WT/DS523/5  
 
30 January 2019  
(19-0501) Page: 1/2 
  Original: English  
 
UNITED STATES – COUN TERVAILING MEASURES ON CERTAIN PIPE  
AND TUBE PRODUCTS (T URKEY)   
NOTIFICATION OF AN A PPEAL BY THE UNITED STATES UNDER ARTICLE 16.4 A ND  
ARTICLE 17 OF THE UN DERSTANDING ON RULES  AND PROCEDURES GOVER NING  
THE SETTLEMENT OF DI SPUTES (DSU), AND UN DER RULE 20(1)  
OF THE WORKING PROCE DURES FOR APPELLATE REVIEW  
The following communication , dated 25 January 2019 , from the delegation of the United States, is 
being circulated to Members.  
 
_______________  
 
 
 Pursuant  to Article 16 of the Understanding on Rules and Procedures Governing the Settlement 
of Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review , the United States 
hereby notifies its decision to appeal to the Appellate Body certain issu es of law covered in the report 
of the Panel in United States – Countervailing Duty Measures on Certain Pipe and Tube Products 
from Turkey  (WT/DS523/R & WT/DS523/R/Add.1) and certain legal interpretations developed by 
the Panel.  
 The United States seeks re view by the Appellate Body of the Panel 's finding that Turkey 's 
challenges to an alleged practice related to the rejection of in -country prices in the assessment of 
benefit and to alleged practices related to the cumulation of subsidized and non -subsidized  imports 
in the assessment of injury are within the Panel 's terms of reference.1 This finding is in error and is 
based on erroneous findings on issues of law and legal interpretations. The Panel erred in its 
application of DSU Articles 4.4, 6.2, and 7.1 by  finding that these measures and claims – which were 
not identified in Turkey 's consultations request – fell within the Panel 's terms of reference. The 
United States respectfully requests that the Appellate Body reverse the Panel 's findings.  
 The United Sta tes seeks review of the Panel 's finding that the United States acted 
inconsistently with Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Measures 
("SCM Agreement") in the Oil Country Tubular Goods ("OCTG"), Welded Line Pipe ("WLP"), and 
Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes ("HWRP") countervailing duty 
investigations, and the Circular Welded Carbon Steel Pipes and Tubes ("CWP") administrative review 
through its public body determinations regarding Erdemir and Isdemi r.2 This finding is in error and 
based on erroneous findings on issues of law and legal interpretation. The Panel erred in its 
interpretation and application of Article 1.1(a)(1) of the SCM Agreement because the Panel required 
that a public body finding be  supported by evidence that the government actually exercised control 
over the conduct of an entity,3 and when it determined that an entity 's engagement in commercial 
behavior is necessarily relevant to an investigating authority 's analysis of a public bod y.4 The Panel 
further erred in its application of Article 1.1(a)(1) when it reviewed each piece of record evidence in 
isolation, and failed to consider whether the totality of the evidence could support the United States 
Department of Commerce 's ("USDOC") determination that Erdemir and Isdemir are public bodies.5 
The Panel also erred in its assessment of this claim by making arguments for Turkey that Turkey 
advanced only in its separate claim regarding OYAK. In addition, in assessing the evidence 
                                                
1 Panel Report, para. 8.1.a -b. 
2 Panel Report, paras. 7.50, 7.66, 7.68, 8.2.a.  
3 Panel Report, paras. 7.42, 7.49 -7.50. 
4 Panel Report, paras. 7.51 -7.62. 
5 Panel Report, paras. 7.42 -7.50. WT/DS523/5  
 
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  regarding  OYAK, the Panel erred because its assessment failed to reflect the approach taken by 
USDOC of reviewing the evidence in its totality.6 The Panel conclusions under Article 1.1(a)(1) were 
thus based on erroneous findings, and the United States respectfully r equests that the Appellate 
Body reverse the Panel 's findings that the United States acted inconsistently with Article 1.1(a)(1).  
 The United States seeks review of the Panel 's finding that the United States acted 
inconsistently with Articles 2.1(c) and 2.4  of the SCM Agreement relating to the OCTG, WLP, and 
HWRP countervailing duty investigations and the CWP administrative review in evaluating the 
existence o f a subsidy program and finding specificity.7 This finding is in error and is based on 
erroneous fin dings on issues of law and legal interpretations. The Panel erred in its interpretation 
and application of Article 2.1(c) by interpreting the term "programme" in a manner that is 
inconsistent with the ordinary meaning of the term in Article 2.1 in its cont ext.8 The Panel also erred 
in its application of Article 2.1(c) when it viewed the record evidence in isolation, and failed to 
consider whether the totality of the evidence, taken together, could support the 
USDOC 's determination.9 Further, because the Pan el's finding under Article 2.4 is dependent on its 
analysis under Article 2.1(c), its finding under Article 2.4 must also be reversed.10 The United States 
respectfully requests that the Appellate Body reverse the Panel 's findings.  
 The United States seeks review of the Panel 's finding that the United States acted 
inconsistently with Article 12.7 of the SCM Agreement in the OCTG, WLP, and HWRP countervailing 
duty investigations in selecting facts available.11 These findings are in error a nd are based on 
erroneous findings on issues of law and legal interpretations. The Panel erred in applying Article 12.7 
when it found that USDOC had not engaged in a "process of reasoning and evaluation" in selecting 
facts available during these proceeding s. The Panel also erred by making findings regarding 
USDOC 's application of facts available in the WLP investigation with respect to the Provision of 
Hot-Rolled Steel for Less Than Adequate Remuneration program, as Turkey provided 
no argumentation that wou ld support such findings. The United States respectfully requests that the 
Appellate Body reverse the Panel 's findings.  
 The United States seeks review of the Panel's findings that the United States acted 
inconsistently with Article 15.3 of the SCM Agreemen t by cumulatively assessing the effects of 
subsidized imports with those of non -subsidized imports through a "practice" in original 
investigations12 and through its injury determinations in the OCTG, WLP, and HWRP countervailing 
duty investigations.13 These findings are in error and are based on erroneous findings on issues of 
law and legal interpretations. The Panel erred in its application of Article 15.3 because it found that 
the USITC had a "practice" of cumulating the effects of subsidized imports with t he effects of 
dumped, non -subsidized imports,14 and therefore erred in finding the alleged "practice" to be "as 
such" inconsistent with Article 15.3 .15 The Panel also erred in its interpretation of Article 15.3 
because it found that the cumulation of subsidi zed imports with dumped, non -subsidized imports is 
inconsistent with Article 15.3.16 The Panel erred in its application of Article 15.3 because its findings 
were based on the erroneous interpretation of Article 15.3.17 The United States respectfully requests  
that the Appellate Body reverse the Panel's findings.  
__________  
                                                
6 Panel Report, paras. 7.37 -7.40, 7.67.  
7 Panel Report, paras. 7.161 -7.162, 7.182, 8.2.c.i.  
8 Panel Report, paras. 7.158 -7.159.  
9 Panel Report, paras. 7.154 -7.161.  
10 Panel Report, paras. 7. 162, 7.182.  
11 Panel Report, para. 8.2.d.ii -iv. 
12 Panel Report, para. 8.2.e.ii.  
13 Panel Report, para. 8.2.e.i.  
14 In the event the Appellate Body considers the Panel’s assessment of whether the “practice” exists to 
be an error in the Panel’s factual assessme nt, in the alternative, the United States appeals this finding under 
DSU Article 11.  
15 Panel Report, para. 7.314.  
16 Panel Report, paras. 7.281 -7.295.  
17 Panel Report, para. 7.316.