WT/DS523/R  
 
18 December 2018 
(18-7940) Page: 1/99 
    
 
  
UNITED  STATES  – COUNTERV AILING MEASURES ON C ERTAIN PIPE  
AND TUBE PRODUCTS FR OM TURKEY  
REPORT  OF THE PANEL  
 
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  TABLE OF CONTENTS  
1   INTRODUCTION  ................................ ................................ ................................ ....... 16 
1.1   Complaint by  Turkey  ................................ ................................ ................................ . 16 
1.2   Panel establishment and composition  ................................ ................................ ..........  16 
1.3   Panel proceedings  ................................ ................................ ................................ ..... 16 
1.3.1    General  ................................ ................................ ................................ ................  16 
1.3.2    Preliminary ruling  request  ................................ ................................ .......................  17 
2   FACTUAL ASPECTS ................................ ................................ ................................ .... 17 
3   PARTIES'  REQUESTS FOR FINDING S AND RECOMMENDATION S ...............................  17 
4   ARGUMENTS OF THE PA RTIES  ................................ ................................ ..................  19 
5   ARGUMENTS OF THE TH IRD PARTIES  ................................ ................................ ....... 19 
6   INTERIM REVIEW  ................................ ................................ ................................ ..... 19 
7   FINDINGS  ................................ ................................ ................................ ................  20 
7.1   General principles regarding treaty interpretation, the applicable standard of review, and 
burden of proof  ................................ ................................ ................................ ................  20 
7.1.1    Treaty interpretation  ................................ ................................ ..............................  20 
7.1.2    Standard of review ................................ ................................ ................................ . 20 
7.1.3    Burden of proof  ................................ ................................ ................................ ..... 20 
7.2   Turkey's  claim under Article  1.1(a)(1) of the SCM  Agreement in relation to the 
USDOC's  public body determinations in the OCTG, WLP, HWRP, and CWP procee dings  .............  21 
7.2.1    Introduction  ................................ ................................ ................................ ..........  21 
7.2.2    The legal standard applicable to the public body enquiry  ................................ .............  21 
7.2.3    The Panel's  evaluation of Turkey's  Article  1.1(a)(1) claims in connection with the 
challenged proceedings  ................................ ................................ ................................ ..... 22 
7.2.3.1    Whether the USDOC's  public body de terminations are inconsistent with Article  1.1(a)(1) 
of the SCM  Agreement  ................................ ................................ ................................ ...... 24 
7.2.3.2    Whether the USDOC failed to consider relev ant evidence on the record related to 
Erdemir's  commercial conduct  ................................ ................................ ...........................  32 
7.2.3.3    Whether the USDOC's  assessment of OYAK is also inc onsistent with Article  1.1(a)(1) of 
the SCM  Agreement  ................................ ................................ ................................ .........  35 
7.2.4    Conclusions regarding Turkey's  claims under Article  1.1(a)(1) of  the SCM  Agreement  .... 35 
7.3   Turkey's  claims under Articles  1.1(b) and 14(d) of the SCM  Agreement in relation to the 
benefit determination in the OCTG proceeding  ................................ ................................ ..... 36 
7.3.1    Introduction  ................................ ................................ ................................ ..........  36 
7.3.2    The United  States'  request to exclude measures and claims from the Panel's  terms of 
reference  ................................ ................................ ................................ ........................  37 
7.3.2.1    Whether Turkey's  panel request adds a challenge regarding an alleged benefit "practice" 
that was not the subject of Turkey's  request for consultations  ................................ ...............  37 
7.3.2.2    Whether the Panel should make findings on the benchmark determination in the OCTG 
investigation which was successfully challenged in a US domestic court and reversed in a remand 
determination  ................................ ................................ ................................ ..................  41 
7.3.3    The Panel's  evaluation of Turkey's  "as such" challenge under Article  14(d) of the 
SCM Agreement  ................................ ................................ ................................ ...............  45 
7.3.4    Conclusions regarding Turkey's  claims under Articles  1.1(b) and 14(d) of the 
SCM Agreement  ................................ ................................ ................................ ...............  51 WT/DS523/ R 
 
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  7.4   Turkey's  claims under Articles  2.1(c) and 2.4 of the SCM  Agreement in relation to the 
specificity determinations in the OCTG, WLP, HWRP, and CWP proce edings  .............................  51 
7.4.1    Introduction  ................................ ................................ ................................ ..........  51 
7.4.2    The Panel's  evaluation of Turkey's  Articles  2.1(c) and 2.4 claims  ................................ . 52 
7.4.2.1    Whether the United  States established the existence of a "subsidy programme" for 
purposes of Article  2.1(c) of the SCM  Agreement  ................................ ................................ . 53 
7.4.2.1.1    2012-2014 Medium Term Programme  ................................ ................................ . 55 
7.4.2.1.2    Erdemir's  Annual Reports  ................................ ................................ ..................  55 
7.4.2.1.3    List of HRS transactions  ................................ ................................ ....................  56 
7.4.2.1.4    Consideration of the evidence in its totality  ................................ .........................  57 
7.4.2.2    Whether the United  States considered the two facto rs in the last sentence of 
Article  2.1(c) of the SCM  Agreement  ................................ ................................ ..................  57 
7.4.2.2.1    Economic diversification  ................................ ................................ ....................  58 
7.4.2.2.2    Length of time that the "subsidy programme" has been in operation  ......................  59 
7.4.3    Conclusions regarding Turkey's  Article  2.1(c) and 2.4 claims  ................................ ....... 61 
7.5   Turkey's  claims under Article  12.7 of the SCM  Agreement in relation to the use of facts 
available in the OCTG, WLP, and HWRP proceedings  ................................ .............................  61 
7.5.1    Introduction  ................................ ................................ ................................ ..........  61 
7.5.2    The use of facts available in the OCTG investigation  ................................ ...................  61 
7.5.2.1    Factual b ackground  ................................ ................................ .............................  61 
7.5.2.2    The Panel's  evaluation of Turkey's  claim regarding the use of facts available in the OCTG 
investigation  ................................ ................................ ................................ ...................  62 
7.5.2.2.1    Failure to take into account the difficulties  ................................ ...........................  63 
7.5.2.2.2    Punitive application of facts available  ................................ ................................ .. 64 
7.5.2.2.2.1    The selection of the lowest price on the record  ................................ ..................  67 
7.5.2.2.2.2    The selection of quantitie s of HRS purchases on the basis of the full capacity of the 
non-responding facilities and Gemlik's  ratio of HRS purchases from Erdemir and Isdemir  ..........  68 
7.5.3    The use of facts available in the WLP investigation  ................................ .....................  70 
7.5.3.1    Factual background  ................................ ................................ .............................  70 
7.5.3.2    Whether Turkey's  claims under Article  12.7 of the SCM  Agreement in respect of "all 
investigated programs" in the WLP investi gation are within the Panel's  terms of reference  ........  70 
7.5.3.3    The Panel's  evaluation of Turkey's  claim regarding the use of facts available in the WLP 
investigation  ................................ ................................ ................................ ...................  75 
7.5.4    The use of facts available in the HWRP investigation  ................................ ..................  77 
7.5.4.1    Factual background  ................................ ................................ .............................  77 
7.5.4.2    The Panel's  evaluation of Turkey's  claim regarding the use of facts available in the HWRP 
investigation  ................................ ................................ ................................ ...................  78 
7.5.5    Conclusions regarding Turkey's  Article  12.7 claims  ................................ .....................  80 
7.6   Turkey's  claims under Article  15.3 of the SCM  Agreement in relation to the  cumulative 
assessment of the effects of imports in the OCTG, WLP, HWRP, and CWP proceedings  ..............  81 
7.6.1    Introduction  ................................ ................................ ................................ ..........  81 
7.6.2    Whether Turkey's  panel request adds a challenge regarding alleged injury determination 
"practices" that were not the s ubject of Turkey's  request for consultations  ..............................  81 
7.6.3    Turkey's  claims concerning the cumulation of subsidized and dumped, non -subsidized 
imports in original countervailing investigations  ................................ ................................ ... 83 WT/DS523/ R 
 
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  7.6.3.1    Whether the USITC cumulated subsidized and dumped, non -subsidized imports in the 
OCTG, WLP, and HWRP original investigations inconsistently with Article  15.3 of the 
SCM Agreement  ................................ ................................ ................................ ...............  87 
7.6.3.2    Whether the USITC has a practice of cumulating subsidized and dumped, non -subsidized 
imports in original investigations that is inconsistent "as such" with Article  15.3 of the 
SCM Agreement  ................................ ................................ ................................ ...............  88 
7.6.4    Turkey's  claims concerning cumulation of subsidized and dumped, non -subsidized imports 
in sunset reviews  ................................ ................................ ................................ .............  92 
7.6.5    Conclusions regarding Turkey's  claims under Article  15.3 of the SCM  Agreement  ...........  94 
7.7   Turkey's  claims under Article  19.4 of the SC M Agreement and Article  VI:3 of  
the GATT  1994 ................................ ................................ ................................ ................  95 
7.8   Turkey's claims under Articles  10 and 32.1 of the SCM  Agreement  ................................ . 97 
8   CONCLUSIONS AND REC OMMENDATION  ................................ ................................ .. 97 
 
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  LIST OF ANNEXES  
ANNEX  A 
PANEL  DOCUMENTS  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  4 
Annex  A-2 Additional Working Procedures on Business Confidential Information  9 
Annex  A-3 Interim Review  11 
ANNEX  B 
ARGUMENTS OF THE PARTIES  
Contents  Page  
Annex  B-1 First integrated executive summary of the arguments of Turkey  19 
Annex  B-2 Second integrated executive summary of the arguments of Turkey  29 
Annex  B-3 First integrated executive summary of the arguments of the United  States  38 
Annex  B-4 Second integrated executive summary of the arguments of the United  States  50 
 
ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  62 
Annex  C-2 Integrated executive summary of the arguments of the European Union  63 
Annex  C-3 Integrated executive summary of the arguments of Japan  67 
Annex  C-4 Integrated executive summary of the arguments of Mexico  72 
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  CASES CITED IN THIS 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, DSR 2015:II, p. 579 
Argentina – Textiles and 
Apparel  Panel Report, Argentina – Measures Affecting Imports of Footwear, 
Textiles, Apparel and O ther Items , WT/DS56/R , adopted 22 April 1998, as 
modified by Appellate Body R eport WT/DS56/AB/R, DSR 1998:III, p. 1033 
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 
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1161  
Brazil – Desiccated Coconut  Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut , 
WT/DS22/AB/R , adopted 20 March 1997, DSR 1997:I, p. 167 
Canada – Wheat Exports and 
Grain Imports  Appellate Body Report, Canada – Measures Relating to Exports of  Wheat 
and Treatment of Imported Grain , WT/DS276/AB/R , adopted 27 Septemb er 
2004, DSR 2004:VI, p. 2739 
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, DS R 2006:XII, p. 5473)  
China – Electronic Payment 
Services  Panel Report, China – Certain Measures Affecting Electronic Payment 
Services , WT/DS413/R  and Add.1, adopted 31 August 2012, DSR 2012:X, 
p. 5305 
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 
Dominican R epublic – Import 
and Sale of Cigarettes  Panel Report, Dominican Republic – Measures Affecting the Importation 
and Internal Sale of Cigarettes , WT/DS302/R , adopted 19 May 2005, as 
modified by Appellate Body Report WT/DS302 /AB/R, DSR 2005:XV, 
p. 7425 
EC – Approval and Marketing 
of Biotech Products  Panel Reports, European Communities – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and 
Corr.1 / WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to 
Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847 
EC – Bananas III  Appellate Body Report, European Communities  – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/A B/R, adopted 
25 September 1997, DSR 1997:II, p. 591 
EC – Bananas III  
(Article  21.5 – Ecuador II) /  
EC – Bananas III  
(Article  21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 
11 December 2008, and Corr.1 / European Communities – Regime for the 
Importation, Sale and Distribution of Bananas – Recourse to Article  21.5 of 
the DSU b y the United  States , WT/DS27/AB/RW/USA  and Corr.1, adopted 
22 Decemb er 2008, DSR 2008:XVIII, p. 7165 
EC – Countervailing Measures 
on DRAM Chips  Panel Report, European Communities – Countervailing Measures on 
Dynamic Random Access Memory Chips from Korea , WT/DS299/R , adopted 
3 August 2005, DSR 2005:XVIII, p. 8671 
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 – Poultry  Appellate Body Report, European Communities – Measures Affecting the 
Importation of Certain Poultry Products , WT/DS69/A B/R, adopted 
23 July 1998, DSR 1998:V, p. 2031 
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 WT/DS523/ R 
 
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  Short title  Full case title and citation  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , 
adopted 18 August 2003,  DSR 2003:VI, p. 2613 
EC and certain member  
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States 
– Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , 
adopted 1 June 2011, DSR 2011:I, p. 7 
EU – Biodiesel (Argen tina) Appellate Body Report, European Union – Anti-Dumping Measures on 
Biodiesel from Argentina , WT/DS473/AB/R  and Add.1, adopted 
26 October  2016, DSR 2016:VI, p. 2871 
EU – PET (Pakistan)  Appellate Body Report, European Union – Countervailing Measures on 
Certain Polyethylene Terephthalate  from Pakistan , WT/DS486/AB/R  and 
Add.1, adopted 28 May 2018  
EU – PET (Pakistan)  Panel Report, European Union – Countervailing Measures on Certain 
Polyethylene Terephthalate  from Pakistan , WT/DS486/R , Add.1 and Corr.1, 
adopted 28 May 2018, as modified by Appellate Body Report 
WT/DS486/AB/R  
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 
India – Additional Import 
Duties  Panel Report, India – Additional and Extra -Additional Duties on Imports 
from the United  States , WT/DS360/R , adopted 17 November 2008, as 
reversed by Appellate Body Report WT/ DS360/AB/R, DSR 2008:XX, 
p. 8317 
India – Patents (US)  Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R , adopted 16 January 1998, 
DSR 1998:I, p. 9 
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and 
Corr.2, ado pted 23 July 1998, and Cor r.3 and Corr.4, DSR 1998:VI, 
p. 2201 
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 
1 November  1996, DSR 1996:I, p. 97 
Japan – DRAMs (Korea)  Appellate Body Report, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea , WT/DS336/AB/R  and Corr.1, ado pted 
17 December 2007, DSR 2007:VII, p. 2703 
Korea – Commercial Vessels  Panel Report, Korea – Measures Affecting Trade in Commercial Vessels , 
WT/DS273/R , adopted 11 April 2005, DSR 2005:VII, p. 2749 
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-Dumpi ng 
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 – 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 
Peru – Agricultural Products  Appellate Body Report, Peru – Additional Duty on Imports of Certain 
Agricultural Products , WT/DS457/AB/R  and Add.1, adopted 31 July 2015, 
DSR 2015:VI, p. 3403 
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes 
and Sections of Iron or Non -Alloy Steel and H -Beams from  Poland , 
WT/DS122/AB/R , adopted 5 April 2001, DSR 2001:VII, p. 2701 
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice , 
WT/DS334/R , adopted 22 October 2007, DSR 2007:VI, p. 2151 
US – 1916 Act  Appellate Body Report, United  States  – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R , WT/DS162/AB/R , adopted 26 September 2000, 
DSR 2000:X, p. 4793 WT/DS523/ R 
 
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  Short title  Full case title and citation  
US – Anti-Dumping and 
Countervailing Duties (China)  Appellate Body Rep ort, 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 – Anti-Dumping and 
Countervailing Duties (China)  Panel Report, United  States  – Definitive Anti -Dumping and Countervailing 
Duties on Certain Products from China , WT/DS379/R , adopted 
25 March  2011, as modified by Appellate Body Report WT/DS379/AB/R, 
DSR 2011:VI, p. 3143 
US – Anti-Dumping 
Methodologies (China)  Appellate Body Report, United  States  – Certain Methodologies and Their 
Application to Anti -Dumping Proceedings Involving China , WT/DS471/AB/R  
and Add.1, adopted 22 May 2017  
US – Carbon Steel  Appellate Body R eport, United  States  – Countervailing Duties on 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 
19 February  2009, DSR 2009:III, p. 1291 
US – Corrosion -Resistant 
Steel Sunset Review  Appellate Body Report, United  States  – Sunset Review of Anti -Dumping 
Duties on Corrosion -Resistant Carbon Steel Flat Products from Japan , 
WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, p. 3 
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United  States  – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027 
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 July 2005, DSR 2005:XVI, p. 8131 
US – Countervailing Measures 
(China)  Appellate Body Report, United  States  – Counter vailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adop ted 16 January 2015, 
DSR 2015:1, p. 7 
US – Countervailing Measures 
(China)  Panel Report, United  States  – Countervailing Duty Measures on Certain 
Products from China , WT/DS437/R  and Add.1, adopted 16 January 2015, 
as modified by Appellate Body Repor t WT/DS437/AB/R, DSR 2015:1, 
p. 183 
US – Countervailing Measures 
(China) ( Article  21.5 – China)  Panel Report, United  States  – Countervailing Duty Measures on Certain 
Products from China – Recourse to Article  21.5 of the DSU by China,  
WT/DS437/RW  and Add.1, circulated to WTO Members 21 March 2018 
[appealed by the United  States 27 April 2018]  
US – Countervailing Measures 
on Certain EC Products  Appellate Body Report, United States – Countervailing Measures 
Concerning Certain Products from the European Communities , 
WT/DS212/AB/R , adopted 8 January 2003, DSR 2003:I, p. 5  
US – Export Restra ints Panel Report, United  States  – Measures Treating Exports Restraints as 
Subsidies , WT/DS194/R  and Corr.2 , adopted 23 August 2001, 
DSR 2001:XI, p. 5767 
US – Gasoline  Panel Report, United  States  – Standards for Reformulated and 
Conventional Gasoline , WT/DS2/R , adopted 20 May 1996, as modified by 
Appellate Body Report WT/DS2/AB/R,  DSR 1996:I, p. 29 
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, 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  Panel Report, United  States  – Sunset Reviews of Anti -Dumping Measures 
on Oil Country Tubular Goods from Argentina , WT/DS268/R  and Corr.1, 
adopted 17 December 2004, as modified by Appellate Body Report 
WT/DS268/AB/R, DSR 2004:VIII, p. 3421 WT/DS523/ R 
 
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  Short title  Full case title and citation  
US – Poultry (China)  Panel Report, United  States  – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, 
p. 1909 
US – Section 301 Tra de Act  Panel Report, United  States  – Sections 301 -310 of the Trade Act of 1974 , 
WT/DS152/R , adopted 27 January 2000, DSR 2000:II, p. 815 
US – Shrimp ( Article  21.5 – 
Malaysia)  Appellate Body Report, United  States  – Import Prohibition of Certain 
Shrimp and Shrimp Products – Recourse to Article  21.5 of the DSU by 
Malaysia , WT/DS58/AB/RW , adopted 21 November 2001, DSR 2001:XIII, 
p. 6481 
US – Softwood Lumber IV  Appellate Body Report, United  States  – Final Countervailing Duty 
Determination with Respect to Certain Softwood Lumber from Canada , 
WT/DS257/AB/R , adopted 17 February 2004, DSR 2004:II, p. 571 
US – Softwood  Lumber VI 
(Article  21.5 – Canada)  Appellate Body Report, United  States  – Investigation of the International 
Trade Commission in Softwood Lumber fr om Canada – Recourse to 
Article  21.5 of the DSU by Canada , WT/DS277/AB/RW , adopted 
9 May 2006, and Corr.1, DSR 2006:XI, p. 4865 
US – Stainless Steel (Mexico)  Appellate Body Report, United States – Final Anti -Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/AB/R , adopted 20 May 2008, DSR 
2008:II, p. 513  
US – Tuna II (Mexico)  Appellate Body Report, United  States  – Measures Concerning the 
Importation, Marketing and Sale of Tuna and Tuna Products , 
WT/DS381/AB/R , adopted 13 June 2012, DSR 2012:IV, p. 1837 
US – Underwear  Appellate Body Report, United  States  – Restrictions on Imports of Cotton 
and Man -made Fibre Underwear , WT/DS24/AB/R , adopted 
25 February  1997, DSR 1997:I, p. 11 
US – Underwear  Panel Report, United  States  – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS24/R , adopted 25 February 1997, as 
modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31 
US – Upland Cotton  Appellate Body Report, United  States  – Subsidies on Upland Cotton , 
WT/DS2 67/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 
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, DSR 2016:V, p. 2505 
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 – Wool Shirts and Blouses  Panel Report, United  States  – Measure Affecting Imports of Woven Wool 
Shirts and Blouses from India , WT/DS33/R , adopted 23 May 1997, upheld 
by Appellate Body Report WT/DS33/AB/R, D SR 1997:I, p. 343 
US – Zeroing (EC)  Appellate Body Report, United  States  – Laws, Regulations and Methodology 
for Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R , adopted 
9 May 2006, and Corr.1, DSR 2006:II, p. 417 
US – Zeroing (Japan)  Appellate Body Report, United  States  – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R , adopted 23 January 2007, DSR 2007:I, 
p. 3 
US – Zeroing (Japan)  Panel Report, United  States  – Measures Relating to Zeroing and Sunset 
Reviews , WT/DS322/R , adopted 23 January 2007, as modified by 
Appellate  Body Report WT/DS322/AB/R, DSR 2007:I, p. 97 
US – Zeroing (Japan) 
(Article  21.5 – Japan)  Appellate Body Report, United  States  – 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/DS523/ R 
 
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  EXHIBITS CITED IN TH IS REPORT  
Exhibit  Short Title (if any)  Description  
TUR-5 Except from 
Borusan 's CWP Case 
Brief Excerpt from Borusan 's Case Brief on certain welded carbon 
steel pipe and tube from Turkey (11 May 2015)  
TUR-7 Input Producer 
Appendix (CWP 
questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4, Input Producer Appendix  
TUR-8 Responsibilities of 
Erdemir  (CWP 
questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4 -B, Re sponsibilities of Erdemir  
TUR-9/TUR -63 
(excerpts) 
USA-5 (full 
version)  Erdemir  2012 Annual 
Report (CWP 
questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4 -C, Erdemir  2012 Annual Report  
TUR-10 OYAK 2013 Annual 
Report (CWP 
questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4 -G, OYAK 2013 Annual Report  
TUR-13 Perform ance of 
Erdemir  (CWP 
questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4 -J, Performance of Erdemir  
TUR-14 Price Determination 
Methodology and 
HRS Price Index 
(CWP questionnaire)  Excerpt from GOT 's new subsidy allegations questionnaire 
response on certain welded carbon steel pipe and tube from 
Turkey, exhibit 4 -K, Price Determination Methodology and HRS 
Price Index  
TUR-16 CWP Final Sunset 
Review 
Determination  Excerpt from USITC, certain circular welded pipe and tube from 
Brazil, India, Korea, Mexico, Chinese Taipei , Thailand, and 
Turkey, Final Sunset Review Determination, publication 4333 
(June 2012)  
TUR-22 Excerpt from CWP 
CVD Final 
Determination 
Memorandum  Excerpt from Decision Memorandum dated 5 October 2015 from 
the USDOC on the final results in the countervailing duty 
administrative review of certain welded carbon steel pipe and 
tube from Turkey  
TUR-26 Input Producer 
Appendix (HWRP 
questionnaire)  Excerpt from GOT 's questionnaire response on imports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8, Input Producer Appendix  
TUR-27 Functioning and 
Governing Principles 
of Erdemir and 
Isdemir (HWRP 
questionnaire)  Excerpt from GOT 's questionnaire response on imports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8 -B, Functioning and Governing Principles of 
Erdemir and Isdemir  
TUR-28/TUR -105 
(excerpts) 
USA-7 (full 
version)  Erdemir  2013 Annual 
Report (HWRP 
questionnaire)  Excerpt from GOT 's questionnaire response on imports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8 -C, Erdemir  2013 Annual Report  
TUR-29 OYAK 2014 Annual 
Report (HWRP 
questionnaire ) Excerpt from GOT 's questionnaire response on imports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8 -G, OYAK 2014 Annual Report  
TUR-30 Law No. 205 (HWRP 
questionnaire)  Excerpt from GOT 's questionnaire response on i mports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8 -G, Military Personnel Assistance [and Pension] 
Fund Law, Law No. 205  
TUR-33 Price Determination 
Methodology and 
HRS Price Index 
(HWRP 
questionnaire)  Excerpt from  GOT's questionnaire response on imports of heavy 
walled rectangular welded carbon steel pipes and tubes from 
Turkey, exhibit 8 -K, Price Determination Methodology and HRS 
Price Index  
TUR-38 USITC HWRP Final 
Determination  USITC , heavy walled rectangular welded carbon steel pipes and 
tubes from Korea, Mexico, and Turkey : Final Determination 
(September 2016)  WT/DS523/ R 
 
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  Exhibit  Short Title (if any)  Description  
TUR-39 Application of State 
aid rules to OYAK  
(OCTG 
questionnaire)  Excerpt from GOT 's questionnaire response on certain oil 
country tubular goods  from Turkey , exhibit 4 -I, Hogan Lovells, 
Application of State aid rules to OYAK  (20 December 2010)  
TUR-46 HWRP CVD Final 
Determination 
Memorandum  Decision Memorandum dated 14 July 2016 from the USDOC on  
the Final Determination  in the countervailing duty investigation 
of heavy walled rectangular welded carbon steel pipes and tubes 
from Turkey  
TUR-52 Excerpt from 
Borusan 's OCTG 
Case Brief  Excerpt from Borusan 's Case Brief on oil country tubular goods 
from Turkey (23 May 2014)  
TUR-57 OYAK 2012 Annual 
Report (OCTG 
questionnaire)  Excerpt from GOT 's second  supplemental questionnaire response 
on oil country tubular goods from Turkey, exhibit 1, OYAK 2012 
Annual Report  
TUR-60 Excerpt from 
GOT's OCTG 
questionnaire 
response  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey (22 November 2013)  
TUR-61 Erdemir and 
OYAK 's OCTG Input 
Producer Appendix  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey, exhibit 4, Turkish and English 
version of the I nput Producer Appendix  
TUR-62 Functioning and 
Governing Principles 
of Erdemir and 
Isdemir and Audit 
Committee 
Regulation (OCTG 
questionnaire)  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey, exhibit 4 -B, Functioning and 
Governing Principles of Erdemir and Isdemir and Audit 
Committee Regulation  
TUR-64 Change in the Share 
and Capital Structure 
of Erdemir and 
Isdemir (OCTG 
questionnaire)  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey, exhibit 4 -G, Change in the Share 
and Capital Structure of Erdemir and Isdemir  
TUR-66 Application of State 
aid rules to OYAK  
(OCTG 
questionnaire)  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey , exhibit 4 -I, Hogan Lovells, 
Application of State aid rules to OYAK  (20 December 2010)  
TUR-67 Target Base Price 
Determination 
Diagram (OCTG 
questionnaire)  Excerpt from GOT 's questionnaire response on oil country 
tubular goods from Turkey, exhibit 4 -K, Target Base Pr ice 
Determination Diagram  
TUR-72 Excerpt from USITC 
OCTG Final 
Determination  Excerpt from USITC, Final Determination on certain oil country 
tubular goods from India, Korea, the Philippines, Chinese Taipei , 
Thailand, Turkey, Ukraine, and Viet Nam  (Septemb er 2014)  
TUR-75 Post-Preliminary 
Analysis 
Memorandum for 
Borusan  Memorandum dated 18 April 2014 from the USDOC on 
countervailing duty investigation of certain oil country tubular 
goods from turkey : post-preliminary analysis for Borusan  
TUR-81 Excerpt from 
Tosçelik 's OCTG Case 
Brief Excerpt from Tosçelik 's Case Brief on oil country tubular goods 
from Turkey (23 May 2014)  
TUR-85 OCTG CVD Final 
Determination 
Memorandum  Determination Memorandum dated 10 July 2014 from the 
USDOC on  Final Determinat ion in the countervailing duty 
investigation of certain oil country tubular goods from Turkey  
TUR-99 Application of State 
aid rules to OYAK  
(WLP questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey , exhibit 4 -I, Hogan Lovells, Application of 
State aid rules to OYAK  (20 December 2010)  
TUR-101 Borusan 's decision  
not to participate in 
verification  Borusan, Notice of Decision not to participate in verification on 
welded line pipe from Turkey (14 April 2015)  WT/DS523/ R 
 
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  Exhibit  Short Title (if any)  Description  
TUR-103 Erdemir and 
Isdemir 's Input 
Producer Appendix 
(WLP questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey, exhibit 7, Input Producer Appendix  
TUR-104 Functioning and 
Governing Principles 
of Erdemir and 
Isdemir an d Audit 
Committee 
Regulation (WLP 
questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey, exhibit 7 -B, Functioning and Governing 
Principles of Erdemir and Isdemir  
TUR-28/TUR -105 
(excerpts) 
USA-7 (full 
version)  Erdemir  2013 Annual 
Report (WLP 
questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey, exhibit 7 -C, Erdemir  2013 Annual Report  
TUR-106 OYAK 2013 Annual 
Report (WLP 
questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey, exhibit 7 -G, OYAK 2013 Annual Report 
and Military Personnel Assistance [and Pension] Fund Law, Law 
No. 205  
TUR-110 Price Determination 
Methodology and 
HRS Price Index 
(WLP questionnaire)  Excerpt from GOT 's questionnaire response on certain welded 
line pipe from Turkey, exhibit 7 -K, Price Determination 
Methodology and HRS Price Index  
TUR-116 Excerpt from USITC 
WLP Final 
Determination  Excerpt from USITC, certain welded line pipe from Korea and 
Turkey, Final Determination (November 2015)  
TUR-119 Tosçelik 's WLP Case 
Brief Tosçelik 's Case Brief on welded line pipe from Turkey 
(6 July 2015)  
TUR-122 WLP CVD Final 
Determination 
Memorandum  Decision Memorandum dated 5 October 2015 from the USDOC 
on the Final Determination  in the countervailing duty 
investigation of welded line pipe from Turkey  
TUR-138 Preliminary AD/CVD 
Determination on 
circular welded 
austenitic stainless 
pressure pipe from 
China  Circular welded austenitic stainless pressure pipe from the 
People's Republic of China : Preliminary Affirmative 
Countervailing Duty Determination and Alignment of Final 
Countervailing Duty Determination with Final Antidumping Duty 
Determination, United  States  Federal Register, Vol.  73, No.  133, 
p. 39657 (10 July 2008 ) 
TUR-139 Preliminary CVD 
Determination on 
circular welded 
carbon quality steel 
line pipe from China  Circular welded carbon quality steel line pipe  from the 
People 's Republic of China : Affirmative Countervailing Duty 
Determination, United  States  Federal Register, Vol.  73, No.  175, 
p. 52297 (9 September 2008)  
TUR-140 Preliminary AD/CVD 
Determination on 
certain kitchen 
appliance shelving 
and racks  from China  Certain kitchen appliance shelving and racks from the 
People 's Republic of China : Preliminary Affir mative 
Countervailing Duty Determination and Alignment of Final 
Countervailing Duty Determination with Final Antidumping  
Duty Determination, United  States  Federal Register, Vol.  74, 
No. 4, p. 683 (7 January 2009)  
TUR-143 Preliminary CVD 
Determination on 
OCTG from China  Certain oil country tubular goods from the People 's Republic of 
China : Preliminary Affirmative Countervailing  
Duty Determination, United  States  Federal Register, Vol.  74, 
No. 177, p. 47210 (15 September 2009)  
TUR-146 Preliminary CVD 
Determination on 
aluminium 
extrusions from 
China  Aluminum e xtrusions from the People 's Republic of 
China : Preliminary Affirmative Countervailing Duty 
Determination, United  States  Federal Regist er, Vol.  75, No.  172, 
p. 683 (7  September 2010)  
TUR-147 Final Determination 
CVD Memorandum 
on certain coated 
paper  from China  Issues and Decision Memorandum dated 20 September 2010 for 
the Final Determination in the Countervailing Duty Investigation 
of certain coated paper suitable for high -quality p rint graphics 
using sheet -fed presses from the People 's Republic of China  WT/DS523/ R 
 
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  Exhibit  Short Title (if any)  Description  
TUR-149 Preliminary AD/CVD 
Determination on 
certain steel wheels 
from China  USDOC, certain steel wheels from the People 's Republic of 
China : Preliminary Determination and Alignment of Final 
Countervailing Duty Determination with Final Antidumping Duty 
Determination, United  States  Federal Register, Vol.  76, No.  172, 
p. 55012 (6 September 2011)  
TUR-152 Preliminary AD/CVD 
Determination on 
utility scale wind 
towers from China  Utility scale wind towers from the People 's Republic of 
China : Preliminary Affirmative Countervailing  Duty 
Determination, United  States  Federal Register, Vol.  77, No.  109, 
p. 33422 ( 6 June 2012)  
TUR-154 Preliminary AD/ CVD 
Determination on 
drawn stainless steel 
sinks from China  Drawn stainless steel sinks from the People 's Republic of 
China : Preliminary Affirmative Countervailing Duty 
Determination, United  States  Federal Register, Vol.  77, No.  151, 
p. 46717 (6  August 2012)  
TUR-162 Preliminary CVD 
Memorandum on 
certain new 
pneumatic 
off-the-road tires 
from China  Decision Memorandum dated 5 October 2016 for the preliminary 
results  of the countervailing duty administrative revie w of 
certain new pneumatic off -the-road tir es from the 
People 's Republic of China  
TUR-164 Preliminary CVD 
Memorandum on 
certain tool chests 
and cabinets from 
China  Decision Memorandum dated 8 September 2017 for the 
Preliminary Affirmative Determination : countervailing duty 
investigation of certain  tool chests and cabinets fro m the 
People 's Republic of China  
TUR-165 US Court of 
International Trade, 
Guangdong v. 
United  States  United  States  Court of International Trade, Guangdong Wireking 
Housewares & Hardware Co., Ltd. v. United  States , 
(2nd Fed. Supp. 2013), p p. 1381-1382 
TUR-187 USITC  Final 
Determination on 
circular welded 
carbon -quality steel 
pipe from India, 
Oman, the United 
Arab Emirates, and 
Viet Nam   USITC , circular welded carbon -quality steel pipe from India, 
Oman, the United Arab Emirates , and Viet Nam , Final 
Determination (December 2012)  
TUR-205 Court of Appeals for 
the Federal Circuit 
decision, Bingham & 
Taylor v. 
United  States  US Court of Appeals for the Federal Circuit decision, Bingham & 
Taylor v. United  States , No. 86 -1440 (2nd Fed. Re p. 1987)  
TUR-240 CWP CVD Final 
Determination 
Memorandum  Decision Memorandum dated 5 October 2015 from the USDOC 
on the final results in the countervailing duty administrative 
review of certain welded carbon steel pipe and tube from Turkey  
TUR-242 USITC  Final 
Determination on 
stainless steel wire 
rod from Germany, 
Italy, Japan, Korea, 
Spain, Sweden, and 
Chinese Taipei  USITC , stainless steel wire rod from Germany, Italy, Japan, 
Korea, Spain, Sweden, and Chinese Taipei , Final Determination 
(December 1998)  
TUR-243 USITC  Preliminary 
Determination on 
certain cut -to-length 
steel plate from the 
Czech Republic, 
France, India, 
Indonesia, Italy, 
Japan, Korea, and 
Macedonia   USITC , certain cut -to-length steel plate from the Czech  Republic, 
France, India, Indonesia, Italy, Japan, Korea, and Macedonia, 
Preliminary Determination (April 1999)  WT/DS523/ R 
 
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  Exhibit  Short Title (if any)  Description  
TUR-244 USITC  Preliminary 
Determination on 
carbon and certain 
alloy steel wire rod 
from Brazil, Canada, 
Egypt, Germany, 
Indonesia, Mexico, 
Moldova, South 
Africa, Trinidad and 
Tobago, Turkey, 
Ukraine, and 
Venezuela  USITC , carbon and certain alloy steel wire rod from Brazil, 
Canada, Egypt, Germany, In donesia, Mexico, Moldova, 
South  Africa, Trinidad and Tobago, Turkey, Ukraine, and 
Venezuela, Preliminary Determination  (October 2001)  
USA-1 OCTG Remand 
Redetermination  Final Results of Remand Redetermination, Borusan Mannesmann 
Boru Sanayi Ve Ticaret A.S. v. United  States , Maverick Tube Co. 
v. United  States , Consol. Ct. No. 14 -00229 (31 August 2015)  
USA-4 TESEV study  Ĭ. Akça, Military -Economic Structure in Turkey : Present 
Situation, Problems, and Solutions , TESEV Publications 
(Istanbul, July 2010)  
TUR-9/TUR -63 
(excerpts) 
USA-5 (full 
version)  Erdemir  2012 Annual 
Report  Erdemir  2012 Annual Report  
USA-6 Medium Term 
Programme  GOT, Medium Term Programme (2012 -2014)  (Ankara, 
October  2011)   
TUR-28/TUR -105 
(excerpts) 
USA-7 (full 
version)  Erdemir  2013 Annual 
Report  Erdemir  2013 Annual Report  
USA-8 Erdemir 's Articles  of 
Association  Erdemir 's Articles  of Association  
USA-12 USDOC 's letter on 
extension request  Letter dated 10 September 2013 from the USDOC to Borusan on 
extension request for oil country tubular goods from Turkey  
USA-20 USDOC 's letter on 
WLP verification  Letter dated 28 April 2015 from the USDOC to Borusan o n the 
verification of welded line pipe from Turkey  
USA-35 Exhibit 4 of 
Maverick 's comments   Excerpt from Maverick 's comments on the Government of 
Turkey 's third supplemental questionnaire response 
(10 March  2015), Exhibit 4  
USA-36 Final Determination 
Memorandum on 
truck and bus tires 
from China  Issues and Decision Memorandum dated 19 January 2016 for 
the Final Determination in the Countervailing Duty Investigation 
of truck and bus tires from the People 's Republic of China  
USA-37 Final Determination 
Memorandum on 
cold-rolled steel from 
Russia  Issues and Decision Memorandum dated 20 July 2016 for the 
final determination of certain cold -rolled steel flat products fro m 
the Russian Federation  
USA-38 Expedited Review 
Memorandum on 
superc alendered 
paper from Canada  Issues and Decision Memorandum dated 17 April 2017 for the 
final results of expedited review of the countervailing duty order 
on supercalendered paper from Canada  
USA-43 Excerpt from 
GOT's WLP initial 
questionnaire 
response  Excerpt from GOT initial questionnaire response on welded line 
pipe from Turkey (20 January 2015)  
USA-44 Excerpt from 
GOT's HWRP initial 
questionnaire 
response  Excerpt from GOT initial questionnaire response on heavy walled 
rectangular welded carbon steel  pipes and tubes from Turkey 
(28 October 2015)  
USA-45 Excerpt from 
GOT's CWP initial 
questionnaire 
response  Excerpt from GOT initial questionnaire response on certain 
welded carbon steel pipe and tube from Turkey 
(10 December  2014)  
  WT/DS523/ R 
 
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  ABBREVIATIONS USED IN THIS REPORT  
Abbreviation  Description  
BCI Business Confidential Information  
Borusan  Borusan Istikbal Ticaret and Borusan Mannesmann Boru Sanayi  
CBERA  Caribbean Basin Economic Recovery Act  
CWP circular welded carbon steel pipes and tubes  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
Erdemir  Eregli Demir ve Celik Fabrikalari T.A.S.  
GATT 1994  General  Agreement  on Tariffs and Trade 1994  
GOT Government of Turkey  
HRS hot rolled steel  
HWRP  heavy walled rectangular welded carbon steel pipes and tubes  
Isdemir  Iskenderun Iron & Steel Works Co.  
LTAR less than adequate remuneration  
MMZ MMZ Onur Boru Profil uretim San Ve Tic. A.S.  
OCTG  oil country tubular goods  
OYAK  Ordu Yardimlasma Kurumu  
Ozdemir  Ozdemir Boru Profil San ve Tic. Ltd. Sti.  
POI period of investigation  
SCM Agreement   Agreement on Subsidies and Countervailing Measures  
TESEV  Turkish Economic and Social Studies Foundation  
TPA Turkish Privatization Authority  
USDOC  US Department of Commerce  
USITC  US International Trade Commission  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 
1155 UNTS 331; 8 International Legal Materials 679  
WLP welded line pipe  
WTO World Trade Organization  
 WT/DS523/ R 
 
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  1  INTRODUCTION  
1.1  Complaint by  Turkey  
1.1.  On 8 March  2017, Turkey  requested consultations with the United  States  pursuant to Articles  1 
and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) , 
Article  XXII:1 of the General  Agreement  on Tariffs and Trade 1994  (GATT  1994), and Article  30 of 
the Agreement  on Subsidies and Countervailing Measures  (SCM  Agreement ) with respect to the 
measures and claims set out below.1 
1.2.  Consultations were held on 28 April 2017 . These consultations failed to settle the dispute.  
1.2  Panel establishment and composition  
1.3.  On 11 May 2017 , Turkey  requested the establishment of a panel pursuant to Article  6 of the 
DSU with standard terms of reference.2 At its meeting on 19 June 2017 , the Dis pute Settlement 
Body (DSB) established a panel pursuant to the request of Turkey  in document WT/DS523/2 , in 
accordance with Article  6 of the DSU.3 
1.4.  The Panel 's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered  Agreement s cited by 
the parties to the dispute, the matter referred to the DSB by Turkey  in document 
WT/DS523/2  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those  Agreement s.4 
1.5.  On 4 September  2017, Turkey  requested the Director -General to determine the composition of 
the panel, pursuant to Article  8.7 of the DSU . On 14 September  2017, the Director -General 
accordingly composed the Panel as follows:  
Chairperson:  Mr Guillermo Valles  
 
Members:   Ms Luz Elena Reyes de la Torre  
Mr José Antonio de la Puente León 
 
1.6.  Brazil, Canada, China, the European Union, Japan, Kazakhstan, the Republic of Korea,  Mexico, 
the Russian Federation, the Kingdom of Saudi Arabia,  and the United Arab Emirates  notified their 
interest in participating in the Panel proceedings as third parties.5 
1.3  Panel proceedings  
1.3.1   General  
1.7.  After consultation with the parties, on 8 November 2017 , the Panel adopted its Working 
Procedures6, Additional Working Procedures on Business Confidential Information (BCI)7, and 
timetable.  The Panel revised its timetable  on 5 March  and 22 June 2018 after consulting the parties . 
1.8.  The Panel held a first substantive meeting with the parties on 28 February and 1 March 2018. 
A session with the third parties took place on 1 March 2018 . The Panel held a second substantive 
meeting with the parties on 29 and 30 May 2018 . On 17 July 2018, the Panel issued the descriptive 
part of its Report to the parties. The Panel issued its  Interim Report to the parties on 
14 September  2018. The Panel issued its Final Report to the parties on 20 November 2018. 
                                                
1 Request for consultations by Turkey,  WT/DS 523/1 (Turkey 's consultations request).  
2 Request for the establishment of a panel by Turkey, WT/DS523/2 (Turkey 's panel request).  
3 DSB, Minutes of Meeting held on 19 June 2017 , WT/DSB/M/ 398, p. 8. 
4 Constitution note of the Panel, WT/DS523/3.  
5 Constitution note of the Panel, WT/DS523/3/Rev.1 . 
6 See the Panel 's Working Procedures in Annex  A-1.  
7 See the Panel 's Additional Working Procedures on Business Confidential Information in Annex  A-2. WT/DS523/ R 
 
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  1.3.2   Preliminary ruling  request  
1.9.  With its first written submission on 20 December 2017, the United  States  requested a 
preliminary ruling  pursuant to paragraph 6 of the Panel 's Working Procedures that certain measures 
and claims are outside the Panel 's terms of reference, because (a) certain measures were not 
identified in Turkey 's request for consultations; (b) certain claims raised in Turke y's first written 
submission were not identified in Turkey 's panel request ; and (c) a measure ceased to have legal 
effect prior to the Panel 's establishment .8 
1.10.   At the Panel 's invitation, on 17 January  2018, Turkey  submitted a written response to the 
United  States ' request for a preliminary  ruling .9 The Panel also posed questions  to both parties  
concerning the United  States'  request following  the first substantive meeting.10 Further more, both 
parties  made  additional comments regarding the United  States'  preliminary ruling request  in their 
subsequent  submissions.11 
1.11.   The Panel addresses the United  States'  request for a preliminary ruling in its findings below.12 
2  FACTUAL ASPECTS  
2.1.  This dispute concerns  certain  countervailing duty measures that the United  States  imposed  in 
connection with  its investigations of Turkish imports of certain oil country tubular goods (OCTG); 
welded line pipe (WLP); and heavy walled rectangular welded carbon steel pipes and tubes (HWRP); 
and in connection with a 2011 sunset review and 2013 administrative  review  of the countervailing 
duty order on Turkish imports of circular welded carbon steel pipes and tubes (CWP) .  
3  PARTIES ' REQUESTS FOR FINDING S AND RECOMMENDATION S 
3.1.   Turkey  requests that the Panel find that13: 
a. The countervailing duty me asures imposed on imports of OCTG are inconsistent with the 
United  States'  obligations under the following provisions of the SCM  Agreement : 
i. Article  1.1(a)(1), as applied, because the US Department of Commerce  (USDOC ) failed 
to apply the correct legal standard and failed to provide a reasoned and adequate 
explanation of its public body determinations with regard to Ordu Yardimlasma Kurumu 
(OYAK), Eregli Demir ve Celik Fabrikalari T.A.S. (Erdemir) and Iskenderun  Iron & S teel 
Works Co.  (Isdemir ). 
ii. Articles  1.1(b) and 14(d),  as applied,  because of the USDOC 's practice of rejecting 
in-country prices based solely on evidence of substantial government involvement and 
determination to reject Turkish prices with no consideration whether there was 
evidence those prices are actually distorted , and such practice is also inconsistent as 
such with Article  14(d) . 
iii. Article  12.7, as applied,  because the USDOC failed to take account of the difficulties 
Borusan Istikbal Ticaret and Borusan  Mannesmann Boru Sanayi (Borusan ) experienced 
in providing requested information and because the USDOC applied an adverse 
inference for the purpose of punishing Borusan for its supposed failure to cooperate.  
iv. Articles  2.1(c) and 2.4,  as applied,  because the  USDOC failed to identify, or 
substantiate based on positive evidence on the record, a subsidy "programme " related 
                                                
8 United  States'  first written submission, paras.  7-49. 
9 Turkey 's response to the United  States'  request for a preliminary ruling (17 January 2018 ). 
10 Panel 's questions to th e parties after the first substantive meeting Nos. 1-6. 
11 See, e.g. Turkey 's statement at the second meeting of the Panel, paras.  7-8; United  States'  opening 
statement at the second meeting of the Panel, paras.  3-9; and United  States'  second  written submission, 
paras.  7-46, 136, and 143 . 
12 See Sections 7.3.1, 7.3.2, 7.5.1 , 7.5.2, and 7.6.2 below.  
13 Turkey 's first written submission, para. 563. WT/DS523/ R 
 
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  to the provision of hot rolled steel  (HRS) , and because the USDOC failed to consider 
the two factors specified in the last sentence of Article 2.1(c).  
v. Article  15.3, as applied, because of the US International Trade Commission 
(USITC)'s practice of cumulating subsidized and non -subsidized imports for purposes 
of its material injury analysis, and because the USITC chose to cumulate imports of 
OCTG from countries subject to both antidumping and countervailing duty 
investigations (India and Turkey) with imports from countries subject to only 
antidumping investigations (Korea, Ukraine, and Viet Nam ). Such practice is also 
inconsistent as such with Article  15.3. 
vi. Articles  10 and 32.1 , as applied,  because the United  States  applied countervailing 
duties on the basis of determinations that are inconsistent with Articles  1, 2, 12, 14, 
and 15 of the SCM  Agreement . 
b. The countervailing duty measures imposed o n imports of WLP are inconsistent with the 
United  States ' obligations under the following provisions of the SCM  Agreement : 
i. Article  1.1(a)(1), as applied, because the USDOC failed to apply the correct legal 
standard and failed to provide a reas oned and adeq uate explanation on  its public body 
determinations with regard to OYAK and Erdemir and Isdemir.  
ii. Article  12.7, as applied,  because the USDOC applied an adverse inference for the 
purpose of punishing Borusan and which resulted in an inaccurate subsidization 
determination that has no factual connection to the alleged subsidy program mes 
investigated.  
iii. Articles  2.1(c) and 2.4, as applied, because the USDOC failed to identify, or 
substantiate based on positive evidence on the record, a subsidy "programme " related 
to the provision of HRS, and because the USDOC failed to consider the two factors 
specified in the last sentence of Article  2.1(c).  
iv. Article  15.3, as applied, because of the USITC's practice of cumulating subsidized and 
non-subsidized imports for purposes o f its material injury analysis, and because the 
USITC chose to cumulate Turkish imports of WLP, which were subject to both 
antidumping and countervailing duty investigations, with Korean imports of WLP, 
which were subject to only an antidumping investigati on. Such practice is also 
inconsistent as such with Article  15.3. 
v. Articles  10 and 32.1 , as applied,  because the United  States  applied countervailing 
duties on the basis of determinations that are inconsistent with Articles  1, 2, 12, and 
15 of the SCM  Agree ment. 
vi. Article  19.4 and Article  VI:3 of the GATT 1994 , as applied,  because the United  States  
applied countervailing duties in excess of the amount of subsidization attributable to 
WLP. 
c. The countervailing duty measures imposed on imports of HWRP are inconsistent with the 
United  States ' obligations under the following provisions of the SCM  Agreement : 
i. Article  1.1(a)(1), as applied, because the USDOC failed to apply the correct legal 
standar d and failed to provide a reas oned and adequate explanation of its public body 
determinations with regard to OYAK and Erdemir and Isdemir.  
ii. Article  12.7, as applied, because the USDOC applied adverse inferences for the 
purpose of punishing MMZ Onur Boru Pro fil uretim San Ve Tic. A.S.  (MMZ) and Ozdemir 
Boru Profil San ve Tic. Ltd. Sti.  (Ozdemir ) and which resulted in inaccurate 
subsidization determinations that have no factual connection to the alleged subsidy 
program mes investigated.  WT/DS523/ R 
 
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  iii. Articles  2.1(c) and 2.4,  as applied, because the USDOC failed to identify, or 
substantiate based on positive evidence on the record, a subsidy "programme " related 
to the provision of HRS, and because the USDOC failed to consider the two factors 
specified in the last sentence of Article 2.1(c).  
iv. Article  15.3, as applied,  because of the USITC's practice of cumulating subsidized and 
non-subsidized imports for purposes of its material injury analysis, and because the 
USITC chose to cumulate imports of HWRP from Turkey , which were subje ct to both 
antidumping and countervailing duty investigations, with imports from countries 
subject to only antidumping investigations, Mexico and Korea.  Such practice is also 
inconsistent as such with Article  15.3. 
v. Articles  10 and 32.1 , as applied,  because the United  States  applied countervailing 
duties on the basis of determinations that are inconsistent with Articles  1, 2, 12, and 
15 of the SCM  Agreement . 
vi. Article  19.4 and Article  VI:3 of the GATT 1994 , as applied,  because the United  States  
applied  countervailing duties in excess of the amount of subsidization attributable to 
HWRP.  
d. The countervailing duty measures imposed on imports of CWP are inconsistent with the 
United  States ' obligations under the following provisions of the SCM  Agreement : 
i. Article 1.1(a)(1), as applied, because the USDOC failed to apply the correct legal 
standard and failed to provide a reasoned  and adequate explanation o f its public body 
determinations with regard to OYAK and Erdemir and Isdemir.  
ii. Articles  2.1(c) and 2.4, as appl ied, because the USDOC failed to identify, or 
substantiate based on positive evidence on the record, a subsidy "programme " related 
to the provision of HRS, and because the USDOC failed to consider the two factors 
specified in the last sentence of Article  2.1(c).  
iii. Article  15.3, as applied, because of the USITC's practice of cumulating subsidized and 
non-subsidized imports for purposes of its material injury analysis, and because the 
USITC chose to cumulate imports of CWP from Turkey , which were subject to bot h 
antidumping and countervailing duty orders, with imports of CWP from Brazil, India, 
Korea, Mexico, Chinese Taipei , and Thailand, which were subject only to antidumping 
duty orders.  Such practice is also inconsistent as such with Article  15.3. 
iv. Articles  10 and 32.1 , as applied,  because the United  States  applied countervailing 
duties on the basis of determinations that are inconsistent with Articles  1, 2, and 15 
of the SCM  Agreement . 
3.2.  The United  States  requests that the Panel reject Turkey ' 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  that were provided to 
the Panel in accordance with paragraph 18 of the Working Procedures  (see Annex  B). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Brazil , European Union , Japan  and Mexico  are reflected in their executive 
summaries  that were  provided  to the Panel  in accordance with paragraph 19 of the Working 
Procedures  (see Annexes C-1, C-2, C-3, and C -4).  
6  INTERIM REVIEW  
6.1.  On 14 September 2018, the Panel issued its Inter im Report to the parties. On 
28 September  2018, Turkey and the United  States  submitted their written requests for review. In 
addition to its written request , the United States also requested the Panel to hold an  interim review WT/DS523/ R 
 
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  meeting  with the parties.  On 5 October  2018, Turkey submitted comments on the United States' 
written request for review. The Panel held an interim review meeting  with the parties  on 
13 November 2018.  
6.2.  The parties ' requests made at the interi m review stage as well as the Panel 's discussion and 
disposition of those requests are set out in Annex  A-3. 
7  FINDINGS  
7.1  General principles regarding treaty interpretation, the applicable standard of review , 
and burden of proof  
7.1.1   Treaty interpretation  
7.1.  Article  3.2 of the DSU provides that the dispute settlement system serves to clarify the existing 
provisions of the covered  Agreement s "in accordance with customary rules of interpretation of public 
international law". It is generally accepted that the principles codified in Articles  31 and 32 of the 
Vienna Convention are such customary rules.14 
7.1.2   Standard of review  
7.2.  Panels generally are bound by the standard of review set forth in Article  11 of the DSU, which 
provides, in r elevant 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  Agreement s. 
7.3.  The Appellate Body has stat ed that the "objective assessment" to be made by a panel reviewing 
an investigating authority 's determination is to be informed by an examination of whether the 
authority provided a reasoned and adequate explanation as to  (a) how the evidence on the record  
supported its factual findings; and (b) how those factual findings supported the overall 
determination.15 
7.4.  The Appellate Body has also stated that a panel reviewing an investigating 
authority 's determination may not undertake a de novo  review of the evidenc e or substitute its 
judgment for that of the investigating authority. A panel must limit its examination to the evidence 
that was before the authority during the investigation and must consider  all such evidence submitted 
by the parties to the dispute.16 At the same time, a panel must not simply defer to the conclusions 
of the investigating authority; a panel 's examination of those conclusions must be "in -depth" and 
"critical and searching".17 
7.1.3   Burden of proof  
7.5.  The general principles applicable to the allocatio n of the burden of proof in WTO dispute 
settlement require that a party claiming a violation of a provision of a WTO  Agreement  must assert 
and prove its claim .18 Therefore, Turkey bears the burden of demonstrating that the challenged 
measures are inconsiste nt with the SCM  Agreement . A complaining party will satisfy its burden when 
it establishes a prima facie  case, namely a case which, without effective refutation by the defending 
party, requires a panel, as a matter of law, to rule in favour of the complain ing party.19 Each party 
asserting a fact should  provide proof thereof.20 
                                                
14 Appellate Body Report, Japan – Alcoholic Beverages  II, DSR 1996:1, p.  104. 
15 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 186. 
16 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 187. 
17 Appellate Body Reports, US – Softwood Lumber VI ( Article  21.5 – Canada) , para. 93; US – Lamb , 
paras.  106-107. 
18 Appellate Body Report, US – Wool Shirts  and Blouses , DSR 1997:1, p.  337. 
19 Appellate Body Report, EC – Hormones , para. 104. 
20 Appellate Body Report, US – Wool Shirts and Blouses , DSR 1997:1, p.  335. WT/DS523/ R 
 
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  7.2  Turkey 's claim under Article  1.1(a)(1) of the SCM  Agreement  in relation to the 
USDOC 's public body determinations i n the OCTG, WLP, HWRP , and CWP proceedings  
7.2.1   Introduction  
7.6.  In the challen ged proceedings, the USDOC found that Erdemir and its subsidiary Isdemir are 
public bodies which provided respondent companies with HRS for less than adequate remuneration 
(LTAR). As the basis for its public body determinations, the USDOC found that the Government of 
Turkey  (GOT) exercised "meaningful control" over the two entities. This finding of meaningful control 
was based in part on a finding of "significant involvement" of the GOT in the Turkish military pension 
fund OYAK, which holds a controlling ownership stake in Erdemir.21 The GOT has no direct ownership 
interest in Erdemir and Isdemir.  
7.7.  Turkey claims that the USDOC found that OYAK, Erdemir, and Isdemir are each subject to 
"meaningful control" by the GOT, and in doing so, determined that OYAK, Erdemir, and Isdemir  are 
public bodies.  Turkey  claims that the USDOC 's determinations that OYAK, Erdemir , and Isdemir  are 
public bodies are inconsistent with Article  1.1(a)(1) of the SCM  Agreement . In particular, Turkey 
claims that the USDOC applied the incor rect legal standard under Article  1.1(a)(1) in its public body 
determinations . In addition, Turkey claims that the USDOC failed to provide a reasoned and 
adequate explanation for its determinations  because the evidence on the record that the USDOC 
cited do es not support its public body findings, and because the USDOC failed to consider evidence 
that contradicted its public body determinations.22  
7.8.  The United  States  argues that Turkey 's claim with respect to OYAK must fail because the 
USDOC did not find that OYAK is a public body and was not required to do so. The United  States  
otherwise requests the Panel to find that the USDOC 's public body determinations with respect to 
Erdemir and Isd emir are consistent with Article  1.1(a)(1) of the SCM  Agreement . 
7.9.  We first recall the legal framework applicable to the public body inquiry before addressing the 
parties ' arguments regarding Turkey 's claims.  
7.2.2   The legal standard applicable to the public body enquiry  
7.10.   Article  1.1(a)(1) of the SCM  Agreement  provides that a subsidy shall be deemed to exist if a 
financial contribution is provided by a government or any public body within the territory of a 
Member. The particular conduct of the government or public body must fall within any of the 
subparagraphs (i) to (iii) in Article  1.1(a)(1), or pursuant to subparagraph (iv), a government  or 
public body  may make payments to a funding mechanism, or  otherwise  entrust or direct a private 
body to carry out one or more  of the type of functions illustrated in  subparagraphs  (i) to (iii) .23  
7.11.   The Appellate Body has explained that a  public body within the meaning of Article  1.1(a)(1) 
"must be an entity that possesses, exercises or is vested with governmental authority".24 In 
evaluating whether an entity is a public body, a relevant enquiry is whether  "an entity is vested with 
authority to exercise governmental functions".25 The Appellate  Body has further explained that 
"[w]hether the conduct of an entity is that of a public body  must in each case be determined on its 
own merits, with due regard being had to the core characteristics and functions of the relevant 
entity, its relationship with the government, and the legal and economic environment prevailing in 
the country in which the investigated entity operates".26 In addition, "just as no two governments 
                                                
21 In the challenged determinations, the USDOC indicated that record evidence shows that the GOT 
exercised "meaningful control" over OYAK and the GOT's  "meaningful control" of OYAK extends to Erdemir and 
Isdemir. (OCTG CVD Final Determination  Memorandum , (Exhibit TUR-85) p. 33; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122) p. 35; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46) 
pp. 21-22; and CWP CVD Final Determination Memorandum , (Exhibit s TUR-22 (excerpt) and TUR -240 (full 
version)),  p. 28). 
22 Turkey 's first written submission, paras.  94-95, 99, 105 -106, 143 -144, 244 -245, 249, 255 -256, 
293-294, 358, 362, 364, 368 -369, 405 -406, 468 -469, 473, 475, 479 -480, and 516 -517. 
23 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para.  284. 
24 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317. 
25 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
26 Appellate Body Report, US – Carbon Steel (India) , para. 4.29. See also Appellate Body Report, US – 
Anti-Dumping and Countervailing Duties (China) , para. 317 ("Panels or investigating authorities confronted 
with the question of whether conduct falling within the scope of Article  1.1.(a)(1) is that of a public bo dy will be WT/DS523/ R 
 
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  are exactly alike, the precise contours and characteristics of a public body are bound to differ from 
entity to entity, State to State, and case to case".27 
7.12.   Different types of evid ence may be relevant to show that a government has bestowed 
authority on a particular entity, including such as when a statute legal instrument expressly vests 
authority in an entity.28 Absent express statutory delegation of governmental authority, evidence  
that an entity is in fact  exercising governmental functions may serve as evidence that the entity in 
question possesses or has been vested with governmental authority, particularly when the evidence 
points to a sustained and systematic practice.29 
7.13.   The Appe llate Body has also observed that "evidence that a government exercises meaningful 
control over an entity and its conduct may serve, in certain circumstances as evidence that the 
relevant entity possesses governmental authority and exercises such authority  in the performance 
of governmental functions".30 The Appellate Body has cautioned, however, that "the mere ownership 
or control over an entity by a government, without more, is not sufficient to establish that the entity 
is a public body".31 Rather, "where evidence shows that the formal indicia of government control are 
manifold, and there is also evidence that such control has been exercised in a meaningful way, then 
such evidence may permit an inference that the entity concerned is exercising governmental 
authority".32  
7.14.   Finally, i n evaluating whether the conduct of a particular entity is that of a public body within 
the meaning of Article  1.1(a)(1),  an investigating authority "must, in making its determination, 
evaluate and give due consideration to all rele vant characteristics of the entity and, in reaching its 
ultimate determination as to how that entity should be characterized, avoid focusing exclusively or 
unduly on any single characteristic without affording due consideration to others that may be 
releva nt".33 
7.2.3   The Panel 's evaluation of Turkey 's Article  1.1(a)(1) claims in connection with the 
challenged proceedings  
7.15.   Turkey has requested findings that the USDOC 's evaluation of Turkish military pension fund 
OYAK, and Erdemir and Isdemir  are inconsistent with Article 1.1(a)(1) of the SCM  Agreement . At 
the core of its claims, Turkey argues that  the USDOC "create d an elaborate chain of governmental 
control linking the GOT to OYAK to [Erdemir and Isdemir]"  and found that OYAK, Erdemir and Isdemir 
are public bodies.34 Turkey submits that the USDOC applied an incorrect legal standard twice : first, 
in its assessment of OYAK , and second, in its assessment of Erdemir and Isdemir . Turkey also claims 
that the USDOC failed to provide a reasoned and adequate explanation for i ts determinations  based 
on the evidence on the record. Turkey also emphasizes, in contrast to other occasions in which the 
                                                
in a position to answer that question only by conducting a proper evaluation of the core features of the entity 
concerned, and its relationship with government in the narrow sense") and para. 297 (" whether the functions 
or conduct are of a kind that are ordinarily classified as governmental in the legal order of the relevant Member 
may be a relevant consideration for determining whether or not a specific entity is a public body.")  
27 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 317. 
28 Appellate Body Report s, US – Anti-Dumping and Countervailing Duties (China) , para. 318; US – 
Carbon Steel (India) , para. 4.10. 
29 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
30 Appellate  Body Report s, US – Anti-Dumping and Countervailing Duties (China) , para. 318; US – 
Carbon Steel (India) , para. 4.10. 
31 Appellate Body Report, US – Carbon Steel (India) , para. 4.10. See also Appellate Body Report, US – 
Anti-Dumping and Countervailing Dutie s (China) , para. 318 (" [w]e stress, however, that apart from an express 
delegation of authority in a legal instrument, the existence of mere formal links between an entity and 
government in the narrow sense is unlikely to suffice to establish the necessary  possession of governmental 
authority .") 
32 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
33 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 319. Further, 
investigating authorities ar e "under an obligation to actively seek out information relevant to the analysis of 
whether a financial contribution had been made", including information relevant to the potential 
characterization of entities as public bodies, to be able to provide a reas oned and adequate explanation of their 
conclusions. ( Ibid. para. 344). 
34 Turkey 's first written submission, paras.  95, 245, 358, and 469 . WT/DS523/ R 
 
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  USDOC has assessed that entities are public bodies based on government ownership, that the GOT 
does not have any ownership stake in E rdemir or its subsidiary Isdemir.35 
7.16.   WTO p anels or the Appellate Body have not previously addressed the issue of whether an 
investigating authority may establish that an entity is a public body through establishing a "chain " 
of governmental control  linking t hat entity to the government , such as under the facts of this dispute. 
We note that Turkey does not in principle challenge that it may be possible to establish that a 
government may provide a financial contribution via such a chain of control over various entities. 
Rather, the parties disagree as to whether the legal standard under Article  1.1(a)(1) applies to each 
entity found to exist in the alleged chain of control.36 
7.17.   The United  States  argues that the text of Article  1.1(a)(1) clarifies that the requireme nts 
surrounding the determination of whether an entity is a public body only apply to entities that provide 
a financial contribution.37 Thus, the United  States  argues that Turkey 's separate Article  1.1(a)(1) 
claim  cannot be considered  with respect to OYAK , because the USDOC never attributed a financial 
contribution to OYAK , and therefore never made a public body determination in respect of that 
entity .38 The United  States  considers that we should focus our legal assessment on the 
USDOC 's evaluation of Erdemir  and Isdemir. The United  States  also argues that we should not 
consider Turkey 's arguments with respect to OYAK in the context of its challenge to Erdemir and 
Isdemir because the claim was independently raised.39 However, for completeness,  the 
United  States  also submits that we could  examine the USDOC 's factual findings regarding  the 
relationship between the GOT and OYAK  to determine whether the USDOC was entitled to treat 
OYAK as governmental, such that its meaningful control over Erdemir and Isdemir justified the 
treatment of those entities as public bodies. The United  States  asserts that nothing in the text of 
Article  1.1(a)(1) , or in the relevant interpretations of that provision , suggests that  OYAK needed to 
be a particular type of governmental entity, such as a government "organ". OYAK only needed to 
exhibit the characteristics of a government "organ" or "agency", or  a "public body" or any other 
"governmental" entity.40 The United  States  submits that the USDOC considered OYAK as an "organ 
of the GOT" in i ts assessment of Erdemir and Isd emir.41 The United  States  has also asserted that  
OYAK was governmental in the broader  sense.42  
7.18.   In response, Turkey submits  that the United  States'  argument that the disciplines of 
Article  1.1(a)(1) only apply in respect of entities that provide financial contributions  is unfounded .43 
Turkey submits that, under Article  1.1(a)(1), it is first  necessary to determine whether an entity is 
governmental or a private body before analysing whether the conduct of an entity falls within 
subparagraphs (i)  to (iv) of Article  1.1(a)(1). Accordingly, Turkey argues that the analysis of whether 
an entity is governmental or a private body is thus a separate step from the assessment of whether  
the particular conduct of an entity is determined to be a financial contribution under Article 1.1(a)(1) 
and the United  States  should not be relieved of any obligation in respect of OYAK.44 
7.19.   Turkey considers it clear that the USDOC analysed OYAK as a public body, as the USDOC 
analysed OYAK pursuant to the same US standard that it analysed Erdemir  and Isdemir, i.e. as 
subject to "meaningful control" of the government.45 Turkey also considers that an investigating 
                                                
35 Turkey's  first written submission, paras.  97, 247, 360, and 471.  
36 Turkey's  second written submission, para.  28. 
37 United States'  first written submission, para. 78; response to Panel question No. 7, para. 30. 
38 The United  States submits that a public body finding in respect of OYAK "was neither necessary, nor 
appropriate, because USDOC did not find that OYAK provided a  countervailable subsidy". ( United  States'  first 
written submission, para.  79). See also United  States'  response to Panel question No.  7, paras.  28-29; 
Turkey 's statement at the first meeting  of the Panel , para. 20; and Turkey's  second written submission, 
paras.  22-26. 
39 United  States'  second written submission, para.  74. 
40 United  States'  second written submission, paras.  75-77. 
41 United  States'  first written submission, para.  97; response to Panel question No.  7, para.  32. 
42 United  States'  responses to Panel question No.  7, paras.  28-32, and No.  9, paras.  34-38; 
second  written submission, paras.  75-77. 
43 Turkey 's statement at the first meeting  of the Panel , paras.  27-29; second written submission, 
paras.  31-32. 
44 Turkey 's statement at the first meeting  of the Panel , paras.  27-29; second written submission, 
paras.  31-32. 
45 Turkey's  first written submission, paras.  103, 253, 366, and 477; statement at the first meeting  of 
the Panel , para.  20; response to Panel question No.  8, paras. 24-26; second written submission, paras.  21-23; WT/DS523/ R 
 
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  authority need not make explicit finding or statement that an entity is a public body, but may make 
implicit findings in its determination s, as panels and the Appellate Body have recognized.46 Turkey 
also argues that the United  States'  evaluation of OYAK as a "government organ"  is not supported in 
the reasoning and findings of the determinations at issue.47  
7.20.   As a general matter, we do not reje ct that it may be possible to establish that an entity is a 
public body through establishing a chain of governmental control  linking that entity to the 
government. However, to properly attribute48 the actions of that entity to the government, the 
government al character of entities in the alleged chain will be relevant to the assessment. In this 
regard, an entity may be "governmental" in either the broad sense or the narrow sense, or directly 
or through a government 's entrustment or direction of a private bod y. We recall in this regard that 
the Appellate Body has explained that " the performance of governmental functions, or the fact of 
being vested with, and exercising, the authority to perform such functions are core commonalities 
between government and publi c body ".49 In addition, the Appellate Body has found that "evidence 
that a government exercises meaningful control over an entity and its conduct may serve, in certain 
circumstances as evidence that the relevant entity possesses governmental authority and e xercises 
such authority in the performance of governmental functions".50 
7.21.   Finally, although the United  States  considers that no legal standard under the SCM  Agreement  
would apply to the USDOC 's findings with respect to OYAK,  we note the United  States'  statem ent 
that the Panel may find relevant to its factual assessment of OYAK the characteristics examined by 
other panels or the Appellate Body with respect to "government", "public body", and other 
governmental entities in other contexts.51 The parties therefore appear to agree that OYAK 's status 
is relevant to the assessment of Erdemir and Isdemir.  
7.22.   With this framework in mind, we will consider whether the USDOC 's public body 
determinations are inconsistent with Article  1.1(a)(1) of the SCM  Agreement .  
7.2.3.1   Whether the USDOC 's public body determinations are inconsistent with 
Article  1.1(a)(1) of the SCM  Agreement  
7.23.   In claiming that the USDOC 's public body determinations in respect of Erdemir and Isdemir 
are inconsistent with Article  1.1(a)(1), Turk ey argues that the USDOC both failed to apply the correct 
legal standard and failed to provide a reasoned and adequate explanation of the basis of its public 
body findings based on evidence on record.   
7.24.   Turkey raises a series of arguments with respect to th e USDOC 's analysis of OYAK and its 
relationship with the GOT. First, Turkey considers that neither OYAK 's creation by statu te, nor the 
USDOC 's interpretation of certain provisions of Law No.  205, support the USDOC 's finding that the 
GOT exercises control o ver OYAK and by extension, over Erdemir and Isdemir.52 Second, Turkey 
argues that OYAK 's property and tax treatment under Turkish law is consistent with that of other 
Turkish pension funds.53 Third, Turkey argues that, because OYAK 's member contributions are  
private funds, the mandatory nature of participation for some members does not support 
USDOC 's findings.54 Fourth, Turkey argues that the members participating in OYAK 's governing 
bodies are acting in their individual capacities, and not as government offi cials.55 Fifth, Turkey argues 
                                                
statement at the second meeting  of the Panel , para.  43; and comments on United  States'  response to Panel 
question No.  65, paras.  9-12. 
46 Turkey's  comments on United  States response to Panel question No.  69, paras.  17-18 (quoting 
Appellate Body Report, Japan – DRAMs (Korea) , para.  214).  
47 Turkey 's statement at the first meeting  of the Panel , para. 21. 
48 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 284. 
49 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 290. 
50 Appellate Body Report s, US – Anti-Dumping and Countervailing Duties (China) , para. 318; US – 
Carbon Steel (India) , para. 4.10. 
51 United  States'  second written submissi on, para. 77. The United  States also argues that because 
Turkey's  arguments concerning OYAK are raised separately from its challenge against the 
USDOC's  determinations concerning Erdemir and Isdemir, we should decline to review Turkey's  OYAK 
arguments beca use they are made on an independent basis. (United  States'  second written submission, 
para. 74). 
52 Turkey 's first written submission, paras.  111-114, 261 -264, 374 -377, and 485-488. 
53 Turkey 's first written submission , paras.  115-119, 265 -269, 378 -382, and 489-492. 
54 Turkey 's first written submission , paras.  120-122, 270 -272, 383 -385, and 493-495. 
55 Turkey 's first written submission , paras.  123-131, 273 -281, 386 -393, and 496-504. WT/DS523/ R 
 
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  that the USDOC did not consider contradictory record evidence that OYAK is an autonomous, private 
pension fund that is in fact a non -profit foundation, and acts independently of the government in 
making investment decisions.56  
7.25.   Turkey argues that the other evidence that the USDOC identified in relation to Erdemir and 
Isdemir, at most, demonstrates GOT 's alleged ability to control Erdemir, and otherwise, the limited 
statements in Erdemir 's 2012 and 2013 Annual Reports do not suppo rt a finding that Erdemir and 
Isdemir possess, exercise, or are vested with governmental authority.57 
7.26.   The United  States  has acknowledged that the Appellate Body considers that "the term public 
body in Article  1.1(a)(1) of the SCM  Agreement  means 'an entity that possesses, exercises or is 
vested with governmental authority '"58, and argues that the USDOC 's public body analysis in relation 
to Erdemir and Isdemir is consistent with the Appellate Body 's interpretation of Article  1.1(a)(1).59 
The United States  argues that the USDOC properly determined that Erdemir and Isdemir are public 
bodies in the challenged proceedings based on consideration of the totality of evidence, including 
the involvement of OYAK in Erdemir.60 
7.27.   In the challenged proceedings , the USDOC based its determination that Erdemir and Isdemir 
are public bodies on numerous considerations, including that OYAK holds a majority of shares of 
Erdemir through its wholly -owned holding company, Ataer Holding AS, and that Erdemir owns more 
than 92% of its subsidiary Isdemir.61 
7.28.   Regarding OYAK specifically, the USDOC found "extensive GOT involvement in OYAK"  and that 
the GOT exercised "meaningful control" over OYAK .62 The USDOC observed that 1961 Military 
Personnel Assistance  and Pension Fund  Law (Law No.  205) establishing OYAK states that the GOT 
created OYAK "as an institution related to the Ministry of National Defense".63 Pursuant to Law 
No. 205, t he USDOC  observed that OYAK 's property has by law the "same rights and privileges of 
state property",  that OYAK is exempt from corporate and other taxes, and that members of the 
                                                
56 Turkey 's first written submission , paras.  132-135, 282 -285, 394 -397, and 505 -508; second written 
submission, paras.  35-38. 
57 Turkey 's first written submission, paras.  147-152, 297 -302, 409 -413, and 520-525. 
58 United  States'  first written submission, para. 89, citing to Appellate Body Report, US – Carbon Steel 
(India) , para. 4.37 . 
59 United  States'  first written submission, para. 89. The United  States  considers the Appellate Body to 
have erroneously collapsed the term " public body " into "government " (or government agency) in its 
interpretation, failing to properly interpret the meanin g of the term in its context. Nevertheless, the 
United  States  explains  that "[f]or purposes of this discussion, however, we explain the approach of the 
Appellate Body and, later, that the analysis of USDOC satisfies that approach". ( Ibid.). 
60 United  States ' first written submission, para. 96; WLP CVD Final Determination  Memorandum , 
(Exhibit  TUR-122), p. 36 ("[t]herefore, based on the record evidence as a whole, as described under the 
'Analysis of Programs – Provision of  HRS for  LTAR' section, above, we cont inue to find Erdemir and Isdemir to 
be public bodies");  HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), p. 23 ("[t]herefore, based 
on the totality of the record evidence, as described under the 'Analysis of Programs – Provision of HRS for 
LTAR' section above, we continue to find Erdemir and Isdemir to be public bodies"); Excerpt from CWP CVD 
Final Determination Memorandum , (Exhibit  TUR-22), p. 30 ("[t]herefore, based on the record evidence as a 
whole, as described under the 'Analysis of Programs – Provision of  HRS for  LTAR' section, above, we continue 
to find Erdemir and Isdemir to be public bodies"); OCTG CVD Final Determination  Memorandum , 
(Exhibit  TUR-85), p. 35 ("[b]ased on the record evidence as a whole, as described above under the 'Analysis  of 
Programs – Provision of HRS for LTAR ' section, we find Erdemir and Isdemir to be public bodies"). See also 
United  States'  first written submission, paras.  97-120; and second written submission, para. 83. 
61 OCTG CVD Final Determination  Memorandum , (Exhibit TUR-85), p. 20 (stating that Erdemir owns 
92.91% of Isdemir) ; WLP CVD Final Determination  Memorandum , (Exhibit  TUR-122), pp. 13-14 (stating that 
Erdemir owns 95% of Isdemir) ; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), p. 11 (stating 
that Erdemir owns 95% of Isdemir) ; and Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 8 (stating that Erdemir owns 95.07% of Isdemir) . The USDOC noted that the GOT sold a 
49.93% ownership stake in Erdemir to OYAK in 200 6. In light of the fact that Erdemir holds 3% of its own 
shares as treasury stock, the USDOC found that OYAK holds the majority of Erdemir's  outstanding shares. 
(OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p.  20). 
62 OCTG CVD Final Determinat ion Memorandum , (Exhibit  TUR-85), pp.  21 and 33; WLP CVD Final 
Determination  Memorandum , (Exhibit  TUR-122), pp. 14 and 35 ; HWRP CVD Final Determination  Memorandum , 
(Exhibit  TUR-46), pp. 11-12 and 21 -22; and Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), pp. 8 and 28 . 
63 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 11; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 8. WT/DS523/ R 
 
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  armed forces must by law contribute part of their salaries to OYAK.64 The USDOC  also reviewed 
OYAK 's leadership structure, highlighting the following:  
OYAK 's Representative Assembl y comprises 50 to 100 members of the Turkish Armed 
Forces "designated by their respective commanders or superiors."  The Representative 
Assembly, in turn, elects 20 of the 40 members of OYAK 's General Assembly. Of the 
General Assembly 's other 20 members, 17  are by statute government officials ( e.g., 
Ministers of Finance and Defense).  Members of the General Assembly elect the 
eight-person Board of Directors.65 
7.29.   In the OCTG investigation, the USDOC  also referred to a statement in a study published by 
the Turkish Economic and Social Studies Foundation (TESEV) that "a review of the membership and 
administrative structure of OYAK reveals that the military is clearly in control ."66 The United  States  
contends that  the evidence concerning OYAK before the USDOC ex hibits the attributes associated 
with "government " in the broader sense.67  
7.30.   The USDOC next evaluated evidence which it considered "shows that the 
government 's significant involvement in OYAK extends to Erdemir and Isdemir".68 In the OCTG 
investigation, the U SDOC referred to statements in Erdemir 's 2012 Report that Erdemir 
"implemented policies which promoted the customers to engage in export -oriented production" and 
"supports the use of domestically mined resources for raw materials in view of … the added val ue 
created by the domestic suppliers in favor of the local industries".69 In the WLP, HWRP, and CWP 
proceedings, the USDOC referred to Erdemir 's 2013 Annual Report, stating that "'[t]hrough … flat 
steel sales to exporting industries, ' Erdemir 'made a major contribution to the 4.6% increase in 
Turkey 's manufacturing exports in 2013 ' … and 'continues to create value added for Turkish industry 
through its initiatives to increase the use of domestic sources of raw materials.'"70 The USDOC  
concluded that "[t]hese policies are in line with the GOT 's stated policy in its 2012 -2014 Medium 
Term Programme to improve Turkey 's balance of payments".71 
7.31.   Finally, the USDOC evaluated evidence that members of OYAK and the Turkish Privatization 
Authority (TPA),  and a "Representative of the Ministry of Finance" all participate on Erdemir 's board 
of directors.72 The USDOC additionally noted that the TPA holds veto power over any decision related 
to the closure, sale, merger, or liquidation of both Erdemir and Isdemir.73 In the OCTG investigation, 
                                                
64 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 9. 
65 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p.  21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), pp. 8-9. (fns omitted)  
66 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21. 
67 United  States'  response to Panel question  No. 7, para.  32. 
68 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determi nation Memorandum , (Exhibit  TUR-22), p. 9. 
69 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21. 
70 WLP CVD Final Determination  Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final 
Determination  Memorandum , (Exhibit  TUR-46), p. 12; and Excerpt from CWP CVD Final Determination 
Memorandum , (Exhibit  TUR-22), p. 9. 
71 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; and Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 9. 
72 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), pp. 21-22; WLP CVD Final 
Determination  Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , 
(Exhibit  TUR-46), p. 12; and Excerpt from  CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 9. 
Specifically, both Erdemir 's 2012 and 2013 Annual Reports state that the nine -member board is 
composed of three seats by OYAK, one by TPA, two by other investors, and three held independently. 
(OCTG  CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 22 and fn 163 ( quoting  Erdemir 2012 
Annual Report , (Exhibit  USA-5), pp. 54-55); WLP CVD Final Determination  Memorandum , (Exhibit  TUR-122), 
p. 14; Erdemir 2013 Annual Report , (Exhibit  USA-7), pp. 65-66; Excerpt from CWP CVD Final Determination 
Memorandum , (Exhibit  TUR-22), p. 9; and HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12). 
73 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determin ation Memorandum , (Exhibit  TUR-22), p. 9. Erdemir 's 2012 WT/DS523/ R 
 
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  the USDOC observed that "OYAK effectively decides the composition of the majority of 
Erdemir 's board through its majority shareholder voting rights in Erdemir".74 
7.32.   In our assessment, we must determine whether  the findings and conclus ions reached by the 
investigating authority are "reasoned" and "adequate"75, in light of information provided by 
respondents in the investigation,  and taking into account the totality of the evidence upon which the 
USDOC relied.  In this regard, we bear in m ind that:  
"[W]hen an investigating authority relies on the totality of circumstantial evidence, this 
imposes upon a panel the obligation to consider, in the context of the totality  of the 
evidence, how the interaction  of certain pieces of evidence may just ify certain inferences 
that could not have been justified by a review of the individual pieces of evidence in 
isolation." In addition, if an investigating authority explains that the totality of the 
evidence supports the conclusion reached, a panel must un dertake a critical 
examination of whether, in the light of the evidence on record, the investigating 
authority 's conclusion was reasoned and adequate.76 
7.33.   However, a panel may bear in mind that errors in an investigating authority 's examination of 
individual pieces of evidence "undoubtedly would affect an examination of the totality  of the 
evidence".77 Further, "[i]n reviewing individual pieces of evidence, for example, a panel should focus 
on issues such as the accuracy of a piece of evidence, or whether that piece of evidence may 
reasonably be relied on in support of the particular inference drawn by the investigating authority".78 
7.34.   In reviewing whether the USDOC 's public body determinations are inconsistent with 
Article  1.1(a)(1) of the SCM  Agreement , we will b egin by assessing the USDOC 's factual findings 
regarding  the relationship between the GOT and OYAK . Thereafter, we will review the 
USDOC 's factual findings  in relation to Erdemir and Isdemir.  
7.35.   Regarding OYAK, the United  States  argues that "OYAK was … expressly established to provide 
retirement and social security benefits to members of the country 's armed forces"79, and argues that 
"ensuring that military members receive pensions and other benefits as a result of their service i s 
                                                
Annual Report indicates that the TPA must approve "decisions regarding the closure, limitation upon restriction, 
or capacity curtailing of any of the integrated steel production plants or the mining plants owned by the 
Company and/or by the affiliates" . (OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; see 
also Erdemir 2012 Annual Report , (Exhibit  USA-5), pp. 62-63). In the CWP, HWRP, and WLP determinations, 
USDOC examined Articles  21, 22 , and 37 of Erdemir 's Articles  of Association and found that the TPA holds veto 
power over any decision related to the closedown, sale, merger, or liquidation, as well as capacity adjustments, 
for both Erdemir and Isdemir.  
74 OCTG CVD Final Determinat ion Memorandum , (Exhibit  TUR-85), p. 22. Erdemir 's 2012 Annual Report 
states  that "[e]ach shareholder or the representative of the shareholder attending on [sic] Ordinary or an 
Extraordinary General Assembly Meetings shall have one voting right for each sh are". (OCTG CVD Final 
Determination  Memorandum , (Exhibit  TUR-85), p. 34). Erdemir 's Articles  of Association state  that "Board of 
Directors consists of minimum 5 and maximum 9 members to be selected by the General Assembly of 
Shareholders under the provisions of Turkish Commercial Code and Capital Markets Board Law".  (OCTG CVD 
Final Determination  Memorandum , (Exhibit  TUR-85), p. 34). In addition, Erdemir 's Articles  of Association state 
that "[e]ach share has only one voting right" and that the "Board of Directors consists of minimum 5 and 
maximum 9 members to be selected by the General Assembly of Shareholders". (Excerpt fr om CWP CVD Final 
Determination Memorandum , (Exhibit  TUR-22), p. 9 and fn 45; WLP CVD Final Determination  Memorandum , 
(Exhibit  TUR-122), p. 14 and fn 69; and HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), p. 12 
and fn 60; see also Erdemir's  Articles  of Association, ( Exhibit  USA-8), Articles  10 and 21 ). 
75 Appellate Body Report, US – Carbon Steel (India) , fn 610: 
[A] panel must examine whether the conclusions reached by the investigating authority are 
reasoned and adequate, and that s uch an examination must be critical, and be based on the 
information contained on the record and the explanations given by the authority in its published 
report . … Thus, there must be, in the investigating authority 's determinations, an explanation of 
how the evidence on the record supports its factual findings.  
See also Appellate Body Reports,  US – Countervailing Duty Investigation on DRAMS , fn 278; and US – 
Softwood Lumber VI ( Article  21.5 – Canada) , para. 97. 
76 Appellate Body Report, Japan – DRAMs (Korea) , para. 131. (emphasis original; fn omitted)  
77 Appellate Body Report, US – Countervailing Duty Investigations on DRAMS , para. 154. (emphasis 
original)  
78 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS , para. 188. 
79 United  States' response to Panel question No.  9, para.  35. WT/DS523/ R 
 
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  indica tive of a governmental function ".80 In its determinations, the USDOC found relevant that, 
pursuant to Law No.  205, OYAK was established "as an institution related to the Ministry of National 
Defense"81; that OYAK 's governing bodies are comprised of military and certain governmental 
personnel, which elect the eight -person board of directors82; that OYAK is ensured funding through 
mandatory contribution requirements, which it can enforce as a matter of law83; and that OYAK was 
granted certain property and  tax privileges .84 The USDOC also found relevant a statement in the 
TESEV study that "a review of the membership and administrative structure of OYAK reveals that 
the military is clearly in control" .85  
7.36.   Turkey objects that OYAK is part of the Turkish public social security system, and rejects that 
OYAK is performing "governmental functions".86 Turkey has contended throughout th ese 
proceedings  that OYAK is a private occupational pension fund that is not part of Turkey 's mandatory 
"first pillar" public social se curity system.87 Turkey further submits that OYAK is a "non -profit 
foundation".88 
7.37.   In the USDOC 's public body determinations in the four proceedings at issue, the USDOC did 
not identify OYAK 's role of providing retirement and social security benefits  as being  a government 
function. OYAK 's annual reports, which were on the record before  the USDOC, describe OYAK as a 
private supplemental pension fund that is not funded through the Turkish government.89 
                                                
80 United  States'  response to Panel question No.  14, para.  47. 
81 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 11; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 8. 
82 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p p. 8-9 (fns omitted). 
As noted by the United  States , Article  3 of Law No. 205 specifies that OYAK 's Representative Assembly is to be 
composed entirely of members of the Turkish Armed Forces, who are "designated by their respective 
commanders or superiors" . Article  4 of Law No. 205 states that the General Assembly shall be composed of the 
following members : the Minister of National Defen ce; the Minister of Finance; the Chief of the General Staff; 
the Commanders of the Land Forces, the Naval Forces and the Air Forces, or their Chiefs of Staff; the General 
Commander of the Gendarmeries or his Chief of Staff; the President of the Court of Accounts of the Republic of 
Turkey; the President of the Board of Audit of the Prime Ministry of the Republic of Turkey; the Chairman of 
the Board of the Banks Association of Turkey; the Chairman of the Union Chambers a nd Commodity Exchanges 
of Turkey; and six staff from the Ministry of National Defen ce or General Staff . Article  4 also provides that the 
General Assembly shall include "[f]rom the private sector, three persons distinguished in financial and 
economic fields , who will be appointed by the Minister of National Defen ce for three -year terms of office". (See, 
e.g. Law No. 205 (HWRP questionnaire) , (Exhibit  TUR-30), Article  4). The General Assembly, in turn, elects 
three members of OYAK 's board of directors, drawin g from candidates nominated by the Minister of National 
Defence and Chief of the General Staff. The four other members of the board of directors, as well as the 
Chairman of the board of directors, are selected by an Election Committee composed of  the Minis ter of National 
Defence, the Minister of Finance, the President of the Court of Accounts of the Republic of Turkey, the 
President of the Board of General Audit of the Prime Ministry of the Republic of Turkey, the Chairman of the 
Union Chambers and Commodit y Exchanges of Turkey, and the Chairman of the Board of the Banks Association 
of Turkey. Article  11(i) of Law No. 205 specifies that, among other duties, the board of directors is charged 
with determining "the methods for managing the assets of the Fund" . (See, e.g. Law No. 205 
(HWRP  questionnaire) , (Exhibit  TUR-30)). 
83 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 9. Law No. 205 
states that membership and contributions are mandatory for members of the Turkish armed forces , and may 
be subject to penalty and collection if unpaid . (See, e.g. Law No. 205 (HWRP questionnaire) , (Exhibit  TUR-30), 
Articles  17 and 18). 
84 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
pp. 11-12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p p. 8-9. Law 
No. 205 states that OYAK 's property "shall enjoy the same rights and privileges as State property" and that 
OYAK is to be exempt ed from cor porate and other taxes. (See, e.g. Law No. 205 (HWRP questionnaire) , 
(Exhibit  TUR-30), Articles  35 and 37). 
85 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21. 
86 Turkey's  second written submission, para.  38. 
87 Turkey's  first written submiss ion, paras.  10-11; second written submission, paras.  35-38. 
88 Turkey's  second written submission, para.  38. 
89 OYAK 2012 Annual Report  (OCTG questionnaire), (Exhibit  TUR-57), p. 2 ("OYAK is not a part of the 
government 's social security institutions and does not and has not, at any time, seized any share from the 
budgets of such institutions"); OYAK 2013 Annual Report  (WLP questionnaire), (Exhibit TUR -106), p. 5 ("OYAK WT/DS523/ R 
 
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  OYAK 's annual reports further specify that OYAK does not use public resources or receive any other 
form of public support, and the government has no ownership stake in OYAK.90 
7.38.   Although the USDOC highlighted the statement in Article  1 of Law No.  205 that OYAK was 
established "as an institution related to the Ministry of National Defense"91, and provisions of Law 
No. 205 concerning OYAK 's tax and property status and governing structure, Article  1 of Law No.  205 
also provides that "[ OYAK ] shall be subject to the provisions of this Law and private law and shall 
be a corpor ate body with financial and administrative autonomy. "92 In our view, t he fact that OYAK 
is granted financial and  administrative autonomy under Turkish law is relevant  to the analysis of 
whether  OYAK acts according to the mandate of the GOT or in pursuit of Turkish government policies 
or objectives.93 We recall the Appellate Body in US – Carbon Steel (India)  explained that panels 
should not overlook evidence on the record  relevant to assessing the relationship between the 
government and an entity under investi gation "and, in particular, the degree of control by the 
[government] and the degree of autonomy enjoyed by" such an entity.94 Therefore, in weighing the 
releva nce of OYAK 's status under Turkish law, OYAK 's financial and administrative autonomy is also 
relevant. 
7.39.   We do not consider the fact that OYAK 's governing bodies are comprised of military and 
certain governmental personnel, which elect the eight -person board of directors , that OYAK is 
ensured mandatory contributions for pension purposes, and that OYAK may benefit from  its certain 
property and tax status , is sufficient to establish that OYAK acts pursuant to governmental authority 
or is under the meaningful control of the GOT. The App ellate Body has explained that evidence of 
"formal indicia of control", such as a government 's power to appoint and nominate directors to the 
board of an entity may be relevant to the assessment of whether the conduct of an entity is that of 
a public body.95 However, the Appellate Body also observed that "a government 's power to appoint 
directors to the board of an entity and the issue of whether those directors are independent, would 
seem to be distinct factors" in assessing the governmental character of an  entity .96 We see nothing 
in the evidence that the USDOC considered in its analysis of OYAK to suggest that military and 
government personnel within  OYAK have  made decisions under the direction of the GOT  in pursuit 
of governmental economic policies . In its  assessment of OYAK,  in addition to citing provisions of Law 
No. 205,  the USDOC referred to a single statement in the TESEV study that "a review of the 
membership and administrative structure of OYAK reveals that the military is clearly in control" .97 
Although the USDOC appears to equate Turkish military presence in OYAK with governmental control 
based on this statement, the USDOC did not weigh other statements in the TESEV study describing 
OYAK 's "core function as a holding company", and that OYAK 's mission  statement identifies the goals 
to "protect[] first and foremost the actuarial balance in its operations" and to "offer the highest rates 
                                                
is not a part of the government 's social security inst itutions and does not , and has not at any time, received  
any share from the budgets of such institutions"); OYAK 2014 Annual Report  (HWRP questionnaire), (Exhibit 
TUR-29), p. 7 ("OYAK is not a part of the government 's social security institutions and does not, and has not at 
any time, received  any share from the budgets of such institutions"); OYAK 2013 Annual Report  
(CWP  questionnaire), (Exhibit  TUR-10), p. 5 ("OYAK is not a part of the government 's social security 
institutions and does not , and has not at  any time, received  any share from the budgets of such institutions.")  
90 OYAK 2012 Annual Report  (OCTG questionnaire), (Exhibit  TUR-57), p. 2; OYAK 2013 Annual Report  
(WLP questionnaire), (Exhibit TUR -106), p. 5; OYAK 2014 Annual Report  (HWRP questionnaire ), (Exhibit 
TUR-29), p. 7; and OYAK 2013 Annual Report  (CWP questionnaire), (Exhibit  TUR-10), p. 5. 
91 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 11; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 8. 
92 Law No.  205 (HWRP questionnaire), (Exhibit  TUR-30), Article  1. 
93 As we discuss in further detail below, in the context of its assessment of Erdemir and Isdemir, the 
USDOC reasoned that the GOT exercised its control (in part, through OYAK) to "implement[] policies which 
promoted [Erdemir and Isdemir's] customers to engage in export -oriented product ion" and to "support[] the 
use of domestically mined resources for raw materials in view of … the added value created by the domestic 
suppliers in favor of  the local industries". The USDOC states that "[t]hese polic ies are in line with the 
GOT's stated policy in i ts 2012 -2014 Medium  Term Programme to improve Turkey 's balance of payments ." 
(OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21). 
94 Turkey 's first written submission, para. 155 (quoting  Appellate Body Report, US – Carbon Steel 
(India) , para. 4.44).  
95 Appellate Body Report, US – Carbon Steel (India) , para. 4.43. 
96 Appellate Body Report, US – Carbon Steel (India) , para. 4.45. 
97 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21. WT/DS523/ R 
 
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  of return to its members".98 In our view, these additional statements do not support an inference 
that OYAK officials a ct at the behest of the GOT.99 
7.40.   Taking into account the evidence on the record, including that OYAK is granted financial and 
administrative autonomy under Turkish law , we are not persuaded that the evidence that the USDOC 
relied upon demonstrates  that OYAK is under the meaningful control of the GOT , or that OYAK is 
part of the GOT in either the broad sense or the narrow sense. Accordingly, we find that the USDOC 
was not justified in attributing to the GOT any control that OYAK may exercise over Er demir and 
Isdemir .  
7.41.   We recall the United  States'  argument that the USDOC based its consideration o n the totality 
of evidence, which includes but is not limited to OYAK 's involvement in Erdemir. In particular, the 
USDOC also considered relevant participatio n by the Ministry of Finance and TPA on Erdemir 's board 
of directors. The USDOC found that the TPA "holds veto power over any decisions [sic] related to 
the closure, sale, merger, or liquidation of both Erdemir and Isdemir" .100 The United  States  argues  
that this "affords the GOT, through the TPA, an ability  to determine critical aspects of Erdemir 's and 
Isdemir 's operations".101 The United  States  has also pointed to the fact that, as a condition of 
purchasing Erdemir from the GOT in 2006, OYAK agreed to increas e Erdemir 's steel production 
capacity by 3.5 million tonnes through the creation of Isdemir in 2008.102 Finally, the USDOC  referred 
to selected statements from the 2012 and 2013 Erdemir Annual Reports, which the USDOC found to 
be "in line"103 with the Turkish policy to improve the balance of payments.  
7.42.   As we have found in respect of military and government officials in OYAK 's governing bodies, 
Ministry of Finance and TPA participation on Erdemir 's board of directors  amount to formal "indicia" 
of control that is  insufficient to establish that the GOT meaningfully controls Erdemir and Isdemir .104 
For instance, although the United  States  has emphasized the ability  of the TPA to determine critical 
aspects of Erdemir and Isdemir 's operations, as Turkey argues105, the USDOC has not pointed to 
evidence on the record that TPA has at any point since Erdemir 's privatization exercised its veto 
power or sought to influence Erdemir 's pricing, production or financial decisions. We do not share 
the United  States'  view that event s taking place at the time of Erdemir 's privatization in 2006 are 
indicative of whether Erdemir and Isdemir were acting in pursuit of Turkish governmental policies in 
the years  after Erdemir 's privatization.  
                                                
98 TESEV study , (Exhibit  USA-4), p. 10. In addition, while noting that OYAK benefits from special 
privileges under private and public law which facilitates its pursuit of revenue -generating activities, the 
TESEV  study indicates that OYAK investments and profits are never used for military spending and projec ts. 
(TESEV study , (Exhibit  USA-4), pp. 8 and  10). 
99 In support of its argument that the members participating in OYAK's  governing bodies are acting in 
their individual capacities, and not as government officials, Turkey refers to a position paper offered b y a law 
firm that was on the record of the OCTG, HWRP, and WLP proceedings, as well as a case brief submitted by 
petitioner Borusan in the CWP proceeding. (See, e.g. Turkey's  first written submission, paras.  126, 276, 
and 389 (referring to Application of S tate aid rules to OYAK  (OCTG questionnaire) , (Exhibit TUR -66), 
paras.  3.10-3.18; Application of State aid rules to OYAK  (WLP questionnaire) , (Exhibit TUR -99), 
paras.  3.1-3.18; and Application of State aid rules to OYAK  (OCTG questionnaire) , (Exhibit TUR -39), 
paras.  3.10-3.18)). See also Turkey's  first written submission, para.  499 (referring to Excerpt from 
Borusan 's CWP Case Brief , (Exhibit TUR -5), pp.  13-14). The United  States argues that these documents are 
unsupported by record evidence and Turkey's  reliance on these documents should carry little weight. 
(United  States'  first written submission, paras.  108-112; second written submission, paras.  89-93). We have 
not taken these documents into account in our assessment here.  
100 See, e.g. OCTG CVD Final Deter mination  Memorandum , (Exhibit  TUR-85), p. 21. 
101 United  States'  second written submission, para. 117. 
102 United  States'  second written submission, para.  102 (referring to Exhibit 4 of Maverick's  comments, 
(Exhibit  USA-35), as cited in WLP CVD Final Determination  Memorandum , (Exhibit  TUR-122), pp. 33-34). 
Turkey argues that this evidence should not be considered as it was not relied upon by the USDOC in any of 
the underlying proceedings, in determining that Erdemir and Isdemir are public bodies. (Turk ey's response to 
Panel question No.  16, para.  42). We note that the USDOC referred to evidence submitted by petitioner 
Maverick in the "Comments" section of the WLP determination, but did not refer to the information in its own 
analysis.  
103 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 9. 
104 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 318. 
105 See, e.g. Turkey's  second written submission, para.  64. WT/DS523/ R 
 
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  7.43.   As the only evidence that Erdemir has acted in p ursuit of governmental policy, t he USDOC 
considered that statements from Erdemir 's 2012 and 2013 Annual Reports demonstrated that 
Erdemir 's conduct was "in line"106 with Turkish policy to improve the balance of payments. The 
USDOC referred to the objective s et out in the 2012 -2014 Medium Term Programme " to decrease 
high dependency of production and exports on imports, especially for intermediate and capital goods, 
policies and supports enhancing domestic production capacity will be carried on".107 As set out in  
paragraph 7.30 above, the USDOC referred t o statements that : "the [Erdemir] Group also 
implemented policies which promoted the customers to engage in export -oriented production"108; 
"ERDEMIR Group also supports the use of domestically mined resources for raw materials in view of 
the close proximity of the resources to our production sites and the added -value created by the 
domestic suppliers in favour of the local in dustries"109; Erdemir "continues to create -value -added for 
Turkish industry through its initiatives to increase the use of domestic sources of raw materials"110; 
and Erdemir "made a major contribution to the 4.6% increase in Turkey 's manufacturing exports 
in 2013".111  
7.44.   We do not share the USDOC 's assessment that these statements support the inference that 
Erdemir and Isdemir acted in pursuit of objectives set out in the 2012 -2014 Medium Term 
Programme. Erdemir 's 2012 and 2013 Annual Report s do not themselves ref er to the 2012 -2014 
Medium  Term Programme or any other government macroeconomic programme . Absent clear 
indication that Erdemir acts pursuant to governmental authority, the mere fact that Erdemir 's own 
business strategies include encouraging customers in e xport -oriented industries to increase 
production or encouraging  the use of domestic sources of raw materials – even if such efforts might 
align with GOT  macroeconomic policy objectives – does not show that Erdemir and Isdemir exercise 
governmental authorit y.  
7.45.   Other statements in Erdemir 's 2012 Annual Report support our understanding that 
Erdemir 's business strategies are consistent with those of a private, profit -seeking company. For 
instance, Erdemir 's 2012 Annual Report indicates that "ERDEMIR Group manag ed to boost its sales 
by 22% in 2012 with the assistance of industries which are export -driven".112 Erdemir 's 2012 Annual 
Report also notes that raw material "entails a very large share in the total costs" and is procured 
from abroad, and also explains that Erdemir monitors raw material markets "in line with two 
objectives, firstly, to search for alternative raw material resources and, secondly, to augment access 
to economical raw material suppliers", further highlighting the importance of "supply safety" to 
production and the need to find "the most cost -effective raw material resources".113 
7.46.   Finally, the United  States  has referred to additional statements in Erdemir 's 2012 and 
2013 Annual Reports in this dispute, beyond those that were identified in the challenged 
determinations. These include statements that : "[p]roducing flat steel products is crucial for the 
development of Turkish steel industry, and Isdemir plays a significant role in enhancing the capacity 
of flat steel production"; Erdemir 's "goal i s to meet the country 's ever-growing need for flat steel 
and pave the way for the development and growth of Turkish industry"; and "Isdemir also began 
manufacturing flat products in 2008 with the Modernization and Transformation Capital Investments 
underta ken after Isdemir 's acquisition by Erdemir that year. This largest single investment in the 
history of the Republic of Turkey served to mitigate the imbalance between long and flat steel 
production in the country."114 Turkey objects to the United  States'  reference to th ese statement s in 
this dispute as ex post  justifications.  
                                                
106 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 14; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 9. 
107 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 21 and fn  160. See also Medium 
Term Programme , (Exhibit  USA-6), p. 23. 
108 Erdemir 2012 Annual Report , (Exhibit  USA-5), p. 29. 
109 Erdemir 2012 Annual Report , (Exhibit  USA-5), p. 35. 
110 Erdemir 2013 Annual Report , (Exhibit  USA-7), p. 18. 
111 Erdemir 2013 Annual Report , (Exhibit  USA-7), p. 34. 
112 Erdemir 2012 Annual Report , (Exhibit  USA-5), p. 29. Erdemir 's 2013 Annual Report indicates that it 
"made 35% of its flat steel sales to the steel  pipe-manufacturing sector, one of the largest exporting sectors in 
Turkey".  (Erdemir 2013 Annual Report , (Exhibit  USA-7), p. 34). 
113 Erdemir 2012 Annual Report , (Exhibit  USA-5), p. 35. 
114 United  States'  first written submission, paras.  102-103; response to Panel question No.  26, para.  89 
(referring to Erdemir 2012 Annual Report , (Exhibit USA-5), p. 5; and Erdemir 2013 Annual Report , 
(Exhibit  USA-7), p. 6). WT/DS523/ R 
 
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  7.47.   As Turkey notes, t he USDOC did not directly address these excerpts  in any of the 
determinations. Setting aside the question of whether the USDOC might have taken these 
statements into ac count in its determinations , we do not consider that general  references to 
developing the Turkish steel industry and Turkish industry more ge nerally change our assessment 
reached  above.  
7.48.   Based on our review above, we therefore find that the USDOC failed to establish based on 
evidence on the record that OYAK is under the meaningful control of the GOT , or that OYAK is part 
of the GOT in either the broad sense  or the narrow sense . We are therefore not persuaded that 
OYAK 's control over Erdemir  and Isdemir justifies attributing the actions of those entities to the GOT.  
7.49.   In addition, we find that the remaining evidence that the USDOC relied upon in the context 
of assessing Erdemir and Isdemir in the challenged proceedings is insufficient on its ow n to establish  
that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to constitute 
public bodies within the meaning of Article  1.1(a)(1) of the SCM  Agreement . We find that most of 
the evidence that the USDOC relied upon amou nts to evidence of "indicia" of government control. 
As we explained above, we  are also not convinced that statements that the USDOC identified in 
Erdemir 's 2012 and 2013 Annual Reports provide evidence that Erdemir and Isdemir 's corporate 
objectives and ac complishments are aligned with GOT  stated macroeconomic policies  in its 
2012-2014 Medium Term Programme, in particular, the objective to improve Turkey 's balance of 
payments either by " decreas[ing] high dependency of production and exports on imports" thro ugh 
"policies and supports enhancing domestic production capacity".115 
7.50.   For the foregoing reasons, we therefore find that Turkey has demonstrated that the 
United  States  acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement . In particular, we 
find t hat the USDOC  failed to apply the standard applicable to the public body inquiry under 
Article  1.1(a)(1)  by failing to establish that Erdemir and Isdemir possess, exercise, or are vested 
with governmental authority to perform a government function . In addi tion, we find that the USDOC 
acted inconsistently with Article  1.1(a)(1)  by failing to provide a reasoned and adequate explanation 
for its determinations  based on  consideration of the information contained in the record and the 
explanations given by the au thority in its published report . 
7.2.3.2   Whether the USDOC  failed to consider relevant evidence on the record related to 
Erdemir 's commercial conduct  
7.51.   Turkey also argues that the USDOC acted inconsistently with Article  1.1(a)(1) by failing to 
consider evidence on r ecord that arguably demonstrates that Erdemir and Isdemir operate on a 
commercial basis and  independently from OYAK and the GOT.116  
7.52.   Referring to the guidance of the Appellate Body in US – Carbon Steel (India) , Turkey argues 
that an investigating authority c onducting a public body determination must give proper 
consideration to evidence on the record regarding the relationship between the government and the 
entity at issue "and, in particular, the degree of control by the [government] and the degree of 
autono my enjoy ed by" the entity in question, such as evidence that the entity operates "in a 
commercial, de -regulated environment and conducts its operations and business on commercial 
principles".117 
7.53.   Specifically, Turkey argues that the totality of evidence demonstrates that Erdemir, its board, 
and its management act independently from both OYAK and the GOT. In the OCTG proceeding, 
Turkey argues that respondents presented arguments that "Erdemir does not sell coil at preferential 
prices", and that Erdemir 's prices are higher than co -respondent Toscelik 's cost of production and 
selling prices.118 In the WLP, HWRP, and CWP proceedings, Turkey argues that the GOT presented 
arguments that Erdemir and Isdemir "operate[] only to maximize [their] profits as is the case  for all 
                                                
115 Medium Term Programme , (Exhibit  USA-6), p. 23. 
116 Turkey 's first written submission, paras.  146, 153 -165, 296, 303 -316, 408, 414 -426, 519,  and 
526-538. 
117 Turkey 's first written submission, para. 155 (referring to Appellate Body Report, US – Carbon Steel 
(India) , paras.  4.40 and 4.44 ). 
118 Turkey 's first written submission, para. 154. WT/DS523/ R 
 
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  private companies" and that "Erdemir has always been a profitable company and reached a net 
operating profit worth of 484 million dollar in 2013".119 
7.54.   In addition, Turkey refers to information contained in the Input Producer Appendices and 
other docu ments on the record in the four proceedings, which Turkey argues provides evidence 
that (a) Erdemir is a publicly -traded company subject to strict audit and disclosure requirements 
with 47.63% of Erdemir 's shares owned by private entities; (b) Erdemir has a corporate framework 
with established guidelines by which its board and executive officers make investment decisions 
based on maximizing profits; (c) Erdemir 's executive officers and senior management are selected 
based on their professional expertise; (d) Erdemir 's executive officers are independent from the GOT 
and none of Erdemir 's senior managers are government officials; and (e) Erdemir 's hot rolled steel 
pricing decisions are made based on worldwide price indexes and cost considerations, free from 
government involvement.120 
7.55.   Contrary to Turkey 's assertion, the United  States  argues that the USDOC considered this 
information and provided a reasoned and adequate explanation for its rejection. Recalling the 
USDOC 's explanation in its determinations, the United States  submits that "a firm 's commercial 
behavior is not dispositive in determining whether that firm is a government 'authority'", as "this 
line of argument conflates the issues of the 'financial contribution ' being provided by an authority 
and 'bene fit.'"121 The United  States  submits that this reasoning is consistent with the approach taken 
by previous panels122 and is also supported by the structure of the SCM  Agreement , in that 
Article  1.1(a)(1) does not include consideration of whether the financial c ontribution is provided 
consistent with market principles.123 
7.56.   The United  States  further argues that Turkey conflates the distinct concepts of a company 
operating independently and autonomously from the government with that of a company exhibiting 
commercial profit -maximizing behaviour. The United  States  submits that Turkey has only referred 
                                                
119 Turkey 's first written submission, paras.  304, 415 , and 527.  
120 Turkey 's first written submission, paras.  157-162; 307 -312; 418 -423, and 530-535. See also Excerpt 
from Borusan 's OCTG  Case Brief , (Exhibit  TUR-52); Erdemir and OYAK 's OCTG Input Producer Appendix , 
(Exhibit  TUR-61); Functioning and Governing Principles of Erdemir a nd Isdemir  and Audit Committee 
Regulation  (OCTG questionnaire) , (Exhibit  TUR-62); Change in the Share and Capital Structure of Erdemir and 
Isdemir  (OCTG questionnaire),  (Exhibit  TUR-64); Target Base Price Determination Diagram  (OCTG 
questionnaire),  (Exhibi t TUR-67); Excerpt from Tosçelik's  OCTG  Case Brief , (Exhibit  TUR-81), pp. 6-7; OCTG 
CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 34; Erdemir and Isdemir's  Input Producer 
Appendix  (WLP questionnaire) , (Exhibit  TUR-103); Functioning and Governing  Principles of Erdemir and 
Isdemir  and Audit Committee Regulation (WLP questionnaire),  (Exhibit  TUR-104); Excerpt from Erdemir  2013 
Annual Report (WLP questionnaire),  (Exhibit  TUR-105); Price Determination Methodology and HRS Price Index  
(WLP questionnaire ), (Exhibit  TUR-110); Tosçelik's  WLP Case Brief , (Exhibit  TUR-119), p. 12; Input Producer 
Appendix  (HWRP questionnaire) , (Exhibit  TUR-26); Functioning and Governing Principles of Erdemir and 
Isdemir (HWRP questionnaire) , (Exhibit  TUR-27); Excerpt from Erdemir 2013 Annual Report  (HWRP 
questionnaire) , (Exhibit  TUR-28); Price Determination Methodology and HRS Price Index  (HWRP 
questionnaire),  (Exhibit  TUR-33); Input Producer Appendix  (CWP questionnaire) , (Exhibit  TUR-7); 
Responsibilities  of Erdemir (CWP  questionnaire),  (Exhibit  TUR-8); Excerpt from Erdemir 2012 Annual Report  
(CWP questionnaire) , (Exhibit  TUR-9); Performance of Erdemir (CWP questionnaire),  (Exhibit  TUR-13); and 
Price Determination Methodology and HRS Price Index  (CWP questionnaire),  (Exhibit TUR-14). 
121 United  States'  first written submission, para. 114 (quoting  OCTG CVD Final Determination  
Memorandum , (Exhibit  TUR-85), p. 35; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), p. 22; 
WLP CVD Final Determination  Memorandum , (Exhibit  TUR-122), p. 36; and Excerpt from CWP CVD Final 
Determination Memorandum , (Exhibit  TUR-22), p. 29); second written submission, para.  110. 
122 For example, the United  States refers to the statement by the panel in Korea – Commercial Vessels  
that: 
[T]he concep t of "financial contribution" is writ[tten] [sic] broadly to cover government and public 
body actions that might involve subsidization. Whether the government or public body action in 
fact gives rise to subsidization will depend on whether it gives rise to  a "benefit." Since the concept 
of "benefit" acts as a screen to filter out commercial conduct, it is not necessary to introduce such 
a screen into the concept of "financial contribution".  
(Panel Report, Korea – Commercial Vessels , para.  7.28)  
In response  to a question from the Panel, the United  States submits that the Appellate Body in Brazil – 
Aircraft  and the panel in US – Anti-Dumping and Countervailing Duties  (China)  also recognized financial 
contribution and benefit as independent concepts. (United  States'  response to Panel question No.  25, para.  81 
(referring to Appellate Body Report, Brazil – Aircraft , para.  157; and Panel Report, US – Anti-Dumping and 
Countervaili ng Duties  (China) , para.  9.29)).  
123 United  States'  first written submission, paras.  115-116. WT/DS523/ R 
 
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  to evidence with respect to commercial behaviour, which does not demonstrate that Erdemir and 
Isdemir operate autonomously from the GOT.124 
7.57.   The United  States  submits that Turkey has not in any event demonstrated 
Erdemir 's independence from the GOT based on its financial decision -making processes . In this 
respect, Erdemir 's board of directors, which includes OYAK and TPA officials, also approves the 
selection of senior manager s, thus allowing it to participate in the decision -making process regarding 
pricing and production. The United  States  submits that the fact that high -level managers may be 
selected based on their professional expertise does not rebut the GOT 's influence. Lastly, although  
Turkey raises the fact that Erdemir is a publicly traded company subject to certain audit and 
disclosure requirements, the United  States  argues that Turkey has not cited any evidence or 
provided explanation to demonstrate that compliance wi th these requirements somehow means 
Erdemir 's behaviour is free of government influence.125 
7.58.   We recall that, i n evaluating whether the conduct of a particular entity is that of a public body 
within the meaning of Article  1.1(a)(1),  an investigating authority "must, in making its 
determination, evaluate and give due consideration to all relevant characteristics of the entity and, 
in reaching its ultimate determination as to how that entity should be characterized, avoid focusing 
exclusively or unduly on any sin gle characteristic without affording due consideration to others that 
may be relevant".126 In addition, the Appellate Body has observed that an investigating authority 
undertaking a public body analysis should take into account all evidence on the record reg arding the 
relationship between the government and the entity at issue, which may include evidence that the 
entity operates "in a commercial, de -regulated environment and conducts its operations and 
businesses on commercial principles".127 
7.59.   We note that the United  States  has taken a number of stances in relation to evidence on the 
record regarding  Erdemir  and Isdemir 's commercial conduct . On the one hand, citing the USDOC in 
the determinations at issue, the United  States  has submitted that a firm 's commercial  behaviour is 
"not dispositive" in determining whether that firm is a public body.128 On the other hand, the 
United  States  submits that the USDOC considered all the evidence that was submitted, but concluded 
that the evidence on Erdemir 's commercial behaviou r "simply was outweighed, in [the] 
USDOC 's view, by the ample record evidence to the contrary that supported [the] 
USDOC 's determinations".129  
7.60.   The United  States  has also submitted that information regarding an entity 's "commercial 
conduct" does not undermin e the USDOC 's findings, as it is possible that a government or 
government -controlled entity may act in a commercial manner.130 Finally, as noted above, the 
                                                
124 United  States'  response to Panel question No.  26, para.  84; second written submission, paras.  106 
and 109.  
125 United  States'  second written submission, paras.  111-114. 
126 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China) , para. 319. Further, 
investigating authorities are "under an obligation to actively seek out information relevant to the analysis of 
whether a financial contribution had been  made", including information relevant to the potential 
characterization of entities as public bodies, so as to be able to provide a reasoned and adequate explanation 
of their conclusions. ( Ibid. para. 344). 
127 Turkey 's first written submission, para. 155 (referring to Appellate Body Report, US – Carbon Steel 
(India) , paras.  4.40 and 4.44 ). In its third -party submission s, Japan has argued that an important aspect of 
the analysis is whether an entity is structured in a manner that ensures that management deci sions are made 
independently, arguing that evidence of "[e]stablished guidelines on corporate governance, such as stringent 
disclosure and auditing regulations, or operation of an independent corporate body, such as an investment 
advisory board, may be evi dence of such independence". (Japan 's third-party submission, para. 12; third-party 
statement, para. 5). 
128 United  States'  first written submission, para.  114 (as USDOC explained "a firm's  commercial behavior 
is not dispositive in determining whether that firm is a government 'authority'"). See also ibid. para.  117 
("consideration of whether a financial contrib ution was provided consistent with market principles is not 
germane to the determination of the existence of financial contribution"). See also OCTG CVD Final 
Determination  Memorandum , (Exhibit  TUR-85), p. 35; WLP CVD Final Determination  Memorandum , 
(Exhib it TUR-122), p. 36; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), p. 22; and  Excerpt 
from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p p. 29-30. 
129 United  States'  first written submission, para.  118. 
130 United  States'  second writte n submission, paras.  109 and 111.  WT/DS523/ R 
 
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  United  States  disputes that the submitted information and explanation reflects behaviour free of 
gover nment influence.  
7.61.   Based on our review of the underlying determinations, we understand that the USDOC found 
that evidence regarding Erdemir 's commercial conduct was not legally "relevant" (or not 
"dispositive")131 to the public body analysis. In light of the A ppellate Body 's guidance that evidence 
that an entity conducts its operations and business on commercial principles may be relevant to the 
public body assessment, we are of the view that the USDOC 's failure to consider this information in 
any meaningful wa y runs contrary to an investigating authority 's obligation to evaluate and give due 
consideration to all relevant characteristics of the entity. Rather, we consider that,  in making its 
public body determinations in respect of Erdemir and Isdemir, the USDOC  should have at least 
engaged with evidence submitted in the underlying proceedings related to Erdemir 's commercial 
conduct, rather than simply dismissing the information as irrelevant.  
7.62.   Accordingly , in addition to our findings above, we find that Turkey has demonstrated that the 
United  States  acted inconsistently with Article  1.1(a)(1) of the SCM  Agreement  for having failed to 
consider relevant evidence on the record.  
7.2.3.3   Whether the USDOC 's assessment of OYAK is also inconsistent with 
Article 1.1(a)(1) of the SCM  Agreement  
7.63.   Turkey also requests a separate finding that the USDOC determined that OYAK is a public 
body in a manner inconsistent with Article  1.1(a)(1) of the SCM  Agreement , in addition to findings 
in relation to Erdemir and Isdemi r. Turkey submits that the USDOC applied the same legal standard 
under US law for "public body" to OYAK  as it did to Erdemir and Isdemir , and considers that findings 
in relation to OYAK would assist in resolving the dispute.132 
7.64.   Based on our findings above th at Turkey has demonstrated that the United  States  acted 
inconsistently with Article  1.1(a)(1) of the SCM  Agreement  in its determinations regarding Erdemir 
and Isdemir, we do not consider it necessary to separately rule on whether the USDOC determined 
that OYAK is a public body in a manner inconsistent with Article  1.1(a)(1) to resolve the matter 
before us. We are of the view that we have adequately address ed flaws in the USDOC 's analysis 
regarding OYAK  in our assessment above. Accordingly, we make no separa te finding regarding any 
public body determination that the  USDOC may have made in respect of OYAK . 
7.2.4   Conclusions  regarding Turkey 's claim s under Article  1.1(a)(1) of the 
SCM Agreement  
7.65.   In the four challenged countervailing duty proceedings, the USDOC relied upon record 
evidence to reach its conclusion that the GOT exercises "meaningful control" over Erdemir and 
Isdemir, including through its control of OYAK, and accordingly, the USDOC found Erdemir and 
Isdemir to be public bodies, and hence "authorities", pur suant to Section 771(5)(B) of the Tariff Act 
of 1930 .133 
7.66.   We found that the USDOC  failed to apply the standard applicable to the public body enquiry 
under Article  1.1(a)(1)  of the SCM  Agreement  in its assessment of "meaningful control", by  failing 
to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority 
to perform a government function, as required by the Appellate Body 's interpretation of 
Article  1.1(a)(1) . We further found that the USDOC failed to provide a r easoned and adequate 
explanation for its determinations  based on  consideration of the information contained in the record 
                                                
131 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 35; WLP CVD Final Determination  
Memorandum , (Exhibit  TUR-122), p. 36; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
p. 22; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), p. 30. 
132 Due to the central role of OYAK in the USDOC 's determinations regarding Erdemir and Isdemir, 
Turkey believes that an effective resolution of the dispute "would be best ser ved by a clear panel finding 
on OYAK's, as well as Erdemir 's and Isdemir's, status as a 'public body'" . (Turkey 's response to Panel 
question  No. 8, para. 32). 
133 OCTG CVD Final Determination  Memorandum , (Exhibit  TUR-85), p. 22; WLP CVD Final Determination  
Memor andum , (Exhibit  TUR-122), pp. 13-15; HWRP CVD Final Determination  Memorandum , (Exhibit  TUR-46), 
pp. 11-12; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit  TUR-22), pp. 8-9. WT/DS523/ R 
 
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  and the explanations given by the au thority in its published report, and for failing  to consider relevant 
evidence on the record . 
7.67.   In our assessment, we are mindful that the United  States  based its finding on the totality of 
evidence. However, we found that the USDOC failed to establish based on evidence on the record 
that OYAK is under the meaningful control of the GOT, or that OYAK is p art of the GOT in either the 
broad sense  or the narrow sense. In particular, we observed that OYAK is granted financial and 
administrative autonomy under Turkish law. We also found that much of the evidence that the 
USDOC considered in relation to OYAK constitutes mere "formal indicia" of government control, and 
the USDOC did not identify otherwise establish  that OYAK has taken decisions  in pursuit of 
government economic policies . We are therefore not persuaded that OYAK 's control over Erdemir 
and Isdemir j ustifies attributing the actions of those entities to the GOT.  
7.68.   In addition, we concluded that the evidence that the USDOC relied upon in the context of 
assessing Erdemir and Isdemir in the challenged proceedings is insufficient on its own to establish  
that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to constitute 
public bodies within the meaning of Article  1.1(a)(1) of the SCM  Agreement . We found that most of 
the evidence that the USDOC relied upon amounts to eviden ce of "indicia" of government control. 
We did not find that the remaining evidence supported the United  States'  argument that Erdemir 
effectuates governmental interests by pursuing policies and objectives that are consistent with the 
GOT's macroeconomic po licies as reflected in the 2012 -2014 Medium Term Programme, namely, 
policies aimed at  improving Turkey 's balance of payments either by " decreasing high dependency of 
production and exports on imports" through "policies and supports enhancing domestic produ ction 
capacity".134 We also found that the USDOC should have engaged with evidence submitted in the 
underlying proceedings related to Erdemir 's commercial conduct, rather than simply dismissing the 
information as irrelevant.  In light of our findings regardin g Erdemir and Isdemir, we did not consider 
it necessary to separately rule on whether the USDOC public body determinations  in respect of OYAK 
are also inconsistent with Article  1.1(a)(1) in order to resolve the dispute.  
7.3  Turkey 's claims under Articles  1.1(b ) and 14(d) of the SCM  Agreement  in relation to 
the benefit determination in the OCTG proceeding  
7.3.1   Introduction  
7.69.   Turkey claims that the USDOC "has a practice, in assessing whether a good is provided for 
less than adequate remuneration thereby conferring a ben efit, of rejecting in -country prices as a 
benchmark based solely on evidence that the government owns or controls the majority or a 
substantial portion of the market for the good, with no consideration of whether in -country prices 
are distorted".135 Turkey c laims that this practice is inconsistent with Article  14(d) of the 
SCM Agreement , both "as such" and as applied in the OCTG investigation. Turkey also claims that, 
because the USDOC failed to properly establish that Erdemir and Isdemir provided HRS to the 
respondents for LTAR under Article  14(d), the USDOC failed to establish that the alleged provision 
of hot  rolled steel conferred a benefit within the meaning of Article  1.1(b) of the SCM  Agreement . 
7.70.   In its first written submission,  the United  States  request ed that the Panel make a preliminary 
ruling excluding from its terms of reference Turkey 's challenge concerning the alleged "practice"  
mentioned above , on the basis that Turkey failed to identify such  a measure  and accompanying "as 
such" claims relating to  the measure in  its request for consultations. In addition, the United  States  
requested the Panel to make a preliminary ruling that the OCTG Final Determination which forms 
the basis of Turkey 's as applied claim in relation to the alleged "practice" is als o outside the 
Panel 's terms of reference , on the basis that the determination had ceased to exist and have legal 
effect prior to the Panel 's establishment.  
7.71.   In addressing Turkey 's claims, we first address the United  States'  requests concerning the 
Panel 's terms of reference, before turning to the parties ' arguments regarding the merits of 
Turkey 's claims.  
                                                
134 Medium Term Programme , (Exhibit  USA-6), p. 23. 
135 Turkey's  first written submission, para.  172. WT/DS523/ R 
 
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  7.3.2   The United  States'  request to exclude measures and claims from the Panel 's terms 
of reference  
7.3.2.1   Whether Turkey 's panel requ est adds a challenge regarding an alleged benefit 
"practice" that was not the subject of Turkey 's request for consultations  
7.72.   The United  States  has first requested the Panel to rule that Turkey 's panel request improperly 
includes measures and claims regardin g an alleged benefit "practice" that were not the subject of 
consultations.  
7.73.   The United  States  submits that Turkey clearly limited its challenge in its  consultations request 
with respect to the USDOC 's benefit determination exclusively to the preliminary a nd final benefit 
determinations in the OCTG proceeding.136 By limiting its challenge in its consultations request to 
the preliminary and final benefit determinations in the OC TG proceeding, the United  States  submits 
that Turkey has attempted to improperly expand the scope of the dispute by including, first, a new 
measure, i.e. an alleged "practice" of rejecting in -country prices as benchmarks "based solely on 
evidence that the government owns or controls the majority or a substantial portion of the market 
for the good"137; and, second, by raising an "as such" claim that this alleged practice is inconsistent 
with Article  14(d) of the SCM  Agreement .138  
7.74.   Turkey argues that the Panel should reject the United  States'  request. First, contrary to the 
United  States'  position, Turkey argues that the identification of the measures at issue in its 
consultations request is broader in scope as Turkey did identify "practices" as measures that are the 
subject of the dispute.139 Second, Turkey argues that Article  4.4 of the DSU does not require a 
complainant to identify the practice in question with the same degree of specificity and particularity 
in its consultations request as in its panel request.140 Third, Turkey argues that the ma nner in which 
it identified the measures at issue does not limit Turkey from raising an "as such" claim in its panel 
request.141 
7.75.   The United  States'  request requires the Panel to  consider whether Turkey 's challenge to the 
"practice" as specified in its panel request  and associated "as such" claim  should be excluded from 
the Panel 's terms of reference on the basis that the alleged practice and the "as such" claim against 
this practice  were not identified in Turkey 's request for consultations. This issue involve s the 
relationship between the measures that are identified in the consultations request and the panel 
request.  
7.76.   We recall the relevant legal standards applicable under Articles  4.4 and 6.2 of the DSU. 
Thereafter, we consider whether, based on the content o f Turkey 's request for consultations and 
panel request, Turkey has improperly expanded the scope of its challenge.  
7.77.   Article  4.4 of the DSU provides:  
All … requests for consultations shall be notified to the DSB and the relevant Councils 
and Committees by th e Member which requests consultations. Any request for 
consultations shall be submitted in writing and shall give the reasons for the request, 
including identification of the measures at issue and an indication of the legal basis for 
the complaint.  
7.78.   Article  6.2 of the DSU provides:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
whether consultations were held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint suff icient to present the problem 
clearly. In case the applicant requests the establishment of a panel with other than 
                                                
136 United  States'  first written submission, paras.  18-20. 
137 United  States'  first written submission, para.  21 (quoting Turkey's  panel request, para.  8.(A).2.a).  
138 United  States'  first written submission, para.  21 (referring to Turkey's  panel request, 
para. 8.(A).2.a).  
139 Turkey's  response to the United  States'  request for a preliminary ruling, paras.  16-17. 
140 Turkey's  response to the United  States'  request for a preliminary ruling, para.  18. 
141 Turkey's  response t o the United  States'  request for a preliminary ruling, paras.  19-22. WT/DS523/ R 
 
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  standard terms of reference, the written request shall include the proposed text of 
special terms of reference.  
7.79.   Although similar, these provi sions contain important textual differences. While Article  4.4 of 
the DSU  provides that a request for consultations must identify the "measure at issue", Article  6.2 
provides that a panel request must identify the " specific  measure at issue". This differen ce in the 
language between Articles  4.4 and 6.2 makes it clear that, in identifying the measure at issue, 
greater specificity is required in a panel request than in a consultations request.142 Further, while 
Article  4.4 provides that a consultations request must identify the "legal basis for the complaint", 
Article  6.2 specifies that a panel request must "provide a brief summary of the legal basis of the 
complaint sufficient to present the problem clearly".  
7.80.   The Appellate Body has explained that  the measures and claims identified in a panel request 
may constitute a natural evolution of the consultations process.143 In this respect , a "precise and 
exact identity"144 is not required between the measures identified in the request for consultations 
and the measures id entified in the panel request.145 The Appellate Body has also explained that the 
"legal basis" for a complaint in a panel request may reasonably evolve from the consultations 
request, so long as the addition of provisions do not have the effect of changing the essence of the 
complaint.146 Thus,  in respect of measures or claims,  as long as a complainant does not "expand the 
scope"147 or change the "essence" of the dispute148 in its panel request as compared to its 
consultations request, the contents of that panel r equest will determine the panel 's terms of 
reference.149 
7.81.   When a party alleges that a panel request has impermissibly expanded the scope of the 
dispute or changed its essence, a panel must scrutinize the extent to which the identified measure  
or claim  at issu e has evolved or changed from the consultations request to the panel request. The 
determination of whether the identification of the specific measure at issue  or claim  in the panel 
request expanded the scope or changed the essence of the dispute must be ma de on a case -by-case 
basis, considering the context in which the measures exist and operate.150  
7.82.   We must therefore assess whether Turkey expanded the scope or changed the essence of the 
dispute in its panel request as compared to its request for consultation s, through the inclusion as a 
specific measure  in its panel request, a "practice[] followed by the United  States  in the identified 
countervailing duty proceedings related to  … the rejection of in -country prices in the assessment of 
benefit "151, and through t he inclusion of an "as such" claim against this practice.152  
                                                
142 Appellate Body Report s, Argentina – Import Measures , para. 5.9. 
143 The Appellate Body has explained that the  difference in language between Articles  4.4 and 6.2 
reflects the underlying distinction between the consultations process and the panel process , in particular, that 
consultations  facilitat e the exchange of information that allows the parties to either reach a mutually agreed 
solution or refine the contours of the dispute . (Appella te Body Report s, Argentina – Import Measures , 
para. 5.10; US – Upland Cotton , para. 293; and Mexico – Corn Syrup ( Article  21.5 – US), para. 54). 
144 Appellate Body Report, Brazil – Aircraft , para. 132. 
145 Appellate Body Reports , Argentina – Import Measures , para. 5.9; Mexico – Anti-Dumping Measures 
on Rice , para. 138; and Mexico – Corn Syrup ( Article  21.5 – US), para. 54. 
146 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
147 Appellate Body Report, US – Upland Cotton , para. 293. 
148 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras.  137-138. 
149 The Appellate Body has cautioned that a panel should not impose "too rigid a standard " of identity 
between the scope of the request for consultations and the request for the e stablishment of a panel, as this 
would substitute the consultations request for the panel request, which would undermine the stipulation in 
Article  7 of the DSU that the request for establishment of a panel will govern the panel 's terms of reference 
unless  the parties agree otherwise. (Appellate Body Report s, Argentina – Import Measures , para. 5.13; US – 
Upland Cotton , para. 293). 
150 See, e.g. Appellate Body Report, US – Countervailing and Anti -Dumping Measures (China) , para. 4.9. 
151 Turkey's  panel request, p ara. 7 
152 Regarding Turkey's  "as such" claim, Turkey's  panel request provides as follows:  
The USDOC has a practice, in assessing whether a good is provided for less than adequate 
remuneration thereby conferring a benefit, of rejecting in -country prices as a  benchmark based 
solely on evidence that the government owns or controls the majority or a substantial portion of 
the market for the good, with no consideration of whether in -country prices are distorted. Turkey 
considers that this USDOC practice is incons istent with Article  14(d) of the SCM  Agreement  both 
"as such", as a practice, and as applied in this investigation . 
(Turkey's  Panel request, para.  8.(A).2.a)  WT/DS523/ R 
 
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  7.83.   As part of this enquiry, we are required to  evaluate whether the identified measures and 
claims in the panel request have evolved from measures and claims identified in the r equest for 
consultatio ns. 
7.84.   We note that section (A) of Turkey 's request for consultations, entitled "Specific Measures at 
Issue", provides as follows:  
This request for consultations concerns the preliminary and final countervailing duty 
measures imposed by the United  States  on Turkish imports of Certain Oil Country 
Tubular Goods ("OCTG"); Welded Line Pipe; Heavy Walled Rectangular Welded Carbon 
Steel Pipes and Tubes; and Circular Welded Carbon Steel Pipes and Tubes, as identified 
in Annex  1. 
These measures include the determinati on by the United  States  to initiate the identified 
countervailing duty proceedings, the conduct of those proceedings, any preliminary or 
final countervailing duty or injury determinations issued in those proceedings, any 
definitive countervailing duties imposed as a result of th ose proceedings, as well as any 
notices, annexes, memoranda, orders, amendments, or other instruments issued by the 
United  States , and related practices, in connection with the measures identified in 
Annex  1.153 
7.85.   This language in the first paragraph o nly iden tifies the preliminary and final countervailing 
duty measures that the United  States  imposed on OCTG, WLP, HWRP , and CWP, as identified in 
Annex  1.154 This language is consistent with the United  States'  view that Turkey 's challenge in its 
request for consult ations is exclusively aimed at the preliminary and final countervailing duty 
measures imposed on Turkish OCTG, WLP, HWRP , and CWP imports . 
7.86.   The second paragraph also  refers to  the preliminary and final countervailing duty measures 
imposed in the four challe nged proceedings. In addition, the second paragraph refers to "related 
practices ", in connection with the measures identified in Annex  1. The United  States  acknowledges 
the reference to "related practices" in the description of the measures at issue, but a rgues that this 
reference is "so general" that it does not identify a particular "practice" at issue and cannot provide 
a basis for challenging the specific practices that are subsequently identified in Turkey 's panel 
request.155 We do not consider the refer ence to "related practices"  is particularly  clear, as it does 
not identify which are the practices that were followed in connection with the measures in Annex  1 
that are the focus of Turkey 's concerns. The generic modifier "related" is also not informative . When 
read in isolation, the reference to " related practices" in section (A) can at most be understood as 
related to any preliminary or final countervailing duty or injury determination issued in the four 
proceedings at issue, or any definitive countervai ling dut y imposed resulting from  those proceedings . 
7.87.   The Appellate Body has made clear that a panel should view the requests for consultations on 
the whole when determining whether  the language of the request provides a sufficient basis for 
considering particular measures are covered by a panel 's terms of reference.156 
7.88.   In this regard, we note that s ection (B) of Turkey 's request for consultations , entitled "Legal 
Basis of the Complaint" provides in part as follows:  
Turkey considers that the measures identi fied above, and in Annex  1, are inconsistent 
with the United  States'  obligations under the WTO  Agreement s. Turkey 's concerns are 
particularly focused on, though not necessarily limited to, the following aspects of the 
measures and underlying administrative  proceedings:  
… 
                                                
153 Fns omitted.  
154 Annex  1 lists certain documents for initiation ; preliminary, post -preliminary, fi nal, and amended 
final determinations ; and  countervailing duty orders as well as related decision memoranda, for each of the 
respective OCTG, WLP , and HWRP investigations and the CWP review at issue.  
155 United  States'  opening statement at the first meeting of the Panel, para.  7. 
156 Appellate Body Report s, Argentina – Import Measures , para. 5.14 (referring to Appellate Body 
Report, US – Upland Cotton , para. 291). WT/DS523/ R 
 
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  2. Benefit Determination : The United  States'  determination that sales of 
hot rolled steel conferred a benefit, within the meaning of 
Article  1.1(b), and were made for less than adequate remuneration, 
within the meaning of [sic] 14(d) of the  SCM Agreement , including the 
Department 's improper rejection of in -country prices for hot rolled 
steel as a benchmark for less than adequate remuneration.  
… 
Turkey considers that the United  States'  administrative proceedings and measures are 
inconsistent with Article  VI:3 of the GATT 1994, Articles  10, 19.4, and 32.1 of the 
SCM Agreement , and the specific provisions cited above. Turkey 's concerns relate to 
both the aspects of the measures and underlying administrative proceedings cited above 
as well as ong oing practices applied in administrative proceedings more generally .157 
7.89.   As can be understood from this excerpt, among other concerns, s ection (B) sets out  that 
Turkey's concerns are focused on t he United  States'  "Benefit Determination" in the OCTG 
investigation.158 Notably, in addition, the end of this excerpt specifies that " Turkey 's concerns relate 
to both the aspects of the measures and underlying administrative proceedings cited above as well 
as ongoing practices applied in administrative proceedi ngs more generally ".159 
7.90.   We thus understand that Turkey's consultations request is focused on several concerns, one 
of which relates to t he United  States'  benefit determination in the OCTG investigation. 
Turkey 's concerns relate to the preliminary and final c ountervailing duty measures imposed in the 
four challenged proceedings. However, Turkey 's concerns may also be understood to relate to 
ongoing practices , in light of the reference to "ongoing practice s applied in administrative 
proceedings more generally ". In our view, the reference to "ongoing practices" may be linked to 
Turkey 's identification of each the different aspects of the identified "legal basis" of its consultations 
request, one of which includes the alleged "improper rejection of in -country pric es for HRS as a 
benchmark for less than adequate remuneration"  referred to in connection with the benefit 
determination.  
7.91.   We recall that a "precise and exact identity"160 is not required between the measures identified 
in the request for consultations and the  measures identified in the panel request, and that the 
contents of the panel request may govern the panel 's terms of reference so long as a complainant 
does not "expand the scope"161 or change the "essence" of the dispute .162 
7.92.   Based  on our re view of Turkey 's request for consultations on the whole , although the 
reference to "related practices" in the subsection "Specific Measures at Issue" is general in nature, 
a reasonable reading  of section (B) discussing the "Legal Basis of the Complaint"  indicates that 
Turkey's concerns relate not only to p reliminary and final countervailing duty measures imposed in 
the four challenged proceedings, but also to ongoing practices applied in connection with benefit 
determinations in countervailing duty investigations.  According ly, Turkey 's reference to "related 
practices" in the subsection "Specific Measures at Issue" in Turkey 's consultations request  may be 
understood to include, inter alia , a practice in connection with the "improper rejection of in -country 
prices " as a benchm ark.  
7.93.   In light of our understanding of Turkey 's consultations request, we do not consider that Turkey 
improperly expanded the scope or changed the essence of the dispute by including a practice 
regarding the benefit determination as a specific measure at i ssue in its panel request.  
7.94.   Therefore, we disagree with the United  States  that Turkey 's panel request improperly 
expanded the scope of the dispute by including as a new measure, an alleged "practice" of rejecting 
in-country prices as benchmarks "based solely on evidence that the government owns or controls 
                                                
157 Fn omitted.  
158 We note that footnote  5 of Turkey's  consultations request specifies  that its claim in relation to the 
benefit determination is limited to the countervailing duty determinations in the OCTG  proceeding.  
159 Emphasis added.  
160 Appellate Body Report, Brazil – Aircraft , para. 132. 
161 Appellate Body Report, US – Upland Cotton , para. 293. 
162 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , paras.  137-138. WT/DS523/ R 
 
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  the majority or a substantial portion of the market for the good". Rather, we consider that , while 
the panel request identifie s the challenged "practice" measures w ith greater specificity, the manner 
in which this was done did not expand the scope or essence of the dispute as these "practice" 
measures were set forth in the request for consultations . Accordingly, we reject the 
United  States'  request to exclude the all eged benefit practice measure from our terms of reference.  
7.95.   We recall that the United  States  has argued that Turkey 's panel requ est adds measures and 
claims  regarding a benefit "practice" that were not the subject of Turkey 's request for 
consultations .163 The United  States  argues that Turkey 's "as such" claim in connection with the 
alleged benefit "practice" must necessarily fall outside the Panel 's terms of reference "[b]ecause [the 
alleged benefit practice measure is] not within the terms of reference".164 The United  States  further 
argues that the issue "is not that Turkey described its claims with respect to the alleged practices 
as 'as such ' claims in its panel request, but that Turkey failed to identify those alleged measures in 
its consultations request alt ogether".165 
7.96.   We thus understand that the basis for the United  States'  argument that Turkey 's "as such" 
claim corresponding to the alleged benefit "practice" is outside our terms of reference, is that the 
alleged benefit practice measure is not within the ter ms of reference. As we have rejected that the 
alleged benefit practice measure is outside our terms of reference, we see no basis in the 
United  States'  request for finding that Turkey 's "as such" claim in connection with the alleged benefit 
"practice" is o utside the Panel 's terms of reference.  
7.97.    We also recall that the "legal basis" for a complaint in a panel request may reasonably evolve 
from the consultations request, so long as the addition of provisions does not have the effect of 
changing the essence of  the complaint.166 In our view,  the basis for Turkey 's "as such" claim against 
the alleged  benefit practice measure reasonably evolved from the description and  reference to 
Articles  1.1(b)  and 14(d) in the section discussing the "Legal Basis of the Complaint " in 
Turkey 's consultations request, as well as reference to " ongoing practices " therein, demonstrating 
that Turkey 's "as such"  claim  in its panel request is clearly connected to its request for consultations.  
7.98.   For the above reasons, we therefore reject the United  States'  request for a ruling that 
Turkey 's challenge to an alleged "practice" in relation to the benchmark determination and its "as 
such" claim with respect to this alleged practice are outside the Pan el's terms of reference.  
7.3.2.2   Whether the Panel should make findings on the benchmark determination in the 
OCTG investiga tion which was successfully challenged in a US domestic court and 
reversed in a remand determination  
7.99.   With respect to Turkey 's Articles  1.1(b ) and 14(d) claims, t he United  States  submits that 
Turkey challenges the benchmark determination in the OCTG Final Determination , which was 
amended and ceased to have legal effect prior to the establishment of the Panel. Therefore, the 
United  States  reques ts the Panel to make a preliminary ruling that this aspect of the OCTG Final 
Determination is outside the Panel 's terms of reference.  
7.100.   The United  States  submits that , as a general rule , the measures included in a panel 's terms 
of reference must be measures that exist at a panel 's establishment .167 The United  States  submits 
that the initial OCTG Final Determination  was successfully challenged before a US domestic court, 
remanded to the USDOC, and reversed by the USDOC in a remand determination at least 15 month s 
prior to the establishment of the Panel.168 Therefore, the United  States  submits that the Panel needs 
to review the benchmark that is set out in the amended OCTG remand determination, and not the 
benchmark in the initial OCTG Final Determination. Notably, the United  States  submits that the 
remand determination no longer relies on out -of-country prices as a benchmark, but instead uses 
in-country prices.169 Accordingly, the United  States  submits that Turkey cannot establish that the 
                                                
163 United  States'  first written submission, para.  21. 
164 United  States'  opening statement at the first meeting of the Panel, para.  6. 
165 United  States'  opening statement at the fir st meeting of the Panel, para.  8. 
166 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para.  138. 
167 United  States'  first written submission, para.  39. 
168 United  States response to Panel question No.  5, para.  27; second written submission, para.  30. 
169 United  States'  first written submission, paras.  43-45 (referring to OCTG Remand Redetermination , 
(Exhibit USA -1), p. 18). WT/DS523/ R 
 
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  initial OCTG final benchmark  determination was impairing benefits accruing to it at the 
Panel 's establishment, and the panel should not make findings on this initial determination.170 
7.101.   Turkey disputes that the initial OCTG Final Determination has ceased to have legal effect for 
two reas ons. First, Turkey observes that the remand determination referred to by the United  States  
was appealed to the US Court of Appeals for the Federal Circuit, and that court only issued its 
decision on 30 May 2017, after Turkey had requested the Panel 's estab lishment. Turkey argues that 
the decision of the US Court of Appeals for the Federal Circuit could have been further appealed to 
the United  States  Supreme Court, leaving open the possibility that the USDOC 's remand 
determination would be reversed and the o riginal benefit determination reinstated.171 Second, 
Turkey argues that the initial OCTG Final Determination continues to have legal effect because it 
reflects the USDOC 's long-standing practice of rejecting in -country benchmarks based on evidence 
of government ownership or control of domestic producers. Accordingly, Turkey submits that a ruling 
from the Panel is necessary to resolve whether the alleged continuing practice is consistent with the 
United  States'  WTO obligations.172 
7.102.   The United  States'  request raises the issue of whether the Panel should make findings on 
the initial OCTG Final Determination when addressing Turkey 's claims under Article  1.1(b) and 
Article  14(d) of the SCM  Agreement . Specifically, we unde rstand that the United  States  has 
requested us to find outside our terms of reference  the benchmark determination in the initial OCTG 
Final Determination in respect of Turkey 's "as applied" claims under Article  1.1(b) and Article  14(d).  
7.103.   WTO panel and Appel late Body jurisprudence indicates that panels have discretion regarding 
whether to make findings in relation to measures that have expired or ceased to have legal effect .173  
7.104.   When deciding whether to make findings on expired measures, panels  have declined to  make 
findings on challenged measures that have expired before panel establishment.174 Panels have also 
considered whether a measure is affecting the operation of any covered  Agreement  or impairing the 
benefits accruing to the requesting Member under a cover ed Agreement175; whether a complainant 
continued to request that the Panel make findings with respect to the measure176; whether an 
expired or repealed measure is likely to be reimposed or reoccur177; and whether the responding 
Member could i mpose duties on good s from the complaining Member in a manner that may give rise 
to certain of the same, or materially similar, WTO inconsistencies that are alleged in th e dispute.178  
7.105.   We see no basis to make findings  on the  benefit determination in the  USDOC 's initial OCTG 
Final Determination  in the context of addressing Turkey 's "as applied" claims in this dispute . We 
agree with the United  States  that the benefit determination in the initial OCTG Final Determination  
ceased to have legal effect under US law following the publication of the amended OCTG Final 
Determination on 10 March 2016. Thus, the initial OCTG Final Determination ceased to have legal 
effect well in advance of the Panel 's establishment on 19 June 2017 .179 We recall that panels may 
                                                
170 United  States'  second written submission, para.  35. 
171 Turkey 's response to the United  States'  request for a preliminary ruling , para. 34. 
172 Turkey 's response to the United  States'  request for a preliminary ruling, para. 35. 
173 Appellate Body Reports, EU – PET (Pakistan) , paras.  5.1-5.61; EC – Bananas III (Article  21.5 – 
Ecuador II) / EC – Bananas III (Article  21.5 – US), para. 270; and China – Raw Materials , para. 263; and Panel 
Reports, US – Poultry (China) , para. 7.54; EC – IT Products , para. 7.165.  
174 Panel Reports, US – Gasoline , DSR 1996:I, p.  76, para.  6.19; Argentina – Textiles and Apparel , 
paras.  6.4 and 6.12-6.13. Panels  have also considered measures that expired after panel establishment. ( Panel 
Reports, Dominican Republic – Import and Sale of Cigarettes , para. 7.343; Indonesia – Autos , para. 14.9; 
China – Electronic Payment Services , para. 7.227; and EC – Approval and M arketing of Biotech Products , 
paras.  7.1307 -7.1308 ). 
175 Appellate Body Report, US – Upland Cotton , para. 263; Panel Report, US – Upland Cotton , 
para. 7.118.  
176 Panel Reports, US – Wool Shirts and Blouses , DSR 1997:I, p. 425, para.  6.2; Indonesia – Autos , 
paras.  14.134 -14.135; and Dominican Republic – Import and Sale of Cigarettes , para. 7.343. See also 
Appellate Body Report, Peru – Agricultural Products , paras.  5.18-5.19. 
177 Panel Reports, US – Gasoline , DSR 1996:I, p.  76, para.  6.19; Argentina – Textiles a nd Apparel , 
para. 6.14; India – Additional Import Duties , paras.  7.69-7.70; US – Poultry (China) , para. 7.55; EC – IT 
Products , para. 7.1159; China – Electronic Payment Services , para. 7.227; and EC – Approval and Marketing of 
Biotech Products , para. 7.131 0. 
178 Panel Report, EU – PET (Pakistan) , para. 7.13. 
179 DSB, Minutes of Meeting held on 19 June 2017 , WT/DSB/M/398.  WT/DS523/ R 
 
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  exercise discretion on whether to make findings regarding  expired  measures , particularly with 
respect to measures that expired before  panel establishment.180 
7.106.   In addition, the benchmark used in the amended benefit determination is  based on 
in-country prices, which is at odds with Turkey 's argument that the United  States  acted 
inconsistently with Articles  1.1(b) and 14(d)  in the OCTG  investigation because it relied on 
out-of-country benchmarks to determine whether HRS was provided t o Turkish respondents 
for LTAR.181 As the amended Final Determination  that replaces the initial Final Determination  is 
based on in-country benchmarks, w e do not need  to make "as applied" findings on the 
WTO consistency of the initial benefit determination to  resolve the dispute . Tellingly, Turkey has not 
raised any Article  1.1(b) and Article  14(d)  claim against the amended OCTG benefit determination 
that replaced the initial benchmark and benefit determinations.  
7.107.   In reaching this decision, we also agree with the United  States  that potential subsequent US 
domestic litigation or a risk that the USDOC  would revert to using the out -of-country benchmark, 
should not factor into our assessment of whether to make "as appli ed" findings on the initial OCTG 
Final Determination. First, the mere potential for a subsequent appeal to the United  States  Supreme 
Court does not alter the fact that the initial OCTG Final Determination was replaced under US law 
and ceased to have legal effect.182 Moreover, that any potential subsequent legal action might have 
allowed the USDOC to further amend the duty rates or alter the legal basis of those rates does not 
mean that the initial OCTG Final Determination continued to have legal effect.183 
7.108.   Turkey cites the Appellate Body 's statement in US – Upland Cotton  in support of its argument 
that a panel should rule on measures that expire prior to the establishment of a panel.184 
Turkey 's argument is misplaced. In that case, the complainant had challenged a measure whose 
legislative basis ha d expired prior to a panel 's establishment, but whose effects were alleged to be 
impairing the benefits accruing to the requesting Member under a covered  Agreement  at the 
establishment of the panel .185 As noted above, the c ircumstances in this dispute are different, as the 
amended Final Determination  that supersedes and replaces the initial Final Determination , is based 
on in-country benchmarks, thereby reverting from relying on out -of-country prices and eliminating 
                                                
180 Panel Reports,  US – Gasoline , para. 6.19; Argentina – Textiles and Apparel , paras.  6.4 
and 6.12-6.13. 
181 On remand, the USDOC re -examined whether in -country prices could be used as a benchmark for 
LTAR, and issued the OCTG final remand determination on 31 August 2015, in which it reversed its 
determination and used in -country prices as a benchmark for determining whether HRS was provided to 
Turkish respondents for LTAR. Specifically, the USDOC concluded:  
[W]e are reversing our determination that actual transaction prices in Turkey are not appropriate 
to use as a benchmark for the HRS purchased by respondents during the POI. Accordingly, we fi nd 
that HRS prices stemming from transactions within Turkey – including domestic purchases and 
imports into the country ( i.e., tier one prices ) – may be considered appropriate, pursuant to the 
statutory and regulatory requirements, to use as benchmarks fo r the purposes of this remand 
redetermination. On this basis, we have recalculated the benefit to the [Turkish respondents] from 
their purchases of HRS produced by Erdemir and Isdemir.  
(OCTG Remand Redetermination , (Exhibit USA -1), p. 18 (fn omitted )) 
182 United  States'  opening statement at the first meeting of the Panel, para. 26. The United  States  notes 
that once the amended determination was issued, it changed the subsequent rates calculated for investigated 
producers and served as the legal basis for th e collection of cash deposits on entries. As a result, producer  
Toscelik 's subsidy rate was reduced to de minimis  and the USDOC ceased collecting cash deposits on that 
company 's entries prior to establishment.  (Ibid.).  
183 We also agree with the United  State s that, if a complainant was allowed to argue that a potential 
domestic legal challenge might give rise to a WTO inconsistency at some point in the future, it would mean 
that a complainant could equally challenge a measure in which no inconsistency was ide ntified or claimed, 
based on the possibility that a domestic legal challenge might result in an inconsistency at some future point in 
time. ( United  States'  opening statement at the first meeting of the Panel, para.  26). 
184 Turkey's  response to the United  States' request for a preliminary ruling, paras.  12-13 (referring to 
Appellate Body Reports, US – Upland Cotton , para.  263; and EC – Selected Customs Matters , para.  184).  
185 Appellate Body Report, US – Upland Cotton , para. 270 ("[Articles  3.3 and 4.2 of the D SU] do not 
preclude a Member from making representations with respect to measures whose legislative basis has expired, 
if that Member considers, with reason, that benefits accruing to it under the covered  Agreements are still being 
impaired by those measur es.") T he panel in US – Upland Cotton  was asked to consider whether payments 
which had been made in the past under legislation that no longer existed at the time of establishment were 
within the panel 's terms of reference. The panel found the pa yments were  within its terms of reference and the 
Appellate Body found no error in the panel's  finding. (Ibid.  paras.  250-266; Panel Report, US – Upland Cotton , 
paras.  7.104 -7.122; s ee also Appellate Body Report, EC – Selected Customs Matters , para. 184 (discussing 
US – Upland Cotton )). WT/DS523/ R 
 
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  the cond uct alleged by Turkey to be inconsistent with Articles  1.1(b) and 14(d) of the 
SCM Agreement . 
7.109.   Turkey also cites the Panel  Report in Turkey – Rice and the Appellate Body Report in  China 
– Raw Materials  in arguing that panels may make findings on measures which expired but for which 
the underlying legislative framework remained in force.186 First, unlike the facts before us, both of 
those cases concerned measures that had expired after a panel 's establishm ent and the issues did 
not arise as to whether those measures were within the panel 's terms of reference.187 Even so, 
Turkey has not challenged here the basic legislative framework and implementing regulations on 
calculating benchmarks for determining the ad equacy of remuneration.188 
7.110.   Finally, Turkey argues that a finding regarding its "as applied" claim with respect to the 
USDOC 's benefit determination in the OCTG investigation would differ from a finding regarding its 
"as such" claim because such a finding would be based on the USDOC 's reasoning and evaluation of 
the facts in that instance. Thus, Turkey argues that "even if [the] Panel finds the USDOC 's practice 
is not 'as such ' inconsistent with Articles  1.1(b) and 14(d) of the SCM  Agreement , it may nonethe less 
find the practice as applied in the OCTG investigation to be inconsistent with those obligations".189 
Turkey submits that such a finding would resolve the dispute by affirming that the 
USDOC 's application of a continuing practice was inconsistent with Articles  1.1(b) and 14(d). Turkey 
considers this would "provid[e] guidance for benefit determinations in future segments of the same 
proceeding, i.e., administrative or sunset reviews, or other countervailing proceedings involving the 
alleged provision of h ot rolled steel by the [GOT]".190 
7.111.   In this sense, we understand that Turkey considers that the initial OCTG Final Determination 
continues to have legal effect because it reflects the USDOC 's alleged practice of rejecting in -country 
benchmarks.191 As an initial matter, Turkey conflates the notion of the existence of a "practice"  with 
whether a USDOC co untervailing duty determination that was superseded by an amended 
determination continues to have legal effect under US law. As explained above, we disagree with 
Turkey that the initial OCTG Final Determination  continues to have legal effect under US law following 
the publication of the amended OCTG Final Determination. In addition, in making its argument, 
Turkey 's request for an "as applied" finding in respect of th e initial OCTG Final Determination would 
serve as a second opportunity to challenge an alleged "practice". We disagree with Turkey that such 
an "as applied" finding would differ from a finding regarding Turkey 's "as such" claim. The reason 
Turkey gives for  requesting an "as applied" finding, i.e. providing guidance for future benefit 
determinations in the same proceeding, is precisely the reason why complaining WTO Members bring 
"as such" challenges against another Member 's laws, practice or ongoing conduct : to seek to prevent 
that Member from continuing to apply the offending law or conduct in the future. "As such" 
challenges by a Member also avoid the need to bring further "as applied" challenges in the future. 
Therefore, we are not persuaded that we shoul d rule on the USDOC 's initial OCTG Final 
Determination  in the context of addressing Turkey 's "as applied" claims under Article  1.1(b) and 
Article  14(d) . 
7.112.   For the foregoing reasons, we decline to rule on the USDOC 's initial OCTG final  benefit  
determination i n the context of addressing Turkey 's "as applied" claims under Article  1.1(b) and 
                                                
186 Turkey's  response to the United  States'  request for a preliminary ruling, para.  14 (referring to Panel  
Report,  Turkey – Rice, para.  5.29; and Appellate Body Reports,  China – Raw Materials , para.  264).  
187 Panel Report, Turkey – Rice, para. 5.29; Appellate Body Report,  China – Raw Materials , para.  254. 
188 Turkey's  first written submission, para.  176: 
The USDOC 's regulation on calculating benchmarks for determining the adequacy of remuneration, 
19 CFR 351.511(a)(2), establishes a hierarch y of potential benchmarks, referred to as "tiers," and 
properly specifies that the "preferred benchmark in the hierarchy is an observed market price from 
actual transactions within the country under investigation, " referred to as the "tier one " benchmark 
or prices. The regulation, on its face, is consistent with the Appellate Body 's interpretation of 
Article  14(d), as enunciated in US – Anti-Dumping and Countervailing Duties (China) [.] 
Moreover, as the United  States  notes, Turkey itself appears to acknowled ge that  the text of the Preamble to 
19 CFR 351.511 does  not indicate the existence of a practice of systematically rejecting in -country prices. 
(Ibid. para.  179 ("[t] he Preamble suggests that the USDOC would conduct an investigation of whether 'actual 
transaction prices are significantly distorted, ' prior to rejecting in -country market prices and resorting to an 
alternative benchmark. ")) 
189 Turkey's  response to Panel question No.  6, para.  21. 
190 Turkey's  response to Panel question No.  6, para.  21. 
191 Turkey 's response to the United  States'  request for a preliminary ruling, para. 35. WT/DS523/ R 
 
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  Article  14(d)  of the SCM  Agreement , as we do not consider that findings would aid in providing a 
positive resolution to the dispute.  
7.3.3   The Panel 's evaluation of Turkey 's "as such" challenge under  Article  14(d) of the 
SCM Agreement  
7.113.   Under Article  14(d) of the SCM  Agreement , a subsidy in the form of a provision of goods or 
services is deemed to confer a benefit to the recipient, within the meaning of Article  1.1(b), if it is 
"mad e for less than adequate remuneration".192 Article  14(d) provides that "[t]he adequacy of 
remuneration shall be determined in relation to prevailing market conditions for the good or service 
in question in the country of provision".193 
7.114.   In making its "as such" claim that the United  States  acted inconsistently with Article  14(d), 
Turkey argues that the USDOC "has a practice, in assessing whether a good is provided for less than 
adequate remuneration thereby conferring a benefit, of rejecting in -country prices as a benchmark 
based solely on evidence that the government owns or controls the majority or a substantial portion 
of the market for the good, with no consideration of whether in -country prices are distorted".194 
Turkey argues that "this practice has been artic ulated and applied systematically by the USDOC in 
both prior and subsequent countervailing duty proceedings, and thus should be considered a rule of 
'general and prospective application ' subject to challenge … 'as such ' … in this proceeding."195 
7.115.   Turkey argue s that the Appellate Body has clarified that the relevant inquiry for selecting a 
proper benchmark under Article  14(d) is whether or not certain in -country prices are distorted, 
rather than whether such prices originate from a particular source (e.g. gover nment -owned 
entities).196 Moreover, Turkey argues that the Appellate Body has explained that a finding of 
government ownership and control of certain entities alone cannot serve as the sole basis for 
establishing price distortion.197 Thus, Turkey argues that a n investigating authority may not reject 
in-country prices based solely on evidence of substantial government ownership or control of 
domestic suppliers, with no consideration of whether those prices are in fact distorted.198 
Accordingly, Turkey claims that the USDOC 's practice  is therefore inconsistent "as such" with the 
Appellate Body 's interpretation of Article  14(d).  
7.116.   At the outset, we observe that Turkey does not challenge the consistency "as such"  of the 
United  States'  laws or regulations concerning calc ulating benchmarks for determining the adequacy 
for remuneration199, but instead asserts that the USDOC has a practice which constitutes a rule or 
norm of general and prospective application. In light of this, we will consider below whether Turkey 
has establ ished the existence of such a practice as a rule or norm of general and prospective 
application. If we find that Turkey has established the existence of such a practice, we will then 
evaluate whether such a practice is incompatible with the requirements of  Article  14(d).  
7.117.   The Appellate Body has explained that any act or omission attributable to a WTO Member 
may be challenged in dispute settlement proceedings.200 The specific measure at issue, whether it 
is written or unwritten, and how it is described, charact erized, and challenged by a complainant, will 
                                                
192 Article  14(d) of the SCM  Agreement.  
193 Article  14(d) of the SCM  Agreement.  
194 Turkey's  first written submission, para.  172. 
195 Turkey's  first written submission, para.  175. 
196 Turkey' s first written submission, para.  180 (referring to Appellate Body Report, US – Countervailing 
Measures (China) , para.  4.105); second written submission, para.  80. See also Appellate Body Report, US – 
Softwood Lumber IV , para.  90 ("investigating authoritie s may use a benchmark other than private prices in the 
country of provision under Article  14(d), if it is first established that private prices in that country are distorted 
because of the government's  predominant role in providing those goods.")  
197 Turkey' s first written submission, para.  180 (referring to Appellate Body Report, US – Countervailing 
Measures (China) , para.  4.105); second written submission, para.  80. 
198 Turkey's  second written submission, para.  80. 
199 We recall, as explained in fn  188 above, that Turkey acknowledges that regulation 19 CFR 
351.511(a)(2) , which establishes a hierarchy of potential benchmarks  for determining the adequacy of 
remuneration, o n its face, is consistent with the Appellate Body 's interpretation of Article  14(d), as enunciated 
in US – Anti-Dumping and Countervailing Duties (China) . 
200 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.122; US – 
Corrosion -Resistant Steel Sunset Review , para.  82. See also Appellate Body Reports, Guatemala – Cement I , 
fn 47; EC and certain member States – Large Civil Aircraft , para. 794; and Argentina – Import Measures , 
paras.  5.106 and 5.109.  WT/DS523/ R 
 
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  inform the kind of evidence a complainant is required to submit and the elements that it must prove 
in order to establish the existence of the challenged measure.201 
7.118.   In challenging a rule or norm of general and p rospective application, a Member must 
demonstrate (a) that the alleged rule or norm is attributable to the responding Member; (b) the 
precise content of the alleged rule or norm; and (c) that the alleged rule or norm has general and 
prospective application .202 A rule or norm has "general" application when it affects an unidentified 
number of economic operators.203 Lastly, a rule or norm has "prospective" application "to the extent 
that it applies in the future".204 In this regard, complainants are not required to  show with "certainty" 
that a measure will continue to apply in the future.205 However, when prospective application is not 
sufficiently clear from the constitutive elements of the rule or norm, it may be demonstrated through 
a number of factors, including : the existence of an underlying policy that the rule or norm 
implements; proof of systematic application of the challenged rule or norm; the extent to which the 
rule or norm provides administrative guidance for future conduct; and the expectations it create s 
among economic operators that the rule or norm will be applied in the future.206 The examination of 
whether a rule or norm has general and prospective application may vary from case to case and 
other factors may also be relevant.207 
7.119.   When an "as such" challen ge concerns an unwritten measure – as in the present dispute – 
the complaining party must reach a "high [evidentiary] threshold".208 Thus, "a panel must not lightly 
assume the existence of a 'rule or norm ' constituting a measure of general and prospective 
application, especially when it is not expressed in the form of a written document".209  
7.120.   We note that, in prior disputes, complainants have submitted both documentary evidence 
as well as extensive evidence of instances of systematic application, to demonstrate  the existence 
of unwritten measures that have general and prospective application.210In its first written 
submission, Turkey submitted relatively limited evidence in support of its claim, consisting of (a) a 
single statement in the  Final Issues and Decision  Memorandum issued in the OCTG investigation at 
issue in this dispute concerning the benchmark determination211; (b) the preliminary CVD 
determination in the CWP proceeding at issue in this dispute212; and (c)  a reference to three 
preliminary affirmative count ervailing duty determinations involving Chinese imports.213 
                                                
201 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.123; Argentina – Import 
Measures , paras.  5.108 and 5.110.  
202 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.127 ("[w]hen an 
unwritten rule or norm is challenged 'as such', a complainant wi ll be required to adduce arguments and 
supporting evidence to demonstrate the precise content, attribution, and general and prospective nature of the 
rule or norm"); US – Zeroing (EC) , para.  198; and Argentina – Import Measures , para.  5.104.  
203 Appellate Bo dy Report, US – Anti-Dumping Methodologies (China) , para.  5.130 (referring to 
Appellate Body Reports, US – Underwear , p. 21, DSR 1997:I, p.  29; and EC – Poultry , para.  113, in turn 
quoting Panel Report, US – Underwear , para.  7.65).  
204 Appellate Body Report,  US – Anti-Dumping Methodologies (China) , para.  5.157 (referring to 
Appellate Body Reports, US – Oil Country Tubular Goods Sunset Reviews , paras.  172 and 187; and US – 
Corrosion -Resistant Steel Sunset Review , para.  82). 
205 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132.  
206 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132. See also 
Appellate  Body Reports, US – Zeroing (EC) , paras.  198, 201, and 204 -205; and US ‒ Zeroing (Japan) , 
paras.  85 and 88 (quoting  Panel Report s, US – Zeroing (Japan) , para.  7.52; and US – Oil Country Tubular 
Goods Sunset Reviews , para. 187). 
207 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.133.  
208 Appellate Body Reports, US – Anti-Dumping Methodologies (China ), para.  5.157; US – Zeroing (EC) , 
para. 198. 
209 Appellate Body Report, US – Zeroing (EC) , para.  196. 
210 See, for instance , Appellate Body Reports, US – Anti-Dumping Methodologies (China) , paras.  5.132  
and 5.157 ; US – Zeroing (EC) , para. 198; Argentina – Import Measures , para. 5.117;  and US – Zeroing 
(Japan) , paras.  81-88. 
211 Turkey's  first written submission, para.  177. 
212 Turkey's  first written submission, para.  179 and fn  437. 
213 Turkey 's first written submission, para. 179 and fn 437 (referring to  Preliminary AD/CVD 
Determination on Certain Steel Wheels from China ; Preliminary AD/CVD Determination on Circular Welded 
Austenitic Stainless Pressure Pipe from China ; and Preliminary CVD Determination on Circular Welded Carbon 
Quality Steel Line Pipe from  China) . WT/DS523/ R 
 
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  7.121.   The United  States  considers that the evidence on which Turkey relies is "patently 
insufficient"214 to support the existence of an unwritten measure and "in no way reflects proof of 
systemic applicatio n" or "a 'practice ' at the time of the Panel 's establishment".215  
7.122.   Following the first meeting with the parties, the Panel submitted a written question asking 
Turkey to explain how the evidence that Turkey has presented  shows the existence of a practice, 
particularly considering that the USDOC amended its determination in the OCTG investigation .216 In 
response, Turkey submitted that "the USDOC 's exercise of discretion to depart from its normal 
practice of rejecting in -country prices … does not establish that th e USDOC 's practice is not ongoing", 
noting also that "the USDOC only departed from its normal practice following the adverse USCIT 
ruling in the OCTG investigation, and it did so under protest".217 In addition, Turkey took the 
opportunity to submit 28 "examp les" of countervailing proceedings in which the USD OC has applied 
its alleged practice on a systematic basis, including examples "which post -date the 
[US]CIT 's April 2015 ruling remanding the USDOC 's determination in the OCTG investigation".218  
7.123.   The United  States  has objected to us considering any of the examples provided in 
Turkey 's response, on the ground that the evidence is untimely and contrary to the Panel 's Working 
Procedures.219 The United  States  argues that Turkey should have presented evidence  in its first 
written submission or even at the first meeting, but having failed to do so, Turkey should not be 
permitted to make its case at a subsequent stage.220 In response to questions from the Panel 
following the first meeting  asking the United  States  for examples , the United  States  also submitted 
three examples in which it argues that the USDOC considered additional  evidence of market 
distortion s after determining that the government constitute d the majority of the market for a good, 
in analysing wheth er in-country prices could be used as benchmarks .221  
7.124.   In our view, the evidence that Turkey refers to in its first written submission, and other 
evidence cited by Turkey and the United  States  does not demonstrate that the USDOC systematically 
bases its decis ion to rely on in -country, or out -of-country, prices exclusively on evidence as to 
whether the government owns or controls the majority or a substantial portion of the market.  
Accordingly,  we consider that Turkey has failed to establish the existence of a practice in support of 
its claim that the USDOC systematically "reject[s] in -country prices as a benchmark based solely on 
evidence that the government owns or controls the majority or a substantial portion of the market 
for the good, with no consideration  of whether in -country prices are distorted".222 
7.125.   We find most troubling Turkey 's selective citation  in its first written submission  to the 
USDOC 's benefit determination in the Final Issues and Decision Memorandum in the 
OCTG  investigation, as follows :  
Notwi thstanding the regulatory preference [in 19 CFR 351.511(a)(2)] for the use of 
prices stemming from actual transactions in the country, where the Department finds 
that the government owns or controls the majority or a substantial portion of the market 
for the good or service, the Department will consider such prices to be significantly 
                                                
214 United  States'  first written submission, para.  58. 
215 United  States'  first written submission, para.  69. 
216 Panel question No.  34 to Turkey.  
217 Turkey's  response to Panel question No.  34, para.  69. 
218 Turkey's  response to Panel question No.  34, para . 69. 
219 United  States'  second written submission, para.  52. We recall that paragraph 7 of our Working 
Procedures requires that "[e]ach party shall submit all evidence to the Panel no later than during the first 
substantive meeting, except with respect to e vidence necessary for purpose of rebuttal, answers to questions 
or comments on answers provided by the other party."  
220 In addition, the United  States argues that Turkey also fails to explain how the newly submitted 
evidence establishes that the USDOC had a  practice at the time of the Panel's  establishment that demonstrates 
the existence of a rule or norm of general and prospective application. The United  States submits that Turkey 
merely lists the title of 28 determinations taking place both before and afte r the OCTG investigation, and does 
not identify which parts of the subsidy programme analyses are alleged to support its claim. The United  States 
argues that a panel should not make an affirmative case for a party through its own review of evidence. 
(Unite d States'  second written submission, para.  53). 
221 United  States'  response to Panel question Nos. 35 and 37 (referring to Final Determination 
Memorandum on cold-rolled steel from Russia,  (Exhibit USA -37), p.  54; Expedited Review Memorandum on 
supercalendere d paper from Canada , (Exhibit USA -38), p.  49; and Final Determination Memorandum on truck 
and bus tires  from China , (Exhibit USA -36), pp. 19 and 44 ). 
222 Turkey's  first written submission, para.  172. WT/DS523/ R 
 
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  distorted and not an appropriate basis of comparison for determining whether there is 
a benefit.223 
7.126.   We recall, as discussed in Section 7.3.2.2  above, that the initial OCTG final benchmark 
determination was successfully challenged in a US domestic court by Turkish respondents, remanded 
to the USDOC and reversed by the USDOC in an amended d etermination that was published 
approximately 15 months prior to the establishment of the Panel. In the amended final OCTG 
determination, the USDOC reversed its decision to base its benchmark on out -of-country prices and 
relied on in -country prices for its  amended benchmark.224 In its amended determination, the USDOC 
explained as follows:  
[W]e are reversing our determination that actual transaction prices in Turkey are not 
appropriate to use as a benchmark for the HRS purchased by respondents during the 
POI. Accordingly, we find that HRS prices stemming from transactions within Turkey – 
including domestic purchases and imports into the country ( i.e., tier one prices) – may 
be considered appropriate, pursuant to the statutory and regulatory requirements, to 
use as benchmarks for the purposes of this remand redetermination. On this basis, we 
have recalculated the benefit to [the Turkish respondents] from their purchases of HRS 
produced by Erdemir and Isdemir.225 
7.127.   Initially, Turkey did not refer to the amended  OCTG F inal Determination in connection with 
its Articles  1.1(b) and 14(d) claims. Turkey has explained that  the USDOC only revised its 
determination "under protest" and at the direction of a US domestic court226 and considers that the 
reaction of the USDOC to the ruling confirm s the existence of a practice. Therefore, Turkey does not 
consider that the USDOC 's decision to deviate from its earlier determination should prevent the Panel 
from finding the existence of a practice of general and prospective application. Turkey also cites  the 
Appellate Body  in EU – Biodiesel (Argentina) , arguing  that the fact that a Member may at times 
exercise discretion does not preclude  a panel from finding that  a measure violates certain 
WTO obligations "as such".227 
7.128.   First, we do not cons ider that Turkey 's citation to the Appellate Body 's Report in EU – 
Biodiesel (Argentina)  is relevant to our assessment. In that disput e, the Appellate Body 
discussed  panel and Appellate Body findings in past cases addressi ng discretionary aspects of 
WTO Members ' municipal laws subject to  "as such"  challenges.228 The Appellate Body did not, 
however, address the evidentiary burden relevant to the examination of an alleged unwritten 
measure as a  rule or norm that has general and prospective application . In this dispute, we must 
assess whether Turkey has met its burden to demonstrate the existence of  the alleged challenged 
practice.  
7.129.   While Turkey considers relevant that the USDOC revised its determination "under protest" , 
the evidence before us suggests th at the OCTG remand  decision has influenced subsequent 
benchmark determinations, at least on certain occasions. For instance, in the subsequent CWP 2013 
Final Determination Memorandum, the USDOC found that "the record of this review does not contain 
evidenc e of the GOT 's direct or indirect involvement resulting in distortion of the Turkish HRS market 
during the POR sufficient to warrant using an out -of-country benchmark."229 The USDOC explained:  
For example, the record does not contain evidence of GOT export r estraints on HRS and 
the share of imports into the domestic market is higher than in certain past cases where 
                                                
223 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p.  23. 
224 See para.  7.100  above. See also United  States'  first written submission, paras.  43-45 (referring  to 
OCTG Remand Redetermination , (Exhibit USA -1), p. 18). 
225 OCTG Remand Redetermination , (Exhibit USA -1), p. 18. (fn omitted)  
226 Turkey's  second written submission, para.  88. 
227 Turkey's  second written submission, para.  88 (referring to Appellate Body Report, EU – Biodiesel 
(Argentina) , para.  6.229). In respon se to a question from the Panel, Turkey submits that it is possible for a 
measure to be applied "systematically" even if it is applied in "almost" all circumstances. Thus, Turkey argues 
that the discretionary nature of the USDOC 's benefit practice does not  detract from its systematic application. 
(Turkey 's response to Panel question No. 84, para. 19). 
228 Appellate Body Report, EU – Biodiesel (Argentina) , para.  6.229 (referring to Appellate Body Report s, 
US – 1916 Act , fn 59; US – Corrosion -Resistant Steel Sunset Review , para. 100; and  US – Carbon Steel , 
para. 162; and Panel Report, US – Section 301 Trade Act , paras.  7.53-7.54). 
229 CWP CVD Final Determination Memorandum , (Exhibit  TUR-240), pp.  18-20. WT/DS523/ R 
 
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  the Department pointed to low import levels as relevant information in rejecting tier 
one prices. The record information regarding any policies th at the GOT may have with 
respect to the steel industry does not indicate that the GOT 's pursuit of those policies 
results in a significant distortion of the Turkish HRS market. There is no indication 
otherwise that government involvement significantly dist orts this market. Thus, the 
record of this investigation is absent additional facts present in other cases in which the 
agency found government distortion even where record evidence did not show that 
government -controlled producers accounted for a majority  of the market for the 
good.230 
7.130.   Consequently, the USDOC concluded that it would use " the Borusan Companies ' actual 
domestic and import prices for HRS to calculate the benefit from the Borusan Companies ' purchases 
of HRS from Erdemir and Isdemir during the PO R".231 In our review of the Final Determinations in 
the WLP and HWRP proceedings at issue in this dispute, the USDOC similarly found that record 
evidence did not support a finding that the Turkish HRS market was so distorted that it cannot serve 
as an approp riate benchmark, despite the fact that Erdemir 's and Isdemir 's production accounted 
for a substantial portion of the domestic supply.232 
7.131.   Outside of the proceedings at issue in this dispute, other examples submitted by both parties 
confirm that the USDOC does  not systematically reject in -country prices as a benchmark based 
solely on evidence that the government owns or controls the majority or a substantial portion of the 
market for the good, without considering other evidence of whether in -country prices are distorted. 
For instance, in certain cases, the USDOC considered government export restraints (e.g. export 
tariffs) and import levels, in addition to the level of government involvement in the market.233 In at 
least one instance, the USDOC declined to resort to out -of-country prices as benchmarks for its 
benefit analysis even in presence of a substantial level of control on the production of the product 
concerned by the government.234  
7.132.   Turkey argues that, while the USDOC may in certain cases refer to factors beyond the level 
of government involvement in the market, such as the level of import penetration, the USDOC does 
not analyse these factors in the context of a market analysis or otherwise use it to determine if 
prices are in fact distorted because of gove rnment ownership or control.235 Regardless of how the 
USDOC may evaluate other factors, we disagree with Turkey 's contention that consideration of such 
                                                
230 CWP CVD Final Determination Memorandum , (Exhibit TUR-240), pp. 18-20. (fns  omitted)  
231 CWP CVD Final Determination Memorandum , (Exhibit TUR-240), pp.  18-20. 
232 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p.  16; HWRP CVD Final 
Determination Memorandum , (Exhibit TUR -46), p. 13. 
233 Preliminary AD/CVD De termination  on certain kitchen appliance shelving and racks  from China,  
(Exhibit TUR -140), p.  690 (the USDOC found that a 10% export tariff on wire rod was imposed during the POI 
and that the share of imports of wire rod into the PRC was small (1.53%) relative to Chinese domestic 
production of wire rod); Preliminary CVD Determination  on aluminium extrusions from China,  (Exhibit 
TUR-146), p.  54318  (the USDOC found that the Government of China  has imposed export tariffs on certain 
categories of primary aluminium); Final Determination CVD Memorandum on  certain coated paper  from China,  
(Exhibit  TUR-147), p.  22 (imports  of the product concerned as a share of domestic consumption were 
insignificant); Preliminary CVD Memorandum on certain tool chests and cabinets from China , (Exhibit 
TUR-164), p. 30 (the volume of imports as a percentage of domesti c production and consumption (1.20% and 
1.34%, respectively, for wide strip and 1.37% and 1.35%, respectively, for thin strip) was insignificant);  Final 
Determination Memorandum on cold-rolled steel from Russia,  (Exhibit USA -37), p p. 54-55 (considering, fo r 
instance, the presence of export restrictions (e. g. tariffs, licensing)  and the lack of natural gas imports); 
Expedited Review Memorandum on s upercalendered paper from Canada , (Exhibit USA -38), p. 49 (evidence 
indicated that the government 's long-mainta ined export restrictions on log and wood residue, leading to price 
suppression and market distortions in British Columbia).  
234 Preliminary CVD Memorandum on certain new pneumatic off -the-road tires from China , 
(Exhibit  TUR-162), p. 24 (in view of the significant level of imports of rubber (approximately 50% of the total 
consumption), the USDOC resorted to actual import prices as the basis for the calculation of a tier 1 
benchmark). Turkey has referred to the 2013 US judicial decision , Guangdong Wireking Housewares & 
Hardware Co., Ltd. v. United  States  in response to a separate question from the Panel. In its response, Turkey 
has itself acknowledged that the USDOC took into account "a number of factors indicating the substantial 
influe nce the [ Government of China ] held over the wire rod market, including the [ Government of 
China ]'s near-majority market share, the low market share of wire rod imports, and regulations on the 
exportation of wire rod". (Turkey's  response to Panel question N o. 36, para.  71 (quoting US Court of 
International Trade, Guangdong v. United  States,  (Exhibit  TUR-165))).  
235 Turkey's  response to Panel question No.  83, paras.  14 and 16 -17; see also  second written 
submission, fn 179. WT/DS523/ R 
 
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  factors does not detract from the existence of the alleged practice. To the extent that the USDOC 
consider s additional evidence in assessing the degree of distortion present in the market, as reflected 
in several examples before us, the USDOC cannot be said to have rejected in -country prices as a 
benchmark based solely on evidence that the government owns or c ontrols the majority or a 
substantial portion of the market for the good.  
7.133.   We recall that Turkey has referred to excerpts from three preliminary determinations 
involving Chinese products that pre -date the USDOC 's CVD determinations challenged in this 
disput e: Certain Steel Wheels fro m China, Circular Welded Austenitic Stainless Pressure Pipe from 
China, and Circular Welded Carbon Quality Steel Line Pipe from China.236 In each of these 
determinations, the USDOC determined that private prices in China are signif icantly distorted  based 
on a finding of "overwhelming involvement" by the Chinese government in the market.237 Turkey 
has also identified examples in response to questioning from the Panel in which the USDOC rejected 
in-country prices as a benchmark based solely on evidence that the government owns or controls 
the majority or a substantial portion of the market for the good, without considering other 
evidence.238 We do not consider that three preliminary determinations involving Chinese products 
and certain e xamples identified in response to questioning are sufficient evidence to demonstrate a 
systematic practice, particularly in consideration of other evidence contradicting the existence of 
such a practice. In this respect, we recall the "high [evidentiary] t hreshold"239 that applies in proving 
the existence of an unwritten rule or norm that is alleged to have general and prospective 
application.  
7.134.   Based on the foregoing , we thus find that Turkey has failed to establish that the USDOC "has 
a practice, in assessin g whether a good is provided for less than adequate remuneration thereby 
conferring a benefit, of rejecting in -country prices as a benchmark based solely on evidence that the 
government owns or controls the majority or a substantial portion of the market f or the good, with 
no consideration of whether in -country prices are distorted".240 Accordingly, we find that Turkey has 
failed to demonstrate that the United  States  has acted inconsistently "as such" with Article  14(d) of 
the SCM  Agreement . 
                                                
236 Turkey's  first written submission, f n 437. At the time of filing its first written submission, Turkey did 
not submit this evidence on the record as exhibits. Turkey subsequently provided the Panel with excerpts from 
the cited preliminary USDOC determinations. ( Preliminary AD/CVD Determinatio n on certain steel wheels from 
China,  (Exhibit TUR -149); Preliminary AD/CVD Determination on circular welded austenitic stainless pressure 
pipe from China,  (Exhibit TUR -138); and Preliminary CVD Determination on circular welded carbon quality steel 
line pi pe from China, (Exhibit TUR -139)). 
237 Preliminary AD/CVD Determination on  certain steel wheels  from China , (Exhibit TUR -149), p. 55024  
("we derived the ratio of HRS produced by government entities (SOEs and collectives) during the POI (70.18 
percent). Consequently, because of the government 's overwhelming involvement in the HRS market, the use of 
private producer prices in the PRC would be akin to comparing the benchmark to itself (i.e., such a benchmark 
would reflect the distortions of the government p resence )"); Preliminary AD/CVD Determination on circular 
welded austenitic stainless pressure pipe  from China , (Exhibit TUR -138), p. 39664 ("w e find that SOEs account 
for approximately 82 percent of the stainless steel coil production in the PRC during the  POI (and 
approximately 71 percent of production if available data on import volume are included). Consequently, 
because of the government 's overwhelming involvement in the PRC stainless steel coil market, the use of 
private producer prices in China would be akin to comparing the benchmark to itself . … Even if, arguendo, we 
were to rely on the [Government of China ]'s 71 percent production figure, we would still find that government 
production accounts for a significant portion of the HRS industry, so that i t is reasonable to conclude that 
private prices in China are significantly distorted and therefore unusable as benchmarks" ); Preliminary CVD 
Determination on circular welded carbon quality steel line pipe  from China , (Exhibit TUR -139), p. 52307  ("we 
find that SOEs and collectives account for approximately 60.77 percent of the HRS production in the PRC 
during the POI. Consequently, because of the government 's overwhelming involvement in the HRS market, the 
use of private producer prices in the PRC would be a kin to comparing the benchmark to itself ( i.e., such a 
benchmark would reflect the distortions of the government presence).")  
238 Turkey's  response to Panel question No.  34, para.  69. For example, see Preliminary CVD 
Determination on OCTG from China , (Exhibi t TUR -143), p. 47219; Preliminary AD/CVD Determination on 
certain steel wheels from China , (Exhibit TUR -149), p. 55024; Preliminary AD/CVD Determination on utility 
scale wind towers from China , (Exhibit TUR -152), p. 33434; and Preliminary AD/CVD Determination on drawn 
stainless steel sinks from China , (Exhibit TUR -154), p. 46725.  
239 Appellate Body Reports, US – Anti-Dumping Methodologies (China) , para.  5.157; US – Zeroing (EC) , 
para. 198. 
240 Turkey's  first written submission, para.  172. WT/DS523/ R 
 
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  7.3.4   Conclusions regar ding Turkey 's claims under Articles  1.1(b) and 14(d) of the 
SCM Agreement  
7.135.   For the reasons set out above, we reject the United  States  request for a ruling that 
Turkey 's challenge to an alleged "practice" in relation to the benchmark determination and its "a s 
such" claim with respect to this alleged practice are outside the Panel 's terms of reference. We 
further exercise our discretion and decline to rule on the USDOC 's initial OCTG final  benefit  
determination in the context of addressing Turkey 's "as applied " claims under Article  1.1(b) and 
Article  14(d)  of the SCM  Agreement . We found that the initial OCTG final benefit determination 
ceased to have legal effect under US law prior to the Panel 's establishment following the publication 
of the amended OCTG Final  Determination, and thus, we do not consider that findings would aid in 
providing a positive resolution to the dispute.  
7.136.   In addressing Turkey 's "as such" claim  Article  14(d) , we find that Turkey has failed to 
establish that the USDOC "has a practice, in as sessing whether a good is provided for less than 
adequate remuneration thereby conferring a benefit, of rejecting in -country prices as a benchmark 
based solely on evidence that the government owns or controls the majority or a substantial portion 
of the ma rket for the good, with no consideration of whether in -country prices are distorted". On 
this basis, we reject Turkey 's claim that the United  States  acted inconsistently "as such" with 
Article  14(d) of the SCM  Agreement . 
7.4  Turkey 's claims under Articles  2.1(c) and 2.4 of the SCM  Agreement  in relation to the 
specificity determinations in the  OCTG, WLP, HWRP , and CWP proceedings  
7.4.1   Introduction  
7.137.   Turkey  claims that the USDOC 's de facto  specificity determination s in the OCTG , WLP, and 
HWRP  investigations and the CWP review  are inconsistent with Articles  2.1(c) and 2.4  of the 
SCM Agreement . Turkey  claims, first,  that the USDOC acted inconsistently with Articles  2.1(c) 
and 2.4 by failing  to sufficiently identify or substantiate the ex istence of a "subsidy programme " 
within the meaning of Article  2.1(c) . Second,  the USDOC acted inconsistently with Article  2.1(c) by 
failing  to take into consideration the two mandatory factors in the last sentence of Article  2.1(c), 
i.e. the extent of diversification of economic activi ties, as well as the length of time during which the 
subsidy program me has been in operation.241  
7.138.   In each of the determinations at issue,  the USDOC  determined that the number of industries 
or enterprises using the  so-called  "Provision of HRS  for LTAR"  progra mme was limited and, thus, de 
facto specific under Article  2.1(c). The USDOC based its determination primarily on a questionnaire 
response from the GOT that 8 or 9 industries purchased HRS in Turkey  during the POI. In the 
OCTG  investigation, the USDOC stat ed that : 
Regarding the specificity of HRS for LTAR, the GOT provided a list of the industries that  
purchased HRS in Turkey during the POI.  The GOT identified eight 
industries : Construction,  Automotive, Machinery & Industrial, Electrical Equipment, 
Appliances, Agricultural, Oil & Gas,  and Containers & Packaging. Consistent with past 
determinations, we find that the provision of  HRS is specific pursuant to 
section  771(5A)(D)(iii)(I) of the Act because the number of  industries or enterprises 
using the program is limited.242 
7.139.   The USDOC  replicated its  specificity determination  for the WLP, HWRP , and 
CWP proceedings.243 
7.140.   We will first address the legal standard under Articles  2.1(c) and 2.4 of the SCM  Agreement  
before  addressing Turkey 's claims.  
                                                
241 Turkey's  first written submission, paras.  215, 333, 446 , and 547.  
242 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 22. (fn omitted ) 
243 For the WLP investigation, see WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 15. 
For the HWRP investigation, see HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 12. For 
the CWP review, see Excerpt from CWP CVD Final Determination Memorandum , (Exhibit TUR -22), pp.  9-10. WT/DS523/ R 
 
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  7.4.2   The Panel 's evaluation  of Turkey 's Articles  2.1(c) and 2.4 claims  
7.141.   Article  2.1 of the SCM  Agreement  provides as follows:  
Article  2 
Specificity  
 
2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article  1, 
is specific to an enterprise or industry or group of enterprises or industries (referred to 
in this  Agreement  as "certain enterprises") within the jurisdiction of the granting 
authority , the following principles shall apply:  
… 
 (c) If, notwithstanding any appearance of non -specificity resulting from  the 
application of the principles laid down in subparagraphs (a) and (b), there are reasons 
to believe that the subsidy may in fact be specific, other factors may be considered. 
Such factors are : use of a subsidy programme by a limited number of certain 
enterprises , predominant use by certain enterprises, the granting of disproportionately 
large amounts of subsidy  to certain enterprises, and the manner in which discretion has 
been exercised by the granting authority in the decision to grant a subsidy. In a pplying 
this subparagraph, account shall be taken of the extent of diversification of economic 
activities within the jurisdiction of the granting authority, as well as of the length of time 
during which the subsidy programme has been in operation.244 
7.142.   Article  2.4 of the SCM  Agreement  provides : 
Any determination of specificity under the provisions of this Article  shall be clearly 
substantiated on the basis of positive evidence.  
7.143.   Thus, a subsidy may be de facto  specific notwithstanding the appearance of being de jure 
non-specific in certain cases . For instance,  a finding of de facto  specificity may arise when a subsidy 
is provided under a "subsidy program me" that is used " by a limited number of certain enterprises".   
7.144.   In order to establish de facto  specificity on t his basis, an investigating authority must first 
have established the existence of the relevant "subsidy programme". An investigating authority 
might do this when determining the existence of the relevant subsidy  within the meaning of 
Article  1.1.245 When th is is not the case, the investigating authority must do so at the time of making 
its determination of specificity.  In order to do so , an investigating authority need s to determine that  
subsidies have been provided to recipients pursuant to a plan or scheme  of some kind.246 Moreover , 
in determining whether a subsidy programme  is used by a limited number of enterprises, the last 
sentence of Article  2.1(c) provides that an investigating authority shall take into account the extent 
of diversification of economic activities with the jurisdiction of the granting authority, as well as the 
length of time that the subsidy programme has operated. Thus, an investigating authority is 
obligated to take these two factors  into consideration in its de facto  specificity determination , 
regardless of whether an interested party raises th is issue during the investigation .247 Finally, a n 
investigating authority 's specificity determination is subject to the obligation under Article  2.4 that 
it be c learly substantiated  on the bas is of positive evidence.  
                                                
244 Emphasis added; fn omitted.  
245 Appellate Body Report, US – Countervailing Measures (China) , para.  4.144. In the present case, for 
example, the USDOC might have established that HRS was provided pursuant to the Provision of HRS for 
LTAR Programme when establishing the existence of a financial contribution. Indeed, evidence regarding the 
provision of HRS by the alleged public bodies under such programme may have indicated that such entities 
were pursuing a government policy under the meaningful control of the GOT, and may have been providing 
HRS in a systematic manne r. 
246 Appellate Body Report, US – Countervailing Measures ( China) , para. 4.141. 
247 See, e.g. Panel Report, US – Countervailing Measures ( China) , paras.  7.252 and 7.255.  WT/DS523/ R 
 
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  7.4.2.1   Whether the United  States  established the existence of a "subsidy program me" 
for purposes of Article  2.1(c) of the SCM  Agreement  
7.145.   We recall our finding s at paragraph s 7.51 and 7.62 above that the USDOC 's public body 
determination s regarding Erdemir and Isdemir in the  challenged  proceedings are inconsistent with 
Article  1.1(a)(1) of the SCM  Agreement  because the USDOC fa iled to establish that Erdemir and 
Isdemir possess, exercise, or are vested with governmental authority to perform a government 
function . Since the SCM  Agreement  is concerned only with subsidies provided by a government (in 
either the narrow or broad sense , either directly or through entrustment and direction of a private 
body), the term "subsidy programme" under Article  2.1 (c) necessarily refers to a governmental 
subsidy programme. Accordingly, a lack of governmental function of an entity for the purpose of 
public body analysis likely suggests a lack of a subsidy programme for the purpose of Article  2.1 (c). 
Nevertheless , we consider it useful  to address the parties ' arguments raised directly in relation to 
the issue of whether the USDOC established a "pro gramme", to provide  a more complete analysis 
to resolve  the present dispute.  
7.146.   The parties agree that Article  2.1(c) requires the identification of a "subsidy programme". 
In this regard, both parties248 referred to the Appellate Body 's statement in US – Countervailing 
Measures (China)  regarding the notion of "subsidy programme" in Article  2.1(c) :  
The ordinary meaning of the word "programme" refers to "a plan or scheme of any 
intended proceedings (whether in writing or not); an outline or abstract of some thing 
to be done". The reference to "use of a subsidy programme" suggests that it is relevant 
to consider whether subsidies have been provided to recipients pursuant to a plan or 
scheme of some kind. Evidence regarding the nature and scope of a subsidy pro gramme 
may be found in a wide variety of forms, for instance, in the form of a law, regulation, 
or other official document or act setting out criteria or conditions governing the eligibility 
for a subsidy. A subsidy scheme or plan may also be evidenced by a systematic series 
of actions pursuant to which financial contributions that confer a benefit have been 
provided to certain enterprises. This is so particularly in the context of Article  2.1(c), 
where the inquiry focuses on whether there are reasons to be lieve that a subsidy is, in 
fact, specific, even though there is no explicit limitation of access to the subsidy set out 
in, for example, a law, regulation, or other official document . 
… 
The mere fact that financia l contributions have been provided to cert ain enterprises is 
not sufficient, however, to demonstrate that such contributions have been granted 
pursuant to a plan or scheme for purposes of Article  2.1(c) of the SCM  Agreement . In 
order to establish that the provision of financial contributions const itutes a plan or 
scheme under Article  2.1(c), an investigating authority must have adequate evidence 
of the existence of a systematic  series of actions pursuant to which financial 
contributions that confer a benefit are provided to certain enterprises.249 
7.147.   We agree with the above statement and are  guided by these findings in addressing  
Turkey 's claim.  The issue before  us is essentially a fact ual one : whether the USDOC identified and 
evidenced a "subsidy programme" in the form of the Provision of HRS for LTAR  in each challenged 
proceeding . 
7.148.   Turkey  contends that the USDOC simply based its de facto  specificity determination s on the 
mere fact that the purchasers of HRS in Turkey  are limited in number . In Turkey 's view, the record 
contains neither evidence of a "plan" or "scheme ", nor evidence demonstrating " a system atic series 
of actions " concerning  the Provision of  HRS for LTAR .250  
                                                
248 See, e.g. United  States'  first written submission, para. 224; Turkey's  first written su bmission, 
paras.  59-60; and  Turkey's  second written submission, para.  91. 
249 Appellate Body Report, US – Countervailing Measures ( China) , paras.  4.141 and 4.143 . 
(emphasis  original; fn  omitted)  
250 Turkey's  first written submission, paras.  215-217, 334 -335, 447-448, and 548 -549; second written 
submission , paras.  91 and 106 . WT/DS523/ R 
 
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  7.149.   The United  States  argues  that in each of the challenged  proceedings  the USDOC  identified 
the subsidy programme at issue, i.e.  the Provision of  HRS for LTAR , in the form of "plan or scheme " 
through a systematic series of actions. The United  States  contends  that the existence of the Provision 
of HRS for LTAR as a "subsidy programme"  was first alleged by the petitioners in their petiti on, and 
was confirmed in the challenged  proceedings through, inter alia , an examination of  the 
GOT's 2012-2014 Medium Term Programme , Erdemir 's Annual Report s, and a complete 
transaction -specific accounting of the provision of HRS , in conjunction .251  
7.150.   In response, Turkey  argues that the United  States  took the statements in Erdemir 's 2012 
and 2013  Annual Reports  out of context . Turkey also argues  that the USDOC did not evaluate or 
explain its relevance  of the list of HRS transactions  in its de facto  specificity determinations.252 
Turkey  contends that a list of HRS transactions, some of which are above and some of which are 
below a benchmark price, cannot support  the existence of a plan or scheme in the form of a 
systematic series of actions, let alone a plan or scheme  for the Provision of HRS for LTAR.  According 
to Turkey , the frequency or number of transactions that provide a subsidy may be relevant evidence 
of an underlying plan or scheme, but such evidence is not, in and of itself, sufficient evidence .253 
7.151.   We first observe that the USDOC determinations in the challenged proceedings do not include 
any explicit discussion or statement concerning the existence of a "subsidy programme" in the form 
of the Provision of HRS for LTAR. For example, i n its de facto specificity determination section  of the 
OCTG investigation , the USDOC stated that:  
Regarding the specificity of HRS for LTAR, the GOT provided a list of the industries that  
purchased HRS in Turkey during the POI.  The GOT identified eight 
industri es: Construction,  Automotive, Machinery & Industrial, Electrical Equipment, 
Appliances, Agricultural, Oil & Gas,  and Containers & Packaging. Consistent with past 
determinations, we find that the provision of  HRS is specific pursuant to 
section  771(5A)(D)(i ii)(I) of the Act because the number of  industries or enterprises 
using the program is limited.254 
7.152.   Elsewhere in the determinations, the  USDOC referred to all investigated  subsidies in the 
challenged proceedings generally as "program" or "programs".  For insta nce, the 
USDOC 's determination in the WLP investigation contains the following:  
Further, we are applying the above -zero rates calculated for Toscelik in this 
investigation for the following identical programs : Provision of HRS for LTAR …[.]255 
7.153.   Thus, the USDOC simply used the word "program" without any explanation of the reason 
why this term could properly be used to refer to the subsidy or subsidies in question. In our view, 
such a generic reference to all investigated subsidies as "programmes" alone is not sufficient to 
properly identify  and substantiate  a "subsidy programme" to determine de facto  specificity under 
Article  2.1(c). We recall and agree with the panel 's statement  in US – Countervailing  Measures 
(China)  that "the use of the term 'subsidy programme ', as opposed to 'subsidy ', is not lacking in  
significance" .256 For its de facto  specificity determination  under Article  2.1(c) , an objective and 
unbiased investigating authority is expected to provide a reasoned explanation  whether subsidies 
have been provided to recipients pursuant to a plan or scheme of some kind, before assessing 
whether access to that programme is specifically restricted .  
7.154.   In the present proceedings , the United  States  refers to the GOT's Medium Term Progr amme , 
Erdemir 's policies of supporting export -oriented production , and a complete transaction -specific 
                                                
251 United  States'  first written submission, paras.  225-230. See also response s to Panel question No. 42, 
paras.  130-133, and No. 88(a), para. 75; second written submission, para.  168; openi ng statement at the 
second  meeting of the Panel, paras.  29 and 31 ; and  comments on Turkey's  response s to Panel question 
No. 88, para.  24, and No. 91, para.  29. 
252 Turkey's  response to Panel question No.  91, para.  38 
253 Turkey's  second written submission, para. 106 (referring  to Appellate Body Report , US – 
Countervailing Measures (China) , para. 4.143 ). 
254 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 22 (fn omitted ). We note that 
in the WLP and HWRP proceedings the USDOC found that nine indus tries in Turkey purchased HRS during 
the POI. 
255 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 5. (emphasis added ) 
256 Panel Report, US – Countervailing Measures ( China) , para. 7.238 . WT/DS523/ R 
 
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  accounting of the provision of HRS  as evidence of the existence of the "subsidy programme".  The 
United  States  claims that, on the basis of all evidence  in conjunction, the USDOC concluded  that a 
subsidy programme in the form of the Provision of HRS for LTAR  existed .257 We have no doubt that 
government policies and the list of HRS transactions  may serve as potential evidence demonstrating 
the existence of a  plan or scheme in the form of a systematic series of actions. However, we must 
determine whether the USDOC actually  considered the alleged evidence, and if so whether such 
evidence sufficiently supports the conclusion that there is a "subsidy programme" f or the Provision 
of HRS for LTAR under Article  2.1(c). The parties do not dispute that the set of evidence referred to 
by the United  States  was in the record of the challenged proceedings. Nevertheless , the existence 
of the policy documents and the transac tion data in the record does not necessarily mean that 
the USDOC actually considered them in determining the existence of a "subsidy programme"  in the  
form of the Provision of HRS for LTAR . The burden is on the  United  States  to demonstrate  that 
the USDOC a ctually considered these policy statements and transaction data in determining  the 
existence of a "subsidy programme".  We shall now consider whether or not the United  States  has 
discharged that burden . 
7.4.2.1.1    2012 -2014 Medium Term Programme  
7.155.   In the OCTG, WLP , and CWP proceedings, the USDOC did indeed refer to the GOT's "stated 
policy in its 2012-2014 Medium Term Programme to improve Turkey 's balance of payments" .258 The 
Medium Term Programme  refers to  the GOT's objectives such as "increasing employment, 
maintain ing fiscal discipline, increasing domestic saving, [and] reducing the current account deficit, 
[in] this way strengthening macroeconomic stability in stable growth process ".259 The USDOC 
referred to the Medium Term Programme for the purpose of determining th at Erdemir and Isdemir 
are public bodies. The USDOC did not refer to the Medium Term Programme as a basis for 
establishing the existence of any alleged Provision of HRS for LTAR Programme in the context of its 
de facto  specificity determination. There may  be many different ways of achiev ing the broad 
objective s of the Medium Term Programme of improv ing the balance of payments, increas ing 
employment and strengthen ing macroeconomic stability  in Turkey . The provision of subsidised HRS 
may well be one of them.  However, this need not necessarily be the case. In the absence of any 
additional evidence suggesting that the Medium Term Programme somehow envisage s the provision 
of subsidised HRS, or a reasoned explanation by the USDOC to this effect, any connection be tween 
these broad governmental policies in the Medium Term Programme and the alleged  Provision of HRS  
for LTAR  Programme  is too remote  to support the existence of the latter subsidy programme .  
7.4.2.1.2   Erdemir 's Annual Report s 
7.156.   Regarding Erdemir 's alleged  support to export -oriented production , we recall that, in the 
public body determination sections of the OCTG investigation , the USDOC refers to the statement in 
Erdemir 's 2012 Annual Report that "the [Erdemir] Group also implemented policies which promoted 
the cus tomers to engage in export -oriented production ".260 In the WLP, CWP and HWRP proceedings, 
the USDOC refers to the statements in Erdemir 's 2013 Annual Report that Erdemir "made a major 
contribution  to the 4.6% increase in Turkey 's manufacturing exports in 201 3"261 and "continues to 
create value added for Turkish industry through initiatives to increase the use of domestic sources 
of raw materials ".262 According to the USDOC, these policies are "in line" with the GOT 's policies in 
                                                
257 United  States'  first written submission, paras.  225-230; response to Panel question No.  42, 
paras.  130-133; and second written submission, para.  168. 
258 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 21; WLP CVD Final Determination 
Memorandum , (Exhibit TUR -122), p. 14; and Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit TUR -22), p. 9. The USDOC did not refer to  the Medium Term Programme  in context of the 
HWRP  proceeding . 
259 Medium Term Programme,  (Exhibit USA -6), p. 12. See also OCTG CVD Final Determination 
Memorandum , (Exhibit TUR -85), p. 21 and fn 160; WLP CVD Final Determination Memorandum , (Exhibit 
TUR-122), p. 14; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit TUR -22), p. 9. 
260 Erdemir  2012 Annual Report , (Exhibit USA -5), p.  29. 
261 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p.  14; Excerpt from CWP CVD Final 
Determination Memorandum, (Exhibit TUR -22), p.  9; and HWRP CVD Final Determination Memorandum , 
(Exhibit TUR -46), p.  12. See also Erdemir 2013 Annual Report, (Exhibit USA -7), p.  34. 
262 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 14; Excerpt from CWP CVD Final 
Determination Memorandum , (Exhibit TUR -22), p. 9; and HWRP CVD Final Determination Memorandum , 
(Exhibit TUR -46), p.  12. See also  Erdemir 2013 Annual Report, (Exhibit USA -7), p. 34. The United  States also 
refers to other statements in Erdemir 2013 Annual Report, such as the statements that Erdemir is 
"Turkey's  iron and steel power ", and that Erdemir "made 35% of its flat steel sales to the steel pipe WT/DS523/ R 
 
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  the 2012-2014 Medium Term Programm e.263 The United  States  submits that together with the 
Medium Term Programme  and the list of HRS transaction s, the alleged policies of Erdemir to support 
export -oriented production demonstrate that there is a plan or scheme in the form of the systematic 
provision of HRS for LTAR.264 Turkey  argues that the se policy statements were taken out of 
context265, and do not demonstrate  the existence of a "subsidy programme " because the USDOC did 
not discuss any of them in any of its determinations  in any context.266 
7.157.    As discussed at paragraph 7.44 above, we do not cons ider that the statements, when 
considered in their context , demonstrate that Erdemir pursued a governmental policy  to support 
export -oriented  production, let alone that there is a plan or scheme in the form of the Provision of 
HRS for LTAR in order to support export -oriented production  in Turkey. In any event, considering 
that there could be many ways for a government  or public body to support export -oriented 
production, a n objective  and unbiased investigating authority is expected to provide a reasoned 
explanation in its determinations of how Erdemir 's alleged policies indicate the existence of  the 
Provision of HRS fo r LTAR. In our view, the USDOC has failed to provide such a reasoned explanation  
in the present case.  Without any additional evidence or a reasoned explanation by the USDOC , we 
consider that any connection between Erdemir 's alleged policies and any alleged Provision of HRS  
for LTAR  is too remote  to support the existence of the latter subsidy programme . 
7.4.2.1.3   List of HRS transactions  
7.158.   The list of HRS transactions may serve as potential evidence  demonstrating that there is a 
systemati c series of actio ns in the form of the Provision of HRS for LTAR by a public body.  However, 
such a list alone is not sufficient  evidence , particularly where the prices of the transactions  vary with 
some prices higher than the benchmark prices and some lowe r than the benchmark prices.267 As the 
Appellate Body stated in US – Countervailing Measures ( China) , "the mere fact that financia l 
contributions have been provided to certain enterprises is not sufficient, however, to demonstrate 
that such contributions hav e been granted pursuant to a plan or scheme  for purposes of Article  2.1(c) 
of the SCM  Agreement ".268  
7.159.   In our view, the number or frequency  of the subsidies provided under an alleged subsidy 
programme must be analysed before the systematic  nature of the subsidy provision can be 
determined.269 We are not suggesting that a "subsidy programme" in the form of provision of inputs 
for LTAR must consist exclusively of  transactions with prices lower than the benchmark prices. 
However,  if the transact ions providing a subsidy are disparate and infrequent  in light of the total 
number of transactions , it may not be discernible that subsidies were provided pursuant to "a plan 
or scheme of some kind ". We consider that an investigating authority must therefo re provide a 
reasoned explanation as to how each of the pieces of evidence individually or jointly indicates the 
existence of the alleged subsidy programme. Where such a subsidy programme is evidenced by a 
systematic series of transactions, there must be a  reasoned  explanation as to  whether  and how the 
transactions providing a subsidy  are "systematic " in the particular circumstances of a given case . In 
                                                
manufacturing sector, o ne of the large st exporting sectors in Turkey". However, the USDOC did not refer to 
these statements in its determinations.  
263 United  States'  first written submission, paras.  227-229; United  States'  second written submission, 
para. 168; and r esponse to Pane l question No. 42, para.  131 (referring to OCTG CVD Final Determination 
Memorandum , (Exhibit TUR -85), p. 21 and fn  160; WLP CVD Final Determination Memorandum , 
(Exhibit  TUR-122), p. 14; and Excerpt from CWP CVD Final Determination Memorandum , (Exhibit TUR -22), 
p. 9). The USDOC did not refer to  the Medium Term Programme  in context of the HWRP proceeding . 
264 United  States'  response  to Panel question No. 42, paras.  130-133; second written submission, 
para. 168. 
265 Turkey ' second written submission, paras.  95-99. 
266 Turkey ' second written submission, paras.  93 and 104 ; statement at the first meeting of the Panel,  
paras.  79-80. 
267 See OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 26, where the USDOC stated 
that " [f]or instances in which Borusan or  Toscelik paid a lower unit price to Erdemir and Isdemir than the 
benchmark unit price , we multiplied the difference by the quantity of HRS that the company purchased to 
calculate the  benefit " (emphasis added). We understand from this statement that not all tr ansactions of 
HRS purchases from  Erdemir and Isdemir  were made at prices lower than the benchmark price.  
268 Appellate Body Report, US – Countervailing Measures (China) , para. 4.143. 
269 In this regard, w e agree with the European Union's  third-party submission  that the  more transactions 
are above the benchmark, the less systematic the transactions below the benchmark become and the less 
probative their evidentiary value becomes for demonstrating a "subsidy programme". 
(European  Union 's third-party response to P anel question No. 5, para. 19). WT/DS523/ R 
 
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  the present case, the record does not indicate  that the USDOC actually analysed the list of HRS 
transactio ns to determine whether the transactions providing subsidies in the form of the provision 
of HRS for LTAR  are systematic  by considering, e.g. the volume and frequency of transactions 
providing subsidies as compared with  transactions for which the prices  are above the benchmark .  
7.4.2.1.4   Consideration of the evidence in its totality  
7.160.   We note that the United  States  argues that the USDOC considered the above -mentioned  
policy statements and the list of HRS transactions "in conjunction".270 Having considered that each 
of the three pieces  of evidence was not sufficient to support the USDOC 's alleged conclusion 
concerning the existence of a subsidy programme in the form of the Provision of HRS for LTAR, we 
are not persuaded that the abovementioned  evidence, when considered together , supports the 
USDOC 's alleged conclusion that a subsidy programme existed in the form of systematic provision 
of HRS for LTAR by Erdemir and Isdemir . 
7.161.   Accordingly , given that the USDOC failed to make proper "public body" determinations  in 
the challenged  proceedings , we find that the USDOC could not have properly determined that 
Erdemir and Isdemir provided subsidies, much less that they did  so pursuant to a "subsidy 
programme"  within the meaning of Article  2.1(c) . In any event, we find that the USDO C acted 
inconsistently with Article  2.1(c) of the SCM  Agreement  by failing to properly identify and 
substantiate the existence of a subsidy programme in the  form of the Provision of HRS for LTAR.   
7.162.   We recall that Turkey also brings a  claim under  Article  2.4 of the SCM  Agreement  concerning 
the USDOC 's failure to substantiate the alleged "subsidy programme" of the Provision of HRS for 
LTAR.271 We have found above that the USDOC failed to properly identify and substantiate the 
existence of a subsidy programme within the meaning of Article  2.1(c). Accordingly, the USDOC 's de 
facto specificity determination was not clearly substantiated on the basis of positive evidence in 
accordance with Article  2.4. For this reason, we also find that the USDOC acted inconsisten tly with 
Article  2.4 of the SCM  Agreement  for failing to clearly substantiate its de facto  specificity 
determination.  
7.4.2.2   Whether the United  States  considered the t wo factors  in the last sentence of 
Article  2.1(c)  of the SCM  Agreement  
7.163.   In determining whether a subsidy programme  is used by a limited number of enterprises, 
the last sentence of Article  2.1(c) of the SCM  Agreement  provides that an investigating authority 
shall take into account the extent of diversification of economic activities with in the jurisdic tion of 
the granting authority, as well as the length of time that the subsidy programme  has operated.  
Article  2.1(c)  however does not provide  any specific  guidance as to how an investigating authority 
should take into account these two factors . The panel in US – Countervailing Measures (China)  
addressed this issue in the following terms :  
With regard to the ordinary meaning of the final sentence of Article  2.1(c), we are of 
the view that the use of the term "shall" clearly connotes an obligation. In deed, the 
term is defined as "has a duty to; more broadly, is required to". The decision by the 
drafters of the SCM  Agreement  to use the term "shall" instead of terms such as "should" 
or "may" is significant.  
With regard to the context of Article  2.1(c) m ore broadly, as we have seen above, 
subparagraph (c) concedes a certain flexibility for investigating authorities to consider 
specificity in a number of factual scenarios that may arise. In this context, we consider 
the last sentence of Article  2.1(c) to f unction as a safeguard that keeps in check this 
flexibility. Indeed, where economic activities within the jurisdiction of the granting 
authority are less diversified, the use of a subsidy programme by a limited number of 
certain enterprises may nonetheless  lead to a finding of non -specificity. Use by a limited 
                                                
270 United  States'  opening  statement at the second meeting of the Panel, para.  31; response to Panel 
question No.  42, para.  130. 
271 Turkey's  first written submission, para.  547. WT/DS523/ R 
 
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  number of certain enterprises may similarly lead to a finding of non -specificity where 
the subsidy programme has been in operation for a limited period of time only.272  
7.164.   Moreover, that panel considered that an investigating authority 's consideration of the factors 
in the final sentence of Article  2.1(c) need not be done  explicitly.  That is to say, an investigating 
authority need not in all circumstances include an explicit  statement in its determination that these 
factors had been taken into account.  However, there must be evidence that these two factors were 
taken into account, either explicitly or implicitly.273 The panel in US – Washing Machines  followed a 
similar approach .274  
7.165.   We agree with  these panels . Thus, the two factors , i.e. the extent of economic diversification  
and the length of time during which the subsidy programme has operated , are mandatory, and must 
therefore be taken into account  whenever an investigating  authority makes a de facto  specif icity 
determination . This does not depend upon whether an interested party  in the proceeding raised the 
relevance of the two factors.  Having said that, an investigating authority  does not need to consider 
these two factors  explicitly.   
7.166.   In the present case, the United  States  does not dispute  that the USDOC did not  discuss these 
two factors, or make any explicit statement regarding these factors in its determination. The 
United  States  asserts that the USDOC took these factors into account i mplicitly. The question before 
us is whether the record evidence supports  this assertion. We make this inquiry with respect to each 
of these two factors  in turn.   
7.4.2.2.1   Economic diversification  
7.167.    The United  States  argues that the USDOC concluded , implicitly , that the extent of economic 
diversification factor had no bearing on its specificity analysis. According to the United  States , the 
USDOC 's implicit consideration of this factor is reflected in the USDOC 's consideration and discussion 
of the factual record  such as the Medium Term Programme and Erdemir 's 2012 and 2013 Annual 
Reports .275 The United  States  also submits that it is a publicly known fact that Turkey has a highly 
diversified economy.276  
7.168.   In our view,  the United  States'  reference to the Medium Term Pro gramme in its public body 
determinations  in each of the proceedings does not demonstrate that the USDOC actively and 
meaningfully considered  the economic diversification of Turkey. According  to the United  States , the 
Medium Term  Programme discusses the Turkish economy in relation to other world economies. The  
United  States  underline s the following statements in the Medium Term Programme :  
Turkey was among the countries that had highest growth rates around the world.277  
Turkey has been one of the most successful countries among the OECD in struggling 
with the unemployment thanks to rapid growth and measures taken timely during the 
crisis exit process.278  
7.169.   Although these statements concern Turkey 's economy, they address  only certain as pects of 
the Turkish economy , i.e. its growth and unemployment rates . These statements are not  connected  
with the economic  diversification  of the Turkish economy . We note that the last sentence  of 
Article  2.1(c) does not  simply  require  consideration  of fac tors related to the economy  of the granting 
authority , but specifi es that an investigating authority  consider  the extent of the econom ic 
                                                
272 Panel Report, US – Countervailing Measures ( China), paras.  7.251 -7.252. (fns  omitted)  
273 Panel Report, US – Countervailing Measures ( China) , paras.  7.250 -7.256. (fns  omitted)  
274 Panel Report, US – Washing Machines , para.  7.252.  
275 United  States'  second written submission, para.  175. 
276 United  States'  response to Panel question No.  41, para. 127. 
277 Medium Term Programme (Exhibit USA -6), p. 9; see also  OCTG CVD Final Determination 
Memorandum , (Exhibit TUR -85), p. 21; Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 9; HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 12; and 
WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 14. 
278 Medium Term Programme , (Exhibit USA -6), p. 10; see also  OCTG CVD Final Determination 
Memorandum , (Exhibit TUR -85), p. 21; Excer pt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 9; HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 12; and 
WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 14. WT/DS523/ R 
 
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  diversification . Therefore, even if we accept the United  States'  argument that the USDOC indeed 
implicitly  considered these statements when making its de facto  specificity  determination, the 
United  States  has not  demonstrated  that the USDOC  specifically  took into account the economic 
diversification factor.  
7.170.   Likewise, Erdemir 's 2012 and 2013 Annual Reports do not demonstrate that USDOC actively 
and meaningfully considered  the economic diversification of Turkey. The United  States  referred to 
statement s in Erdemir 's 2012 and 2013 Annual Reports that Turkey is among the eight larges t steel 
producers in the world, with a production capacity  of 35.9 million ton nes in 2012 and 
34.7 million  tonnes in 2013.279 The United  States  also points  to the statement s in Erdemir 's 2013 
Annual Report that the Turkish economy expanded more than 3% in 20 13 despite the global crisis280, 
and that Turkeys ' manufacturing exports grew by 4.6% in 2013.281 None of these references are 
linked to the diversification of the  Turkish economy.  
7.171.   Finally, regarding whether t he USDOC implicitly took into account the publicly known fact  
that the Turkish economy is highly diversified,  we do not necessarily disagree that an investigating 
authority may take into account  public ly known facts in its determination s. However, leaving aside 
whether the high level of diversification of the Turkish economy is a  publicly known fact  or not , the 
United  States  has not identified anything  in the investigation record to indicate that the USDOC  
implicitly  took into account the diversification of the Turkish economy . We recall and agree with the 
panel in US – Washing Machines  that there must be  some means  of determining from the 
determination that the investigating authority did consider the factors  in the last sentence of 
Article  2.1(c) i n an "active and meaningful " way.282 
7.172.   In sum , we conclude  that the identified  statements contained in the evidence on the record 
do not indicate  that the USDOC considered  the economic diversification  of Turkey  in its determination 
of de facto  specificity.  Accordingly , we find that the USDOC acted inconsistently with the final 
sentence of Article  2.1(c) of the SCM  Agreement  by failing to take into account the extent of 
diversification of economic activities with in Turkey .  
7.4.2.2.2   Length of  time that  the " subsidy programme " has been in operation  
7.173.   Regarding the length of time that the subsidy program me has been in operation , the 
United  States  argues that in evaluating the  Provision of HRS for LTAR, the USDOC examined 
Erdemir 's 2012 and 2013 Annual Reports, which identify Erdemir as "Turkey 's iron and steel 
power "283, as well as evidence that Erdemir has existed since 1960 and Isdemir has existed since 
1970.284 The United  States  also contends that the  GOT provided the  USDOC  with info rmation 
regarding the production and provision of HRS not only  for the period of investigation  (POI) , but also 
the preceding two years, which demonstrated that the  programme  usage data for the POI was not 
anomalous in comparison to data for past years.285 According to the United  States , the length of 
                                                
279 Erdemir  2013 Annual Report , (Exhibit USA -7), p. 12; Erdemir  2012 Annual Report , (Exhibit USA -5), 
p. 16; see also  OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 21; Excerpt from CWP CVD 
Final Determination Memorandum , (Exhibit TUR -22), p. 9; HWRP CVD Final Determination Memorandum , 
(Exhibit TUR -46), p. 12; and WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 14. 
280 Erdemir  2013 Annual Report , (Exhibit USA -7), p. 10; see also  OCTG CVD Final Determination 
Memorandum , (Exhibit TUR -85), p. 21; Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 9; HWRP CVD Final Determination Memorandum , (Exhibit TUR -46) p. 12; and WLP CVD 
Final Determination Memorandum , (Exhibit TUR -122), p. 14. 
281 Erdemir  2013 Annual Report , (Exhibit USA -7), p. 10; see also  OCTG CVD  Final Determination 
Memorandum , (Exhibit TUR -85), p. 21; Excerpt from CWP CVD Final Determination Memorandum , 
(Exhibit  TUR-22), p. 9; HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 12; and WLP CVD 
Final Determination Memorandum , (Exhibit TUR-122), p. 14. 
282 Panel Report, US – Washing Machines , para. 7.253.  
283 Erdemir  2013 Annual Report , (Exhibit USA -7), p. 2. 
284 Erdemir  2013 Annual Report , (Exhibit USA -7), second cover page ; Erdemir  2012 Annual Report , 
(Exhibit USA -5), p. 6. 
285 Excerpt from GO T's OCTG questionnaire response , (Exhibit TUR -60), pp. 4-6; Excerpt from 
GOT's WLP initial questionnaire response , (Exhibit USA -43), pp. 14-16; Excerpt from GOT 's HWRP initial 
questionnaire response , (Exhibit USA -44), pp. 12-15; and Excerpt from GOT 's CWP initial questionnaire 
response , (Exhibit USA -45), pp. 7-10. WT/DS523/ R 
 
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  time in which the subsidy programme  had existed  did not warrant explicit discussion in the 
USDOC 's determination.286  
7.174.   Turkey  argues that the USDOC 's de facto  specificity determination is not based on the 
evidence  that the United  States  refers to in the  present proceedings. Turkey  contends that the 
duration of the existence of Erdemir  and Isdemir does not establish  of the duration of the subsidy 
programme.287 Turkey  also points out that, for the two preceding years b efore the POI, the data on 
the record are insufficient to allow the USDOC to meaningfully take into account the length of time 
in which the alleged subsidy programme has operated .288 
7.175.   We must decide whether the USDOC took into account the length of the subsid y 
programme 's operation by virtue of  the fact that there is  evidence on the record  that Erdemir and 
Isdemir  have been in operation since 1960 and 1970 , respectively , and the fact that the USDOC 
requested and obtained data from the GOT concerning the two ye ars preceding  the POI.   
7.176.   The kinds of evidence  that the United  States  identified could be potentially relevant for an 
investigating authority  to consider in its evaluation of the length  of time in which the subsidy 
programme has been in operation. For  instance, for  a subsidy programme in the form of the provision 
of inputs for LTAR, an investigating authority may  consider the duration of the subsidy programme 
by examining transaction al data preceding the POI with regard to the provision of that relevant 
input.289 The compliance panel in US – Countervailing Measures ( Article  21.5 – China)  did not 
understand this mandatory factor to require an investigating authority to establish in each case the 
total duration of the subsidy programme that has been in operat ion. That panel stated  that: 
[W]e do not consider that Article  2.1(c) imposes in all cases a requirement to establish 
the total duration of the programme. Rather, to comply with the requirement of the last 
sentence of Article  2.1(c), it would be sufficient  to show that the programme has been 
in operation for a duration that does not itself account for "use of a subsidy programme 
by a limited number of certain enterprises".290  
7.177.   We agree  with this statement . In our view, an investigating  authority does not need to 
establish the total duration of the subsidy programme , so long as it can be demonstrated that the 
limited number of users of the programme is not entirely explained by the short durations  of the 
programme . In the present case, the parties do not  disput e that the data for the two preceding  years 
are incomplete , so far as the provision of HRS for LTAR by Erdemir  and Isdemir is concerned . In 
particular,  in the OCTG investigation, because the requested HRS consumption and pro duction data 
was not ava ilable, the G OT provided Turkish production and consumption  figures  for all flat steel 
products, which includes hot rolled coils, cold rolled coils, stainless coils, and other products .291 In 
subsequent proceedings, the GOT provided data for all Turkish HRS imports,  exports, production, 
and consumption .292 The GOT did not provide any company -specific data for Erdermir and Isdemir . 
Moreover, the GOT did not provide  any HRS pricing information during the relevant period.293  
7.178.   Given that pricing information for the relevant period is missing from the record, and Erdemir  
and Isdemir were not the only HRS producers in Turkey  during the relevant period, we do not see 
how assessing the data provided by the GOT  would allow the USDOC to meaningfully consider the 
length of the time that the subsidy programme has been in operation.  
7.179.   We also do not consider that statements that Erdemir  and Isdemir existed since 1960 and 
1970, necessarily inform  the length of time that the so-called Provision of HRS for LTAR Programme  
                                                
286 United  States'  second written submission, para.  174. 
287 Turkey's  second written submission, para.  114. 
288 Turkey's  second written submission, paras.  114-117. 
289 Panel Report, US – Countervailing Me asures  (China)  (Article  21.5 – China) , para.  7.270.  
290 Panel Report, US – Countervailing Measures  (China)  (Article  21.5 – China) , para.  7.273. 
291 Turkey's  second written submission, para.  115 (referring to Excerpt from GOT 's OCTG questionnaire 
response , (Exhibit TUR -60), pp. 4-5). 
292 Turkey's  second written submission, paras.  115-117 (referring to Excerpt from GOT 's WLP initial 
questionnaire response , (Exhibit USA -43), p. 14; Excerpt from GOT 's HWRP initial questionnaire response , 
(Exhibit USA -44), p. 13; and Excerpt from GOT 's CWP initial questionnaire response , (Exhibit USA -45), p. 8). 
293 Turkey's  second written submission, paras.  115-117 (referring to Excerpt from GOT 's WLP initial 
questionnaire response , (Exhibit USA -43), p. 14; Excerpt from GOT 's HWRP initial questionnaire response , 
(Exhibit USA -44), p. 13; and Excerpt from GOT 's CWP initial questionnaire response , (Exhibit USA -45), p. 8). WT/DS523/ R 
 
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  has been in operat ion. The fact that these two companies have existed since the 1960s  and 1970s 
does not necessarily mean that these two companies have been providing HRS for LTAR as public 
bodies  since then . In our view, the evidence cited by the United  States  is not suffi cient on its own  
to demonstrate that the USDOC actively and meaningfully considered the length of operation of the 
alleged " subsidy programme ". 
7.180.   Finally, we do not see any basis in Article  2.1(c) or elsewhere in the SCM  Agreement  for the 
United  States'  argument that a complainant must also show how the investigating authority 's failure 
to consider the two factors in the final sentence of Article  2.1(c) affected the specificity 
determination.294  
7.181.   In sum , we find that the USDOC acted inconsistently with Article 2.1(c) of the 
SCM Agreement  by failing to properly evaluate the length of time in which the so-called  Provision of 
HRS for LTAR Programme has been in operation.  
7.4.3   Conclusions regarding Turkey 's Article  2.1(c) and 2.4 claims  
7.182.   For the reasons stated above, we find that  the USDOC acted inconsistently with Articles  2.1(c) 
and 2.4 of the SCM  Agreement  by failing to identify and  clearly  substantiate the existence of a  
Provision of HRS for LTAR  Programme based on positive evidence. We also find that the USDOC 
acted inconsistently with Article  2.1(c) of the SCM  Agreement  by failing to take into account the 
extent of diversification of economic activities with in Turkey,  and by failing to properly evaluate the 
length of time in which the so-called  Provision of HRS for LTAR Programme has been in operation . 
7.5  Turkey 's claims under Article  12.7 of the SCM  Agreement  in relation to the use of facts 
available in the OCTG, WLP , and HWRP proceedings  
7.5.1   Introduction  
7.183.   Turkey claims that the USDOC 's use of facts available in the OCTG, WLP , and 
HWRP  investigations is inconsistent with Article  12.7 of the SCM Agreement .  
7.184.   In its first written submission, t he United  States  request ed the Panel to make a preliminary 
ruling excluding from its terms of reference claims under Article  12.7 of the SCM Agreement  relating 
to the WLP investigation,  concerning subsidy programme s other than the Provision of HRS for LTAR. 
In its panel request, the United  States  argues  that Turkey expressly limited its Article  12.7 claim in 
the WLP investigation to a single programme , the Provision of HRS for LTAR, and thus any 
Article  12.7 claims in respect of any other investigated programme s in the WLP proceeding fall 
outside the Panel 's terms of reference.  
7.185.   We address Turkey 's claims concerning the  OCTG, WLP, and HWRP proceedings in turn.  
7.5.2   The use of facts available in the OCTG investigation  
7.5.2.1   Factual b ackground  
7.186.   In the OCTG investigation, the USDOC requested that Borusan report in its questionnaire 
response all of its HRS purchases during the POI, including purchase s which were not used to 
produce  OCTG.295 Following a request by Borusan, the USDOC extended the deadline for response 
to the original questionnaire.296 
7.187.   In response to the original questionnaire, Borusan stated that it had production facilities at 
three locations  during the POI : Gemlik, Halkali, and Izmit. Borusan only reported HRS purchases for 
the Gemlik facility . Borusan explained that it only produces OCTG at Gemlik , and  did not transfer 
any HRS purchased at the o ther two facilities to Gemlik.  Borusan also explained that the process of 
                                                
294 C.f. United  States'  first written submission , para. 231 (where the United  States  argues that  Turkey 
does not expl ain how the USDOC 's alleged lack of consideration of these factors affected the overall specificity 
determination and thereby resulted in a breach of Article  2.1(c) ). 
295 Turkey 's first written submission, para. 198. 
296 USDOC's  letter on extension request , (Exhibit USA -12) (granting Borusan an extension of 12 days to 
respond to the questionnaire).  WT/DS523/ R 
 
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  gathering HRS purchase data on a coil -by-coil basis is extremely time -consuming and burdensome, 
and failed to see the purpose of gathering information for the facilities  that do not produce OCTG. 
The USDOC subsequently issued  a supplemental questionnaire requesting that  Borusan either report 
all its HRS purchases,  including for the  other two facilities , or otherwise justify why it could not 
report the purchases .297 In its response to the supplemental questionnaire, Borusan stated that 
Gemlik HRS purchase data was collected from two different data systems, and transportation costs 
had to be separated out manually. For these reasons,  Borusan requested the USDOC 's permission  
to report HRS p urchases only for Gemlik.298 Borusan further indicated to the USDOC that it would 
be willing to cooperate if a full reporting was insisted upon  for all facilities,  but stressed that  Borusan 
would require several weeks to provide such complete  information.299  
7.188.   The USDOC determined that Borusan failed to follow the questionnaire instructions and failed 
to properly request an extension  when asked for the second time to provide all HRS purchases data , 
thus failing to act to the best of its ability. As a result, the USDOC  applied an adverse inference. 
Specifically, for both the Halkali and Izmit facilities , the USDOC  found that Bor usan purchased HRS 
at the lowest price on the record for the Gemlik facility 's purchases. The USDOC also adversely 
inferred that the Halka li and Izmit facilities  purchased quantities of HRS during the POI equal to their 
annual production capacity300, and that these  facilities  purchased HRS from Erdemir and Isdemir in 
the same ratio as the Gemlik facility  purchase d from Erdemir and Isdemir (expressed as a share of 
Gemlik 's total purchases  from all suppliers) .  
7.5.2.2   The Panel 's evaluation of Turkey 's claim regarding the use of facts available in 
the OCTG investigation  
7.189.   Article  12.7 of the SCM Agreement  provides that :  
In cases in which any interested Member or interested party refuses access to, or 
otherwise does not provide  necessary information within a reasonable period or 
significantly impedes the investigation, preliminary and final determinations, affirmative 
or negative, may be made on the basis of the facts available.  
7.190.   Article  12.7 of the SCM Agreement  thus allows an investigating authority to make 
determination s using  facts available in cases when  a Member or interested party refuses access to 
necessary informati on within a reasonable time period, otherwise fails to provide such information 
within a reasonable period, or significantly impedes the investigation. This provision is intended to 
ensure that an interested party 's failure to provide necessary information  does not impede the 
investigation.  Article  12.7 permits the use of facts that are otherwise available on the record solely 
for the purpose of replacing necessary information that may be missing, to allow the investigat ing 
authority  to make an accurate sub sidization determination.  Recourse to facts available does not 
permit an investigating authority to use any information in whatever way it chooses . Rather , an 
investigating authority must take into account all the substantiated facts provided by an interes ted 
party, even if those facts may not constitute the complete information requested of that party.  An 
investigating authorit y may draw inferences when selecting from among the facts otherwise 
available, but should not use Article  12.7 to punish non -cooper ating parties by intentionally drawing 
an adverse inference. The use of inferences to select adverse facts to punish non -cooperating parties 
would result in an inaccurate subsidization determination.   
7.191.   Paragraph 7 of Annex  II of the Anti -Dumping  Agreement , which is relevant to the 
interpretation and application of Article  12.7, provides that "if an interested party does not cooperate 
and thus relevant information is being withheld from the investigating authorities, this situation 
could lead to a result wh ich is less favourable to the party than if the party did cooperate" .301  
                                                
297 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), pp. 9-13. 
298 Turkey 's first written submission, para. 203. 
299 Turkey 's first written submission, para. 204. 
300 Initially, the USDOC used the quantities of HRS which Gemlik facility  purchased as the quantities for 
the two non -responding facilities . Following the submission from the respondents, USDOC reduced its initial 
calculation of these HRS quantities in order to arrive at a more accurate determination of the relevant subsidy 
rates. (United  States'  first written submission, paras.  156-157). 
301 Appellate Body Report, US – Carbon Steel (India) , para. 4.426.  WT/DS523/ R 
 
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  7.192.   Turkey argues that the USDOC 's reliance on facts available and its decision to draw an 
adverse inference is inconsistent with Article  12.7 of the SCM Agreement : first, because  the USDO C 
failed to take "due account" of the difficulties Borusan experienced in gathering the requested 
information; and second, because the USDOC 's application of facts available is punitive .302 We 
address these two aspects of Turkey 's claim  in turn.   
7.5.2.2.1   Failure to take into account the difficulties  
7.193.   Turkey argues Borusan experienced considerable difficulties in collecti ng the requested 
information . According to Turkey, once Borusan informed the USDOC of its difficulties in obtaining 
the requested information, the USDOC should have taken "due account " of those difficulties in having 
recourse to Article  12.7.303 In particular, Turkey argues that the USDOC should have considered 
"whether it would have been reasonable to use the data which Borusan provided on its hot rolled  
steel purchases for the Gemlik facility  to approximate the missing information or to ask Borusan to 
provide the missing information in a different form ".304 In this regard, Turkey  relies on the 
Appellate  Body's statement in US – Carbon Steel (India)  that: 
In our view, the context provided by these provisions suggests that the manner or 
procedural circumstances in which information is missing can be relevant to an 
investigating authority 's use of "facts available " under Article  12.7. In particular, 
Article  12.11 requires an investigating authority to take "due account of any difficulties 
experienced by interested parties ", which includes interested parties that have not 
provided the "necessary information " referred to in Article  12.7. The kinds of 
"difficulti es", or lack thereof, experienced by interested parties to be taken into account 
by an investigating authority in having recourse to Article  12.7 could relate, inter alia , 
to the nature and availability of the evidence being sought  … the time period provid ed 
in which to respond, and the extent or number of opportunities to respond [.]305 
7.194.   According to Turkey , the Appellate Body 's statement above mean s that the USDOC was 
obligated to take "due account " of the difficulties Borusan experienced in responding to the  
USDOC 's requests for information  both when determining that necessary information was not 
provided (such that  recourse to Article  12.7 is justified ), and when selecting  facts available under 
Article  12.7.306 Turkey 's claim only  concern s the latter  situation , regarding  the USDOC 's selection  of 
facts available.307  
7.195.   The United  States  argues  that Turkey is trying to collapse the obligation to take due account 
of the difficulties under Article  12.11 into the obligation under Article  12.7.308 The United  States  
contends that, in any event, the USDOC  took due account of Borusan 's difficulties, including by 
granting an extension , and by issuing a supplemental questionnaire to allow Borusan significant 
additional time to gather the requested data.309 The United  State s contends that Borusan had two 
opportunities to provide the information, 65 days to prepare for the initial questionnaire response , 
and an opportunity to request a further extension for the supplemental questionnaire response.310 
According to the United  States, the USDOC appropriately relied  on facts available  to "fill in gaps " 
due to the continued failure of Borusan to provide data regarding its HRS purchases for the Halkali 
and Izmit facilities.311  
7.196.   In our view, Turkey 's complaint about the difficulties fit s more appropriately into the 
obligation  under Article  12.11  to take "due account of any difficulties experienced by interested 
                                                
302 Turkey 's first written submission, para. 196; second written submission, para. 121. 
303 Turkey 's response to Panel question No. 45, para. 86. 
304 Turkey 's response to Panel question No. 45, para. 91. 
305 Appellate Body Report, US – Carbon Steel (India) , para. 4.422.  
306 Turkey 's response to Panel question No. 45, paras.  86 and 91.  
307 Turkey does not pursue any claim s concerning the USDOC 's determination that Borusan failed to 
provide necessary information or whether  the resort to  facts available under Article  12.7 was justified . 
(Turkey 's response to Panel quest ion No. 43, para. 83). 
308 United  States'  opening statement at the first meeting  of the Panel , para. 51. 
309 United  States'  first written submission, para. 148; second written submission, para. 122. 
310 United  States'  first written submission, paras.  151-153. 
311 United  States'  first written submission, para. 153 (quoting  Appellate Body Report,  Mexico – 
Anti-Dumping Measures on Rice , para. 291); second written submission, para.  123. WT/DS523/ R 
 
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  parties ". We do not see any basis to read the obligation under Article  12.11312 into Article  12.7. In 
US – Carbon Steel  (India) , the Appellate Body  referred to Articles  12.4 and  12.11 for context in its 
interpretation of the text of Article  12.7,  because " these provisions recognize some potential reasons 
why the 'necessary information ' referred to in Article  12.7 may not be provided , namely, 
confidentiality and resource constraints ".313 The Appellate Body 's reference to these provisions as 
context for understanding the potential reasons why "necessary information" may not be provided  
in the sense of justifying recourse to facts availab le under  Article  12.7 cannot have the effect of 
reading an obligation  into Article  12.7 that is not reflected in its text . Nor do we understand the 
Appellate Body to have suggested otherwise. The Appellate Body stated clearly after its contextual 
consideration of Article  12.7 that " [w]hether and how  such procedural circumstances should be taken 
into account by an investigatin g authority, and any appropriate inferences that may be drawn, will 
necessarily depend on the particularities of a given investigation."314 Thus, the Appellate Body has 
not suggested that Article  12.7 requires  an investigating authority to properly take into  account the 
difficulties experienced by the interested parties.   
7.197.   Turkey 's claim concerning the alleged difficulties is made under Article  12.7 only. Turkey has 
not brought any claim under Article  12.11. Thus, t o the extent that Turkey relies on an alleged  
breach of the obligation to take due account of difficulties under Article  12.11 to demonstrate a 
breach of Article  12.7, we reject Turkey 's claim as a matter of law .  
7.198.   In any event, we are not persuaded by  Turkey 's proposition that had the USDOC taken due  
account of the difficulties, it would not have insisted on Borusan submitting the relevant information, 
and thereby would not have resorted  to facts available. We do not see how the difficulties 
experienced by Borusan could have affected the USDOC 's resort to facts available , if the information  
that the USDOC  requested is indeed "necessary information " for the purpose of Article  12.7.315 The 
absence of a piece of "necessary information " in the record leaves a hole in the factual basis of an 
investigating authority 's determination, which necessarily requires the investigating authority to 
resort to facts available to fill in the gap s. The mere failure of an interested Member or interested 
party to provide  information necessary  for the determination, regardl ess of the reasons  or procedural 
circumstances , requires an investigating authority to resort to other sources of information to 
complete the factual record on which it makes its determination.   
7.199.   We are also not persuaded by Turkey 's argument that the USDOC  should have considered 
whether "to ask Borusan to provide the missing information in a different form ".316 That, in our view, 
is not a relevant  consideration under Article  12.7 of the SCM Agreement , which strictly addresses 
situations in which information i s not provided.  
7.5.2.2.2   Punitive application of facts available  
7.200.   Turkey argues that the USDOC  used an adverse inference to purposefully punish Borusan , 
contrary to the Appellate Body 's interpretation of Article  12.7 in US – Carbon Steel (India) . Turkey  
contends that the USDOC should have used all of the data provided by Borusan regarding its 
purchases of HRS for the Gemlik mill  to reasonably approximate the benefit  received by Borusan 
with respect to Borusan 's purchases of HRS for its Halkali and Izmit facilities .317 Turkey submits that 
the USDOC chose the lowest price of any of Borusan 's purchases of HRS from Erdemir and Isdemir 
and applied that price for all purchases of HRS for the Halkali and Izmit facilities  equal to the 
facilities ' entire annual prod uction capacity. In doing so, the USDOC only relied on a part of the 
evidence provided by Borusan – i.e. only the lowest price on the record.318 Turkey considers that 
"even a weighted average " of the prices paid for HRS at the Gemlik facility  "might have been a more 
reasonable replacement for the price of hot rolled steel  purchased for the Halkali and Izmit mills " 
                                                
312 Article  12.11 of the SCM Agreement  states that : 
The authorities shall take due account of any difficulties experienced by interested parties, in 
particular small companies, in supplying information requested, and shall provide any assistance 
practicable.  
313 Appellate Body Report, US – Carbon Steel (India ), para. 4.422. 
314 Appellate Body Report, US – Carbon Steel (India) , para. 4.422. (emphasis added ) 
315 We recall that Turkey  has not challenged the USDOC 's determination that the missing information 
was necessary for the purpose of Article  12.7. (Turkey 's response to Panel question No. 43, para. 83). 
316 Turkey 's response to Panel question No. 45, para. 91. 
317 Turkey 's response to Panel question No . 46, para. 92. 
318 Turkey 's response to Panel question No. 46, para. 94; second written submission, para. 126. WT/DS523/ R 
 
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  because it would reflect all of the relevant substantiated facts on the record.319 According to Turkey, 
the USDOC 's application of fact s available is a clear attempt to use the worst facts to punish Borusan 
for non -cooperation320, as the USDOC itself acknowledged.321 In this regard, Turkey points to the 
USDOC 's own statement that "the inference is adverse , not neutral".322 
7.201.   The United  States  submits that the USDOC 's application of facts available was not punitive 
and fully complied with Article  12.7.323 The United  States  argues that  the Appellate Body has 
recognized  that non-cooperation implies that  a less favourable result becomes possible due to the 
selection of a replacement of an unknown fact. That the outcome is less favourable than Borusan 
would have like d does not mean that the application of facts available was punitive or otherwise 
inconsistent with Article  12.7.324 According to the United  States , the USDOC  selected a reasonable 
replacement for the missing price and quantity information by relying on actual data that Borusan 
had provided for another of its facilities .325 Turkey has not explained why its suggested approach 
would lead to a more accurate determination of the missing price and quantity data . With regard to 
price, the United  States  argues that the actual prices paid by Borusan for HRS for the non -responding 
facilities  may have been  less than the lowest price it paid for Gemli k. In that situation, the use of 
the lowest price may in fact reflect a better outcome than had Borusan fully cooperated with the 
investigation.326 With regard to quantity, the United  States  points out that the selected quantities 
did not exceed the annual p roduction capacity of the non -reporting facilities  and reflected a 
reasonable replacement of the missing information.327  
7.202.   The United  States  rejects that the USDOC should have relied on a weighted average 
transaction price, as Turkey argued . The United  States  argues that such an approach would ignore 
the procedural circumstances of the investigation , including Borusan 's failure to cooperate , and 
would in general lead to findings that are necessarily better than some of the ou tcomes for 
cooperating entities . According to the United  States , such an interpretation would be inconsistent 
with Article  12.7 because it provides an incentive for interested parties not to cooperate.328 
7.203.   We note that Turkey 's arguments concerning the alleged punitive application of facts  
available evolved during the dispute. At the outset , Turkey  seem ed to argue that, in light of the 
difficulties experienced by Borusan in providing the requested information, the USDOC is not entitled 
to resort to the use of adverse inferences with a view to punish Borusan.329 If this is the case, 
Turkey 's argument concerning "punitive application of facts available " hinges upon its view that the 
USDOC should have  taken into account the difficulties experienced by Borusan when selecting facts 
available. In this regard, we refer to our findings above at paragraph 7.198  that the USDOC was  not 
obliged to take into account the difficulties experie nced by Borusan  in re sponding to the 
USDOC 's requests for information  when  selecting  facts available under Article  12.7. Subsequently , 
Turkey  clarified that its argument concerning the punitive  application of  facts available does not 
hinge upon the USDOC having to take into account the alleged difficulties.330 Therefore, we proceed 
on the  basis that Turkey is pursuing an argument that the facts that the USDOC selected in the 
OCTG investigation were punitive, irrespective of whether Borusan experienced any difficulties.  
                                                
319 Turkey 's response to Panel question No. 46, para. 94; second written submission, paras.  126 
and 129. 
320 Turkey 's first written submission, para. 209; statement at the second  meeting of the Panel, para.  84. 
321 Turkey 's first written submission, para. 210. 
322 Turkey 's first written submission, para. 210 (quoting  OCTG CVD Final Determination Memorandum , 
(Exhibit TUR-85), p. 52). (emphasis added  by Turkey ) 
323 United  States'  second written submission, para.  125. 
324 United  States'  first written submission, paras.  131-132, and 154; response to Panel question  No. 51, 
para. 152; and  second written submission, para. 133. 
325 United  States'  second written submission, paras.  125, 128, and 134.  
326 United  States'  second written submission, para. 131. 
327 United  States'  first written submission, para.  155; second written submission, paras.  125, 128, 
and 132. 
328 United  States ' response to Panel question  No. 47, para. 146. 
329 Turkey 's response to panel question No. 45, para. 84 (where Turkey argues that " USDOC 's selection 
of facts available based on adverse inferences in the OCTG investigation is inconsistent with Article  12.7 of the 
SCM Agreement , in part, because the USDOC failed to take 'due account ' of the difficulties Borusan 
experienced in providing the requested information  in drawing adverse inferences " (emphasis added)) . See 
also United  States'  response to Panel question No. 44, para.  135.  
330 Turkey's  response to Panel question No. 96, para. 49. WT/DS523/ R 
 
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  7.204.   The w ords "punish" or "punitive" do  not appear in the SCM  Agreement . In alleging "punitive" 
application of facts available, we understand Turkey  to argue  that the use of  adverse inferences —
such as the selection of the lowest price on the record  and the non -reporting facilities ' entire annual 
production capacity was meant to  punish Borusan  and resulted in  an inaccurate subsidization  
determination that does not accord with Article  12.7.331 Turkey 's argument concerning the "punitive" 
application of facts availabl e thus rests on the premise that the way in which the USDOC selected 
"facts available" resulted in inaccurate determinations that are not "reasonable replacements" of the 
necessary missing information.332 We note that in  US – Carbon Steel (India) , the Appell ate Body 
warned against the so -called "punitive" application of facts available for exactly that reason:  
[T]he use of inferences in order to select  adverse facts that punish non -cooperation 
would lead to an inaccurate determination and thus not  accord with Article  12.7.333  
7.205.    Thus, the issue before us is whether an objective and unbiased investigating authority would 
have considered the facts that the USDOC selected in the OCTG investigation to be reasonable 
replacement s of the missing information, with a view to achiev ing an accurate determina tion. In this 
regard, the Appellate Body in  US – Carbon Steel  (India)  stated that: 
[T]he task of ascertaining which "facts available" reasonably replace the missing 
"necessary information" under Article  12.7 ca lls for a process of reasoning and 
evaluation . … [I]t would not be possible to identify whether replacements for the missing 
"necessary information" are "reasonable", and thus constitute the "evidence" on which 
to ground a determination, without engaging in such a process.334 
7.206.   This process in turn calls for a consideration of all pertinent and substantiated facts on the 
record :  
[A]s part of the process of reasoning and evaluating which "facts  available" reasonably 
replace the missing information, all substan tiated facts on the record must be taken 
into account . It would frustrate the function of Article  12.7, namely, to "replac[e]  
information that may be missing, in order to arrive at an accurate subsidization or injury  
determination", if certain substantiate d facts were arbitrarily excluded from 
consideration. In  addition, we note that the participants agree that Article  12.7 should 
not be used to punish  non-cooperating parties by choosing adverse facts for that 
purpose. Rather, the participants  agreed at the  oral hearing that the function of 
Article  12.7 is to replace the missing "necessary  information" with a view to arriving at 
an accurate determination.335 
7.207.   Where there are multiple facts available  on the record, an investigating authority may be 
required to m ake a comparative  evaluation :  
[W]here there are several "facts available" from  which to choose, an investigating 
authority must nevertheless evaluate and reason which of the  "facts available" 
reasonably replace the missing "necessary information", with a view to arriving at  an 
accurate determination.336 
7.208.   Finally, the investigating authority must sufficiently explain  in its determination  its selection 
of "facts available":  
[T]he explanation provided by the investigating authority in its published report must 
be sufficient to allow a panel to assess whether the "facts available" employed by the 
investigating authority resulted from a process of reasoning and analysis, including an 
                                                
331 Turkey 's first written submission, para. 209. 
332 Turkey 's response s to Panel question No. 46, para. 94, and No. 48, para. 96. 
333 Appellate Body Report, US – Carbon Steel  (India) , para. 4.468. 
334 Appellate Body Report, US – Carbon Steel  (India) , para. 4.418 . (emphasis added ) 
335 Appellate Body Report, US – Carbon Steel  (India) , para. 4.419. (fns omitted ; emphasis added ) 
336 Appellate Body Report, US – Carbon Steel  (India) , para. 4.426. WT/DS523/ R 
 
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  assessment of whether the use of an inference comports with the legal standard of 
Article  12.7 we have set out above.337 
7.209.   We are guided by  these principles when assessing whether the USDOC as a n objective  and 
unbiased invest igating authority could have fou nd the selected facts to be reasonable replacements 
for the missing necessary information.  
7.210.   In the OCTG investigation, the USDOC selected facts available for the purpose of determining 
two elements regarding Borusan 's purchases of HRS from Erdemir and Isde mir at the 
two non-responding facilities , i.e. the price and quantity of such purchases.  We examine each of 
these selected facts in turn.  
7.5.2.2.2.1   The selection of the lowest price on the record  
7.211.   We recall that, for the purpose of establishing the price paid for HRS  at the  
two non-responding facilities , the USDOC 's Post-Preliminary Analysis Memo randum  for Borusan 
stated that:  
With respect to Borusan 's HRS purchases for the Halkali and Ismit mills …  we are also 
inferring adversely that for both the Halkali and Ismit  mills, Borusan purchased HRS at 
the lowest price on the record for the Gemlik mill 's HRS purchases.338 
7.212.   The USDOC 's Final Determination  stated in this regard that :  
Consistent with the Borusan Post -Preliminary Analysis, we are inferring adversely that 
Borusa n purchased all HRS for the Halkali and Izmit mills at the lowest price on the 
record for the Gemlik mill 's HRS purchases from Erdemir and Isdemir.339 
7.213.   The parties do not  dispute that verified information concerning HRS transactions for the 
Gemlik facility wa s on the record. Accordingly, there was a series of verified prices on the record 
concerning Borusan 's HRS purchases at the Gemlik facility . Before an investigating authority selects 
a price amongst  the facts available , i.e. all verified prices , we expect an objective  and unbiased 
investigating authority to engage in a process of reasoning and evaluation regarding the whole range 
of transactional prices on the record, including in particular the date, seller, purchase quantity 
associated with these transact ions, as well as any reasons for fluctuations in prices. Moreover, as 
the Appellate Body observed on several occasions , when  an investigating authority must choose 
among several facts available, like in the present case, the process of reasoning and evalua tion must 
involve a degree of comparison in order to arrive at an accurate determination .340 In our view, only 
through such a process could an investigating authority properly select among all verified prices to 
find a "reasonable replacement " for the missing price information consistently with Article  12.7.  
7.214.   We do not suggest that the price that an investigating authority eventually  selects as the 
"fact available" must reflect all of the verified prices on the record, which Turkey  seems to sug gest.341 
What is important in our view is that an investigating authority cannot exclude other substantiated 
facts from the pool from which it will select a reasonable replacement. If an investigating authority 
simply chooses  the lowest price without a proce ss of reasoning and evaluation of all the prices, it 
risks excluding a priori  the rest of the prices arbitrarily.  
7.215.    We do not  understand  that the USDOC engaged in any comparative process of reasoning 
and evaluation in selecting the lowest price on the recor d. Instead, the USDOC clearly stated that it 
was "inferring adversely " in selecting the lowest price on the record  because of 
Borusan 's non-cooperation . In other words, the sole basis for selecting the relevant price data was 
                                                
337 Appellate Body Report, US – Carbon Steel  (India) , para. 4.469. 
338 Post-Preliminary Analysis Memo randum  for Borusan , (Exhibit TUR -75), p. 14.  
339 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 12. 
340 Appellate Body Report, US – Carbon Steel (India) , paras.  4.431 and 4.435. See also Appellate Body 
Report, US – Countervailing Measures (China) , para.  4.179.  
341 Turkey 's second written submission, para. 129; United  States'  opening  statement at the 
second  meeting of the Panel, para.  41. WT/DS523/ R 
 
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  the adverse inference. Therefore , we find that the USDOC acted inconsistently with Article  12.7 of 
the SCM Agreement .  
7.216.   The United  States  argues that the USDOC considered the lowest price to be  a "reasonable 
replacement " because it was a price that Borusan had actually paid for H RS for the Gemlik facility . 
For the United  States , it is entirely possible that the actual prices paid by Borusan for HRS for the 
Halkali and Izmit facilities  were less than the lowest price it paid for the Gemlik facility .342  
7.217.   The United  States ' argument is  not reflected in the  USDOC determination  and amounts to 
post hoc  rationalization . In any event, the United  States ' argument is unpersuasive. The fact that 
the selected price is an actual price does not necessarily mean that it is a "reasonable replacement " 
of the missing necessary information under Article  12.7. We agree that actual prices that the same 
respondent paid at a different facility may serve as a useful starting point for selecting the 
"reasonable replacement " for prices paid by that respondent  at its other  facilities. However, given 
that there is a range of actual prices available on the record, one cannot ascertain which of the 
actual prices reasonably replaces the missing "necessary information " under Article  12.7 without 
also looking into the  particular circumstances of the transactions. While the United  States  may be 
right in pointing out that the unknown actual price at the non -responding facilities could be lower 
than the lowest price at the Gemlik facility , it is equally possible that the unknown price at the 
non-responding facilities  could be higher than the highest price at the Gemlik facility . Such 
speculation cannot form the basis of facts available under Article  12.7. We recall and agree with the 
panel 's views in EC – Countervailing Me asures on DRAM Chips  that a n objective  and unbiased 
investigating authority would not base its determination on "speculative assumptions or on the worst 
information available ", even when  interested parties have failed to cooperate.343  
7.218.   In light of our finding that the USDOC failed to engage in a process of reasoning and 
evaluation in selecting the facts available for the missing price information in the OCTG investigation, 
we do not  address the arguments of Brazil344 and Turkey345 that a weighted averag e price serves 
better as a "reasonable replacement " of the missing price information at the two non -responding 
facilities . We also do not need  to address  Turkey 's argument that the USDOC selected the lowest 
price on the record as the worst possible fact  to punish Borusan.346 
7.5.2.2.2.2   The selection of quantities of HRS purchases on the basis of the full capacity 
of the non -responding facilities  and Gemlik 's ratio of HRS purchases from Erdemir and 
Isdemir  
7.219.   In the OCTG investigation, the  USDOC determined the quantities of  HRS purchases  by 
non-responding facilities , Halkali and Izmit , from Erdemir and Isdemir based on facts available. The 
USDOC initially used the quantity of HRS purchased by Gemlik from Erdemir and Isdemir as the 
quantity of HRS purchases for each of the no n-responding facilities . The USDOC subsequently 
revised the quantities of HRS purchases for the non -responding facilities . The USDOC based  the final 
quantities of HRS purchases at the Halkali and Izmit facilities  on the full production capacity347 of 
                                                
342 United  States'  second written submission, para. 131; comments on Turkey's  response to Panel 
question No.  96, para.  43. 
343 Panel Report,  EC – Countervailing Measures on DRAM Chips , para. 7.61. See also Appellate Body 
Report, US – Carbon Steel (India) , para. 4.417 . 
344 In its oral statement, Brazil argues that a weighted average of the prices paid by the Gemlik facility  
for HRS "in all lik elihood, would serve as a better approximation of the missing information" than USDOC 's use 
of the lowest price on the record for purchases of HRS for the Gemlik facility . (Brazil 's third-party statement, 
paras.  7-8). The United  States  argues that Brazil has no t provided any explanation b ased on the text of 
Article  12.7 that would support such an assertion. According to the United  States , such an interpretation would 
serve only to incentivize non -cooperation.  (United  States'  response to Panel question  No. 47, para. 146; see 
also opening  statement at the second meeting of the Panel, para.  41). 
345 Turkey's  response to Panel question No.  47, para.  95; second written submission, para. 126; and  
statement at the second meeting of the Panel, para.  85. 
346 Turkey 's second written submission, para. 130; response s to Panel question No.  51(b), para.  109, 
and No. 49, para.  100. 
347 The capacity figures which the USDOC used to calculate the benefit to Borusan of the Halkali and 
Izmit facilities'  HRS purchases were nominal rates, i.e. "t heir entire annual production capacity " of 100 kton nes 
and 250 kton nes, respectively.  (Turkey's  response to Panel question No.  98, para.  51 (referring to OCTG 
CVD Final Determination Memorandum , (Exhibit TUR -85), pp. 51-52)). See also United  States'  response to 
Panel question No.  98, para.  105. WT/DS523/ R 
 
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  each facility, multiplied by  the percentage  of Gemlik 's HRS purchase s from Erdemir and Isdemir  out 
of total HRS purchases . In its Final Determination , the USDOC stated the following:  
In the Borusan Post -Preliminary Analysis, we also inferred adversely that Borusa n 
purchased the same quantity of HRS produced by Erdemir and Isdemir for each of these 
mills as it did for the Gemlik mill. Based on comments from interested parties and record 
information, however, we adjusted that inference for this final determination. 
Accordingly, we now are inferring as adverse facts available that the Halkali and Izmit 
mills each purchased the same quantity of HRS during the POI as its annual production 
capacity. In accordance with that inference, we are  presuming in our calculations that 
the Halkali and Izmit mills each purchased HRS from Erdemir and Isdemir in the same 
ratio as the Gemlik mill 's purchases from Erdemir and Isdemir as a share of its total 
purchases.348  
7.220.   In our view,  an objective and unbiased investigating authority would  not have simply used 
the full production capacity as a basis to calculate the quantities of HRS purchases from Erdemir and 
Isdemir at the two non -responding facilities , without first considering any substantiated information 
on the record that may shed li ght on the capacity utilization  of the two non -responding facilities . The 
United  States  confirms  that Borusan 's verified capacity utilization  rate at the Gemlik facility  was on 
the record .349 This information  might have  serve d as a reasonable approximation o f the capacity 
utilization  rate at the two non -responding facilities . This is clear given that the USDOC also used 
Gemlik 's HRS purchase ratio for the purpose of establishing the two non -responding facilities ' HRS 
purchase ratio from Erdemir and Isdemir . Even absent  such verified capacity utilization  data, an 
investigating authority may choose to use information from secondary sources, such as the industry 
average capacity utilization  rate, in order to select a  commercially realistic capacity utilization  rate 
as a basis for a "reasonable replacement " of the quantit ies of HRS purchases with a view to arrive 
at an accurate subsidization determination. We have no evidence before us that the USDOC engaged 
in such a process of reasoning and evaluation to ascer tain whether the full capacity utilization  serves 
as the basis of a reasonable replacement  of the missing quantity information.  
7.221.   We therefore  find that the USDOC acted inconsistently with Article  12.7 of the 
SCM Agreement  in using the full production capac ity of the two non -responding facilities  as the basis 
for calculating the quantity of the HRS purchases at these two facilities .  
7.222.   We now turn to examine  whether an objective and unbiased investigating authority could 
have selected G emlik's ratio of HRS purchases from Erdemir and Isdemir as the ratio for the 
non-responding facilities ' HRS purchases from Erdemir and Isdemir . We recall that  in determining 
the quantity of HRS provided by Erdemir and Isdemir, the USDOC multiplied the full production 
capacity of the two non -reporting facilities  by the percentage  of Gemlik 's HRS purchase s from 
Erdemir and Isdemir  out of Gemlik 's total HRS purchases . In our view, it  was reasonable that the 
USDOC relied on Gemlik 's ratio of HRS purchases from Erdemir and I sdemir out of Gemlik 's total 
HRS purchases . First, the USDOC engaged in a process of reasoning and e valuation with a degree 
of comparison  when it rejected the alternative fact s proposed by the  petitioner that " Borusan 's Izmit 
and Halkali  mills purchased the same quantity of HRS as the Gemlik facility , but that 100 percent of 
these purchases was from Erdemir and Isdemir ."350 Second , we consider that there is a sufficiently 
close connection between the missing information , i.e. the quantity o f Borusan 's HRS purchases 
from Erdemir and Isdemir at  non-responding facilities  Halkali and Izmit , and the percentage  of 
Gemlik 's HRS purchases from Erdemir and Isdemir .  
7.223.   For the above reasons, we find that the USDOC acted inconsistently with Article  12.7 of the 
SCM Agreement  by failing to engage in a process of reasoning and evaluation in selecting the facts 
available for the missing price information in the OCTG investigation . We also find that the USDOC 
acted inconsistently with Article  12.7 by using the  full production capacity of the two non -responding 
facilities  as the basis for calculating the quantity of the HRS purchases at these two facilities , without  
engaging in a process of reasoning and evaluation . However, we consider  that it was reasonable for 
the USDOC to use  Gemlik 's ratio of HRS purchases from Erdemir and Isdemir out of the total HRS 
                                                
348 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 12. (fn omitted)  
349 United  States'  response to Panel question No.  98, para.  104. 
350 OCTG CVD Final Determination Memorandum , (Exhibit TUR -85), p. 52 (emphasis added).  See also 
United  States'  comments on Turkey's  response to Panel question No.  96, para.  44; and r esponse to Panel 
question No.  98, para.  105. WT/DS523/ R 
 
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  purchases at the Gemlik facility  as the basis for calculating the quantity of the HRS purchases at the 
two non-responding facilities . 
7.5.3   The use of facts available in the WLP investigation  
7.5.3.1   Factual b ackground  
7.224.   In the WLP investigation , Borusan decided not to participate in the verification . Instead , 
Borusan  requested the USDOC to use the verification report and exhibits from the CWP review 
proceeding,  which allegedly covered the same program mes351 and the same time period as the WLP 
investigation .352 The USDOC rejected this request because "[v]erification of data submitted in a 
separate proceeding related to a different industry does not satisfy t he requirement in section 782(i) 
of the Act that the Department verify the information relied upon in making its final 
determination" .353 The USDOC found that Borusan significantly impeded the investigation and 
provided information that could not be verified , and therefore its CVD rate has to be based on facts 
available . The USDOC concluded that Borusan did not cooperate to the best of its ability in this 
investigation. The USDOC stated that adverse inference is warranted  "to ensure that Borusan did 
not obtai n a more favorable result by failing to cooperate in the investigation ".354 
7.225.   The USDOC inferred  that Borusan benefitted from each of the programmes raised in the 
petition, with the exception of any programmes that were previously proven not to exist.  The USDOC 
applied subsidy rates for all of the subsidy programmes in the following manner355: 
a. for the 7 income tax programmes alleged in the petition which pertain to either the 
reduction of income tax paid or the payment of no income tax, the USDOC applied a n 
adverse inference that Borusan paid no income tax during the POI, i.e. a subsidy rate of 
20% was applied;  
b. for 7 subsidy program mes, including the  Provision of  HRS for LTAR, the USDOC applied 
the highest -calculated programme -specific subsidy rates (above zero) for a cooperating 
respondent in the WLP investigation, Toscelik;  
c. for programmes for which the USDOC did not calculate an above -zero rate for Toscelik in 
the WLP investigation, the USDOC applied the highest subsidy rate calculated for the same 
or, if lacking such rate, for a similar programme in a CVD investigation or administrative 
review involving Turkey; and  
d. for programmes for which the USDOC  were unable to find above -de minimis  rates 
calculated for the same or similar program mes, the USDOC  applied  the highest calculated 
subsidy rate for any programme identified in a Turkish CVD proceeding that could 
conceivably be used by Borusan . 
7.226.   We first address the United  States'  request  that we exclude from our terms of reference 
certain claims under Articles  12.7 of the SCM Agreement  concerning the WLP investigations. We 
then address the claims that are within our terms of reference.  
7.5.3.2   Whether Turkey 's claims under Article  12.7 of the SCM Agreement  in respect of 
"all investigated programs" in the WLP investigati on are within the Panel 's terms of 
reference  
7.227.   The United  States  requests the Panel to rule that Turkey 's claims under Article  12.7 of the 
SCM Agreement  with respect to 29 non -HRS for LTAR subsid ies addressed in the WLP investigation 
are outside the Panel 's terms of reference.  
                                                
351 The United  States  disagree s that it covers the same subsidy programmes. (United  States'  first 
written submission, para. 169; response  to Panel question No.  94, para.  99). 
352 United  States'  first written submission, para. 165. See  also Borusan 's decision  not to participate in 
verification , (Exhibit TUR -101), pp. 1-2. 
353 USDOC's  letter on WLP ver ification , (Exhibit USA -20). 
354 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 4. 
355 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), p. 7. WT/DS523/ R 
 
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  7.228.   Turkey 's panel request includes a number of claims regarding the WLP investigation. Three 
of these claims are grouped under the subheading " In connection with the alleged Provision of Hot 
Rolled Steel for Less Than Adequate Remuneratio n", including one claim under Article  12.7 of the 
SCM Agreement , as follows356: 
(B) WLP from Turkey (C -489-823)  
In connection with the alleged Provision of Hot Rolled Steel for Less Than 
Adequate Remuneration:  
1. Article  1.1(a)(1) of the SCM Agreement  
a.  In determining that OYAK is a "public body," the USDOC failed to 
adhere to the appropriate legal standard under Article  1.1(a)(1) and 
follow the Appellate Body 's guidance regarding the interpretation of 
that standard. Instead, the USDOC determined that OYA K is a public 
body based on formal indicia of government ownership or control, with 
no consideration of whether OYAK in fact exercises or is vested with 
governmental authority. The USDOC also failed to provide a reasoned 
and adequate explanation, based on the evidence on the record, for 
its finding that OYAK is a public body.  
b.  In determining that Erdemir and its subsidiary Isdemir are "public 
bodies," the USDOC failed to adhere to the appropriate legal standard 
under Article  1.1(a)(1) and follow the Appe llate Body 's guidance 
regarding the interpretation of that standard. The 
USDOC 's determination was improperly confined to formal indicia of 
government ownership or control, with no consideration of whether 
Erdemir and its subsidiary Isdemir in fact exercis e or are vested with 
governmental authority. The USDOC also failed to provide a reasoned 
and adequate explanation, based on the evidence on the record, for 
its finding that Erdemir and its subsidiary Isdemir are public bodies.  
2. Article  12.7 of the SCM Agreement  
a. The USDOC drew adverse inferences in selecting among the facts 
available for the purpose of punishing Borusan for its alleged failure to 
cooperate.  
3. Articles  2.1(c) and 2.4 of the SCM Agreement  
a.  In finding specificity in terms of use by a l imited number of industries 
or enterprises, the USDOC failed to identify, or substantiate based on 
positive evidence on the record, a "subsidy programme" related to the 
provision of hot rolled steel for less than adequate remuneration.  
… 
In connection with  the injury determination:  
4. Article  15.3 of the SCM Agreement  
a. The U.S. International Trade Commission (" [US]ITC") has a practice, 
in assessing material injury, of cumulating imports that are subject to 
countervailing duty investigations with imports t hat are subject only 
to antidumping duty investigations, i.e., non -subsidized imports, from 
all countries with respect to which antidumping or countervailing duty 
petitions are filed on the same day. In investigations, the [US]ITC 
considers this practice t o be required under section 771(7)(G)(i) of the 
                                                
356 Turkey 's panel request, p. 4, section (B).  WT/DS523/ R 
 
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  Tariff Act of 1930, if the subsidized and non -subsidized imports 
compete with each other and with the domestic like product in the U.S. 
market.  
b. Turkey considers that the [US]ITC's practice of "cross -cumulating" 
subsidized and non -subsidized imports, with respect to which 
antidumping or countervailing duty petitions are filed on the same day, 
is inconsistent with Article  15.3 of the SCM Agreement  both "as such", 
as a practice, and as applied in this pr oceeding.  
7.229.   The United  States  argues that, b y grouping  its claim s in this manner, Turkey expressly 
limited its Article  12.7 claim in the WLP investigation to the USDOC 's application of facts available 
"[i]n connection with the alleged Provision of Hot Rolled  Steel for Less Than Adequate 
Remuneration".357 The United  States  submits that the other 29 programmes were not included in 
the claim in Turkey 's panel request.358 
7.230.   Turkey argues  that it advanced its Article  12.7 claim that the United  States'  determination 
to apply facts available and draw adverse inferences with regard to Borusan in the WLP proceeding  
generally  and not just  in respect of  the so-called Provision of HRS for LTAR Programme .  
7.231.   Therefore, we must address whether  Turkey 's panel request limits the scop e of its 
Article  12.7 challenge  in the WLP proceeding to the use of facts available  in connection with the 
so-called Provision of HRS for LTAR Programme, based on how Turkey chose to group its claim s in 
its panel request.  
7.232.   Article  6.2 of the DSU provides in  relevant part:  
The request for the establishment of a panel shall be made in writing. It shall indicate 
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.  
7.233.   The two requirements to identify the measures at issue and provide a brief summary of the 
legal basis of the complaint constitute the "matter referred to the DSB" and form the basis of a 
panel 's terms of reference. These requir ements are therefore central to the establishment of a 
panel 's jurisdiction.359 The panel request also serves a due process function, providing the 
respondent and third parties notice as to the nature of the complainant 's case360, enabling them to 
respond acco rdingly.361 A panel must therefore determine whether the panel request, read as a 
whole and as it existed at the time of filing362, is "sufficiently clear" or "sufficiently precise" on the 
basis of an "objective examination".363  
                                                
357 United  States'  first written submission, para.  30. In its discussion of the use of facts available in the 
WLP investigation, Turkey refers to "examples of inaccurate determinations made by the USDOC " in 
determining the overall 152.2% subsidy rate for Boru san. As examples, Turkey refers to income tax -related 
subsidy programme s, as well as Customs Duty Exemptions and VAT Exemptions under each of the Investment 
Encouragement program me, the Large Scale Investment Incentives programme , and the Strategic Investm ent 
Incentives program me. Turkey does not refer to  facts available determinations made in respect of the  Provision 
of HRS for LTAR  Program me. (Turkey's  first written submission, para.  327).  
358 United  States'  first written submission, para.  32. 
359 Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , paras.  639-640 
(referring to Appellate  Body Reports, Guatemala – Cement I , paras.  72-73; and US – Carbon Steel , para. 125); 
US – Continued Zeroing , paras.  160-161; US – Zeroing (J apan) ( Article  21.5 – Japan) , para. 107; Australia – 
Apples , para. 416; US – Countervailing and Anti -Dumping Measures (China) , para. 4.6; and Brazil – Desiccated 
Coconut , DSR 1997:1, p.  186. 
360 Appellate  Body Reports, Brazil – Desiccated Coconut , DSR 1997:1 , p. 186; US – Carbon Steel , 
para. 126; and EC and certain member States – Large Civil Aircraft , para. 640. 
361 Appellate  Body Reports, Brazil – Desiccated Coconut , DSR 1997:1, p.  186; Chile – Price Band 
System , para. 164; US – Continued Zeroing , para. 161; and Thailand – H-Beams , para. 88. 
362 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 642. 
363 Appellate  Body Reports, EC – Bananas III , para. 142; EC and certain member States – Large Civil 
Aircraft , para. 641; US – Carbon Steel , para. 127; US – Continued Zeroing , para. 161; US – Countervailing and 
Anti-Dumping Measures (China) , para. 4.8; US – Oil Country Tubular Goods Sunset Reviews , paras.  164 
and 169; and US – Zeroing (Japan) ( Article  21.5 – Japan) , para. 108. Parties ' subsequent submissions and WT/DS523/ R 
 
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  7.234.   In order to "provide a brief sum mary of the legal basis of the complaint sufficient to present 
the problem clearly", the panel request must set out the claims  so as to "present the problem 
clearly".364 A "claim" in this context is an allegation "that the respondent party has violated, or 
nullified or impaired the benefits arising from, an identified provision of a particular  Agreement ".365 
"Arguments", by contrast, are statements put forth by a complaining party "to demonstrate that the 
responding party 's measure does indeed infringe upon the  identified treaty provision".366 Further, 
"the narrative" of panel requests should "explain succinctly how or why the measure at issue is 
considered by the complaining Member to be violating the WTO obligation in question".367 Moreover, 
a panel request must " plainly connect the challenged measure(s) with the provision(s) of the 
covered  Agreement s claimed to have been infringed".368 "Whether such a brief summary is 'sufficient 
to present the problem clearly ' is to be assessed on a case -by-case basis, keeping in m ind the nature 
of the measure(s) at issue, and the manner in which it is (or they are) described in the panel request, 
as well as the nature and scope of the provision(s) of the covered  Agreement s alleged to have been 
violated."369 
7.235.   We consider that, b y group ing its claims in its panel request in  the manner  it did , Turkey 
expressly limited its Article  12.7 claim in the WLP investigation to the USDOC 's application of facts 
available "[i ]n connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate 
Remuneration". Therefore, any claim that Turkey raises in respect of other subsidy programmes at 
issue in the WLP investigation are outside of our terms of reference.  
7.236.   Fundamentally, Turkey 's panel request identifies a single subsidy programme in respect of 
the WLP investigation,  namely  the alleged  "Provision of Hot Rolled Steel for Less Than Adequate 
Remuneration ". Turkey 's panel request does not refer to any of the other s ubsidy programmes at 
issue in the  WLP investigation.  In order to "present the problem clearly", a  panel request must 
"plainly connect the challenged measure(s) with the provision(s) of the covered  Agreement s claimed 
to have been infringed".370 Turkey 's panel  request plainly connects its Article  12.7 claim with the 
alleged Provision of HRS for LTAR Programme . It does not plainly connect its Article  12.7 claim with 
any other programmes or measures at issue in the WLP investigation.   
7.237.   We recall that a panel reque st forms the basis of a panel 's terms of reference  and establishes  
a panel 's jurisdiction371, as well as serv es a due process function by providing the respondent notice 
as to the nature of the complainant 's case. Based on the manner in which Turkey formulat ed its 
panel request, we conclude that a  respondent would thus reasonably understand that Turkey as 
complainant was raising its Article  12.7 claim in the WLP investigation solely in connection with the 
Provision of HRS for LTAR.  
                                                
statements, therefore, cannot "cure" defects in panel requests. (Appellate  Body Reports, China – Raw 
Materials , para. 220; EC – Bananas III , para. 143; EC and certain member States – Large Civil Aircraft , 
para. 787; US – Carbon  Steel, para. 127; and US – Countervailing and Anti -Dumping Measures (China) , 
para. 4.9). 
364 Appellate Body Report, EC – Selected Customs Matters , para. 153. 
365 Appellate Body Report, Korea – Dairy , para. 139. 
366 Appellate Body Report, Korea – Dairy , para. 139. A panel request need not, however, include 
arguments seeking "to demonstrate that the responding party 's measure does indeed infringe upon the 
identified treaty provision ". A party 's arguments may be presented and clarified over the course of the 
procee ding. (Appellate Body Report, Korea – Dairy , para. 139 (referring to Appellate Body Reports, EC –
Bananas  III, para. 141; India – Patents (US) , para. 88; and EC – Hormones , para. 156)).  
367 Appellate Body Reports, China – Raw Materials , para. 226 (emphasis or iginal); EC – Selected 
Customs Matters , para. 130. 
368 Appellate Body Reports, China – Raw Materials , para. 220; US – Oil Country Tubular Goods Sunset 
Reviews , para. 162; and US – Countervailing and Anti -Dumping Measures (China) , para. 4.8. 
369 Appellate Body Report, US – Countervailing Measures (China) , para. 4.9. 
370 Appellate Body Reports, China – Raw Materials , para. 220; US – Oil Country Tubular Goods Sunset 
Reviews , para. 162; and US – Countervailing and Anti -Dumping Measures (China) , para. 4.8. 
371 Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , paras.  639-640 
(referring to Appellate  Body Reports, Guatemala – Cement I , paras.  72-73; and US – Carbon Steel , para. 125); 
US – Continued Zeroing , paras.  160-161; US – Zeroing (Japan) ( Article  21.5 – Japan) , para. 107; Australia – 
Apples , para. 416; US – Countervailing and Anti -Dumping Measures (China) , para. 4.6; and Brazil – Desiccated 
Coconut , DSR 1997:1, p.  186. WT/DS523/ R 
 
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  7.238.   This conclusion is consistent with the logic with which claims are identified throughout 
Turkey 's panel request.372 For instance, we note that the other claims  grouped with 
Turkey 's Article  12.7 claim under the subheading "[i]n connection with the alleged Provision of Hot 
Rolled Steel for Less Than Adequate Remuneration" concerning the WLP investigation are raised 
exclusively in respect of the Provision of HRS for LTAR. Turkey 's claims under Article  1.1(a)(1) in 
respect of the public body determination in the WLP investigat ion only concern  the provision of HRS 
by Erdemir and Isdemir . Turkey 's Articles  2.1(c) and 2.4 claims also concern the provision of HRS 
programme exclusively.373 The same logic exists in respect of Turkey 's claims concerning the HWRP 
investigation. In the su bsection pertaining to that investigation, Turkey 's panel request groups  
Turkey 's Articles  1.1(a)(1), 2.1(c) and 2.4 claims  under the subheading  "In connection with the 
alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration ".374 Turkey 's Article 12.7 
claim  regarding  the HWRP investigation , however,  is listed under the separate  subheading "In 
connection with 'other subsidies ' not previously reported to the USDOC".375 Consistent with the 
inclusion of its Article  12.7 claim concerning the HWRP i nvestigation under that subheading , Turkey 
has only raised arguments in connection with  so-called  "other subsidies" not reported to the USDOC 
prior to verification .376 
7.239.   Turkey argues that the United  States  conflates Turkey 's "arguments" with its "claims" unde r 
Article  12.7 and mischaracterizes the nature of the claim at issue. Turkey considers that it  was not 
required to include all potential arguments in support of its claim under Article  12.7 of the 
SCM Agreement  in its panel request, and thus it was not req uired to identify all 30 programmes 
investigated in the WLP proceeding in its request. Turkey also argues  that its panel request clearly 
connects the challenged measure with the provision that is alleged to have been infringed, and thus, 
Turkey considers  that the United  States  was sufficiently informed of Turkey 's claim.377 We disagree. 
As we explain above, a  panel request must plainly connect the challenged measures  with the 
provisions of the covered  Agreement s claimed to have been infringed  in order to "p resent the 
problem clearly" . Turkey 's panel request does not connect its Article  12.7 claim with any other 
subsidy programme, strictly identifying its Article  12.7 claim directly in connection with the Provision 
of HRS for LTAR  Programme .  
7.240.   Turkey also rais es several additional arguments. For instance, Turkey argues  that the 
United  States'  determination to apply facts available with regard to Borusan was not a 
"program -specific determination", but was based on Borusan 's decision not to participate in 
verific ation, which is a circumstance outside the context of the USDOC 's investigation of any 
particular subsidy program me. Thus, Turkey submits that "the USDOC did not make an adverse 
facts available determination specifically with regard to its investigation of  the provision of hot rolled 
steel for less than adequate remuneration".378 In addition , Turkey argues that,  even if the 
United  States  understood Turkey 's claim to be limited to the Provision of HRS for LTAR, the 
United  States  is not prejudiced because  the "USDOC made the same factual findings and applied the 
same legal reasoning in drawing adverse inferences to select subsidy rates for all investigated 
programs in the WLP proceeding".379  
7.241.   Turkey 's arguments are not relevant to our assessment of whether any of 
Turkey 's Article  12.7 claims fall outside our terms of reference. Regardless of whether the USDOC 
made the same factual findings and applied the same legal reasoning when drawing adverse 
inferences in respect of all subsidy programmes , wheth er the decision  to resort to facts available is 
program me-specific or not  cannot cure deficiencies in a panel request.380 We further find irrelevant 
                                                
372 We note that Turkey's  claims concerning the injury determination in the four challenged proceedings 
are placed under subheadings " In connection with the injury determination " as the injury determination is 
made in the context of all subsidy programmes und er investigation.  
373 In this respect, Turkey's  Article  2.1(c) and 2.4 claims  are directed at the specificity findings "related 
to the provision of hot rolled steel for less than adequate remuneration".  (Turkey's  panel request, 
para. 8.(B).3.a).  
374 Turkey's  Panel request, paras.  8.(C).1. and 8.(C).2.  
375 Turkey's  Panel request, para.  8.(C).3.  
376 With the exception of its Article  12.7 claim concerning the WLP investigation, we note that Turkey 
has not introduced arguments over the course of the proceedings with a view to enlarging any of its other 
claims to encompass other programmes beyond those identified in its panel request.  
377 Turkey's  response to the United  States'  preliminary ruling request, paras.  27-28. 
378 Turkey's  response to the United  States'  preliminary ruling request, para.  29. 
379 Turkey's  response to the United  States'  preliminary ruling request, para.  30. 
380 The United  States argues that the USDOC engaged in separate fact -finding and legal determinations 
with respect to each of the subsidy programmes at issue. (United  States'  second written submission, para.  26). WT/DS523/ R 
 
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  whether the United  States  was prejudiced or not by a lack of precision in Turkey 's panel request. As 
we explain above, Article  6.2 of the DSU requires a complainant to "identify the specific measure at 
issue and provide a brief summary of the legal basis of the complaint sufficient to present the 
problem clearly". A panel 's examination of whether a panel request complies w ith these 
requirements "must be objectively determined on the basis of the panel request as it existed at the 
time of the filing"  and be "demonstrated on the face" of the request.381 Article  6.2 of the DSU does 
not separate ly require a finding of prejudice t o a responding party in order to determine whether or 
not a given  claim  falls within a panel 's terms of reference. Rather, as we explain above, a panel 
request forms the basis of a panel 's terms of reference  and establishes  a panel 's jurisdiction .382 
Importa ntly, the panel request also serves a due process function by providing the respondent notice 
as to the nature of the complainant 's case.383 We therefore reject Turkey 's arguments.384  
7.242.   Accordingly , in respect of the WLP investigation,  we find that Turkey 's claims under 
Article  12.7 of the SCM Agreement  concerning subsidy programme s other than the Provision of HRS 
for LTAR are outside the Panel 's terms of reference.  We now consider Turkey 's Article  12.7 claims in 
respect of the provision of HRS for LTAR in the WLP investigation.  
7.5.3.3   The Panel 's evaluation of Turkey 's claim regarding the use of facts available in 
the WLP investigation  
7.243.   Turkey argues that the USDOC 's reliance on facts available and its decision to draw an 
adverse inference in the WLP investigation are inconsistent with Article  12.7 of the SCM  Agreement  
because the USDOC  drew an adverse inference to punish Borusan for its decision not to participate 
in the verification , and made various inaccurate determinations which led to an inaccurate subsid y 
calcula tion.385 Turkey  refers to two examples of alleged inaccurate determinations that the USDOC 
made .386 Turkey argues that the USDOC made no effort to evaluate the facts available to determine 
which facts could  reasonably replace "necessary information " that was missing from the record.387 
Turkey notes that there were substantiated facts on the record of the WLP investigation regarding 
Borusan 's non-use of, and ineligibility for, many subsidy programmes, but the USDOC ignored these 
facts and instead select ed the worst possible rates in order to punish Borusan for its alleged failure 
to cooperate.388  
7.244.   The United  States  argues that the USDOC  properly applied facts available as a reasonable 
replacement for the missing information. The United  States  argues that T urkey has dramatically 
expanded the scope of its arguments under Article  12.7 with respect to the WLP investigation to 
include 14 additional subsidy programmes in its response  to the Panel 's questions . The United  States  
requests that the Panel reject Turke y's challenge with respect to these 14 subsidy programmes 
because such a belated introduction of new evidence and arguments is contrary to the 
Panel 's working procedures and basic procedural fairness.389 With regard to the Provision of HRS for 
LTAR, the United  States  argues that Turkey has provided no substantive argumentation or 
                                                
381 Appellate Body Reports, US – Carbon Steel , para.  127; EC and certain member States – Large Civil 
Aircraft , para. 641. See also Appellate  Body Reports, EC – Bananas III , para. 142; US – Continue d Zeroing , 
para. 161; US – Countervailing and Anti -Dumping Measures (China) , para. 4.8; US – Oil Country Tubular 
Goods Sunset  Reviews , paras.  164 and  169; and US – Zeroing (Japan) ( Article  21.5 – Japan) , para. 108. 
382 Appellate  Body Reports, EC and certain member States – Large Civil Aircraft , paras.  639-640 
(referring to Appellate  Body Reports, Guatemala – Cement I , paras.  72-73; and US – Carbon Steel , para. 125); 
US – Continued Zeroing , paras.  160-161; US – Zeroing (Japan) ( Article  21.5 – Japan) , para. 107; Australia – 
Apples , para. 416; US – Countervailing and Anti -Dumping Measures (China) , para. 4.6; and Brazil – Desiccated 
Coconut , DSR 1997:1, p.  186. 
383 Appellate  Body Reports, Brazil – Desiccated Coconut , DSR 1997:1, p.  186; US – Carbon Steel , 
para. 126; and EC and certain member States – Large Civil Aircraft , para. 640. 
384 We note that Turkey has also argued that the United  States could have asked for clarifications prior 
to filing its preliminary ruling request and asked for an extension of time to p repare its response, as doing so 
would avoid the need for Turkey to reinitiate consultations and file another dispute to address other subsidy 
programmes at issue in the WLP proceeding. (Turkey's  response to the United  States'  preliminary ruling 
request, p ara. 31; response to Panel question No.  2, paras.  14-15). We also consider that these arguments are 
not relevant to our assessment.  
385 Turkey's  response to Panel question No. 48, para. 96. 
386 Turkey's  first written submission, para.  327. These two examples r elate to the income tax related 
"subsidy programmes", and the Customs Duty Exceptions and VAT Exemptions "subsidy programmes".  
387 Turkey 's response s to Panel question  No. 48 , para. 96, and No. 49, para.  100. 
388 Turkey 's response to Panel question  No. 49 , paras.  97-101; second written submission, para. 125. 
389 United  States ' second written submission, paras.  137-141. WT/DS523/ R 
 
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  analysis.390 According to the United  States , as Turkey has not properly raised any claims under 
Article  12.7, the Panel 's analysis may therefore end here.391  
7.245.   As discussed above  in Section 7.5.3.2 , we find that Turkey 's Article  12.7 claims concerning 
subsidy program mes392 other than the Provision of HRS for LTAR are not properly within our term 
of reference.  
7.246.   We reject the United  States'  argument that Turkey has provided no substantive 
argumentation concerning the Provision of HRS for LTAR. The principal argument s of Turkey are 
twofold : first, the subsidy rate calculations for all of the subsidy programmes in the WLP 
investigation, including the Provision of HRS for LTAR, are not reasonable replacements of the 
missing information393; and second, the  USDOC purposefully selected the worst possible facts 
available in order to punish Borusan for its all eged failure to cooperate.394 In its first written 
submission , Turkey also dispute s the total subsidy rate that the USDOC calculated for Borusan.395 
Thus in our view, Turkey 's arguments above were made with reference to all subsidy program mes 
it sought to chal lenge , including the Provision of HRS for LTAR .396 We do not agree with the 
United  States  that Turkey  must repeat its arguments with respect to each and every alleged subsidy 
program me.397 
7.247.   Given that we have concluded above  that Turkey 's Article  12.7 claim concerning the WLP 
investigation is limited to the Provision of HRS for LTAR only , the only issue before us is whether the 
USDOC acted inconsistently with Article  12.7 in selecting the subsidy rate for the Provision of HRS 
for LTAR.398 
7.248.   We recall that the USD OC selected the highest -calculated programme -specific subsidy rate 
for Toscelik, a cooperating respondent in the WLP investigation, for Borusan 's Provision of HRS for 
LTAR. The USDOC 's determination stated the following:  
It is the Department 's practice in CVD proceedings to compute a total AFA rate for 
non-cooperating companies using the highest calculated program -specific rates 
determined for a cooperating respondent in the same investigation, or, if not available, 
rates calculated in prior CVD cases invol ving the same country.  
… 
                                                
390 United  States ' second written submission, para. 142. 
391 United  States'  first written submission, para. 161; second written submission, para.  142; and  
response to Panel question No.  94, para.  91. 
392 We note that the  USDOC referred to all investigated subsidies in the challenged proceedings 
generally as "program" or "programs".  Our reference to the United  States'  use of the term "program(s)" or 
"subsidy program(s)" does not prejudge the issue whether the USDOC properly identified a "subsidy 
programme" for the purpose of determining de facto  specificity under Article  2.1(c). As discussed at 
paragraph  7.153  above, such a generic reference to all investigated subsidies as "programs" is not sufficient to 
properly identify a "subsidy programme" for the purpose of d etermining de facto  specificity under 
Article  2.1(c).  
393 Turkey 's first written submission, paras.  323-326; response to Panel question No.  48, para.  96. 
394 Turkey's  response to Panel question No.  49, para.  99; second written submission, para. 121. 
395 Turkey 's first written submission, paras.  325-326 and 328. 
396 In this regard, we  note that Turkey's  more detailed analysis  concerning the Income Tax and Customs 
Duty and VAT exemption program mes were provided by way of "examples ". (Turkey 's first written submission, 
para. 327 (where Turkey states that " [t]he following are examples  of inaccurate determinations made by the 
USDOC in selecting the 152.2% rate for Borusan  …" (emphasis added ))). We understand from this statement 
that these two exam ples are not intended to be exhaustive . 
397 United  States'  second written submission, para.  142. 
398 In response to the Panel 's written questions after the first Panel meeting , the United  States  argues 
that Turkey has dramatically expanded the scope of its arg uments under Article  12.7 with respect to the WLP 
investigation to include 14 additional subsidy program mes. The United  States  requests the Panel to reject 
Turkey 's challenge with respect to these 14 subsidy programmes because Turkey 's belated introduction  of new 
evidence and arguments is contrary to the Panel 's Working Procedures and basic procedural fairness. 
(United  States ' second written submission, paras.  137-141). Given th at we will limit our consideration of 
Turkey 's Article  12.7 claim to the Provisi on of HRS for LTAR only, there is no need for us to consider whether 
Turkey failed to timely submit any argument or evidence with respect to these 14 subsidy program mes. WT/DS523/ R 
 
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  In applying AFA to Borusan, we are guided by the Department 's methodology detailed 
above.  
… 
[W]e are applying the above -zero rates calculated for Toscelik in this investigation for 
the following identical programs:  
• Provision of HRS for LTAR … [.]399 
7.249.   In response to question ing, Turkey clarified that its Article  12.7 claim regarding the WLP 
investigation concerns the selection  of the facts available only, and does not concern whether the 
USDOC was entitled to resort to facts available  under Article  12.7.400 Accordingly, we consider 
whether an objective  and unbiased investigating authority could have selected the highest -calculated 
programme -specific subsidy rates (above zero) for a cooperating respondent in the WLP 
investigation, Tosceli k, for the Provision of HRS for LTAR as a reasonable replacement for the subsidy 
rate for Borusan  in accordance with Article  12.7.  
7.250.   We recall that the USDOC had before it a verification report and exhibits from the CWP 
review proceeding,  which covered some of the same subsidy program mes and the same time period 
as the WLP investigation. Borusan requested the USDOC to rely on information in the CWP 
verification report and exhibits for its determination in the WLP investigatio n.401 The USDOC rejected 
Borusa n's request, stating that the "[v]erification of data submitted in a separate proceeding related 
to a different industry does not satisfy the requirement in section 782(i) of the Act that the 
Department verify the information relied upon in making its fina l determination ."402  
7.251.   We express no view as to whether  the USDOC properly rejected the CWP verification report 
and exhibits in concluding that Borusan provided information that could not be verified  in the WLP 
investigation, thus impeding the investigation  and triggering the application of facts available under 
Article  12.7. We also express no view as to whether the verification report and exhibits for the CWP 
proceeding , which were brought  to the attention of the USDOC by Borusan,  were part of the pool of 
substantiated facts on the record  of the WLP investigation , as a secondary source , and whether the 
USDOC may have selected a fact from this source.403 We note however  that the investigation record  
does not indicate  that the USDOC engaged in a process of reasoning and evaluation of which facts 
available reasonabl y replaces the missing necessary information. Instead, the WLP Final 
Determination  shows that the USDOC simply selected the highest possible rate for the sam e 
programme in the same proceeding.  
7.252.   For this reason, we find that the USDOC acted incons istently with Article  12.7 of the 
SCM Agreement  by failing to engage in a process of reasoning and evaluation of which facts available 
reasonabl y replaces the missing necessary information  in the WLP investigation for the Provision of 
HRS for LTAR.  
7.5.4   The use of facts available in the HWRP investigation  
7.5.4.1   Factual b ackground  
7.253.   During on -site verification in  the HWRP investigation,  the USDOC found that MMZ and 
Ozdemir used certain subsidy programmes which were not previously reported . Specifically, the 
USDOC  found that MMZ did not report its use of the Deduction from Taxable Income for Export 
Revenue and Provision of Electricity for LTAR Program mes, while Ozdemir did not re port its use of 
the Exemption from Property Tax program me. The USDOC rejected MMZ 's request for revision to its 
questionnaire response at the commencement of the verification due to the fact that it was not a 
minor correction to information already on the record. The USDOC found that MMZ and Ozdemir 
                                                
399 WLP CVD Final Determination Memorandum , (Exhibit TUR -122), pp. 4-5. (fn omitted)  
400 Turkey 's response to Panel question  No. 48, para. 96. 
401 Borusan 's decision  not to participate in verification , (Exhibit TUR -101), pp. 1-2. 
402 USDOC's  letter on WLP verification,  (Exhibit USA -20). 
403 In its response to panel question No. 94, the United  States  argues that the CWP verification report 
and exhibits were not on the written record  of the WLP investigation . (United  States'  Response to Panel 
question No 94, para. 97; see also Turkey's  response to Panel question No.  94(a), para.  46). WT/DS523/ R 
 
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  failed to accurately answer questions regarding the subsidy programmes in their questionnaire 
responses and failed to provide  necessary information that was in their possession . Therefore , the 
USDOC  determined t hat adverse inferences were warranted. The USDOC applied  subsidy rates for 
these  programmes in the following manner404:  
a. For MMZ:  
i. 0.06% for the Deduction from Taxable Income from Export Revenue , the subsidy rate 
calculated for another interested party Ozdem ir in the same investigation ; and 
ii. 2.08%405 for the Provision of Electricity for LTAR , the subsidy rate calculated for the 
Provision of HRS for LTAR in its investigation of OCTG from Turkey , a rate that was in 
turn based on facts available and an adverse inference . 
b. For Ozdemir :  
i. 14.01% for the Exemption from Property Tax , the subsidy rate calculated in the 
investigation of CWP from Turkey  for an export tax rebate programme in effect in 1986 . 
7.5.4.2   The Panel 's evaluation of Turkey 's claim regarding the use of fac ts available in 
the HWRP investigation  
7.254.   Turkey argues  that the USDOC acted inconsistently with Article  12.7 by selecting the highest 
subsidy rates for another interested party or for similar programmes from other countervailing duty 
proceedings related to T urkish imports  for the purpose of punishing MMZ and Ozdemir . Turkey 
contends that these rates were  selected for the purpose of " effectuat [ing] the statutory purposes of 
the [adverse facts available ] rule to induce respondents to provide the Department with  complete 
and accurate information ".406 Turkey  also argues that the USDOC failed to ensure that the facts 
selected were reasonable replacements for the missing information .407 Turkey contends  that there 
is no evidence that these subsidy rates bear any relation to the subsidy programmes that MMZ and 
Ozdemir failed to identify  in their initial questionnaire responses.408  
7.255.   The United  States  argues that the resort to facts available was warranted be cause MMZ and 
Ozdemir failed to accurately answer the USDOC 's questions regarding the subsidy program mes, 
including reporting benefits  which should have been discovered in the respondents ' accounting 
system . The United  States  contends that the USDOC was un der no obligation to accept new 
information at the stage of verification. The United  States  argues that the USDOC appropriately 
relied on facts available by applying subsidy rates calculated for the same or similar program mes. 
With respect to the Deduction  from Taxable Income from Export Revenue, for which the USDOC 
selected a  reasonable replacement based on the same programme in the same proceeding for 
another interested party, the United  States  notes that Turkey has not argue d or provided evidence  
that th e rate the USDOC selected is inconsistent with Article  12.7. With respect to the other 
program mes, the United  States  argues that the USDOC was not able to find a subsidy rate for the 
same programmes in the same proceeding. Therefore, the USDOC turned to a subsidy rate for each 
programme that was on a par with identical or similar subsidy program mes. According to the 
United  States , these rates are  not punitive, but instead reasonabl y estimate the level of subsidization, 
which is consistent with Article  12.7.409  
                                                
404 HWRP CVD Final D etermination Memorandum , (Exhibit TUR -46), pp. 6-7. 
405 The USDOC applied a 15.58% rate for the Provision of Electricity for LTAR in its Final Determination. 
USDOC received comments from the GOT and MMZ to change the rate for the Provision of Electricity for LTAR 
based on the fact that the subsidy rate for HRS for LTAR in the OCTG inve stigation had been reduced 
from 15.58% to 2.08% following litigation . 
406 Turkey's  first written submission, para.  439 (referring to HWRP CVD Final Det ermination 
Memorandum , (Exhibit TUR -46), p. 6). 
407 Turkey's  response to Panel question No.  52, para.  111. 
408 Turkey's  first written submission, para.  440. 
409 United  States'  first written submission, paras.  200-202; second written submission, paras.  157-159. WT/DS523/ R 
 
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  7.256.   In response to a question from the Panel, Turkey clarified that its  Article  12.7 claim regarding 
the HWRP proceeding concerns the selection  of the facts available only, and does not concern 
whether the USDOC was entitled to resort to facts available under Article  12.7.410 
7.257.   With respect to the USDOC 's selection of facts available for the Deduction from Taxable 
Income for Export Revenue program me, the USDOC selected the same  rate (0.06%) for MMZ that 
it calculated (without resort ing to facts available) for Ozdemir pertaining to the same  programme in 
the same  proceeding.411 With respect to the Provision of Electricity for LTAR Programme and the 
Exempt ion from Property Tax  Program me the USDOC selected subsidy rates for similar subsidy 
programmes in other proceedings . In particular, for the Provision of Electricity for LTAR, the USDOC 
selected a subsidy rate calculated for the Provision of HRS for LTAR i n the OCTG from Turkey 
investigation, a rate that was in turn based on facts available and an adverse inference .412 For the 
Exemption from Property Tax Programme, the USDOC selected a subsidy rate from  the investigation 
of CWP from Turkey  that was calculated for an export tax rebate programme in effect in 1986.413 
According to the United  States , the USDOC matched the Provision of Electricity for LTAR and 
Exemption from Property Tax Programmes to similar programmes "based on program type and 
treatment of the benefit" from other Turkish countervailing duty proceedings.414  
7.258.   The USDOC Final Determination  stated the following :  
The Department 's practice when selecting an adverse rate from among the possible 
sources of information is to ensure that t he result is sufficiently adverse "as to effectuate 
the statutory purposes of the AFA rule to induce respondents to provide the Department 
with complete and accurate information in a timely manner. " The Department 's practice 
also ensures "that the party do es not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully. " In selecting AFA rates for programs on which 
a company has failed to fully cooperate, it is the Department 's practice to use the 
highest calculated program -specific rates determined for a cooperating respondent in 
the same investigation, or, if not available, rates calculated in prior CVD cases involving 
the same country. Specifically, the Department applies the highest calculated rate for 
the identical program i n the investigation if a responding company used the identical 
program, and the rate is not zero. If there is no identical program match within the 
investigation, or if the rate is zero, the Department uses the highest non -de minimis  
rate calculated for th e identical program in another CVD proceeding involving the same 
country. If no such rate is available, the Department will use the highest non -de minimis  
rate for a similar program (based on treatment of the benefit) in another CVD 
proceeding involving the same country. Absent an above -de minimis  subsidy rate 
calculated for a similar program, the Department applies the highest calculated subsidy 
rate for a ny program otherwise identified in a CVD case involving the same country that 
could conceivably be used by the non -cooperating companies.  
In applying AFA to MMZ and Ozdemir, we are guided by the Department 's methodology 
detailed above.415 
7.259.   Thus, the USDOC sel ected the highest  calculated program me-specific rates determined for 
a cooperating respondent in the same investigation for the Deduction from Taxable Income for 
Export Revenue, and the highest  subsidy rates calculated in prior CVD cases involving Turkey f or 
the Provision of Electricity for LTAR and Exemption from Property Tax. In response to the 
Panel 's question regarding the Provision of Electricity for LTAR, the United  States  confirmed that , for 
each category of subsidy program mes, the "USDOC noted the h ighest rate actually calculated ".416 
In particular, the United  States  confirmed that the USDOC selected the 15.58% subsidy rate for the 
Provision of HRS  for LTAR  in the OCTG investigation instead of the 7.61% rate calculated for the 
                                                
410 Turkey's  response to Panel question No.  52, para.  111. 
411 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 7. 
412 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 7. 
413 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 7. 
414 United  States'  first written submission, para. 202. 
415 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 6. (emphasis original; 
fns omitted ) 
416 United  States'  response to Panel question No. 53, para. 153. WT/DS523/ R 
 
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  Provision of HRS for LTAR  for MMZ in the HWRP investigation . The USDOC selected this rate because 
the latter was not the highest rate for a similar subsidy program me.417  
7.260.   We consider  that the manner in which  the USDOC selected the subsidy rates for the missing 
information in the HWRP proceeding does not comport with the legal standard as articulated by the 
Appellate Body in US – Carbon Steel (India)  that "facts available" selected  by the investigating 
authori ty must result from a process of reasoning and analysis. We note that this is not a situation 
when  there were no other  facts on the record  for the USDOC to consider.418 By selecting the highest 
subsidy rates to ensure that the result is sufficiently adverse "as to effectuate the statutory purposes 
of the AFA rule to induce respondents to provide the Department with complete and accurate  
information in a timely manner "419, the USDOC failed to engage in an adequate and meaningful 
qualitative assessment as to whic h facts available might reasonably replace the missing necessary 
information.  For this reason, we find that the USDOC acted inconsistently with Article  12.7 of the 
SCM Agreement . 
7.261.   In light of our finding  that the USDOC failed to engage in a process of reasoning and 
evaluation in selecting the subsidy rates as "reasonable replacement " for the missing information in 
the HWRP investigation, we do not address Turkey 's argument  that the rates that the USDOC 
selected in the HWRP investigation have no connection with the "necessary information" missing 
from the record of that case.420 
7.262.   We therefore find that the USDOC acted inconsistently with Article  12.7 of the 
SCM Agreement  by failing  to engage in an adequate and meaningful qualitative assessment, as to 
which facts available might reasonably replace the missing necessary information  in the 
HWRP  investigation . 
7.5.5   Conclusions regarding Turkey 's Article  12.7 claims  
7.263.   Turkey raised claims under Article  12.7 of the SCM  Agree ment regarding the USDOC 's resort 
to facts available in connection with the OCTG, WLP and HWRP countervailing duty proceedings.  
7.264.    Turkey 's claims in relation to the OCTG investigation concern the USDOC 's selection  of facts 
available regarding  purchases of HRS by Borusan at two of its facilities . We find that Turkey has 
failed  to establis h that the USDOC acted inconsistently with Article  12.7 by failing to consider  the 
difficulties experienced by Borusan in providing requested information in it s questionnaire responses. 
However, we find that the USDOC acted inconsistently with Article  12.7 of the SCM  Agreement  by 
failing to engage in a process of reasoning and evaluation in selecting facts available for missing 
price information for Borusan 's Halkali and Izmit facilities , and in calculating the quantity of the HRS 
purchases at Halkali and Izmit facilities .  
7.265.   Regarding Turkey 's claims in relation to the WLP investigation, we find that Turkey 's panel 
request refers only to  claims under Article  12.7 of the SCM  Agreement  in connection with the 
Provision of HRS for LTAR, and thus claims under Article  12.7 concerning other subsidy programme s 
are outside the Panel 's terms of reference. We  find that the USDOC acted inconsistently with 
Article  12.7 of the S CM Agreement  by failing to engage in a process of reasoning and evaluation of 
which facts available reasonably replace the missing necessary information in the WLP investigation 
for the Provision of HRS for LTAR.  
7.266.   Regarding Turkey 's claims in relation to the HWRP investigation, we find that the USDOC 
acted inconsistently with Article  12.7 of the SCM  Agreement  by failing  to engage in a process of 
reasoning and evaluation in selecting the subsidy rates as reasonable replacement s for the missing 
information , in connection with MMZ's and Ozdemir 's use of certain subsid ies. 
                                                
417 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), pp. 6-7. 
418 For instance, we understand that there were subsidy rates for various programmes on the record, 
including the rate for the Provision of HRS for LTAR for MMZ in the HWRP investigation.  
419 HWRP CVD Final Determination Memorandum , (Exhibit TUR -46), p. 6. 
420 Turkey 's statement at the first meeting of the Panel, paras.  68-70; second written submission, 
paras.  133-138. WT/DS523/ R 
 
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  7.6  Turkey 's claims under Article  15.3 of the SCM  Agreement  in relation to the cumulative 
assessment of the effects of imports in the OCTG, WLP, HWRP , and CWP procee dings  
7.6.1   Introduction  
7.267.   Turkey claims that  the USITC has a practice of cumulating the effects of dumped and 
subsidized imports in assessing injury  when anti -dumping and countervailing proceedings are 
brought against imports of the same product from the same cou ntry or countries 
(i.e. "cross -cumulation"). Turkey makes the following claims:  
a. the practice of "cross -cumulating" the effects of imports in original investigations is 
inconsistent "as such" with Article  15.3 of the SCM  Agreement ; 
b. the cross -cumulation of t he effects of imports in the OCTG, WLP , and H WRP original 
investigations is inconsistent with Article  15.3 of the SCM  Agreement ; 
c. the practice of "cross -cumulating" the effects of imports in sunset reviews is inconsistent 
"as such" with Article  15.3 of the SCM Agreement ; and  
d. the cross -cumulation of  the effects of imports in the 2011 CWP sunset review is 
inconsistent with Article  15.3 of the SCM  Agreement . 
7.268.   In its first written submission,  the United  States  request ed the Panel to make a preliminary 
ruling , excluding Turkey 's challenge to the alleged practice s of "cross -cumulation" in both original 
investigations and sunset reviews from the Panel 's terms of reference.  
7.269.   In addressing Turkey 's claims, we first address the United  States'  request  for a preliminar y 
ruling  before turning to the parties ' arguments regarding the merits of Turkey 's claims.  
7.6.2   Whether Turkey 's panel requ est adds a challenge regarding alleged injury 
determination "practices" that were  not the subject of Turkey 's request for consultations  
7.270.   The United  States  has requested the Panel to rule that Turkey 's panel request improperly 
includes measures and claims regarding alleged injury determination "practices" that were not the 
subject of consultations.  
7.271.   We addressed a parallel request that the United States  made  in Section 7.3.2.1  above, 
regarding whether Turkey 's panel request includes  an alleged  benefit "practice" and related "as 
such" claim that was not the subject of Turkey 's request for consultations . In addressin g that 
request, we recalled that a "precise and exact identity"421 is not required between the measures 
identified in the request for consultations and the measures identified in the panel request  so long 
as a complainant does not "expand the scope"422 or chan ge the "essence" of the dispute.423 We also 
recalled that the "legal basis" for a complaint in a panel request may reasonably evolve from the 
consultations request, so long as the addition of provisions does not have the effect of changing the 
essence of the  complaint.424 Based on the content of Turkey 's request for consultations and panel 
request, we found that Turkey 's panel request did not improperly expand the scope or essence of 
the dispute by including a new measure and claim  in connection with the allege d benefit "practice".425 
7.272.   We consider that our reasoning applies mutatis mutandis  in the present instance.  
7.273.   Among the measures at issue, Turkey 's panel request refers to " certain practices followed 
by the United  States  in the identified countervailing duty pro ceedings related to the cumulation of 
subsidized and non -subsidized imports in the assessment of injury ".426 Regarding the OCTG, WLP , 
and HWRP original investigations at issue, Turkey 's panel request states that "the [US]ITC's practice 
                                                
421 Appellate Body Report, Brazil – Aircraft , para. 132. 
422 Appellate Body Report, US – Upland Cotton , para. 293. 
423 Appellate Body Reports , Argentina – Import Measures , para. 5.9; Mexico – Anti-Dumping Measures 
on Rice , para. 138; and Mexico – Corn Syrup ( Article  21.5 – US), para. 54. 
424 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 138. 
425 See paras.  7.84-7.98 above.  
426 Turkey's  panel request, para.  7. WT/DS523/ R 
 
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  of 'cross-cumulating ' subsidized and non -subsidized imports, with respect to which antidumping or 
countervailing duty petitions are filed on the same day, is inconsistent with Article  15.3 of the 
SCM Agreement  both 'as such ', as a practice, and as applied in this proceeding ".427 Regarding the 
CWP sunset review at issue, Turkey 's panel request states that " the [US]ITC's practice of 
'cross-cumulating ' subsidized and non -subsidized imports, with respect to which five -year reviews 
of antidumping or countervailing duty orders are initi ated on the same day, is inconsistent with 
Article  15.3 of the SCM  Agreement  both 'as such ', as a practice, and as applied in this proceeding ".428 
7.274.   We recall that section (A) of Turkey 's request for consultations, entitled "Specific Measures 
at Issue", provides as follows:  
This request for consultations concerns the preliminary and final countervailing duty 
measures imposed by the United  States  on Turkish imports of Certain Oil Country 
Tubular Goods ("OCTG"); Welded Line Pipe; Heavy Walled Rectangular We lded Carbon 
Steel Pipes and Tubes; and Circular Welded Carbon Steel Pipes and Tubes, as identified 
in Annex  1. 
These measures include the determination by the United  States  to initiate the identified 
countervailing duty proceedings, the conduct of those pr oceedings, any preliminary or 
final countervailing duty or injury determinations issued in those proceedings, any 
definitive countervailing duties imposed as a result of those proceedings, as well as any 
notices, annexes, memoranda, orders, amendments, or other instruments issued by the 
United  States , and related practices, in connection with the measures identified in 
Annex  1.429 
7.275.   As explained in Section 7.3.2.1  above , we found that the language in the first paragraph 
only identifies the preliminary and final countervailing duty measures that the United  States  imposed  
on imports of  OCTG, WLP, HWRP , and CWP, as identified in Annex  1.430 We observed that the second 
paragra ph also  refers to  the preliminary and final countervailing duty measures imposed in the four 
challenged proceedings, but also refers to "related practices " in connection with the measures 
identified in Annex  1. While we did not find the term "related pract ices" to be particularly clear within 
this paragraph, we analysed  whether  the language elsewhere in Tur key's consultations  request 
provides a sufficient basis for considering particular measures to be  covered by our terms of 
reference.431 
7.276.   Concerning the injury determinations at issue, we note that section (B) of Turkey 's request 
for consultations , entitled "Legal Basis of the Complaint" provides as follows in part:  
Turkey considers that the measures identified above, and in Annex  1, are inco nsistent 
with the United  States'  obligations under the WTO  Agreement s. Turkey 's concerns are 
particularly focused on, though not necessarily limited to, the following aspects of the 
measures and underlying administrative proceedings:  
… 
5. Injury Determination : The United  States'  determination of injury 
based on cumulated imports, including imports from countries not 
subject to countervailing duty investigations or reviews, which is 
inconsistent with Article  15.3 of the SCM  Agreement .  
                                                
427 Turke y's panel request, paras.  8.(A).5.b, 8.(B).4.b, and 8.(C).4.b.  
428 Turkey's  panel request, para.  8.(D).3.b.  
429 Fns omitted.  
430 Annex  1 lists certain documents for initiation ; preliminary, post -preliminary, final , and amended final 
determinations ; and  counterva iling duty orders as well as  related decision memoranda, for each of the 
respective OCTG, WLP , and HWRP investigations , and the CWP review at issue.  
431 In this regard, we recall that t he Appellate Body has made clear that a panel should view the request 
for consultations as a whole when determining whether  the language of the request provides a sufficient basis 
for considering particular measures are covered by a panel 's terms of reference . (Appellate Body Report s, 
Argentina – Import Measures , para. 5.14 (referring to Appellate Body Report, US – Upland Cotton , para. 291)). WT/DS523/ R 
 
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  … 
Turkey con siders that the United  States'  administrative proceedings and measures are 
inconsistent with Article  VI:3 of the GATT 1994, Articles  10, 19.4, and 32.1 of the 
SCM Agreement , and the specific provisions cited above. Turkey 's concerns relate to 
both the aspe cts of the measures and underlying administrative proceedings cited above 
as well as ongoing practices applied in administrative proceedings more generally . 
7.277.   This excerpt also sets out that Tu rkey's concerns are focused on t he United  States'  "Injury 
Determi nation" in respect of the four proceedings. In addition, the end of this excerpt specifies that 
"Turkey 's concerns relate to both the aspects of the measures and underlying administrative 
proceedings cited above as well as ongoing practices applied in admi nistrative proceedings more 
generally ".432 
7.278.   Based on the inclusion of the reference to "ongoing practices  applied in administrative 
proceedings more generally" , as consistent with our approach in Section 7.3.2.1  above,  we find that 
a reasonable reading  of section (B) discussing the "Legal Basis of the Complaint"  indicates that 
Turkey 's concerns relate not only to p reliminary and final countervailing duty measures imposed in 
the four challenged proceedings, but also to ongoing practices applied in connection with the 
different aspects of the identified "legal basis" of Turkey 's consultations request. One of these 
aspects concerns "[t] he United  States'  determination of injury based on cumulated imports, 
including imports from countries not subject to countervailing duty investigations or reviews ". 
7.279.   Accordingly,  we do not consider that Turkey 's inclusion of "practices" related to the 
cumulation of subsidiz ed and non -subsidized imports in the assessment of injury  in its panel request  
improperly expanded the scope or changed the essence of the dispute. Therefore, we reject the 
United  States'  request to exclude the alleged injury determination practice measure s concerning 
original investigations and sunset reviews from our terms of reference. For the same reasons as set 
out in Section 7.3.2.1  above, we also reject the United States'  request to exclude Turkey 's "as such" 
claims  in relation to the alleged injury determination practices from our terms of reference, as the 
United  States'  sole basis for arguing that Turkey 's corresponding "as such" claims are outside our 
terms of reference is that the alleged injury determination practice measures are not within the 
terms of reference.433  
7.280.   We will therefore consider Turkey 's claim in respect of " the [US]ITC's practice of 
'cross-cumulating ' subsidized and non -subsidized impor ts, with respect to which antidumping or 
countervailing duty petit ions are filed on the same day".434 
7.6.3   Turkey 's claims concerning the cumulation of subsidized and dumped, 
non-subsidized imports in original countervailing investigations  
7.281.   We next consider Turkey 's claims raised in the context of original investigations. Turkey 
claims that the USITC 's "practice of 'cross -cumulating ' subsidized and non -subsidized imports" in 
assessing injury in original investigations is inconsistent "as such" with Article  15.3 of the 
SCM Agreement . Turkey also claims that the USITC cumulated subsidized and dumped, 
non-subsidized imports in the OCTG, WLP , and HWRP original investigations inconsistently  with 
Article  15.3 of the SCM  Agreement .435 
7.282.   Article  15.3 of the SCM  Agreement  reads:  
Where imports of a product from more than one country are simultaneously subject to 
countervailing duty investigations, the investigating authorities may cumulatively 
assess the effects of such imports only if they determine that (a) the amount of 
subsidi zation established in relation to the imports from each country is more than de 
                                                
432 Turkey's  consultations request, p.  2. (emphasis added)  
433 We recall that the United  States argued that  the issue "is not that Turkey described its claims with 
respect to the alleged practices 'as such ' claims in its panel request, but that Turkey failed to identify 
those  alleged measures in its consultations request altogether ". (United  States'  opening sta tement at the 
first meeting  of the Panel , para. 8). 
434 Turkey's  panel request, paras.  8.(A).5.b, 8.(B).4.b, and 8.(C).4.b.  
435 Turkey's  first written submission, paras.  228-230, 343 -344, and 456 -457. WT/DS523/ R 
 
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  minimis  as defined in paragraph 9 of Article  11 and the volume of imports from each 
country is not negligible and (b) a cumulative assessment of the effects of the imports 
is appropriate in light of the conditions of competition between the imported products 
and the conditions of competition between the imported products and the like domestic 
product.  
7.283.   Turkey submits that "the Appellate Body explained, in no uncertain terms, that  there is 'no 
basis in the text of Article  15.3 of the SCM  Agreement  for cumulatively assessing the effects of 
subsidized imports with those of non -subsidized imports.'"436 Furthermore, Turkey argues that "the 
Appellate Body interpreted Article  15.3 in US – Carbon Steel (I ndia) and found that ' [t]he text is 
clear in stipulating that being subject to countervailing duty investigations  is a prerequisite for the 
cumulativ e assessment of the effects of imports under Article  15.3' and that 'the effects of 
imports  other than [] subsidized imports  must not be incorporated in a cumulative assessment 
pursuant to Article  15.3'".437Consequently , Turkey submits that the USITC 's "practice of 
'cross-cumulating ' subsidized and non -subsidized imports, with respect to which anti dumping or 
countervailing duty peti tions are filed on the same day" is inconsistent with Article  15.3 of the 
SCM Agreement  both "as such ", as a practice, and as applied in the OCTG, WLP , and HWRP  
proceeding s.438 
7.284.   The United  States  argues that the Panel must reject Turkey 's claims because Turkey "has 
failed to make its legal case "439 under Article  15.3 of the SCM  Agreement . According to the 
United  States , Turkey "has failed to engage in any analysis of Article  15.3 that would allow th at 
burden to be met", in particular by "provid[ing] no interpretation of the t ext, in context, of 
Article  15.3, or of the object and purpose of the SCM  Agreement ".440 The United  States  submits that 
simply quoting statements made by the Appellate Body in a pr evious dispute is not a sufficient basis 
on which to make a legal showing.441 The United  States  explains :  
Under DSU Article  11, a panel must make an "objective assessment" of the matter 
before it, and that a breach has been made out by application of a cove red Agreement , 
properly interpreted, to the facts before it. It is not for the Panel to supply evidence or 
arguments necessary to make out a claim for a party. Turkey has failed to provide the 
Panel with any argumentation that would allow the Panel to enga ge in such an 
interpretation, and its claims thus must fail.442 
7.285.   We reject the United  States'  argument that Turkey cannot establish a prima facie  case by 
referring to the Appellate Body 's interpretation in a previous dispute.  A panel 's task is to ascertain 
and apply the relevant law to the facts and evidence before it in making an objective assessment of 
the matter as required under Article  11 of the DSU.443 Turkey requests us to follow  the 
Appellate  Body's interpretation of Article  15.3 in US – Carbon Steel (India)  in resolving its claim. We 
recall that  panels may take into account  the reasoning followed in prior adopted panel and Appellate 
Body reports when  resolving similar legal issues .444 In this respect, we note that the panel and the 
Appellate Body in US – Carbon Steel (India)  were confronted with the same interpr etative issue  that 
is pending before this Panel : whether Article  15.3 of the SCM Agreement permits  the cumulation of 
subsidized and non -subsidized imports in the assessment of injury  in original c ountervailing duty 
investigations. We therefore find it appropriate to  consider Turkey 's reliance on the 
Appellate  Body's interpretation of Article  15.3 of the SCM Agreement in our objective assessment of  
Turkey 's claim in this dispute .  
7.286.   Setting aside the alleged failure to make out its legal case, the United  States  argues that  
Turkey 's claims must fail because  a proper interpretation of Article  15.3 reveals that nothing in the 
                                                
436 Turkey's  first written submission, para.  227 (quoting Appellate Body Report, US – Carbon Steel 
(India) , para.  4.593).  
437 Turkey's  first written submission, para.  231 (referring to Appellate Body Report, US – Carbon Steel 
(India) , para.  4.579 (emphasis added)). See also, first written submission, paras . 345 and 458.  
438 Turkey's  panel request, paras.  8.(A).5.b, 8.(B).4.b, and 8.(C).4.b.  
439 United  States'  first written submission, para.  252. 
440 United  States'  first written submission, paras.  252–257; second written submission, para.  191. 
441 United  States'  second written submission, para.  192. 
442 United  States'  second written submission, para.  192. 
443 Appellate Body Report, EC – Hormones , para.  156. 
444 Appellate Body Report, US – Shrimp ( Article  21.5 – Malaysia) , paras.  108-109. See also Appellate 
Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 188. WT/DS523/ R 
 
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  text of that provision prohibits the cumulation of subsidized i mports with non-subsidized imports 
that are dumped .445 
7.287.   The United  States  submits that Article  15.3 of the SCM  Agreement  is silent on whether the 
effects of subsidized imports may be cumulated with the effects of non -subsidized imports that are 
dumped and suc h silence cannot be read as a prohibition of the cumulative assessment of dumped 
and subsidized imports in injury assessments.446 The United  States  also argues that a prohibition on 
cumulation of subsidized and non -subsidized, dumped imports would not allow an investigating 
authorit y to capture the combined effect of dumped and subsidized imports causing simultaneously 
injury to the same domestic industry.447 Finally, the United  States  submits that, pursuant to 
Article  VI:6(a) of the GATT 1994, a Member shall n ot impose anti -dumping or countervailing duties 
"unless it determines that the effect of dumping or subsidization, as the case may be, is such as to 
cause or threaten to cause material injury to an established domestic industry".448 In the 
United  States'  view, this provision provides important context to interpret Article  15.3 of the 
SCM Agreement . In particular, the expression "as the case may be" contemplates the possibility for 
an investigating authority to cumulatively assess the injurious effects of dump ed and subsidized 
imports.449  
7.288.   We note that t he United  States  raised these same arguments before the panel and the 
Appellate Body in US – Carbon Steel (India)  concerning an "as such" challenge  against 19 U.S.C. 
§ 1677(7)(G), the provision in US law governing  cumulative assessment of imports in injury 
determinations.450 The United  States  further argues in this dispute that reliance on the 
Appellate  Body Report in US – Carbon Steel (India)  would have the Panel read the cumulation 
provision s of the Anti -Dumping  Agreement  and the SCM Agreement "in wilful isolation"  from each 
other,  disregarding the relevant context provided by Article  VI of the GATT 1994.451 We disagree 
with the United  States'  view. As we explain below, the panel and the Appellate Body in US – Carbon 
Steel (India)  interpreted the text of Article  15.3 in the context of the SCM Agreement,  the 
Anti-Dumping Agreement (in particular, in the context of Article  3.3 concerning cumulative 
assessment of dumped imports) and Article  VI:6(a) of the GATT 1994. In ma king our own objective 
assessment of the matter before us, we are persuaded by and agree with the panel 's and the 
Appellate Body 's interpretation s of Article  15.3 of the SCM Agreement in US – Carbon Steel (India) , 
and we therefore  adopt their reasoning  as our own in resolving Turkey 's claim in this dispute.  
7.289.   We recall that, before the panel and  the Appellate Body in US – Carbon Steel (India) , India 
argued that  19 U.S.C. § 1677(7)(G)  requires the USITC to assess cumulatively the effects of 
subsidized impo rts with the effects of non -subsidized imports subject to anti -dumping investigations, 
and is therefore inconsistent with Article  15.3 and Articles  15.1, 15.2, 15.4 , and 15.5 of the 
SCM Agreement .452 In its interpretation of Article  15.3, the panel in US – Carbon Steel (India)  found 
that imports from more than one country being "simultaneously subject to countervailing duty 
investigations" is a necessary precondition for a cumulative assessment to be undertaken 
consistently with that provision.453 On this basis , the panel found that the effects of imports that are 
not subject to a countervailing duty investigation cannot be assessed cumulatively with the effects 
of imports that are subject to a countervailing duty investigation. In reaching this conclusion, the 
panel dismissed the United  States'  argument that Article  15.3 of the SCM  Agreement  does not 
address the permissibility of "cross -cumulation".454 In the view of the panel, that argument could 
not be reconciled with the text of the provision.455 We share this vi ew. 
7.290.   The panel found further support to its interpretation of Article  15.3 of the SCM  Agreement  
in other paragraphs of Article  15 as well as in Article  VI:6(a) of the GATT 1994. The panel found that 
                                                
445 United  States'  first written submission, paras.  251-263; second written submission, paras.  193-198. 
446 United  States'  first written submission, paras.  260-263; second written submission, para.  195. 
447 United  States'  first written submission, para.  265; second written submission, para.  196. 
448 United  States'  first written submission, para.  273; second written submission, para.  197. 
449 United  States'  first written submission, paras.  274-277; second written  submission, para.  197. 
450 United  States'  first written submission, paras.  264-277; second written submission, paras.  195-198. 
451 United  States'  first written submission, paras.  270-271 (referring to Appellate Body Report, US – 
Anti-Dumping and Countervailin g Duties (China) , para.  571).  
452 Panel Report, US – Carbon Steel (India) , paras.  7.324 and 7.328; Appellate Body Report, US – 
Carbon Steel (India) , paras.  4.605 -4.606  
453 Panel Report, US – Carbon Steel (India) , para.  7.341.  
454 Panel Report, US – Carbon Steel (India) , para.  7.342.  
455 Panel Report, US – Carbon Steel (India) , para.  7.343.  WT/DS523/ R 
 
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  the consistent reference to "subsidized imports" throughout Article  15 of the SCM  Agreement  limits 
the scope of imports that can be cumulated to assess injury .456 The panel also noted that 
Article  VI:6(a) concerns the effects of subsidization "or" dumping, "as t he case may be", and that 
the use of the conjunction "or" implies that the provision addresses injury caused either by dumping 
or by subsidization, and not the effects of dumping and subsidization cumulatively.457 Once again, 
we share this view.  
7.291.   The Appellat e Body upheld the panel 's finding that "cross -cumulation" is inconsistent with 
Article  15.3 of the SCM  Agreement  as well as  Articles  15.1, 15.2, 15.4 , and 15.5 of the 
SCM Agreement .458 On appeal, the United  States  had claimed that the panel erred in rejectin g its 
argument that Article  15.3 of the SCM  Agreement  is silent on the issue of whether cross -cumulation 
is permitted.459 To the contrary, the Appellate Body found that Article  15.3 of the SCM  Agreement  
is not silent on the issue. In particular, the Appellat e Body explained that Article  15.3 of the 
SCM Agreement  stipulates that an investigating authority may cumulatively assess imports from 
countries that are simultaneously subject to countervailing duty investigations to determine  injury, 
provided that the c onditions established in the last clause of the provision are satisfied.460 The 
Appellate Body also sided with the panel 's contextual analysis of Article  15 of the SCM  Agreement , 
pursuant to which the consistent reference to "subsidized imports" throughout t he various 
paragraphs of Article  15 supports the understanding that the cross -cumulation of imports in injury 
assessments is prohibited.461 
7.292.   We note that the panel and the Appellate Body both rejected the United  States'  view that 
Article  3.3 of the Anti -Dumping  Agreement  as interpreted by the Appellate Body in EC – Tube and 
Pipe Fittings  and US – Oil Country Tubular Goods Sunset Reviews  supported the argument that 
cross-cumulation is permitted under the SCM  Agreement .462 The Appellate Body, for instance , noted 
that neither case involved the cumulation of the effects of dumped products with those of subsidized, 
non-dumped product s, but concerned instead the cumulation of the effects of dumped imports from 
several countries. Thus, the Appellate Bo dy concluded  – and we agree – that the rationale of the 
findings in those disputes does not apply to the cumulation of subsidized and dumped, 
non-subsidized imports.463  
7.293.   The panel and the Appellate Body also rejected the United  States'  argument that Article  15 
must allow  an investigating authority to take account of the effects that all unfairly traded imports 
are having on a domestic industry.464 Contrary to what the United  States  had argued, the Appellate 
Body noted that Article  15 does not contain the phrase "unfairly tr aded products" or similar 
language. Accordingly, the Appellate Body saw "no basis in the text of Article  15 for the proposition 
that, for the purposes of an injury determination pursuant to Article  15, an investigating authority 
may consider a single group  of 'unfairly traded imports ' rather than considering 'imports 
simultaneously subject to countervailing duty investigations ' … as stipulated in Article  15.3".465 In 
addition, the Appellate Body recalled the panel 's finding that the analysis under Article  15 concerns 
injury caused by "subsidized imports" and not generically , by unfairly traded imports.466 On this 
basis, the Appellate Body upheld the panel 's findings and rejected the United  States'  argument that 
an analysis focusing solely on the effects of eithe r dumped or subsidized imports alone would prevent 
the investigating authority from adequately taking into account the injurious effects of all unfairly 
traded imports, consequently frustrating the purpose of the SCM  Agreement .467 We also agree with 
the pane l's and the Appellate Body 's assessment s in this regard.  
                                                
456 Panel Report, US – Carbon Steel (India) , para.  7.346.  
457 Panel Report, US – Carbon Steel (India) , paras.  7.347 -7.348.  
458 Appellate Body Report, US – Carbon Steel (India) , para.  4.629. 
459 Appellate Body Report, US – Carbon Steel (India) , para.  4.588.  
460 Appellate Body Report, US – Carbon Steel (India) , para.  4.589.  
461 Appellate Body Report, US – Carbon Steel (India) , paras.  4.580 -4.585 and 4.591.  
462 Panel Report, US – Carbon Steel (Ind ia), paras.  7.352 -7.356; Appellate Body Report, US – Carbon 
Steel (India) , para.  4.593.  
463 Appellate Body Report, US – Carbon Steel (India) , para.  4.593. See also Appellate Body Reports, 
EC – Tube or Pipe Fittings , para.  116; and US – Oil Country Tubular Goods Sunset Reviews , paras.  294-300. 
464 Panel Report, US – Carbon Steel (India) , para.  7.355; Appellate Body Report, US – Carbon Steel 
(India) , para.  4.594.  
465 Appellate Body Report, US – Carbon Steel (India) , para.  4.594.  
466 Appellate Body Report, US – Carbon Steel (India) , para.  4.596.  
467 Appellate Body Report, US – Carbon Steel (India) , para.  4.595.  WT/DS523/ R 
 
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  7.294.   Finally,  we share the panel 's assessment that Article  VI:6(a) of the GATT 1994 does not 
support a reading that cumulation of the effects of subsidized and dumped, non-subsidized  imports  
is consistent  with the provisions of Article  15 of the SCM  Agreement .468 The Appellate Body agreed 
with this view. Like the panel, in e xamining the phrase "the effect of the dumping or subsidization, 
as the case may be" in Article  VI:6(a) within the structure of the over all provision, the Appellate 
Body found that the use of "or" or the singular "the effect" indicates that the provision refers 
separately to "dumping" or to "subsidization". Therefore, t he Appellate Body agreed with the panel 
that the phrase "as the case ma y be" refers to one of two alternatives expressly listed in this 
provision only, and does not permit investigating authorities to cumulatively assess the effects of 
dumped and subsidized imports at the same time.469 
7.295.   In light of the above, w e find the panel 's and the Appellate Body 's reasoning regarding the 
interpretation of Article  15.3 of the SCM Agreement in US – Carbon Steel (India)  to be persuasive. 
We therefore adopt this reasoning as our own in making our own objective assessment of the matter 
before us . We find it all the more appropriate to do so given that the United  States  has raised  
essentially the same  arguments  in this dispute regarding the interpretation of Article  15.3 of the 
SCM Agreement as were before the panel and the Appellate Body in US – Carbon Steel (India)  and 
were rejected in their entirety. We therefore find that Article  15.3 of the SCM Agreement do es not 
permit the cumulative  assessment of  the effects of subsidized imports with the effects of dumped, 
non-subsidized imports in original  countervailing investigations. W e will now evaluate Turkey 's "as 
such" and as applied claims in connection with Article  15.3 of the SCM Agreement.  
7.6.3.1   Whether the USITC cumulated subsidized and dumped, non -subsidized imports in 
the OCTG, WLP , and HWRP origina l investigations  inconsistently with Article  15.3 of the 
SCM Agreement  
7.296.   In the final injury determination in the OCTG investigation, Turkey submits that the USITC 
"cumulated imports of OCTG from countries subject to both antidumping and countervailing duty 
investigations (India and Turkey) with imports from countries subject to only antidumping 
investigations (Korea, Ukraine, and Vietnam)".470 In the final injury determination in the 
WLP investigation, Turkey submits that the USITC cumulated "dumped and subsid ized imports from 
Turkey with dumped imports from Korea".471 In the final i njury determination in the 
HWRP  investigation, Turkey submits that the USITC cumulated dumped and subsidized imports from 
Turkey "with imports from countries subject to only antidumping investigations, Mexico and 
Korea".472 
7.297.   In each of the investigations, petitioners requested the launch of anti -dumping and 
countervailing investigations on the same day.473 In the OCTG investigation, the USITC found that 
imports from the Philippines , Chinese Taipei , and Thailand  were negligible, and only considered 
whether to cumulate subsidized and dumped, non-subsidized imports from India,  Korea, Turkey,  
Ukraine,  and Viet Nam .474 The USITC then assessed the conditions of competition between subject 
imports and like domestic product s to determine whether subject imports from each source 
competed with the domestic like products .475 In each of the challenged investigations, the USITC 
was satisfied that the statutory conditions were met, and as a consequenc e, the USITC cumulated 
non-negligible imports from countries subject to  both countervailing and anti -dumping investigations  
with imports from countries subject to anti -dumping investigations only. The United  States  does not 
                                                
468 Panel Report, US – Carbon Steel (India) , paras.  7.347 -7.350.  
469 Appellate Body Report, US – Carbon Steel (India) , para.  4.599.  
470 Turkey's  first written sub mission, para.  228 (referring to Excerpt from US ITC OCTG Final 
Determination , (Exhibit TUR -72), p.  21). 
471 Turkey's  first written submission, para.  344 (quoting Excerpt from USITC WLP Final Determination , 
(Exhibit TUR -116), fn  37). 
472 Turkey's  first written submission, para.  456 (referring to USITC HWRP Final Determination , 
(Exhibit  TUR-38), pp. 10-13). 
473 Excerpt from US ITC OCTG Final Determination , (Exhibit TUR -72), p.  21; Excerpt from USITC WLP 
Final Determination , (Exhibit TUR -116), p.  10; and USITC HWRP F inal Determination , (Exhibit TUR -38), p. 12. 
474 Excerpt from US ITC OCTG Final Determination , (Exhibit TUR -72), p.  23. 
475 Excerpt from US ITC OCTG Final Determination , (Exhibit TUR -72), pp.  21-23; Excerpt from USITC 
WLP Final Determination , (Exhibit TUR -116), pp. 10-12; and USITC HWRP Final Determination , 
(Exhibit  TUR-38), pp. 12-13. WT/DS523/ R 
 
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  contest that the USITC cumulated  subsidized and non -subsidized imports  when assessing material 
injury in each of the investigations . 
7.298.   The evidence on the record shows that the USITC cumulated subsidized and dumped, 
non-subsidized imports in all three investigations under examination. In t he OCTG investigation, the 
USITC  cumulated imports from countries subject to both countervailing and anti -dumping 
investigations (India and Turkey) with imports from countries subject to anti -dumping investigations 
only (Korea, Ukraine,  and Viet Nam ).476 In the WLP investigation, the USITC cross -cumulated 
imports from a country which was subject to both countervailing and anti -dumping investigations 
(Turkey) with imports from a country subject only to an anti -dumping investigation (Korea).477 In 
the HWRP invest igation, the USITC cross -cumulated imports from a country which was subject to 
both countervailing and anti -dumping investigations (Turkey) with imports from countries subject 
only to anti -dumping investigations (Mexico and Korea).478 
7.299.   We have found above479, consistent with the panel and the Appellate Body 's interpretation 
in US – Carbon Steel (India) , that Article  15.3 does not authorize the USITC to assess cumulatively 
the effects of imports that are not subject to simultaneous countervailing duty investigat ions with 
the effects of imports that are subject to countervailing duty investigations . 
7.300.   We therefore uphold  Turkey 's claim that the USITC cross -cumulated imports in the OCTG, 
WLP, and HWRP  original investigations  in a manner  inconsistent with Article  15.3 of the 
SCM Agreement .  
7.6.3.2   Whether the USITC has a practice of cumulating subsidized and dumped, 
non-subsidized imports in original investigations that is inconsistent "as such" with 
Article  15.3 of the SCM  Agreement  
7.301.   Turkey claims that the USITC "has a practi ce, in assessing material injury, of cumulating 
imports that are subject to countervailing duty investigations with imports that are subject only to 
antidumping duty investigations, i.e., non-subsidized imports", in cases when petitions are filed or 
invest igations are initiated on the same day.480 Turkey claims that this "practice" is "as such" 
inconsistent with Article  15.3 of the SCM  Agreement .  
7.302.   Turkey argues that the USITC itself considers that it has such a "practice", "which it applies 
systematically in its injury determination in investigations", and which it considers "to be required 
by U.S. law, specifically the injury statute, 19 U.S.C. § 1677(7)(G), and judicial decisions interpreting 
the injury statute".481 Turkey therefore argues that this practice s hould be considered "a rule or 
norm of general application, subject to challenge 'as such'".482 
7.303.   The United  States  argues that Turkey failed to identify the precise content of the contested 
practice, but used instead language that "mimics" the US statute gove rning cumulation, without 
indicating that subsidized and dumped imports "must" be cumulated.483 The United  States  argues 
that Turkey 's citation to the USITC 's statements affirming a "practice" of cross -cumulating  in two 
determinations is not sufficient to establish the existence of a practice of general and prospective 
application.484 In any event , according to the United  States , the fact that an authority may have 
                                                
476 Excerpt from US ITC OCTG Final Determination , (Exhibit TUR -72), p.  23. 
477 Excerpt from USITC WLP Final Determination , (Exhibit TUR -116), p.  13. 
478 USITC HWRP Final Determination , (Exhibit TUR -38), p. 13. 
479 See above, para. 7.295 . 
480 Turkey's  first written submission, para.  222. 
481 Turkey's  first written submission, para. 224 a nd fn 526 (referring to USITC Final Determination  on 
circular welded carbon -quality steel pipe  from India, Oman, the United Arab Emirates,  and Vietnam , (Turkey 
has submitted this determination as Exhibit TUR -187); Softwood Lumber from Canada:  Final USITC 
Determination; and Court of Appeals for the Federal Circuit decision, Bingham & Taylor v. United  States  
(Turkey has submitted this decision as Exhibit TUR -205)). See also statement at the first meeting of the Panel , 
para. 89. 
482 Turkey's  first w ritten submission, paras.  223-224 (referring to Excerpt from US ITC OCTG Final 
Determination , (Exhibit TUR -72), p.  19); paras.  342-343 (referring to Excerpt from USITC WLP Final 
Determination , (Exhibit TUR -116), p.  9); and paras.  455-456 (referring to USITC HWRP Final Determination , 
(Exhibit TUR -38), p. 10). 
483 United  States'  first written submission, para.  247. 
484 United  States'  first written submission, para.  248. WT/DS523/ R 
 
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  employed a practice in the past is not enough to assign to it "an independent operational exist ence", 
if that authority can depart from the practice by explaining the reasons for doing so.485 
7.304.   As set out in Section 7.3.3 above,  we recall that  prior panels and th e Appellate Body have 
recognized that a "practice" may be challenged as a measure if  (a) it is attrib utable to the responding 
Member; (b)  its precise content can be described ; and (c) it has general and prospective 
application.486 The examination of whether a rule or norm has general and prospective application 
may vary from case  to case.487 In determining whether a measure has prospective application, 
complainants are not required to show with "certainty" that a measure will continue to apply in the 
future.488 When prospective application is not sufficiently clear from the constitutive elements of the 
rule or norm, it may be demonstrated through a number of factors, including : the existence of an 
underlying policy that is implemented by the rule or norm; proof of  systematic application of the 
challenged rule or norm; the extent to which the rule or norm provides administrative guidance for 
future conduct; and the expectations it creates among economic operators that the rule or norm will 
be applied in the future.489  
7.305.   As evidence of the challenged practice, Turkey refers to the USITC 's statement  that is  
contained in the OCTG, HWRP , and WLP final injury determinations, indicating that the USITC itself 
considers the challenged practice to be "required" by law:  
For purpo ses of evaluating the volume and price effects for a determination of material 
injury by reason of subject imports, section 771(7)(G)(i) of the Tariff Act requires the 
Commission to cumulate subject imports from all countries as to which petitions were 
filed … on the same day, if such imports compete with each other and with the domestic 
like product in the U.S. market.490 
7.306.   Turkey asserts that judicial decisions interpreting the injury statute, 19 U.S.C . § 1677(7)(G), 
require the USITC to cumulate imports that are subject to countervailing duty investigations with 
imports that are subject only to antidumping duty investigations, in cases when petitions are filed 
or investigations are initiated on the same  day.491 
7.307.   The United  States  argues that the USITC 's statements  and Turkey 's reference to the 
US Court of Appeals for the Federal Circuit regarding the interpretation of 19 U.S.C . § 1677(7)(G) 
do not support the existence of the alleged practice. Since  Turkey has not challenged the statute,  
the United  States  argues that the measure is not within the Panel 's terms of reference and it would 
not be appropriate to examine the US Court of Appeals for the Federal Circuit 's interpretation of the 
statute to establish t he existence of the alleged practice.492 The United  States  also objects that 
Turkey 's reference to a decision of the US Court of Appeals for the Federal Circuit is untimely and 
thus inadmissible evidence.493 Moreover , the United  States  submits that the USITC 's statements  in 
                                                
485 United  States'  first written submission, para.  248 (referring to Panel Report, US – Export Re straints , 
para. 8.126 ). 
486 See paras.  7.119  and 7.120  above. See also Appellate Body Reports, US – Anti-Dumping 
Methodologies (China) , para.  5.127; US – Zeroing (EC) , para.  198; and Argentina – Import Measures , 
para. 5.104.  
487 Appellate Body Repo rt, US – Anti-Dumping Methodologies (China) , para.  5.133.  
488 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132.  
489 Appellate Body Report, US – Anti-Dumping Methodologies (China) , para.  5.132. See also 
Appellate  Body Reports, US – Zeroing (EC) , paras.  198, 201, and 204 -205; US ‒ Zeroing (Japan) , paras.  85 
and 88 (quoting Panel Report, US – Zeroing (Japan) , para.  7.52); and US – Oil Country Tubular Goods Sunset 
Reviews , para. 187. 
490 Turkey's  first written submission, para.  223 (quoting Excerpt from US ITC OCTG Final Determination , 
(Exhibit TUR -72), p.  19); para.  343 (quoting Excerpt from USITC WLP Final Determination , (Exhibit TUR -116), 
p. 9); and para.  456 (quoting USITC HWRP Final D etermination , (Exhibit TUR -38), p. 10). 
491 Turkey's  first written submission, para.  224. In particular, Turkey cites the decision of the US Court 
of Appeals for the Federal Circuit in Bingham & Taylor v. United  States , which Turkey argues demonstrates that 
the USITC has consistently applied the challenged practice since 1987. (Turkey's  statement at the first meeting 
of the Panel, paras.  89 and 92).  
492 United  States'  second written submission, para.  187. 
493 United  States'  second written submission, para.  187. WT/DS523/ R 
 
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  relation to 19 U.S.C . § 1677(7)(G) simply reflects the content of the US statute governing 
cumulation, and does not require that subsidized and non -subsidized imports must be cumulated.494 
7.308.   We disagree with the United  States'  assessment of the evidence that Turkey has submitted. 
As we found in Section 7.6.3.1  above, in the OCTG, HWRP, and WLP  investigations at hand, the 
USITC cumulated the injurious effec ts of subsidized and dumped, non -subsidized imports after 
determining that the statutory requirements for cumulation were met.  The United  States  contends 
that the USITC 's statements  in the OCTG, HWRP, and WLP  injury determinations do not demonstrate 
that the USITC will always "cross -cumulate" imports. However, the statements in these 
determinations demonstrate that the USITC considers that it is required  to cross -cumulate imports 
whenever the statutory conditi ons are met. The evidence thus suggests that the USITC will 
necessarily follow the contested practice when these conditions are met.  
7.309.   In particular, in the OCTG and HWRP determinations the  USITC  has also stated that it has a 
"long-standing practice"495 of cum ulating imports subject to affirmative subsidy determinations with 
imports subject to affirmative dumping determinations, when the conditions for cumulation are 
otherwise met . In describing this " long-standing practice ", the USITC referred to 
injury  determ inations in Circular Welded Carbon ‐Quality Steel Pi pe from India, Oman, the 
United  Arab Emirates, and Viet Nam  and Softwood Lumber from Canada , and also referred to a 
domestic judicial decision, Bingham & Taylor v. United  States .496 The United  States  asks us  not to 
consider the USITC 's statements or the Bingham & Taylor v. United  States  decision, both because 
this evidence was submitted late in the proceeding and because it does not support 
Turkey 's allegations.497 However, the USITC 's statement that it has a "long-standing practice" is 
contained in the OCTG and HWRP final injury determinations, which Turkey provided in connection 
with its first written submission. The USITC refers to Bingham & Taylor v. United  States  in connection 
with its observation that the  USITC has a long -standing practice. We consider statements by the 
USITC as relevant evidence of the existence of the challenged practice. We also disagree  that we 
are precluded from considering the USITC 's own assessment that it has a "long-standing pract ice" 
of cumulating subsidized imports with dumped, non -subsidized imports when assessing injury in 
original investigations.  
7.310.   We recall that "as such" challenges are "serious" challenges.498 In particular, the Appellate 
Body in US – Zeroing (EC)  warned that a panel "must not lightly assume the existence of a 'rule or 
norm ' constituting a measure of general and prospective application, especially when it is not 
expressed in the form of a written document".499 A party bringing an "as such" claim must submit 
suffici ent evidence to demonstrate that the challenged measure is attributable to the responding 
Member, its precise content and that it is of general and prospective application. Such evidence may 
include proof of the systematic application of the challenged rul e or norm.500 In the circumstances  
before us, the USITC itself considers that it has a long -standing practice of cumulating the effects of 
imports subject to affirmative subsidy determinations with imports subject to affirmative dumping 
determinations, when the conditions for cumulation are otherwise met . We therefore consider that 
Turkey, in the present case,  has presented evidence to establish prima facie  the existence of a 
practice.  
7.311.   In response to questioning from the Panel, the United  States  also submitt ed four 
determinations as examples of cases in which it asserts that the USITC in its inju ry determinations 
                                                
494 United  States'  first written submission, paras.  246-247; second written submission, paras.  181 and 
187. 
495 Excerpt from  USITC OCTG Final Determination , (Exhibit TUR -72), p.  20; USITC HWRP Final 
Determination , (Exhibit TUR -38), p. 12 and fn  44. 
496 Excerpt fr om US ITC OCTG Final Determination , (Exhibit TUR -72), fn  110. 
497 United  States'  second written submission, para.  187. Turkey referred to the Bingham & Taylor 
v. United  States  decision in its first written submission and at the first substantive meeting with the Panel. 
(Turkey's  first written submission, fn  526; statement at the first meeting of the Panel, para.  89). Turkey 
submitted the Bingham & Taylor v. United  States  decision as Exhibit TUR -205 in response to questioning from 
the Panel following the first meeting. (Turkey's  response to Panel question No.  57, para.  117).  
498 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 172. 
499 Appellate Body Report, US – Zeroing (EC ), para.  196. 
500 Appellate Body Report, US – Zeroing (EC) , para.  198. WT/DS523/ R 
 
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  did not cumulate imports of subsidized products with non-subsidized imports subject to anti -dumping 
investigations initiated on the same day, when t he conditions for cumulation were otherwise met .501  
7.312.   The examples that the United  States  provided, however, fail to rebut prima facie  that the  
USITC  has a  practice of cross -cumulating imports.  In each of the four examples, the USITC declined 
to consider imports from certain countries under investigation pursuant to statutory exceptions 
contained in 19 U.S.C. § 1677(7)(G)(ii) . Pursuant to this provision , when assessing material injury, 
the USITC will not cumulate imports from  (a) Israel,  (b) countries concerning which injury 
determinations have been terminated because of a finding that the volume of imports is negligible , 
(c) countries concerning which the USDOC has made a preliminary negative anti -dumping or 
countervailing de termination , and (d)  beneficiary countries under the Caribbean Basin Economic 
Recovery Act (CBERA).502 All that the United  States'  four examples prove is that the USITC excludes 
imports from certain  countries from the injury assessment  whenever one of the st atutory exceptions 
applies. However, the USITC will still cumulate the effects of subsidized and dumped, non -subsidized 
imports from other countries in which petitions were filed,  or investigations were initiated , on the 
same day.503 This is exemplified in t he OCTG final injury determination, in which the USITC excluded 
imports from certain countries from the investigation because they were negligible in volume. 
However, as we have found above, despite excluding certain imports from the Philippines, Chinese 
Taipei, and Thailand , the USITC cumulated imports subject to a countervailing duty investigation 
with imports subject only to anti -dumping investigations , specifically imports from Turkey, India, 
Korea, Ukraine,  and Viet Nam .504 
7.313.   The United  States  has also objected to the Panel considering additional evidence submitted 
by Turkey in response to questioning from the Panel following the first meeting.505 In its response, 
Turkey identified 36 determinations issued by the USITC between 1987 and 2017 , in which it as serts 
that the USITC cumulated imports of subsidized products with imports subject to anti -dumping 
investigations initiated on the same day . The United  States  considers that the evidence is untimely 
and contrary to the Panel 's Working Procedures.506 However,  as we found above  that, on the basis 
of evidence submitted by Turkey in its first written submission , Turkey  has demonstrated prima facie  
that the  USITC  has such a practice . Therefore, we do not need to address the 
United  States'  procedural objection.  
7.314.   In light of the foregoing, we find that Turkey has demonstrated that the USITC has a practice, 
in assessing injury in original investigations, of cumulating the effects of subsidized imports with 
those of dumped, non -subsidized imports from all countries as t o which petitions were filed on the 
same day, if such imports compete with each other and with the like domestic product in the 
United  States . We consider that this practice constitutes a rule or norm that has general and 
prospective application, as demons trated based on the evidence before us.  
7.315.   We recall our conclusion above, consistent with the panel and the Appellate 
Body's interpretation in US – Carbon Steel (India) , that Article  15.3 does not authorize  an 
investigating authority  to assess cumulatively t he effects of imports that are not subject to 
                                                
501 United  States'  response to Panel question No.  100, paras.  120-121. 
502 Turkey's  comments on United  States'  response to Panel question No.  100, para.  47 and fn  91 
(referring to  USITC Preliminary Determination on certain cut -to-length steel plate from the Czech Republic, 
France, India, Indonesia, Italy, Japan, Korea, and Macedonia, (Exhibit TUR -243), p.  16 and fn  97). 
503 In three determinations the USITC did not cumulate imports from certain countries with imports from 
other sources because they were "negligible" in volume. (US ITC Final Determination on stainless steel wire rod  
from Germany, Italy, Japan, Korea, Spain, Sweden, and Chinese Taipei,  (Exhibit TUR -242), pp.  9 and 12; 
USITC Prelimin ary Determination on certain cut -to-length steel plate from the Czech Republic, France, India, 
Indonesia, Italy, Japan, Korea, and Macedonia, (Exhibit TUR -243), p.  16; and Excerpt from US ITC OCTG Final 
Determination , (Exhibit TUR -72), p.  21). In a fourth d etermination, the USITC applied two of the four statutory 
exceptions. (US ITC Preliminary Determination on carbon and certain alloy steel wire rod from Brazil, Canada, 
Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Turkey, Ukraine, and 
Venezuela, (Exhibit TUR -244), pp.  12 and 15).  
504 See above, para.  7.297 . 
505 Turkey's  response to Panel question No.  56, paras.  113-114; United  States'  response to Panel 
question No.  100, paras.  117-119. 
506 United  States'  second written submission, paras.  182-185. We recall that paragraph 7 of our 
Working Procedures requires that "[e]ach party shall submit all evidence to the Panel no later than during the 
first substantive meeting, except with respect to evidence necessary for purpose of rebuttal, answers to 
questions or comments on answers provided b y the other party."  WT/DS523/ R 
 
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  simultaneous countervailing duty investigations, with the effects of imports that are subject to 
countervailing duty investigations .507  
7.316.   Accordingly, we find that the USITC 's practice of "cross -cumulating" the ef fects of subsidized 
imports with those of dumped, non -subsidized imports in original investigations is "as such" 
inconsistent with Article  15.3 of the SCM  Agreement .508 
7.6.4   Turkey 's claims concerning cumulation of subsidized and dumped, non -subsidized 
imports in  sunset reviews  
7.317.   We next address Turkey 's claims that the United  States  has a practice of  cumulating 
subsidized and dumped, non -subsidized imports in sunset reviews , that is inconsistent with 
Article  15.3 of the SCM  Agreement , both "as such " and as applied  in the 2011 CWP sunset review.  
7.318.   The parties have both cited the findings in US – Carbon Steel (India)  as relevant to 
the Panel 's assessment. Turkey argues that we should rely on the Appellate Body 's finding  in US – 
Carbon Steel (India)  that cumulation of the effects of subsidized imports with those of dumped, 
non-subsidized imports in injury determinations in original investigations is prohibited, and find that 
cumulation of subsidized imports with those of dumped, non -subsidized imports is also prohibited  
under Article  15.3 in sunset reviews.509 Turkey argues that the prohibition of such cumulation in 
sunset reviews is supported by the context of Article  15.3 as well as the object and purpose of the 
SCM Agreement  and relevant negotiating history.510 
7.319.   The United  States  argues that Turkey 's reliance on the Appellate Body 's findings  in US – 
Carbon Steel (India)  concerning original investigations is misplaced. The United  States  argues that 
the Panel should instead rely on the panel 's findings  in US – Carbon Steel (I ndia) which directly 
addressed the question of whether the provisions of Article  15 apply in the context of 
likelihood -of-injury determinations in sunset reviews . The United  States  argues that the panel found 
sunset review proceedings to be governed by Article 21, and not by Article  15 of the 
SCM Agreement .511 These findings were not appealed. The United  States  further requests the Panel 
to reject Turkey 's argument that the object and purpose of the SCM  Agreement  and negotiating 
history surrounding cumulation  in injury determinations support Turkey 's claim.512  
7.320.   In response, Turkey argues that the United  States  mischaracterizes the panel 's findings in 
US – Carbon Steel (India)  as that panel  only found that Article  21 does not require investigating 
authorities to redetermine injury pursuant to Article  15 in sunset reviews, and consequently, 
investigating authorities are not mandated to follow the provisions of Article  15, when making a 
likelihood -of-injury determination pursuant to Article  21.3 of the SCM  Agreement .513 Turkey argues , 
however,  that the text of Article  15.3 in its context, in light of the object and purpose of 
the Agreement  as well as the negotiating history makes it clear that it prohibits cumulating 
subsidized imports with  dumped, non -subsidized impor ts.514  
                                                
507 See above, para.  7.295 . 
508 We note that Japan in its third -party written submission expressed concerns similar to those raised 
by the United  States that dumped imports and simultaneous subsidized imports in a country often have 
cumulative price or volume effects on the relevant domestic industry, and that the combined effects of 
subsidized and dumped imports from several countries may not be adeq uately taken into account if 
cross-cumulation is prohibited. Thus, the injurious effects of the subsidized or dumped imports may not be 
properly recognized simply because of the difficulty in disassociating the injury attributable to dumped and 
subsidized imports. (Japan's  third-party submission, paras.  42-43 (referring to United  States'  first written 
submission, paras.  276-277)). We understand the United  States'  and Japan's  practical concern, recognizing 
that economic and statistical methodologies availabl e to investigating authorities do not easily permit 
separating the injurious effects of dumped and subsidized imports.  
509 Turkey argues that the Appellate Body's  findings under Article  15.3 of the SCM  Agreement apply 
"with equal force" to likelihood of inju ry determinations in sunset reviews. (Turkey's  first written submission, 
para. 558). See also second written submission, paras.  152-153; response to Panel question No.  62, 
paras.  133-140; and statement at the second meeting of the Panel, para.  103. 
510 Turke y's second written submission, paras.  153-154. 
511 United  States'  first written submission, paras.  285-291; second written submission, para. 208. 
512 United  States'  second written submission, paras.  214-216. 
513 Turkey's  response to Panel question No.  62, para.  126. 
514 Turkey's  response to Panel question No.  62, para.  127. WT/DS523/ R 
 
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  7.321.   We consider that the findings of the panel in US – Carbon Steel (India)  are directly relevant 
to our assessment of Turkey 's claim that the United  States  has a practice of cumulating subsidized 
and dumped , non -subsidized  imports in sunset reviews, and  Turkey 's claim that the USITC 
cumulated Turkish imports (subject to both anti -dumping and countervailing duty orders) with 
imports from other countries that were subject only to anti -dumping duty orders in the CWP sunset 
review.  
7.322.   In US – Carbon Steel (Indi a), the panel was asked to consider whether Sections 1675a(a)(7) 
and 1675b(e)(2)  governing the cumulative assessment of imports in sunset reviews were 
inconsistent with Articles  15.1-15.5 of the SCM  Agreement . The panel found that, for the "review" 
of a determination of injury that has already been established in accordance with  Article  15, 
Article  21.3 does not require that injury again be determined in accordance with  Article  15. 
Consequently , the panel concluded that  investigating authorities are not bound by  the provisions of  
Article  15 when making a likelihood -of-injury determination under Article  21.3.515 
7.323.   The panel based its findings in US – Carbon Steel (India)  on the Appellate Body 's analysis  in 
US – Oil Country Tubular Goods Sunset Reviews  concernin g the distinction between determinations 
of injury in original investigations and likelihood -of-injury determinations in the context of the 
Anti-Dumping  Agreement . As the panel noted in US – Carbon Steel (India) , Article  21.3 of the 
SCM Agreement , which au thorizes investigating authorities to conduct sunset reviews in the 
countervailing duty context, is "substantially identical" to Article  11.3 of the 
Anti-Dumping  Agreement  and close parallels can also be drawn between Article  15 of the 
SCM Agreement  and Article 3 of the Anti -Dumping  Agreement .516 In addition, the panel observed 
that footnote 45 to Article  15 of the SCM  Agreement , defining the term "injury" for the whole  
Agreement , is identical in language to footnote 9 to Article  3 of the Anti -Dumping  Agreement .517  
7.324.   The panel in US – Carbon Steel ( India)  found central to its assessment the 
Appellat e Body's finding in US – Oil Country Tubular Goods Sunset Reviews  that determinations of 
injury  under Article  3 of the Anti -Dumping  Agreement  are distinct proc esses from determinations of 
likelihood of continuation or recurrence of injury  under Article  11.3. The Appellate Body observed  in 
that case  that Article  3 requires investigating authorities to determine whether the domestic industry 
is facing injury (or t hreat thereof) at the time of the original investigation, while Article  11.3 concerns 
the review of an anti -dumping order that is already in place to determine whether that same order 
should be continued or removed.518 The Appellate Body concluded that inves tigating authorities are 
not mandated to follow the provisions of Article  3 of the Anti -Dumping  Agreement  when making a 
likelihood of injury determination.519 
7.325.   While noting that Footnote 9 to Article  3 of the Anti -Dumping  Agreement  defines "injury" for 
the en tire Anti -Dumping  Agreement520 the Appellate Body considered that this definition of injury  
does not equate to the determination  of injury , a process that is governed by Article  3 of the 
Anti-Dumping  Agreement .521 Accordingly, the Appellate Body concluded that the definition of injury  
provided in Footnote 9 applies throughout the Anti -Dumping  Agreement , including Article  11.3 which 
concerns determinations of likelihood of continuation or recurrence of injury . Howev er, it found that 
the various rules contained in Article  3 pertaining to the determination of injury in original 
investigations do not necessarily apply to determinations of likelihood of continuation or recurrence 
of injury .522 The Appellate Body therefore found that not all of the provisions of Article  3 apply to 
sunset determinations under Article  11.3 of the Anti -Dumping  Agreement , especially in the absence 
                                                
515 Panel Report, US – Carbon Steel (India) , para.  7.389.  
516 Panel Report, US – Carbon Steel (India) , paras.  7.389 -7.390.  
517 Panel Report, US – Carbon Steel (India) , para.  7.390.  
518 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 279 (referring to 
Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para.  124).  
519 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  280. 
520 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  276. Footnote 9 to 
Article  3 of the Anti -Dumping  Agreement provides:  
Under this  Agreement the term "injury" shall, unless otherwise specified, be taken to mean 
material injury  to a domestic industry, threat of material injury to a domestic industry or material 
retardation of the establishment of such an industry and shall be interpreted in accordance with 
the provisions of this Article.  
521 Appellate Body Report, US – Oil Country  Tubular Goods Sunset Reviews , para.  277. 
522 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  277. WT/DS523/ R 
 
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  of cross -references linking the two provisions.523 On this basis, the Appellate Body further conclude d 
that an investigating authority is not mandated to follow the provisions of Article  3 when making a 
likelihood -of-injury determination.524  
7.326.   The panel in US – Carbon Steel (India)  applied this reasoning mutatis mutandis  in its 
assessment of whether the prov isions of Article  15 applied in the context of determinations of 
likelihood of continuation or recurrence of injury under Article  21.3.525 The panel clarified that an 
investigating authorit y is not required to follow the provisions of Article  15 when reviewi ng a 
determination of injury that has already been established based on those rules.526 According to the 
panel, likelihood -of-injury determinations in sunset reviews are instead governed by Article  21.3 of 
the SCM  Agreement .527 
7.327.   We share the view of the panel in US – Carbon Steel (India)  as based upon the 
Appellate  Body's analysis in US – Oil Country Tubular Goods Sunset Reviews  of analogue provisions 
in the Anti -Dumping  Agreement , that Article  21.3 does not require that injury ag ain be determined 
in accordance with Article  15, and consequently an investigating authorit y is not mandated to follow 
the provisions of Article  15 when making a likelihood -of-injury determination under Article  21.3. We 
will therefore follow that interpret ation and adopt it as our own  in making our own objective 
assessment of  Turkey 's claim in this dispute.   
7.328.   In the CWP sunset review, the USITC conducted an analysis of the "likelihood of continuation 
or recurrence of material injury if the antidumping and co untervailing duty orders [were to be] 
revoked".528 Moreover, Turkey did not submit arguments or evidence that the USITC, as a matter of 
practice, redetermines injury (as opposed to assessing a likelihood of the continuation of injury) in 
sunset reviews. Ther efore, consistent with the panel 's findings in US – Carbon Steel (India) , we find 
that the USITC was not mandated to follow the provisions of Article  15 of the SCM  Agreement  when 
making such a likelihood -of-injury determination under Article  21 of the SCM  Agreement .529 
7.329.   In light of our approach, we also do not consider that the Appellate Body 's findings  in US – 
Carbon Steel (India)  regarding  cumulation of subsidized and dumped, non -subsidized imports in 
injury determinations in original investigations are relevant to our assessment. We  also do not 
consider it necessary to address Turkey 's arguments concerning the object and purpose of the 
SCM Agreement  and relevant negotiating history.530 
7.330.   Accordingly, w e find that Turkey has failed to establish a basis for its  "as such" and as applied  
claims that the United  States  cumulates subsidized and dumped, non -subsidized imports in sunset 
reviews in a manner that is inconsistent with Article  15.3 of the SCM  Agreement . We therefore do 
not need to address whether the USITC h as a practice of cumulatively assessing the effects of 
subsidized and dumped, non -subsidized imports in sunset review s, nor do we make findings as to 
whether the USITC  cumulatively assessed the effects of subsidized and dumped, non -subsidized 
imports  in the 2011 CWP sunset review.  
7.6.5   Conclusions regarding Turkey 's claims under Article  15.3 of the SCM  Agreement  
7.331.   We reject the United  States'  request for a ruling that Turkey 's challenge to alleged practices 
in relation to the injury determinations in original inve stigations and sunset reviews, and "as such" 
claims associated with these practices , are outside the Panel 's terms of reference.  
7.332.   Regarding Turkey 's claims in relation to original investigations, we find that the 
United  States  cumulated subject imports from  countries as to which countervailing and anti -dumping 
petitions were filed on the same day in the OCTG, WLP , and HWRP original investigations, 
                                                
523 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para.  278. 
524 Appellate Body Report, US – Oil Country Tubula r Goods Sunset Reviews , para.  280. 
525 See above, para.  7.323 . 
526 Panel Report, US – Carbon Steel (India) , para.  7.389.  
527 Panel Report, US – Carbon Steel (India) , para. 7.392.  
528 CWP Final Sunset Review Determination , (Exhibit TUR -16), p.  27. 
529 Panel Report, US – Carbon Steel (India) , para.  7.389.  
530 We note in any event that Turkey's  reference to the negotiating history does not change our 
assessment. At most, drafting documents submitted by Turkey only demonstrate that certain Members 
expressed concern with the issue of cross -cumulation of imports in injury assessments. (Turkey's  response to 
Panel question No.  62, paras.  139-140).  WT/DS523/ R 
 
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  inconsistently with Article  15.3 of the SCM  Agreement . We also find that the USITC has a practice 
of cumulating the effects of subsidized imports with those of dumped, non -subsidized imports from 
all countries as to which petitions were filed on the same day, if such imports compete with each 
other and with the like domestic product in the United  States . We find tha t this practice constitutes 
a rule or norm of general and prospective application that is inconsistent "as such" with Article  15.3 
of the SCM  Agreement . 
7.333.   Regarding Turkey 's claims in relation to sunset review s, we reject Turkey 's claims that the 
United  States acted inconsistently with Article  15.3 of the SCM  Agreement , both "as such " as a 
practice and as applied in the 2011 CWP sunset review proceeding at issue , because  an investigating 
authorit y is not mandated to follow the provisions of Article  15 of the SCM Agreement  when making 
a likelihood -of-injury determination under Article  21 of the SCM  Agreement . 
7.7  Turkey 's claims under Article  19.4 of the SCM  Agreement  and Article  VI:3 of the 
GATT  1994  
7.334.   Turkey claims  that the United  States  has acted inconsistently with Article  19.4 of the 
SCM Agreement  and Article  VI:3 of the GATT 1994  based on  its substantive claims under 
Articles  1.1(a)(1), 1.1(b), 2.1(c),  2.4, 12.7, 14(d) and 15.3 of the SCM  Agreement . 
7.335.   Article  19.4 provides:  
No counterva iling duty shall be levied [51] on any imported product in excess of the 
amount of the subsidy found to exist, calculated in terms of subsidization per unit of 
the subsidized and exported product.  
 
51 As used in this  Agreement  "levy" shall mean the definiti ve or final legal assessment or collection 
of a duty or tax.  
7.336.   The first sentence of Article  VI:3 of the GATT  1994 provides  in relevant part : 
No countervailing duty shall be levied on any product of the territory of any contracting 
party imported into the territory of another contracting party in excess of an amount 
equal to the estimated bounty or subsidy determined to have been granted  …[.] 
7.337.   As reflected in its panel request , Turkey request s findings that the United  States  has violat ed 
Article  19.4 and Article  VI:3 "[t]o the extent that the United  States'  practices described above are 
inconsistent with Articles  1.1(a)(1), 1.1(b), 2.1(c), 12.7, 1 4(d) and 15.3 of the SCM  Agreement ".531  
7.338.   We recall  that Turkey alleged two specific violations of Article  19.4 and Article  VI:3 arising  
in connection with Article  12.7 claims  in the WLP and HWRP investigations  in its first written 
submission . In those invest igation s, Turkey claims that the USDOC applied countervailing duty rates  
that it had previously calculated for subsidy programmes in other investigations.532 In addition to 
claiming violations of Article  12.7 by selecting these rates , Turkey argues that the United  States  also 
acted contrary to its obligations under Article  19.4 and Article  VI:3 by applying countervailing duty 
measures in excess of the amount of subsidization attributable to either WLP or HWRP.533 
7.339.   In response to question ing from the Panel  following the first meeting, Turkey characterized  
these  Article  19.4 and Article  VI:3 claims as merely "instances" when the USDOC inaccurately 
calculated the amount of subsidization . Turkey request ed that we find Article  19.4 and Article  VI:3 
                                                
531 Turkey's  panel request, para.  9. 
532 In the WLP investigation, Turkey submits  that "the USDOC applied countervailing duty rates it had 
previously calculated for 'similar'  subsidy programs in investigations of pasta and OCTG and 'for any program 
identified in a Turkish CVD proceeding that could conceivably be used'  by the respondent, Borusan". 
(Turkey 's first written submission, para. 329). In the HWRP investigation, Turkey submits  that "the USDOC 
applied a countervailing duty rate of 15.58 percent to MMZ for the alleged provision of electricity for less than 
adequate remuneration, a rate it had previously calculated based on the alleged provision of hot rolled steel for 
less than a dequate remuneration in the OCTG investigation". ( Turkey 's first written submission, para. 441).  
533 Turkey 's first written submission, paras.  329 and 441.  WT/DS523/ R 
 
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  violations whenever  we find a violation of Articles  1.1(a)(1), 1.1(b), 2.1(c), 14(d) , and 15.3 of the 
SCM Agreement  that results  in the application of countervailing duties w here no subsidy exists.534  
7.340.   The United  States  argue s that Turkey 's Article  19.4 and Article  VI:3 arguments concern ing 
the WLP and HWRP investigations constitute new, independent claims535 that were not identified in 
Turkey 's panel request , and has requested a ruling that these claims are  outside our Panel 's terms 
of reference .536 The United  States  further  requests  that the Panel reject Turkey 's Article  19.4 and 
Article  VI:3 claims in connection  with Articles  1.1(a)(1), 1.1(b), 2.1(c), 14(d) , and 15.3 , as these 
claims  were only raised at a late stage of the proceedings.537  
7.341.   We note that Turkey consider s that its Article  19.4 and Article  VI.3 claims are dependent 
claims.  Turkey essentially argues that a Member violate s Article  19.4 and Article  VI:3 to the extent 
that it imposes  countervailing dut ies that are  inconsistent with any provision  of the SCM  Agreement . 
In support, T urkey cites the Appellate Body 's statement  in US – Countervailing Measures on EC 
Products  that, under Article  19.4 and Article  VI:3, "investigating authorities, before imposing 
countervailing duties, must ascertain the precise amount of a subsidy attributed to the imported 
products under investigation".538 
7.342.   The United  States  disputes that violations of the SCM  Agreement  may give rise to dependant 
violations of Article  19.4 and Article  VI:3. According to the United  States , Article  19.4 and 
Article  VI:3 only prevent the imposition of duties in excess of the amount of the subsidy that is found 
to exist  by an investigating authority . The United  States  submits that Turkey has not established 
that any countervailing duty levied had exceeded the relevant calculated a mount.539  
7.343.   We are not persuaded  by Turkey 's argument that the inconsistencies that we have found in 
this dispute would necessarily give rise to dependant violations of Article  19.4 and Article  VI:3. The 
relationship between the provision s at issue may be more complex than suggested by Turkey.  
However, i n light of our findings above, we do not consider it necessary to address the potential 
complexities arising from Turkey 's additional claims regarding the consistency of the USDOC 's and 
USITC's actions with Article  19.4 and Article  VI:3 to resolve the matter before us . We recall that, in 
order  to secure a positive solution to a dispute, the Appellate Body has stated that the principle of 
judicial economy "allows a panel to refrain from makin g multiple findings that the same measure is 
inconsistent  with various provisions when a single, or a certain number of findings of inconsistency, 
would suffice to resolve the dispute" .540 Thus, panels need address only those claims "which must 
be addressed in order to resolve the matter in issue in the dispute", while panels "may refrain from 
ruling on every claim as long as it does not lead to a 'partial resolution of the matter'" .541 If 
Turkey's additional claims are genuinely dependant on other findings of WTO -inconsistency, we see 
little value in addressing such additional claims.  We therefore refrain from doing so . 
                                                
534 Turkey 's response to Panel question No. 63, para. 145. 
535 United  States'  first written submission, pa ra. 35. 
536 United  States'  first written submission, paras.  34-35. The United  States additionally argues that 
Turkey's  Article  19.4 and Article  VI:3 challenge with respect to the USDOC's  application of countervailing duty 
rates calculated for "similar" subsi dy programmes in the WLP proceeding, is a new, independent claim because 
"Turkey did not raise any arguments under Article  12.7 – the provision on which Turkey's  claims under 
Articles  19.4 and VI:3 depend – regarding USDOC's  use of such rates in its applic ation of facts available". 
(United  States'  second written submission, para.  28 (emphasis original)).  
537 United  States'  second written submission, paras.  219-222. 
538 Turkey's  first submission, paras.  329 and 441 (quoting  Appellate Body Report, US – Countervai ling 
Measures on Certain EC Products , para.  139).  
539 United  States'  first written submission, paras.  185-187. 
540 Appellate Body Report s, Argentina – Import Measures , para. 5.190. (emphasis original)  
541 Appellate Body Report s, Argentina – Import Measures , para. 5.190 (quoting Appellate Body Reports, 
Canada – Wheat Exports and Grain Imports , para. 133; US – Wool Shirts and Blouses , DSR 1997:I, p. 339; 
US – Tuna II (Mexico) , paras.  403-404; and US – Upland Cotton , para. 732).  WT/DS523/ R 
 
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  7.8  Turkey 's claims under Articles  10 and 32.1 of the SCM  Agreement  
7.344.   Turkey also alleges  consequential violations of Articles  10 and 32.1 of the SCM  Agreement  
based on  its substantive claims under Articles  1.1(a)(1), 1.1(b), 2.1(c),  2.4, 12.7, 14(d) , and 15.3 
of the SCM  Agreement .542  
7.345.   Article  10 of the SCM  Agreement  reads:  
Members sha ll take all necessary steps to ensure that the imposition of a countervailing 
duty on any product of the territory of any Member imported into the territory of another 
Member is in accordance with the provisions of Article  VI of GATT 1994 and the terms 
of this Agreement . Countervailing duties may only be imposed pursuant to 
investigations initiated and conducted in accordance with the provisions of 
this Agreement  and the  Agreement  on Agriculture.543 
7.346.   Article  32.1 of the SCM  Agreement  reads:  
No specific action against a subsidy of another Member can be taken except in 
accordance with the provisions of GATT 1994, as interpreted by this  Agreement . 
7.347.   We recall our finding above that the United  States  acted inconsistently with the obligations 
under Articles  1.1(a)(1),  2.1(c),  2.4, 12.7, and 15.3  of the SCM  Agreement . We note that the 
Appellate Body has treated claims under Articles  10 and 32.1 of the SCM  Agreement  as 
consequential claims in the sense that, when  the essential elements of the subsidy within the 
meaning o f Article  1 of the SCM  Agreement  are not present, or the  right to impose a countervailing 
duty has not been established, the countervailing duties imposed are inconsistent with Articles  10 
and 32.1 of the SCM  Agreement .544 Accordingly, to the extent that we have found that the 
USDOC 's and USITC 's determinations  to be inconsistent with Articles  1.1(a)(1), 2.1(c),  2.4, 12.7, 
and 15.3  of the SCM  Agreement , we also find that they are  inconsistent with the 
United  States'  obligations under Articles  10 and 32.1 of the SCM  Agreement . 
8  CONCLUSIONS AND RECO MMENDATION  
8.1.  Having considered the United  States'  request for preliminary rulings regarding the scope of 
these proceedings and the responses thereto, we conclude as follows:  
a. Turkey 's challenge to an alleged practice  related to the rejection of in -country prices in 
the assessment of benefit  is within the Panel 's terms of reference.  
b. Turkey 's challenge to alleged practices related to the cumulation of subsidized and 
non-subsidized imports in the assessment of injury  in ori ginal investigations and sunset 
reviews is within the Panel 's terms of reference.  
c. With respect to the WLP investigation, Turkey 's claims under Article  12.7 of the 
SCM Agreement  concerning subsidy programme s other than the Provision of HRS for LTAR 
are outs ide the Panel 's terms of reference.  
d. We decline to rule on the USDOC 's initial OCTG final  benefit  determination in the context 
of addressing Turkey 's as applied  claims under Article  1.1(b) and Article  14(d)  of the 
SCM Agreement , as we do not consider findings on this determination would aid in 
providing a positive resolution to the dispute.  
                                                
542 Turkey's  first written submissi on, paras.  169, 170, 192, 211, 220, 232, 320 -321, 330, 338, 346, 
430-431, 442, 451, 459, 542 -543, 552, and 562.  
543 Fns omitted.  
544 Appellate Body Reports, US – Softwood Lumber IV , para.  143; US – Anti-Dumping and 
Countervailing Duties (China) , para.  358. WT/DS523/ R 
 
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  8.2.  For the reasons set forth in this Report, we conclude as follows:  
a. With respect to Turkey 's claims  under Article  1.1(a)(1) of the SCM  Agreeme nt relating to 
the OCTG, WLP, and HWRP countervailing duty investigations and the CWP sunset review, 
the United  States  acted inconsistently with Article  1.1(a)(1) because the USDOC failed to 
apply the correct legal standard and failed to provide a reasoned  and adequate explanation 
for its public body determinations regarding Erdemir and Isdemir . 
b. With respect to Turkey 's "as such" claim under Article  14(d)  relating to  the 
OCTG  countervailing duty investigation , Turkey has failed to establish that the USDOC h as 
a practice, in assessing whether a good is provided for LTAR thereby conferring a benefit, 
of rejecting in -country prices as a benchmark based solely on evidence that the 
government owns or controls the majority or a substantial portion of the market fo r the 
good, with no consideration of whether in-country prices are distorted. Turkey has thus 
failed to establish that the United  States  acted inconsistently "as such" with Article  14(d) 
of the SCM  Agreement . 
c. With respect to Turkey 's claims  under Articles  2.1(c) and 2.4 of the SCM  Agreement  
relating to the OCTG, WLP, and HWRP countervailing duty investigations and the 
CWP sunset review : 
i. The United  States  acted inconsistently with Articles  2.1(c) and 2.4 of the 
SCM Agreement  because the USDOC failed to identify and  clearly  substantiate the 
existence of a so-called Provision of HRS for LTAR  Programme based on positive 
evidence . 
ii. The United  States  acted inconsistently with Article  2.1(c) of the SCM  Agreement  
because the USDOC  failed  to consider  the extent of diversification of economic 
activities with in Turkey; and failed  to properly evaluate the length of time in which the 
so-called  Provision of HRS for LTAR Programme had been in operation . 
d. With respect to Turkey 's claims under Article  12.7 of the SCM  Agreement :  
i. Turkey has failed to  establish that the United  States  acted inco nsistently with 
Article  12.7 of the SCM  Agreement  in the OCTG investigation because the USDOC 
failed to take into account difficulties experienced by Borusan in providing requested 
information in its questionnaire responses . 
ii. The United  States  acted inconsistently with Article  12.7 of the SCM  Agreement  in the 
OCTG investigation  because the USDOC  failed  to engage in a process of reasoning and 
evaluation in selecting facts available for mi ssing price information for 
Borusan 's Halkali and Izmit facilities  and in calc ulating the quantity of the 
HRS purchases at Halkali and Izmit facilities . 
iii. The United  States  acted inconsistently with Article  12.7 of the SCM  Agreement  in the 
WLP investigation  because the USDOC  failed  to engage in a process of reasoning and 
evaluation in selecting the subsidy rate as a "reasonable replacement " for the missing 
necessary information for the so-called  Provision of HRS for LTAR  Programme.  
iv. The United  States  acted in consistently with Article  12.7 of the SCM  Agreement  in the 
HWRP investigation  because the USDOC  failed  to engage in a process of reasoning and 
evaluation in selecting the subsidy rates as "reasonable replacement s" for missing 
information relating to MMZ's and Ozdemir 's use of certain subsidies.  
e. With respect to Turkey 's claims  under Article  15.3 of the SCM  Agreement :  
i. The United  States  acted inconsistently with Article  15.3 of the SCM  Agreement  by 
cumulatively assessing  the effects of subsidized imports with those of dumped, 
non-subsidized imports for purposes of its injury determination in the OCTG, WLP, and 
HWRP countervailing duty investigations . WT/DS523/ R 
 
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  ii. The USITC has a practice, in original investigations, of cumulatively as sessing the 
effects of subsidized imports with those of dumped, non -subsidized imports from all 
countries as to which petitions were filed on the same day, if such imports compete 
with each other and with the like domestic product in the United  States . This practice 
is inconsistent "as such" with the United  States'  obligations under  Article  15.3 of the 
SCM Agreement . 
iii. Turkey has failed to establish that the United  States  acted inconsistently with 
Article  15.3 of the SCM  Agreement , either "as such " or as appl ied in  connection with  
the CWP sunset review, because  an investigating authorit y is not mandated to follow 
the provisions of Article  15 of the SCM  Agreement  when making a likelihood -of-injury 
determination under Article  21 of the SCM  Agreement . 
f. As a consequence of the inconsistencies with Articles  1.1(a)(1), 2.1(c), 2.4, 12.7, and 15.3 
of the SCM  Agreement , the United  States  also acted inco nsistently with Articles  10 
and 32.1 of the SCM  Agreement . 
g. We exercise judicial economy with regard to Turkey 's claims under Article  19.4 of the 
SCM Agreement  and Article  VI:3 of the GATT 1994.  
8.3.  Under Article  3.8 of the DSU, in cases where there is an infringement of the obligations 
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 the SCM  Agreement , they have nullified or impaired benefits accruing to Turkey 
under that  Agreement . 
8.4.  Pursuant to Article  19.1 of the DS U, we recommend that the United  States  bring its measures 
into conformity with its obligations under the SCM Agreement . 
 
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