the specific obligations in Article VI it considers the United States has violated . 
We cannot mak e a finding of a consequential violation of Article VI of the GATT 1994 in general. 
Moreover, we decline to attempt to parse Korea's claims so as try to identify which obligations in 
Article VI may be violated as a consequence of findings of violation base d on Korea's  claims . This 
is a task for Korea, which it has failed to undertake. Therefore, we reject Korea's consequential 
claim under Article VI of the GATT 1994.441 
7.338.   Considering that Korea's consequential claim under Article XVI :4 of the WTO Agreement is 
contingent on a finding of violation of Article VI of the GATT 1994, which we have rejected, we 
similarly reject Korea's consequential claim under Article XVI:4 of the WTO Agreement . 
7.11  Korea's claim under Article I:1 of the GATT 1994  
7.11.1   Provision at issue  
7.339.   Article I:1 of the GATT 1994 provides that:  
With respect to customs duties and charges of any kind imposed on or in connection 
with importation or exportation or imposed on the international transfer of payments 
for imports or exports, and with respect to the me thod of levying such duties and 
charges, and with respect to all rules and formalities in connection with importation 
and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of 
Article III,  any advantage, favour, privilege or imm unity granted by any contracting 
party to any product originating in or destined for any other country shall be accorded 
immediately and unconditionally to the like product originating in or destined for the 
territories of all other contracting parties.  
7.11.2   Main arguments of the parties  
7.340.   Korea  asserts  that the USDOC acted inconsistently with Article I :1 of the GATT 1994 
because its relatively lenient treatment of the exporters and foreign producers from countries that 
were subject to parallel USDOC investigation s on OCTG as compared to the exporters and foreign 
producers from Korea resulted in an "advantage, favour, privilege or immunity" that was not 
granted to OCTG originating in Korea.442 
7.341.   The United States  submits that Korea's claim  is based on bare allegations of different 
actions in different anti -dumping proceedings, and cannot succeed on this basis.443 
7.11.3   Main arguments of the third parties  
7.342.   The European Union  anticipates that the matters raised by Korea may be resolved by 
addressing Korea's claims under Article VI  of the GATT 1994 and the Anti -Dumping Agreement 
without having to address these matters under Article I :1 of the GATT 1994.444 
                                                
440 See, e.g. Korea's first written submission, paras. 245 -256. 
441 In this regard, we are aware that some other WTO panels appear to have found consequential 
violations under Article VI, as a whole, without identify ing the specific obligation that has been violated . (See, 
e.g. Panel Reports,  China – HP-SSST (Japan) / China – HP-SSST (EU) , para. 7.336; and Canada – Welded Pipe , 
para. 7.223) . We are not persuaded, however, that a similar approach is warranted in the present case.  
442 Korea's first written submission, pa ra. 253.  
443 United States' first written submission, para. 241.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.11.4   Evaluation by the Panel  
7.11.4.1   Whether Korea's claims under Article I :1 of the GATT 1994  is within our terms 
of reference  
7.343.   The United Stat es has raised an objection to the Panel's jurisdiction over aspects of this 
claim.  Thus, we commence our analysis by addressing this question.  
7.344.   We recall that Article 6.2 of the DSU requires that a panel request "present the problem 
clearly" by plainly con necting the challenged measure with the provision of the covered agreement 
claimed to have been infringed , and that  the narrative of a panel request functions to explain 
succinctly how or why the measure at issue is considered by the complaining Member to be 
violating the WTO obligation in question. We also recall that we must determine compliance with 
the requirements of Article 6.2 on the merits of each case, considering the panel request as a 
whole, and in light of attendant circumstances.  
7.345.   In its panel r equest, Korea presented its claim under Article I of the GATT 1994 as follows : 
IV. PROCEDURAL CLAIMS UNDER THE ANTI -DUMPING AGREEMENT AND THE 
GATT  1994 
Korea further considers that the USDOC's actions taken in the course of its anti -
dumping investigation o f Oil Country Tubular Goods from Korea  failed to protect the 
respondents' due process rights and were otherwise inconsistent with procedural 
obligations under the following provisions of the  Anti-Dumping Agreement or 
GATT  1994:  
… 
4. Article I of the GATT 1994 because, inter alia , the USDOC expressly provided 
interested parties in its investigation of OCTG produced in other subject countries an 
opportunity to defend their interests by responding to the placement of Tenaris SA's 
financial statements on the r ecord.  Because the Korean respondents were not granted 
an opportunity to present submissions responding to Tenaris SA's financial 
statements, the USDOC's actions resulted in less [favourable] treatment of OCTG from 
Korea compared to like products originati ng from other countries under 
investigation.445 
7.346.   In its first written submission, Korea states that the USDOC acted inconsistently with 
Article I :1 of the GATT 1994 because : 
a. The underlying investigation was the only one in which the USDOC required 
questionnai re responses and on -site verification of companies that were not named as 
respondents, or identified as affiliates.446 
b. The questionnaires issued to the Korean respondents were far more extensive than the 
questionnaires issued to the respondents in any of the  other OCTG investigations, 
although the product at issue as well as the factors that the USDOC considered in 
reaching its final determination were largely identical.447 
c. In the Turkish investigation, the USDOC provided the interested parties with an 
opportun ity to respond to the Tenaris  financial statements whereas it refused to provide 
a similar opportunity to the Korean respondents in the underlying investigation.448 
                                                                                                                                                  
444 European Union's third -party submission, para. 87.  
445 Underlining original; italics added.  
446 Korea's first written submission, para. 253.  
447 Korea's first written submission, para. 253.  
448 Korea 's first written submission, para. 256.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.347.   It is clear to us, reading the narrative section of the panel request, in particular, the 
chapeau to Section IV and paragraph 4, that Korea intended to challenge the USDOC's conduct on 
the basis set out in subparagraph (c) above. However, it is not clear to us, reading this panel 
request , that Korea also intended to challenge the USDOC's conduct o n the basis specified in 
subparagraphs (a) and (b). The United States contends that Korea is precluded from challenging 
the USDOC's conduct on th ese bases, because its panel request makes no reference to the m.449 
7.348.   Korea's GATT Article I :1 claim is set out  in paragraph 4 of Section IV of its panel request. 
Korea sets out a series of procedural claims in Section IV , related to different actions taken by the 
USDOC in the course of the underlying investigation. In the first sentence of paragraph 4, Korea 
states th at the USDOC acted inconsistently with Article I of the GATT because "inter alia" it 
expressly provided the interested parties in its investigation s on OCTG produced in other subject 
countries an opportunity to defend their interests by responding to the p lacement of the Tenaris  
financial statements on the record. Korea contends that the use of the phrase "inter alia" in this 
paragraph makes it clear that it did not intend to challenge the USDOC's action or conduct on this 
basis alone , and therefore the oth er two aspects of its claim argued in its written submissions are 
also within the Panel's terms of reference . 
7.349.   We are not persuaded that the use of " inter alia " in this context  entitles Korea to challenge 
any and all actions of the USDOC in the underlying i nvestigation when its panel request specifically 
refers to one aspect of the USDOC's  conduct , the allegedly differential treatment accorded to the 
Korean respondents by not providing them an opportunity to respond to the Tenaris  financial 
statement. In par ticular, we note that the USDOC conduct referred in subparagraphs  (a) and (b) 
above is not the conduct challenged in subparagraph  (c). In subparagraph  (a) Korea challenges 
the USDOC's decision to ask for  questionnaire responses from specific entities. In 
subparagraph  (b), Korea challenges the scope of the USDOC's questionnaire s in the underlying 
investigation. Neither of these two aspects of the USDOC's conduct  have anything to do with the 
USDOC's alleged failure to provide the Korean respondents with an op portunity to respond to the 
Tenaris  financial statements.  
7.350.   Furthermore, i n the second sentence of paragraph 4, unlike the first, Korea did not use the 
phrase "inter alia". Instead, Korea stated, without any qualification, that "[b]ecause" the Korean 
respon dents were not granted an opportunity to present submissions responding to the 
Tenaris  financial statements, the USDOC's actions resulted in "less [favourable] treatment" of 
OCTG from Korea. Th us, Korea connected the specific conduct  of the USDOC that it w as seeking to 
challenge with the alleged violation of Article I :1 of the GATT  1994. Considering that the basis on 
which Korea presented its claim under Article I :1 of the GATT 1994 in its panel request is distinctly 
different from the bas es it presents  in its written submission, it seems clear to us that Korea has 
attempted to expand its claims beyond the scope of its panel request.  Korea cannot bring claim s 
under Article I :1 of the GATT on wholly new bas es not even alluded to in its request for 
establishme nt. 
7.351.   Therefore, we conclude that Korea's claims challenging the USDOC's actions referred in 
subparagraph s (a) and (b) above fall outside our terms of reference , and we will not address 
them.   
7.11.4.2   The USDOC's alleged denial of a n opportunity for the Korean respo ndents to 
comment on the Tenaris  financial statements  
7.352.   Korea contends that the USDOC acted inconsistently with Article I :1 of the GATT 1994 
because it discriminated against the Korean respondents by providing the interested parties  in the 
Turkish investigat ion an opportunity to comment on the Tenaris  financial statements , while 
denying that opportunity to the Korean respondents  in the underlying investigation .450 The factual 
basis of this claim is the same as that of Korea's claim under  Article X :3(a) of the G ATT 1994, that 
the USDOC failed to administer 19 C.F.R. § 351.301  in a uniform or reasonable manner in the 
Turkish and underlying investigations.  
                                                
449 United States' comments on Korea's re sponse to Panel question No. 79, para. 99.  
450 Korea's first written submission, paras. 254  and 255. WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  7.353.   We concluded above that Korea has not established the factual basis of its claim that the 
USDOC discriminated against the Korean respondents by denying them an opportunity to provide 
rebuttal facts  while providing that opportunity to the interested parties in the Turkish 
investigation.451 Considering that Korea's Article I :1 claim rests on the same factual basis, we  
conclude that Korea has also failed to establish the factual basis of its claim under Article I :1 of the 
GATT 1994. Therefore, we reject Korea's claim under Article I:1 of the GATT 1994.452 
7.11.5   Conclusion  
7.354.   For the foregoing reasons, we conclude that Korea's  claims that the  USDOC acted 
inconsistently with Article I:1 of the GATT 1994 because : (a) the underlying investigation was the 
only one in which the USDOC required questionnaire responses and on-site verification of 
companies that were not named as respondents , or identified as affiliates ; and (b) t he 
questionnaires issued to the Korean respondents were far more extensive than the questionnaires 
issued to the respondents in any of the other OCTG investigations, although the product at issue 
as well as the facto rs that the USDOC considered in reaching its final determination were largely 
identical , are not within our terms of reference . 
7.355.   We also conclude that Korea has not established  that the USDOC acted inconsistently with 
Article I :1 of the GATT 1994 by discrim inating against the Korean respondents because it gave 
interested parties in the Turkish investigation an opportunity to comment on the Tenaris  financial 
statements but denie d such an opportunity to the Korean respondents  in the underlying 
investigation . 
8  CONCLUSIONS AND RECOM MENDATIONS  
8.1.  For the reasons  set forth in this Report, we conclude that the United States acted 
inconsistently with:  
a. the chapeau  of Article 2.2.2 of the Anti -Dumping Agreement because the USDOC  did not 
determine CV profit of the Korean re spondents based on actual data pertaining to their 
sales of the like product in the  home market ; 
b. Articles 2.2.2(i) and (iii) of the Anti -Dumping Agreement because the USDOC  relied on 
an impermissibly narrow definition of the "same general category of produ cts" in 
concluding it could not determin e CV profit under Article 2.2.2(i) and in concluding it 
could not calculat e the profit cap required by  Article 2.2.2(iii);  
c. Article 2.2.2(iii) of the Anti -Dumping Agreement because the USDOC  failed to calculate 
and ap ply a profit cap as required by that provision, and as a consequence acted 
inconsistently with Article 2.2 of the Anti -Dumping Agreement by failing to use a 
reasonable amount for profits in the construction  of normal value for the 
Korean  respondents.  
8.2.  For the reasons  set forth in this Report, we conclude that Korea has failed to demonstrate 
that the United States acted inconsistently with:  
a. Article 2.2 of the Anti -Dumping  Agreement  "as such" and "as applied" in connection with 
the "viability test";  
                                                
451 See para s. 7.332 -7.333 above.  
452 In this regard, we note that the Appellate Body in EC – Fasteners (China)  stated that in determining 
whether there was a violation of Article I.1 of GATT 1994, the panel should have considered, as part of its legal 
analysis, whether and under  what circumstances an anti -dumping measure that is inconsistent with the 
Anti-Dumping Agreement may be reviewed under Article I.1 of the GATT 1994 in the absence of a review 
under Article VI of the GATT 1994. (Appellate Body Report, EC – Fasteners (China) , para. 395) . We have 
concluded that Korea has not established the factual basis of its claim under Article I :1 and thus do not find it 
necessary to conduct this legal analysis in this particular case.  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  b. Article 2. 3 of the Anti -Dumping Agreement in connection with the USDOC 's construct ion 
of NEXTEEL's export price  where it appeared to the USDOC that NEXTEEL's export price 
was unreliable because of association ; 
c. Article 2.2.1.1 of the Anti -Dumping Agreement in connect ion with the USDOC 's reject ion, 
for the purpose of constructing the normal value, of the price at which NEXTEEL 
purchased steel coils from POSCO;  
d. Article 6.2  of the Anti -Dumping Agreement in connection with the absence  of notification 
by the USDOC to the K orean respondents , until its final determination, that it had 
accepted the Tenaris financial statements on the record;  
e. Article 6.4 of the Anti -Dumping Agreement in connection with the absence of notification 
by the USDOC to the Korean respondents until its  final determination  that it had 
accepted the Tenaris financial statements on the record and that it was using these 
statements in determining CV profit;  
f. Article 6.9 of the Anti -Dumping Agreement in connection with the absence of disclosure 
as an essential  fact of the USDOC's decision to accept the Tenaris financial statements 
on the record and its reliance on the Tenaris financial statements to determine CV profit;  
g. Article 6.10 of the Anti -Dumping Agreement in connection with the USDOC 's conclusion 
that and explanation why  it would be impracticable to examine all known exporters and 
why it was limiting its examination to two exporters;  
h. Article 6.10.2 of the Anti -Dumping Agreement in connection with the USDOC 's 
conclusion that and explanation why it would be  unduly burdensome to individually 
examine voluntary respondents;  
i. Article 12.2.2 of the Anti -Dumping Agreement in connection with the USDOC 's reasons  
for rejecting certain arguments ; 
j. Article X:3(a) of the GATT 1994 in connection with the USDOC 's administra tion of 
USDOC regulation 19 C.F.R. § 351.301 ; 
k. Article  I:1 of the GATT 1994 in connection with the treatment of interested parties in the 
Turkish investigation and the treatment of the Korean respondents  in the underlying 
investigation  regarding  the opportu nity to comment on the Tenaris financial statements ; 
l. Article 18.4 of the Anti -Dumping Agreement as a consequence of the alleged  violation of 
Article 2.2 of the Anti -Dumping Agreement in connection with the "viability test";  
m. Article VI of the GATT 1994 as a  consequence of alleged  violations of the Anti -Dumping 
Agreement; and  
n. Article XVI :4 of the WTO Agreement as a consequence of alleged  violations of the 
Anti-Dumping Agreement and Article VI of the GATT 1994 . 
8.3.  For the reasons set forth in this Report , we find that the  following claims asserted by Korea 
fall outside our terms of reference, and thus do not consider them :  
a. alleged violation of Article 2.2.2(iii) of the Anti -Dumping Agreement because the USDOC 
failed to use a reasonable method to determine the CV profit rate of the Korean 
respondents by basing this profit rate on the Tenaris financial statements;  
b. alleged violation of Article 6.4 of the Anti -Dumping Agreement because the USDOC failed 
to post certain communications to the record in a timely fashion ;  
c. alleged violation of Article 6.9 of the Anti -Dumping Agreement because it failed to 
disclose these communications as essential facts;  WT/DS488/ R 
BCI deleted , as indicated  [[***]]  
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  d. alleged violation of Article X:3(a) of the GATT 1994 because the USDOC failed to 
administer US laws and regulations in a uniform, impartial and reasonable manner by 
acting  contrary to its established agency practice of determining CV profit on the basis of 
sources located in the home market of the exporter or producer under investigation, and 
because this decision was attrib utable to political influence ; 
e. alleged violation of Article I:1 of the GATT 1994 because : (a) the underlying 
investigation was the only one in which the USDOC required questionnaire responses 
and on-site verification of companies that were not named as res pondents, or identified 
as affiliates ; and (b) t he questionnaires issued to the Korean respondents were far more 
extensive than the questionnaires issued to the respo ndents in any of the other 
OCTG  investigations .  
8.4.  For the reasons set forth in this Report,  we find the USDOC's remand determination falls 
outside our terms of reference  and therefore we do not consider Korea's claims in connection with 
it. 
8.5.  For the reasons  set forth in this Report, we exercise judicial economy with respect to  Korea's 
claims that  the USDOC acted inconsistently with:  
a. the chapeau  of Article 2.2.2 of the Anti -Dumping Agreement because the USDOC  did not 
determine CV profit of the Korean respondents based on actual data pertaining to their  
sales of the like product in third -country mar kets; 
b. Article 2.4  because the USDOC did not make a fair comparison between the export price 
and the constructed normal value b y failing to make du e allowance for the 
significant  differences between the profit rates of the Korean respondents and that of 
Tenaris; and 
c. Articles 1 and 9.3 of the Anti -Dumping Agreement as a consequence of substantive 
violations of Articles 2.2.2, 2.2.2(i), and 2.2.2(iii) of the Anti -Dumping Agreement.  
8.6.  Under Article 3.8 of the DSU, in cases where there is an infringement of the ob ligations 
assumed under a covered agreement, the action is considered prima facie  to constitute a case of 
nullification or impairment. We conclude that, to the extent that the measures at issue are 
inconsistent with certain provisions of the Anti -Dumping  Agreement , they have nullified or 
impaired benefits accruing to Korea  under this agreement.  
8.7.  Pursuant to Article 19.1 of the DSU, we recommend that the United States  bring its measures 
into conformity with its obligations under the Anti-Dumping  Agreement.  
 
 
__________