WORLD TRADE  
ORGANIZATION  WT/DS344/15 
31 October 2008 
 (08-5272) 
 Original:   English 
  
 
     
 
    
 
UNITED STATES – FINAL ANTI-DUMPING MEASURES 
ON STAINLESS STEEL FROM MEXICO 
 
 
ARB-2008-3/24 
 
 
  
Arbitration 
under Article 21.3(c) of the 
Understanding on Rules and Procedures 
Governing the Settlement of Disputes 
 
    
 
   
Award of the Arbitrator 
Florentino P. Feliciano 
  WT/DS344/15 
 Page i 
 
 
 
I. Introduction................................................................................................................... ..............1  
II. Arguments of the Parties....................................................................................................... ......2  
A. United States ..................................................................................................................2  
1. Legislative Action.............................................................................................3  
2. Administrative Action taken pursuant to Section 123 of the URAA................5  
B. Mexico ............................................................................................................................7  
1. Legislative Action.............................................................................................8  
2. Administrative Action taken pursuant to Section 123 of the URAA................9  
III. Reasonable Period of Time...................................................................................................... .12 
A. Mandate of the Arbitrator ............................................................................................12  
B. Measures to be brought into Conformity .....................................................................14  
C. Legislative Action versus Administrative Action .........................................................16  
D. The Administrative Procedure Act and Section 123 of the URAA ...............................18  
E. Administrative Action and the Reasonable Period of Time .........................................18  
F. Particular Circumstances of This Case .......................................................................19  
IV. Award.......................................................................................................................... ..............22  
 WT/DS344/15 
Page ii  
 
CASES CITED IN THIS AWARD 
 
Short Title Full case title and citation 
Australia – Salmon  Award of the Arbitrator, Australia – Measures Affecting Importation of 
Salmon – Arbitration under Article 21.3(c) of the DSU , WT/DS18/9, 
23 February 1999, DSR 1999:I, 267 
Brazil – Retreaded Tyres Award of the Arbitrator, Brazil – Measures Affecting Imports of Retreaded 
Tyres – Arbitration under Article 21.3(c) of the DSU , WT/DS332/16, 
29 August 2008 
Canada – Autos Award of the Arbitrator, Canada – Certain Measures Affecting the Automotive 
Industry – Arbitration under Article 21.3(c) of the DSU , WT/DS139/12, 
WT/DS142/12, 4 October 2000, DSR 2000:X, 5079 
Canada – Patent Term Award of the Arbitrator, Canada – Term of Patent Protection – Arbitration 
under Article 21.3(c) of the DSU , WT/DS170/10, 28 February 2001, 
DSR 2001:V, 2031 
Canada – Pharmaceutical Patents
  Award of the Arbitrator, Canada – Patent Protection of Pharmaceutical 
Products – Arbitration under Article 21.3(c) of the DSU , WT/DS114/13, 
18 August 2000, DSR 2002:I, 3 
Chile – Alcoholic Beverages Award of the Arbitrator, Chile – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS87/15, WT/DS110/14, 23 May 2000, 
DSR 2000:V, 2583 
Chile – Price Band System Award of the Arbitrator, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products – Arbitration under Article 21.3(c) of 
the DSU , WT/DS207/13, 17 March 2003, DSR 2003:III, 1237 
EC – Chicken Cuts Award of the Arbitrator, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts – Arbitration under Article 21.3(c) of the DSU , 
WT/DS269/13, WT/DS286/15, 20 February 2006 
EC – Export Subsidies on 
Sugar Award of the Arbitrator, European Communities – Export Subsidies on Sugar – 
Arbitration under Article 21.3(c) of the DSU , WT/DS265/33, WT/DS266/33, 
WT/DS283/14, 28 October 2005, DSR 2005:XXIII, 11581 
EC – Hormones  Award of the Arbitrator, EC Measures Concerning Meat and Meat Products 
(Hormones) – Arbitration under Article 21.3(c) of the DSU , WT/DS26/15, 
WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 
EC – Tariff Preferences Award of the Arbitrator, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS246/14, 20 September 2004, DSR 2004:IX, 
4313 
Japan – DRAMs (Korea) Award of the Arbitrator, Japan – Countervailing Duties on Dynamic Random 
Access Memories from Korea – Arbitration under Article 21.3(c) of the DSU , 
WT/DS336/16, 5 May 2008 
Korea – Alcoholic Beverages  Award of the Arbitrator, Korea – Taxes on Alcoholic Beverages – Arbitration 
under Article 21.3(c) of the DSU , WT/DS75/16, WT/DS84/14, 4 June 1999, 
DSR 1999:II, 937 
US – 1916 Act Award of the Arbitrator, United States – Anti-Dumping Act of 1916 – Arbitration 
under Article 21.3(c) of the DSU , WT/DS136/11, WT/DS162/14, 
28 February 2001, DSR 2001:V, 2017 
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products 
from the European Communities , WT/DS165/AB/R, adopted 10 January 2001, 
DSR 2001:I, 373  WT/DS344/15 
 Page iii 
 
 
Short Title Full case title and citation 
US – Certain EC Products Panel Report, United States – Import Measures on Certain Products from the 
European Communities , WT/DS165/R and Add.1, adopted 10 January 2001, as 
modified by Appellate Body Report, WT/DS165/AB/R, DSR 2001:II, 413 
US – Gambling Award of the Arbitrator, United States – Measures Affecting the Cross-Border 
Supply of Gambling and Betting Services – Arbitration under Article 21.3(c) of 
the DSU , WT/DS285/13, 19 August 2005 
US – Hot-Rolled Steel  Award of the Arbitrator, United States – Anti-Dumping Measures on Certain  
Hot-Rolled Steel Products from Japan – Arbitration under Article 21.3(c) of the 
DSU , WT/DS184/13, 19 February 2002, DSR 2002:IV, 1389 
US – Offset Act  
(Byrd Amendment ) Award of the Arbitrator, United States – Continued Dumping and Subsidy Offset 
Act of 2000 – Arbitration under Article 21.3(c) of the DSU , WT/DS217/14, 
WT/DS234/22, 13 June 2003, DSR 2003:III, 1163 
US – Oil Country Tubular 
Goods Sunset Reviews Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular Goods from Argentina  – Arbitration under 
Article 21.3(c) of the DSU , WT/DS268/12, 7 June 2005 
US – Section 110(5) Copyright 
Act Award of the Arbitrator, United States – Section 110(5) of the US Copyright 
Act – Arbitration under Article 21.3(c) of the DSU , WT/DS160/12, 
15 January 2001, DSR 2001:II, 657 
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 
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless Steel 
from Mexico , WT/DS344/R, adopted 20 May 2008, as modified by Appellate 
Body Report, WT/DS344/AB/R  
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, 417  
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/R, adopted 
9 May 2006, as modified by Appellate Body Report, WT/DS294/AB/R, 
DSR 2006:II, 521 
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007 
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 
 WT/DS344/15 
Page iv  
 
 
ABBREVIATIONS USED IN THIS AWARD 
 
Abbreviation Description 
Appellate Body Report Appellate Body Report, United States – Final Anti-Dumping Measures 
on Stainless Steel from Mexico , WT/DS344/AB/R 
Anti-Dumping Agreement Agreement on Implementati on of Article VI of the General Agreement 
on Tariffs and Trade 1994  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes 
GATT 1994 General Agreement on Tariffs and Trade 1994 
Panel Report Panel Report, United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico , WT/DS344/R  
URAA Uruguay Round Agreements Act  
USDOC United States Department of Commerce 
USTR United States Trade Representative  
WTO World Trade Organization 
 
  WT/DS344/15 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
AWARD OF THE ARBITRATOR  
 
 United States – Final Anti-Dumping Measures on 
Stainless Steel from Mexico 
 
Parties: 
 
Mexico 
United States 
  ARB-2008-3/24 
  Arbitrator:  
 Florentino P. Feliciano 
 
 
 
I. Introduction 
1. On 20 May 2008, the Dispute Settlement Body (t he "DSB") adopted the Appellate Body 
Report1 and the Panel Report2, as modified by the Appellate Body Report, in United States – Final 
Anti-Dumping Measures on St ainless Steel from Mexico .3  At the DSB meeting held on 2 June 2008, 
the United States indicated its intention to implem ent the recommendations and rulings of the DSB in 
this dispute, and stated that it would require a reasonable period of time in which to do so.4 
2. On 11 August 2008, Mexico informed the DSB th at consultations with the United States had 
not resulted in an agreement on the "reasonable period of time" for implementati on.  Mexico therefore 
requested that such period be determined through bi nding arbitration, pursuant to Article 21.3(c) of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes   (the "DSU").5 
3. Mexico and the United States were unable to agr ee on an arbitrator within 10 days of the 
matter being referred to arbitration.  Therefore, by letter dated 22 August 2008, Mexico requested the 
Director-General to appoint an arb itrator pursuant to footnote 12 to Article 21.3(c) of the DSU.  The 
Director-General appointed me as Arbitrator on 29 August 2008, after consulting the parties.6  
I informed the parties of my acceptance of th e appointment by letter dated 1 September 2008. 
                                                      
1Appellate Body Report, WT/DS344/AB/R. 
2Panel Report, WT/DS344/R. 
3WT/DS344/10. 
4WT/DSB/M/251, para. 9. 
5WT/DS344/13. 
6WT/DS344/14. WT/DS344/15 
Page 2  
 
4. Mexico and the United States have agreed that th is Award will be deemed to be an arbitration 
award under Article 21.3(c) of the DSU, notwithstandi ng the expiry of the 90-day period stipulated in 
Article 21.3(c).
7 
5. The United States filed its written submission on 10 September 2008.  Mexico filed its written 
submission on 19 September 2008. An oral  hearing was held on 6 October 2008. 
II. Arguments of the Parties 
A. United States 
6. The United States submits that the "reasonable pe riod of time" necessary to comply with the 
recommendations and rulings of the DSB in the pr esent case is 15 months, ending on 20 August 2009.  
The United States highlights the complex and le ngthy legislative process, the administrative 
modifications necessary for compliance, the future  changes in the United States Administration and 
Congress, the text of Article 21.3(c) of the DSU, a nd previous arbitration awards under this provision.  
7. The United States points out that the task of the arbitrator under Article 21.3(c) of the DSU is 
to determine the "reasonable period of time" for a Member to bring itself into compliance with the 
recommendations and rulings of the DSB.  The United States notes that it is not for the arbitrator to 
prescribe any particular method of implementation.  Instead, it is the prerogative of the implementing Member to determine, by itself, the most appropr iate means of implementation, including the timing 
and sequence of necessary steps. 
8. The United States considers that Article 21.3(c) prescribes a "guideline" for the arbitrator to 
determine the reasonable period of time in that it "should not exceed 15 months".  This guideline 
however, is not an "outer limit" or "a floor or inner limit"
8, but may vary depending upon the specific 
circumstances of a particular case.  Thus, accordi ng to the United States, Article 21.3(c) provides for 
flexibility that should be defined on a case-by-case basis. 
                                                      
7The 90-day period following the adoption of the Panel and Appellate Body Reports expired on 
18 August 2008.  On 8 July 2008, the United States and Mexico mutually agreed that any awards of the 
arbitrator (including awards not made within 90 days after the date of adoption of the recommendations and 
rulings) should be deemed to be awards of the arbitrator for the purposes of Article 21.3(c) of the DSU.  (See WT/DS344/13) 
8United States' submission, para. 7 (referring to Award of the Arbitrator, US – Hot-Rolled Steel , 
para. 25).  WT/DS344/15 
 Page 3 
 
 
9. The United States also notes that the specific circumstances, releva nt to the determination of 
the reasonable period of time under Article 21.3(c) of the DSU, are the legal form of implementation;  
the technical complexity of the measures necessary for implementation;  and the period of time 
required for implementation of such measures.  Th e United States points to, as specific circumstances 
in the present case, the complexity of addressing zer oing in the context of administrative reviews, 
especially in the allocation of anti-dumping duti es among the importers for assessment purposes.  
Moreover, the United States submits that it would re quire a pre-legislative phase for consultations and 
technical assessments and "building of support for th e measure to occur", which is an important phase 
for the success of the proposed implementation action.9  The United States underlines that the pre-
legislative phase has been considered relevant by previous Article 21.3(c) arbitrators in 
Canada – Autos  and Canada – Pharmaceutical Patents .10 
10. Further, the United States points out that, in January 2009, a new Administration and a new 
Congress will take office, resulting in additional time required to put in place relevant staff and senior 
policymakers for the implementation of measures th at would bring the United States into compliance 
with the recommendations and rulings of the DSB.   The United States highlights that previous 
arbitrators under Article 21.3(c) of the DSU have he ld that an implementing Member is not expected 
to utilize extraordinary legislative procedures and th at the normal legislative process is, generally, to 
be used.11 
11. The United States indicates that its Administrati on is in the process of "consulting internally" 
on compliance and that two approaches are under consid eration:  legislative action, and administrative 
action.12 
1. Legislative Action  
12. With respect to legislative action, the United St ates stresses the particular difficulties that it 
faces under the current legislative calendar.  Acco rding to the United States Constitution, Congress 
meets "at least once in every year",  generally convening on 3 January.13  Currently, the United States 
is nearing the end of the second session of the 110th Congress, and the expected adjournment date for 
                                                      
9United States' submission, para. 10. 
10Ibid. (referring to Award of the Arbitrator, Canada – Autos , paras. 18, 49, and 56;  and Award of the 
Arbitrator, Canada – Pharmaceutical Patents, paras. 1, 14, and 62). 
11Ibid., para. 12 (quoting Award of the Arbitrator, US – Section 110(5) Copyright Act, para. 45;  and 
Award of the Arbitrator, Korea – Alcoholic Beverages, para. 42). 
12Ibid., para. 14. 
13Ibid., para. 15 (referring to The Constitution of the United States  (Exhibit US-2 submitted by the 
United States to the Arbitrator), Article I, Section 4). WT/DS344/15 
Page 4  
 
the House of Representatives is 26 September 2008.
14  The United States indicates that a legislation 
on simple zeroing introduced before Congress, if it is  not acted upon before adjournment, will "die" at 
the end of the Congress, as "the 110th Congress does not have the ability to 'save' the work that it does 
during its second session in 2008 and complete it in 2009".15 
13. The United States contends that, as any modification to the current anti-dumping system is 
complex, and as a period of time for public hearings  and legislative consider ation should be allowed, 
it would not be possible to complete the legislative work before the adjournment date, and the relevant 
proposed legislation would need to be addressed by the new Congress in 2009.  The United States further points out that members of the new Congres s will not begin to conduct official business and 
acts of legislation until late January or early Fe bruary 2009.  The United States adds that a new 
President will be sworn in on 20 January 2009, and th erefore it will be some time after that date that 
new officials will be appointed who will have to vet and approve the new legislation.  In these 
circumstances, the United States be lieves that a compliance legislation could not be introduced before 
April or May 2009, and at the very least four months would then be required to pass that legislation in 
the multi-stage, bicameral United States legislative system. 
14. Turning to the legislative pro cess, the United States notes that, as the power to legislate rests 
upon Congress (which consists of two chambers, the House of Repr esentatives and the Senate), the 
Executive branch has no control over the timetable a nd procedures of Congress.  In its description of 
the United States legislative process, the United States points out that a bill, after its introduction in 
the House or the Senate by a member of Congress,  is usually referred to  a standing committee or 
committees having jurisdiction over the subject matter of  that bill.  There is  no specified timeframe 
for committee consideration.  The United States adds that most bills are referred to by the committee 
with jurisdiction to a subcommittee for considera tion.  In the House of Representatives, the 
subcommittee normally schedules public hearings to obtain the views of stakeholders.  When the 
hearings are completed, the subcommittee usually meets to "mark-up" the bill, that is, to make 
changes and amendments prior to deciding whethe r to recommend or report the bill to the full 
committee.  The subcommittee may also  suggest that a bill be "tabled", that is, postponed indefinitely.  
The United States points out that, after receiving the subcommittee's report, the full committee may 
conduct a further study and hearings, and may al so make changes or amendments.  The full 
committee then votes on whether to "report back " the bill to the plenary of the House. 
                                                     
 
14United States' submission, para. 16 (referring to United States House and Senate Tentative 
Schedules (2008)  (Exhibit US-3 submitted by the United States to the Arbitrator)). 
15Ibid., para. 16.  WT/DS344/15 
 Page 5 
 
 
15. The United States explains that the scheduling for consideration of legislation on the House 
floor is determined, as a general rule, by the Speaker  of the House of Representatives and the majority 
political party leader, who may place the bill on th e calendar for House debate.  The House Rules 
Committee generally recommends the amount of time that will be allocated for debate and whether 
amendments may be offered.  During the debate process, the bill is read in detail and members of 
Congress may offer further amendments.  After vo ting on amendments, the House immediately votes 
on the bill itself with any adopted amendments.  The bill can also be returned  to the committee that 
reported it.  If passed, the bill mu st be referred to the Senate. 
16. The Senate, in turn, has the power to approve, reject, or ignore the bill referred to by the 
House.  While the Senate has si milar procedures for considerati on of legislation by relevant 
committees, there are significant di fferences in the way the Senate considers proposed legislation.  
The United States explains that the Senate functions in a less rules-driven manner than the House, and 
that scheduling and floor considera tion are generally decided by consensus.  The United States further 
observes that, unlike the House where debate is strictly  controlled, debate is rarely restricted in the 
Senate.  Individual Senators may "filibuster" a b ill by taking the floor and speaking for extended 
periods of time.  Filibustering could only be ended by a " cloture " procedure, requiring a vote 
by 60 Senators which is very difficult to achieve.16 
17. The United States adds that differences between the House and Senate versions of a bill will 
be discussed for reconciliation in a conference committee. The members of this committee are 
appointed by each chamber and given specific instruct ions that may be revised every 21 days.  If the 
conference committee cannot reach agreement, the b ill expires.  If the conference committee reaches 
agreement on a single bill, a report is prepared and must be approved by both chambers, in identical 
form, otherwise the revised legislation expires. 
18. Finally, the United States indicates that, after the approval by both chambers of Congress, the 
bill is sent to the President for approval.  Only after Presidential approval does a proposed piece of 
legislation become law. 
2. Administrative Action taken pursuant to Section 123 of the URAA  
19. The United States stresses, with respect to ad ministrative action, that Section 123 of the 
Uruguay Round Agreements Act (the "URAA") sets  forth the requirements for implementation of 
DSB recommendations and rulings regarding regulati ons or practice of the United States Department 
of Commerce (the "USDOC").  The United States observes that the administrative process 
                                                      
16United States' submission, para. 29. WT/DS344/15 
Page 6  
 
contemplated in this provision comprises six steps.   First, the United States Trade Representative 
(the "USTR") is required to consult with comm ittees of Congress with jurisdiction over relevant 
matters.  The United States points out that, in respec t of the measure at issue in this dispute, such 
consultations have already taken place.  Secondly, the USTR is required to seek advice from private 
sector advisory committees.  Thirdly, the USDOC must publish in the Federal Register  the proposed 
modification and the explanation thereto, in orde r to provide for an opportunity to receive public 
comments.  Fourthly, the USTR is required to report to relevant Congressional committees the 
proposed modification, the reasons for the modifica tion, and a summary of the advice received from 
the private sector advisory committees.  Fifthly, both the USTR and the USDOC must consult with 
relevant Congressional committees on the proposed conten t of the final rule.  Finally, the USDOC is 
required to publish the final rule in the Federal Register.   The United States indicates that a rule may 
not enter into force before the end of a 60-day pe riod from the date on which consultations between 
the USTR, the USDOC, and committees  in the Congress take place. 
20. The United States underlines the unique difficulties posed by the impending elections as well 
as a new Administration and new Congress taking office, and notes that some of the steps required by 
Section 123 call for interaction between the Admini stration and Congress.  The United States submits 
that key Administration officials will not be in pl ace to make policy decisions regarding compliance 
until "some time after 20 January 2009".
17  The United States points out that, under normal 
conditions, the USDOC would require about three months to conduct consultations and to publish the 
proposed rule or practice, with an explanation, in the Federal Register .  The United States adds that 
one additional month would be appropriate to allow for new officials to be appointed, to study the 
relevant matters, and to make changes and reco mmendations. For the United States, the earliest an 
administrative proposal could be circulated in this  case is early May 2009.  The United States 
considers that the USDOC would also need an add itional three months to make possible modifications 
to address the public comments and to hold final c onsultations.  According to the United States, under 
the best possible scenario, this administrativ e process would be completed in August 2009. 
21. In the light of these considerations, the Unite d States requests a reasonable period of time 
of 15 months, ending on 20 August 2009. 
                                                      
17United States' submission , para. 37.  WT/DS344/15 
 Page 7 
 
 
B. Mexico 
22. Mexico requests that I determine the "reasonabl e period of time" for the implementation of 
the recommendations and rulings of the DSB in this dispute to be seven months from the date of the 
adoption of the Appellate Body and Panel reports, that is, until 20 December 2008. 
23. First, Mexico highlights that the mandate for the arbitrator under Article 21.3(c) of the DSU is 
to determine the reasonable period of time and not  to analyze the consistency of the proposed 
implementation measure with World Trade Organiza tion ("WTO") law.  Mexico notes that, according 
to Articles 21.1 and 21.3 of the DSU, prompt comp liance is essential for the resolution of disputes and 
that immediate compliance is the preferred option.  Mexico explains that previous arbitration awards 
have identified guidelines regarding the determination of the reasonable period of time.  First, the 
reasonable period of time should be the "shortest pe riod of time possible within the legal system" of 
the implementing Member.18  Secondly, Mexico states that, a lthough an implementing Member is not 
required to use extraordinary procedures, it must utilize all the flexibility and discretion available 
within its legal system.  Thirdly, Mexico points ou t that the particular circumstances of the dispute 
must be taken into consideration in calculating the r easonable period of time.  In this respect, Mexico 
observes that the implementing Member bears the bu rden to demonstrate that its proposed schedule 
constitutes a reasonable period of time under the specific circumstances of the dispute.19  In Mexico's 
view, the United States has not met its burden to show that it cannot implement the recommendations 
and rulings of the DSB in less than 15 months. 
24. As to the particular circumstances of this case, Mexico emphasizes that model zeroing in 
original investigations and simple zeroing in pe riodic reviews have been challenged on a number of 
occasions over the last seven years, and that bot h practices have repeatedly been found to be 
inconsistent with Article VI of the General Agreement on Tariffs and Trade 1994  (the "GATT 1994"), 
as well as with the Agreement on Implementation of  Article VI of the General Agreement on Tariffs 
and Trade 1994  (the " Anti-Dumping Agreement ").  Mexico further observes that the United States has 
been under an obligation to eliminate simple ze roing since at least 9 May 2006, when the DSB 
adopted its recommendations and rulings in US – Zeroing (EC) .20  Mexico adds that the United States 
has also been under an obligation to eliminate si mple zeroing "as such", when the DSB adopted its 
                                                      
18Mexico's submission ., para. 10 (quoting Award of the Arbitrator, Brazil –  Retreaded Tyres , para. 51;  
and referring to Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 44;  and Award of the 
Arbitrator, EC – Export Subsidies on Sugar , para. 61). 
19Ibid., para. 11 (referring to Award of the Arbitrator, US – 1916 Act , para. 33). 
20Ibid., para. 12, where Mexico indicates that the reas onable period of time for the United States to 
comply with the recommendations and rulings of the DSB in US – Zeroing (EC)  expired on 9 April 2007. WT/DS344/15 
Page 8  
 
recommendations and rulings in US – Zeroing (Japan)  on 24 January 2007.
21  For Mexico, these 
disputes provide an important context for the de termination of the reasonable period of time. 
25. Mexico underlines that the United States has fo cused its arguments entirely on the reasonable 
period of time necessary to comply with its oblig ations in respect of simple zeroing "as such".  
Mexico notes that, as to its "as applied" obligatio ns, the United States has not requested any additional 
time beyond what is requested for comp lying with its "as such" obligations. 
26. Mexico notes that the United States has iden tified two possible paths of compliance:  
(i) administrative implementation under Section 123 of the URAA;  and (ii) legislative action by 
which statutory provisions concerning calculation of dumping margins in administrative reviews would be amended.  According to Mexico, the Unite d States has failed to show that legislative action 
would lead to the shortest period of time for impl ementation.  Rather, Mexico is of the view that 
administrative implementation may proceed with more  efficiency and speed, and is thus the fastest 
path that should be the basis fo r the Award in this arbitration. 
1. Legislative Action
 
27. Mexico submits that previous Article 21.3(c) arbitrations have recognized that legislative 
action is generally more time-consuming than admini strative changes, and that the description of the 
domestic legislative process provided by the United St ates confirms that.  Mexico underscores that, in 
its description of the legislative process, the Unite d States concedes that the Executive branch has no 
control over Congress and that the voting process with in Congress is complex and time-consuming.  
Mexico therefore considers that the description o ffered by the United States shows that legislative 
action is "inherently slower and less reliable than administrative action".22 
28. Mexico considers that, in order to implemen t the recommendations and rulings of the DSB, 
legislative action is not required.  Mexico points to  United States domestic courts that have held that 
no change to the anti-dumping statutes is necessary in order to eliminate simple zeroing.23  Mexico 
also refers to a USDOC statement acknowledging that zer oing is "not required by statute, but rather is 
                                                      
21Mexico's submission, para. 12, where Mexico notes that the reasonable period of time for the United 
States to comply with the recommendations and rulings of the DSB in US – Zeroing (Japan) expired on 
24 December 2007. 
22Ibid., para. 21. 
23Ibid., para. 23 (referring to United States Cour t of Appeals for the Federal Circuit in SKF, Inc. v. 
United States , Ct. No. 2007-1502 (Fed. Cir. Aug. 25, 2008) (Exhibit MX-8 submitted by Mexico to the 
Arbitrator);  also in NSK v. United States , 510 F. 3d 1375 (Fed. Cir. 2007) (Exhibit MX-9 submitted by Mexico 
to the Arbitrator);  and in Timken Co. v. United States , 354 F.3d 1334 (Fed. Cir. 2004) (Exhibit MX-10 
submitted by Mexico to the Arbitrator)).  WT/DS344/15 
 Page 9 
 
 
the result of an interpretation of the statute", thus showing, in Mexico's view, that the elimination of 
zeroing does not require legislative action.24 
29. As for the allocation of anti-dumping duties among importers for assessment purposes, 
Mexico submits that the USDOC has the legal author ity under United States Statutes to address this 
issue.  A United States court has recognized that statutory language does not dictate how the USDOC must calculate the importer's specific assessment  rates on the "basis of" the margin of dumping 
calculated in the review.
25  Therefore, Mexico argues, no enactment  of legislation is required in order 
to deal with the allocation issue in a WTO-consistent manner. 
30. In sum, Mexico submits that the USDOC h as the necessary discretion to determine the 
method of calculation of anti-dumping duties.  While the United States may opt for legislative action, 
this form of implementation is generally a slower option than administrative action.  For Mexico, the 
legislative path would be inconsistent with th e United States' obligation to choose the shortest 
possible means of implementation. 
2. Administrative Action taken pursuant to Section 123 of the URAA  
31. Mexico recalls the United States' position that administrative action must follow the 
procedure set forth in Section 123 of the URAA, an d that this process would require a similar period 
of time as that associated to legislative change .  According to Mexico, the United States has not 
substantiated this assertion and has not demonstrated  the need for the period of time it requests. 
32. Mexico contends that the United States coul d utilize a shorter and simpler administrative 
means of implementation than Section 123 of the URAA.  According to Mexico, the Statement of Administrative Action accompanying the URAA sets out that Section 123 applies only to changes or 
modifications of administrative practice "cons isting of written policy guidance of general 
application".
26  In Mexico's view, the United States is not  required under its legal system to utilize the 
procedure under Section 123 of the URAA.  Instead , Mexico opines that the United States could use 
the procedure set out in the Administrative Procedure Act governing administrative actions, which 
                                                      
24Mexico's submission, para. 24 (referring to USDOC, Antidumping Proceedings: Calculation of the 
Weighted-Average Dumping Margin During an Antidumping Investigation ;  Final Modification , United States 
Federal Register , Vol. 71, No. 248 (27 December 2006) 77722 (Exhibit MX-11 submitted by Mexico to the 
Arbitrator)). 
25Ibid., para. 42 (Exhibit MX-14 submitted by Mexico to the Arbitrator). 
26Ibid., para. 29 (referring to Uruguay Round Agreements Act, Statement of Administrative Action, 
H.R. Doc. No. 103-316, reprinted in 1994 USCCAN 4040 (Exhibit MX-17 submitted by Mexico to the 
Arbitrator)). WT/DS344/15 
Page 10  
 
provides that formal rulemaking is not necessary for "interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice".
27 
33. Mexico maintains that, in using this alterna tive administrative procedure, the United States 
could change its administrative practice of simple zeroing in a less formal and less time-consuming manner.  Mexico observes that unwritten interpreta tive rules and policies have been amended in the 
past by the USDOC without any formal public noti ce, whereas, in other cases relating to practices 
with wider applicability, policy changes have been instituted through publication in Import 
Administration "Policy Bulletins".
28  Mexico recognizes that the US DOC has the option of soliciting 
public comment in the course of instituting an inform al policy change.  However, Mexico argues that, 
even with a public comment peri od, the process of implementation under these procedures could be 
accomplished within a period of 60-90 days. 
34. Mexico notes that the Section 123 implementation process involves two main stages:  
(i) internal deliberations, approval,  and consultations with Congress and the private sector leading to 
the publication of a proposed rule in the Federal Register ;  and (ii) modifications to the rule as a result 
of public comments, final consultations with C ongress, and publication of the final rule in the Federal 
Register .  Mexico is of the view that the process of implementation under Section 123 could be 
completed in seven months from the date of a doption of the DSB's recommendations and rulings on 
20 May 2008.  Mexico also rejects the United St ates' contention that the first stage of the 
implementation process cannot begin until 20 January 2009, when the new President takes office.  
Mexico notes that the United States has already ha d four months to conduct consultations with 
Congress and the private sector, and that this peri od exceeds the 90 days the United States asserts is 
required for the first stage of the Section 123 procedure. 
35. Mexico also contests the United States' request of 120 days to complete the second stage of 
the implementation process under Section 123 of the URAA.  Mexico notes that, in previous disputes, 
the United States completed the second stage (from the publication of the proposed rule to the 
adoption of the final rule) in less than 120 days.  Me xico also points out that implementation in this 
case concerns an issue that was already the subject of a prior WTO dispute settlement proceeding and 
implementation obligations, and that it has been the subject of notice and comment procedures.  
                                                      
27Mexico's submission, para. 30 (quoting Administrative Procedure Act, United States Code , Title 5, 
Section 553(b)(3)(A)  (Exhibit MX-18 submitted by Mexico to the Arbitrator)). 
28Mexico mentions automatic initiation of "Sales Below Cost Investigations" in new administrative 
reviews and certain interest provisions for new shipper reviews (Exhibits MX-20 and MX-21 submitted by 
Mexico to the Arbitrator).  WT/DS344/15 
 Page 11 
 
 
Therefore, Mexico considers that 60 days would be a reasonable period of time for the United States 
to complete the second stage of the implementation process under Section 123 of the URAA.  In sum, 
Mexico is of the view that a period of seven m onths constitutes a reasonable period of time within 
which administrative implementation under Section 123 could be accomplished.  Mexico considers 
that such a period of time would allow for complian ce to be completed before the new Administration 
takes office. 
36. Regarding the United States' contention that a preparatory process is needed, Mexico recalls 
its position that the United States has been under an obligation to eliminate simple zeroing "as such" 
since 24 December 2007 when the reasonable period of time in US – Zeroing (Japan)  expired, long 
before the DSB adopted its recommendations and ruling s in this case.  For Mexico, the need to engage 
in a preparatory process is not a factor that should carry any weight in the determination of the 
reasonable period of time in this case.  Mexico emphasizes that the discretion of Members to 
determine their means of implem entation is not without bounds.29 
37. Finally, Mexico rejects the United States' position that the alleged complexity of the 
implementation process is a factor warranting an ex tended period for compliance.  For Mexico, the 
complexity of the implementation process alleged by the United States is limited to one issue:  how to 
allocate anti-dumping duties among individual impor ters in a periodic review proceeding for 
assessment purposes.  Mexico s ubmits that the normal Section 123 procedures and timeframe are 
already designed to accommodate su ch decision-making and that, in at least one previous case, a 
conceptually more complex issue has been addr essed within a Section 123 implementation process 
that was completed within six months.30  Furthermore, although Mexico appreciates that the question 
of zeroing is a contentious one, it considers that domestic contentiousness of implementation action 
must not be factored into the determination of the reasonable period of time. 
38. In the light of these considerations, Mexico re quests the reasonable period of time should be 
no longer than seven months as from the date of adoption of the Panel and Appellate Body Reports, 
ending on 20 December 2008. 
                                                      
29Mexico's submission, para. 39 (quoting Award of the Arbitrator, EC – Chicken Cuts , para. 56). 
30Ibid., para. 53 (referring to USDOC, Antidumping Proceedings: Affiliated Party Sales in the Ordinary 
Course of Trade , United States Federal Register , Vol.  67, No. 221 (15 November 2002) 69186) (Exhibit MX-24 
submitted by Mexico to the Arbitrator)). WT/DS344/15 
Page 12  
 
III. Reasonable Period of Time 
A. Mandate of the Arbitrator 
39. This dispute is concerned with model zeroi ng in original anti-dumping investigations
31, as 
well as simple zeroing in periodic reviews.32  The Appellate Body and Pa nel Reports in this dispute 
were adopted by the DSB on 20 May 2008.  On 2 Ju ne 2008, the United States informed the DSB of 
its intention to comply with the recommendations a nd rulings of the DSB.  Article 21.3 of the DSU 
stipulates that, when it is "impracticable" fo r a Member to comply "immediately" with the 
recommendations and rulings of the DSB, that Me mber "shall have a reasonable period of time in 
which to do so".  As the parties failed to agr ee on the length of the reasonable period of time for 
compliance, the Director-General appointed me as arbitrator on 29 August 2008, and I accepted the 
appointment on 1 September 2008. 
40. In keeping with my mandate, I must take due account of the relevant provisions of the DSU.  
Article 21.1 of the DSU sets out that "prompt co mpliance" is essential for the resolution of WTO 
disputes.  More specifically, Article 21.3(c) reads: 
[A] guideline for the arbitrator should be that the reasonable period 
of time to implement panel or Appellate Body recommendations 
should not exceed 15 months from the date of adoption of a panel or Appellate Body report.  However, th at time may be shorter or longer, 
depending upon the particular circumstances. (footnote omitted) 
41. My mandate relates to the time by which the implementing Member must have achieved 
compliance, not to the manner  in which that Member achieves compliance.  I am mindful that it is 
beyond my mandate to determine the consistency with WTO law of the measure eventually taken  to 
comply;  this can only be assessed in Article 21.5 proceedings.  Yet, I consider that when  a Member 
must comply with the recommendations and rulings of the DSB cannot be determined in isolation 
from the chosen means of implementation.  In order "to determine when  a Member must comply, it 
                                                     
 
31"Model zeroing in investigations" refers to the "method under which the USDOC, in original 
investigations, makes a weighted average-to-weighted av erage comparison ... of expo rt price and normal value 
for each 'model' of the product under investigation, and disregards the amount by which the weighted average 
export price exceeds the weighted averag e normal value for any model, when  aggregating the results of model-
specific comparisons to calculate a weighted average marg in of dumping for the exporter or foreign producer 
investigated." (Appellate Body Report, para. 67) 
32"Simple zeroing in periodic reviews" refers to "the method under which the USDOC, in periodic 
reviews for assessment of final liability for payment of anti-dumping duties, compares  the prices of individual 
export transactions against monthly weighted average normal values, and disregards the amount by which the export price exceeds the monthly weighted average normal  value for each model, when aggregating the results 
of the comparisons to calculate the margin of dumping for the exporter and the duty assessment rate for the 
importer concerned." (Appellate Body Report, para. 67)  WT/DS344/15 
 Page 13 
 
 
may be necessary to consider how a Member proposes to do so."33  In making my determination 
pursuant to Article 21.3(c), the means of implem entation chosen by the Member concerned is, 
therefore, a relevant consideration.34  As noted by previous arbitrators, the implementing Member has 
"a measure of discretion in choosing the means of implementation, as long as the means chosen are 
consistent with the recommendations and rulings of the DSB and with the covered agreements."35  In 
exercising its discretion, the implementing Member will be expected to act in good faith in developing 
a measure capable of producing the desired result,  that is, the implementation of the adopted 
Appellate Body and panel reports.  However, this pr inciple of good faith is not to be used by the 
implementing Member to delay implementation. 
42. While the implementing Member enjoys a cer tain discretion in choosing the means and 
method of implementation, this discretion is not wit hout bounds.  As stated by previous arbitrators, 
"the implementing Member does not have an  unfettered right to choose any method of 
implementation."36  I must consider, in particular, "whether the implementing action falls within the 
range of permissible actions that can be taken in  order to implement the DSB's recommendations and 
rulings."37  Put a little differently, the chosen method mu st be capable of placing the implementing 
Member in compliance within a reasonable period of time in accordance with the guidelines contained 
in Article 21.3(c).38  According to the last sentence of Artic le 21.3(c), the "particular circumstances" 
of a dispute may affect the calculation of the reasonable period of time, making it "shorter or 
longer".39  Therefore, as other arbitrators in the past, I also consider that the implementing Member is 
expected to use all the flexibility available with in its domestic legal system to implement the 
                                                      
33Award of the Arbitrator, Japan – DRAMs (Korea) , para. 26. (original emphasis) 
34Ibid., para. 27. 
35Award of the Arbitrator, Brazil – Retreaded Tyres, para. 48 (original emphasis) (quoting Award of 
the Arbitrator, EC – Hormones , para. 38).  See also Award of the Arbitrator, Japan – DRAMs (Korea) , para. 25 
(referring to Award of the Arbitrator, EC – Chicken Cuts , para. 49, in turn referring to Award of the Arbitrator, 
Canada – Pharmaceutical Patents , paras. 41-43;  Award of the Arbitrator, Chile – Price Band System , para. 32;  
Award of the Arbitrator, EC – Tariff Preferences , para. 30;  Award of the Arbitrator, US – Oil Country Tubular 
Goods Sunset Reviews , para. 26;  Award of the Arbitrator, US – Gambling , para. 33;  Award of the Arbitrator, 
EC – Export Subsidies on Sugar , para. 69). 
36Award of the Arbitrator,  Brazil – Retreaded Tyres, para. 48 (quoting Award of the Arbitrator, 
EC – Export Subsidies on Sugar , para. 69). 
37Ibid., para. 48 (quoting Award of the Arbitrator, Japan – DRAMs (Korea) , para. 27). 
38Award of the Arbitrator, Japan – DRAMs (Korea) , para. 27 (referring to Award of the Arbitrator,  
EC – Export Subsidies on Sugar , para. 69). 
39Ibid., para. 25 (referring to Award of the Arbitrator, EC – Chicken Cuts , para. 49). WT/DS344/15 
Page 14  
 
recommendations and rulings of the DSB
40;  however, this does not necessarily mean that the 
implementing Member is expected to utilize "extraordinary" means of compliance.41 
43. Finally, it is incumbent upon the implementing Member seeking a reasonable period of time 
to establish that the proposed period is the "shortest  period possible" within its domestic legal system 
to implement the recommendations and rulings of the DSB.  Failing that, it is ultimately for the arbitrator to determine the "shortest period possible"  for implementation, on the basis of the evidence 
presented by all parties."
42 
B. Measures to be brought into Conformity 
44. The relevant findings and conclu sions of both the Panel and the Appellate Body that have 
been adopted by the DSB in this dispute are summed up below.  The Appellate Body found that: 
(a) simple zeroing in periodic reviews is, as such , inconsistent with Article VI:2 of the 
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement43;  and 
(b) the United States acted inconsistently with Article VI:2 of the GATT 1994 and 
Article 9.3 of the Anti-Dumping Agreement  by applying simple zeroing in five 
specific periodic reviews.44 
45. The Panel made the following findings (that were not appealed): 
(a) model zeroing in investigations is, as such , inconsistent with Article 2.4.2 of the 
Anti-Dumping Agreement45;  and 
                                                      
40See Award of the Arbitrator, Brazil – Retreaded Tyres , para. 48;  Award of the Arbitrator, 
Japan – DRAMs (Korea) , para. 25 (referring to Award of the Arbitrator, EC – Chicken Cuts , para. 49, in turn 
referring to Award of the Arbitrator, Chile – Price Band System , para. 39;  Award of the Arbitrator, EC – Tariff 
Preferences , para. 36;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 64). 
41Award of the Arbitrator, Brazil – Retreaded Tyres,  para. 48  (referring to Award of the Arbitrator, 
Japan – DRAMs (Korea) , para. 25;  and Award of the Arbitrator, EC – Chicken Cuts , para. 49, in turn referring 
to Award of the Arbitrator, Korea – Alcoholic Beverages , para. 42;  Award of the Arbitrator, Chile – Price Band 
System , para. 51;  and Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 74). 
42Ibid., para. 51 (referring to Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 44). 
43Appellate Body Report, para. 165(a).  In this dispute, Mexico appealed the Panel's findings that 
determined that simple zeroing, both "as such" and "as app lied", in periodic reviews is not inconsistent with the 
provisions of the Anti-Dumping Agreement , as claimed by Mexico. 
44Ibid., para. 165(b). 
45Panel Report, para. 8.1(a).  WT/DS344/15 
 Page 15 
 
 
(b) the USDOC acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement  in 
the investigation on Stainless Steel Sheet and Strip in Coils from Mexico  by using 
model zeroing.46 
46. In sum, the Panel and the Appellate Body findi ngs in this dispute included four findings of 
WTO-inconsistency:  (i) the use of model zer oing in original investigations "as such"47;  (ii) the 
application of model zeroing in the original in vestigation at issue before the Panel and the 
Appellate Body48;  (iii) the use of simple zeroing in periodic reviews "as such"49;  and (iv) the use of 
simple zeroing in specific periodic reviews at issue before the Panel and the Appellate Body.50 
47. The United States emphasizes that it has discontinued the methodology of model zeroing in 
original investigations51 and, thus, it does not request any specific period of time for implementing the 
Panel's findings in this dispute regarding model zeroing "as such" and "as applied" in original 
investigations.  In other words, th e elimination of model zeroing in original investigations  is not at 
issue in this arbitration.  Thus, my task is lim ited to the determination of a reasonable period of time 
for the United States to comply w ith the recommendations and rulings of the DSB relating to simple 
zeroing "as such" and "as applied" in periodic reviews. 
48. Mexico observes that the United States has not requested a period of time for compliance with 
the DSB recommendations and rulings as to simple zeroing "as applied" "beyond what would be reasonable for complying with its WTO obligations concerning the 'as such' findings with respect to 
periodic reviews."
52  In response to questioning at the oral hearing, the United States confirmed that 
compliance with the DSB recommendations and rulings relating to simple zeroing "as applied" would 
not require a longer period of time than comp liance with the DSB recommendations and rulings 
regarding simple zeroing "as such".  Accordingly, my analysis will focus on the reasonable period of 
time needed by the United States to implemen t the recommendations and rulings of the DSB 
regarding simple zeroing "as such" in periodic reviews. 
                                                      
46Panel Report, para. 8.1(b). 
47Ibid., para. 8.1(a);  USDOC, Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Sheet and St rip in Coils from Mexico, United States Federal Register , Vol. 64, No. 109 
(8 June 1999) 30790, subsequently amended as Notice of Amended Final Determination of Sales at Less Than 
Fair Value and Antidumping Duty Order: Stainless Steel Sheet and Strip in Coils From Mexico, United States 
Federal  Register , Vol. 64, No. 143 (27 July 1999) 40560. 
48Panel Report, para. 8.1(b). 
49Appellate Body Report, para. 165(a). 
50Ibid., para. 165(b);  the five periodic reviews challenged by Mexico before the Panel are listed in 
Panel Report, para. 2.2. 
51Panel Report, paras. 7.45 and 7.50;  Appellate Body Report, footnote 158 to para. 68. 
52Mexico's submission, para. 15. WT/DS344/15 
Page 16  
 
C. Legislative Action versus Administrative Action 
49. The United States requests a period of time of 15 months to bring itself into compliance with 
the recommendations and rulings of the DSB.  The United States points out that two means of 
implementation are under consideration—(i) legislative action;  or (ii) administrative action—and that 
whichever measure is chosen, the reasonable peri od of time would end on 20 August 2009.  The 
United States indicates that internal consultations are currently taking place in order to decide how 
best to implement the recommendations and rulings of the DSB.
53  Should implementation by 
administrative means be chosen, the United States not es that the procedure set out in Section 123 of 
the URAA must be followed. 
50. Mexico submits that the reasonable period of  time for the United States to implement the 
recommendations and rulings of the DSB should no t exceed seven months from the adoption of the 
DSB recommendations and rulings in this dispute, ending on 20 December 2008.54  According to 
Mexico, the United States has recognized that compliance can be achieved either through 
administrative or legislative action, and that administrative action is the shorter path for 
implementation.55  At the oral hearing, Mexico argued that legislative action is not necessary to 
comply with the recommendations and rulings of the DSB.56  Regarding administrative 
implementation, Mexico contends that the United States might resort to administrative action under 
the Administrative Procedure Act, and that such  an action would allow implementation within a 
shorter period of time than action under Section 123 of the URAA. 
51. From responses to questioning at the oral hearing, I understand that the United States does not 
dispute that the elimination of simple zeroing in pe riodic reviews, in and of itself, does not require a 
legislative action.  However, the United States empha sizes that it has not as yet decided how it would 
change the periodic review methodology and, more  specifically, how it would change its importer-
specific system of assessment of final anti-dumping duties so as to ensure that all anti-dumping duties 
assessed on all importers that imported from the same exporter do not exceed that exporter's margin of 
dumping.  The United States considers that, at this st age, it cannot be excluded that, in order to change 
the periodic review methodology, or to address what it calls the issue of the "allocation of 
                                                      
53United States' submission, para. 4. 
54Mexico's submission, para. 56. 
55Mexico's statement at the oral hearing. 
56Ibid.  WT/DS344/15 
 Page 17 
 
 
antidumping duties among the importers for assessment purposes"57, legislative action could be more 
appropriate than an administrative action, depending on the nature of the policy choices that are made 
in this respect. 
52. As noted earlier, the implementing Member enjo ys a certain discretion in choosing the means 
and method of implementation, but it does "not ha ve an unfettered right to choose any method of 
implementation".58  I recognize that both the legislative and administrative means of implementation 
proposed by the United States fall within this ra nge of permissible means that are capable of 
achieving the elimination of simple zeroing "as such " in periodic reviews.  The United States itself 
recognizes that administrative means are available a nd that legislative action is not indispensably 
required to achieve compliance with the DSB recomme ndations and rulings.  At the oral hearing, the 
United States did not put forward any argument that would suggest that a statutory provision needs to 
be amended or repealed to terminate simple zeroing in periodic reviews.  Furthermore, I observe that 
the USDOC has discontinued model zeroing in orig inal investigations through administrative action.59 
53. It is not my task as Arbitrator acting pursuant to Article 21.3(c) to decide which method or 
type of measure should be chosen by an implemen ting Member to bring it into compliance with the 
recommendations and rulings of the DSB.  However,  it does fall within my mandate to assess what 
would be "the shortest period possible within the legal system of the [implementing] Member"60 for 
effective implementation of the recommendations and ru lings of the DSB.  It is widely accepted that 
implementation through administrative action usually takes a shorter period of time than 
implementation through legislative action.61  In the light of the parties'  responses to questioning at the 
oral hearing, I am not persuaded that the United States is not in a position to eliminate the simple 
zeroing methodology in periodic reviews by administrative action, or that legislative implementation would necessarily be more effective than administ rative implementation.  In these circumstances, 
I turn to the period of time within which administ rative action eliminating the methodology of simple 
zeroing in periodic reviews could be completed. 
                                                     
 
57United States' submission, para. 9. 
58Award of the Arbitrator,  Brazil – Retreaded Tyres, para. 48 (quoting Award of the Arbitrator, 
EC – Export Subsidies on Sugar , para. 69). 
59Panel Report, paras. 7.43-7.45;  Exhibit MX-10 submitted by Mexico to the Arbitrator.  Mexico 
acknowledged before the Panel that, since 22 February 2007, the United States had changed its methodology 
regarding model zeroing in investigations and that it applied the new methodology in at least one investigation 
initiated subsequent to this date.  Mexico contended, however, that "this change in policy only affect[ed] 
investigations ongoing as of, or initiated after, 22 February 2007."  (Panel Report, para. 7.43) 
60Award of the Arbitrator, EC – Hormones , para. 26. 
61Award of the Arbitrator, Australia – Salmon , para. 38;  Award of the Arbitrator, US – Section 110(5) 
Copyright Act , para. 34;  Award of the Arbitrator, Canada – Pharmaceutical Patents , para. 49;  Award of the 
Arbitrator, Canada – Patent Term , para. 41;  Award of the Arbitrator, Chile – Price Band System , para. 38;  
Award of the Arbitrator, US – Offset Act (Byrd Amendment) , para. 57;  Award of the Arbitrator, US – Oil 
Country Tubular Goods Sunset Reviews , para. 26. WT/DS344/15 
Page 18  
 
D. The Administrative Procedure Act and Section 123 of the URAA 
54. Mexico has argued that the recommendations a nd rulings adopted by the DSB in this case 
could be implemented through administrative acti on under the Administrative Procedure Act faster 
than through administrative action under Section 123 of the URAA.  Mexico recognizes, however, 
that the methodology of simple zeroing in peri odic reviews may be terminated also by the 
administrative process set out in Section 123 of the URAA. 
55. It may be observed that the Administrative Proce dure Act is a statute that generally applies to 
the adoption and modification of administrative regulation.  By contrast, Section 123 of the URAA is the lex specialis  of implementation of recommendations and ru lings of the DSB.  It may be recalled 
that the implementing Member enjoys a certain degree of discretion in determining "the most 
appropriate, and probably effectiv e, method of implementing the recommendations and rulings of the 
DSB".
62  Because Section 123 of the URAA addresse s specifically the implementation of the 
recommendations and rulings of the DSB, it appears to me that the United States would not exceed the bounds of its discretion by having recourse to the procedures under Section 123 of the URAA 
instead of the procedures under the Administrative Pr ocedure Act.  Moreover, as previous arbitrators 
have stated, an implementing Member may use its "normal" internal procedures.
63  Therefore, I 
consider the timing and sequence of procedural steps provided for in Section 123 of the URAA as 
particularly relevant in the determination of th e reasonable period for implementation in this case. 
E. Administrative Action and the Reasonable Period of Time 
56. The parties do not fully agree on the elements  and structure of the implementation process 
under Section 123 of the URAA and the period of time needed for completing specific steps thereunder.  For the United States, the pr ocess under Section 123 of the URAA comprises three 
distinct steps:  (i) the initial preparatory process;  (ii) the drafting and the publication of the proposed 
modification;  and (iii) a further stage of consulta tions that may result in a revision of the proposed 
modification, and the issuance of the final rule.
64  According to the United States, the completion of 
this process requires approximately nine months.65  I note, however, that, in its written submission, the 
United States argues that "under normal circumstances" (for example, in a year without elections) seven months would be sufficient to comple te the process under Section 123 of the URAA.
66 
                                                      
62Award of the Arbitrator, Chile – Alcoholic Beverages , para. 42. 
63Supra , footnote 41. 
64United States' statement at the oral hearing. 
65At the oral hearing, the United States indicated  that each of the three stages would require 
approximately three months. 
66United States' submission, para. 36.  WT/DS344/15 
 Page 19 
 
 
57. For its part, Mexico considers that the im plementation process under Section 123 of the 
URAA consists of two key stages:  (i) a period  of "internal consultations and approval and 
consultations with Congress and the private sector l eading to publication of a proposed rule in the 
Federal Register ";  and (ii) a second phase involving "modifications of the rule as a result of public 
comments, final consultations with ... Congress,  and publication of the final rule in the Federal 
Register ."67  Mexico submits that the process under Secti on 123 of the URAA would not require more 
than seven months in the ci rcumstances of this dispute.68 
F. Particular Circumstances of This Case 
58. I turn to "particular circumstances" that the parties have asked me to take into account in 
determining the reasonable period of time, in accordan ce with the last sentence of Article 21.3(c) of 
the DSU, and which may make the reasona ble period of time "shorter or longer".69 
59. In this dispute, the parties advanced the follo wing "particular circumstances" as pertinent for 
the determination of the reasonable period of time:  (i) the technical complexity of eliminating the 
simple zeroing methodology in periodic reviews due  to the import-specific assessment of final 
anti-dumping liability under the United States' retr ospective system;  (ii) the election of a new 
Congress and a new President in the United States a nd consequential changes in the Administration 
and the composition of Congressional committees;  and (iii) the existence of similar DSB recommendations and rulings in previous disputes involving zeroing methodologies. 
60. The United States contends that, in determini ng the reasonable period of time, I should take 
into account the technical complexity of the term ination of the methodology of simple zeroing in 
periodic reviews.  For the United States, complia nce in this case is complex, mainly because 
terminating simple zeroing in periodic review s would imply changes in its duty assessment 
methodology.
70  The United States recalls that, under its retrospective system, anti-dumping liability is 
assessed on an importer-specific basis.  It notes that , when there are several importers importing from 
the same exporter or foreign producer subject to an anti-dumping order, the importer-specific 
assessment of final anti-dumping liability without si mple zeroing may result in a scenario where, for 
some of those importers, the aggregation of the results of multiple comparisons of monthly weighted-average normal value and individual export prices may yield a negative value.  The United States 
                                                     
 
67Mexico's submission, para. 34. 
68Ibid., paras. 42 and 43. 
69Supra , footnote 39. 
70United States' submission, para. 9. WT/DS344/15 
Page 20  
 
refers to the Appellate Body's fi ndings that the total amount of the anti-dumping duties levied from all 
importers purchasing from an exporter or foreign producer must not exceed that exporter's or foreign 
producer's margin of dumping.  The United States also  notes the Appellate Body's statements that the 
importing Member is under no obligation to compen sate importers for the negative value (that is, 
when export prices exceed normal value).
71  Accordingly, the termination of simple zeroing "as such" 
in periodic reviews implies, the United States argues,  that it will need to address the complex issue of 
how anti-dumping duties are allocated among importers for assessment purposes when some of them 
have "negative" amounts of anti-dumping duties.72  According to the United States, this will require 
the involvement of senior policy-make rs at a time when a major reshu ffle is likely to occur at this 
level as a result of the election of a new Administration and a new Congress. 
61. In principle, the elimination of simple zeroing in periodic reviews is distinct from the issue of 
the "allocation of antidumping duties among the importers for assessment purposes".73  The former 
can clearly be carried out by ad ministrative means.  In the real  world, because it involves imposition 
of differing levels of financia l liability among the importers, depe nding on the circumstances, the 
latter may be easier to bring about on a durable basis by a legislative enactment.  In the real world too, 
however, the elimination of simple zeroing in periodic reviews is closely related to the issue of the 
allocation of final anti-dumping duties among importers ;  implementation of the former might well be 
tied to reaching satisfactory resolution of the complexities of allocation of anti-dumping duties among the importers.  Accordingly, the technical comple xities of allocation of duties among importers cannot 
casually be disregarded but, to the contrary, may le gitimately be considered a particular circumstance 
affecting the determination of a reasonable time fo r abolition of the methodology of simple zeroing in 
periodic reviews.  At the same time, however, this particular circumstance cannot justify a long delay 
in the implementation of elimination of simp le zeroing in periodic reviews.  Provisional 
administrative allocation rules might, perhaps, be devised and put into effect while the long-term 
administrative or legislative allocation standards are in process of establishment. 
                                                     
 
71In its Report in this dispute, the Appellate Body no ted that it "has consistently held that 'margin of 
dumping' is an exporter-specific concept, and that, whatever methodology is followed for assessment and 
collection of anti-dumping duties, the total amount of anti-dumping duties assessed and collected from all 
importers must not exceed the total amount of dumping found in all the sales made by the exporter concerned, calculated according to the margin of  dumping established for that exporte r without zeroing."  (Appellate Body 
Report, para. 112)  According to the Appellate Body , this interpretation "does not preclude a WTO Member 
applying a retrospective system from assessing an impor ter's final anti-dumping duty liability on the basis of its 
own transactions, subject, however, to the legal requirem ent that the prescribed overall margin of dumping for 
the exporter is respected." ( Ibid., para. 113)  Moreover, "if aggregation of the results of multiple comparisons 
yields a negative value for a particular importer, 'this wo uld not mean that the author ities would be required ... to 
compensate an importer for the amount of that negative value (that is, when export prices exceed normal 
value)'." ( Ibid., footnote 237 to para. 113 (referring to Appellate Body Report, US – Zeroing (Japan) , 
footnote 363 to para. 155;  and Appellate Body Report, US – Zeroing (EC) , footnote 234 to para. 131)). 
72United States' submission, para. 9. 
73Ibid.  WT/DS344/15 
 Page 21 
 
 
62. In addition, the United States submits that the impending Presidential and Congressional 
elections would lengthen the period for reaching im plementation of the recommendations and rulings 
of the DSB, as a new Congress will be convened and a new President will take office in 
January 2009.74  According to the United States, irrespec tive of the means of implementation chosen, 
the process would require the participation of the new Congress and the new Administration, so that 
the process could not begin before late  January 2009.  The elections may, of course, lead to changes in 
staff and senior policy-makers in the Administratio n and in Congress.  However, I do not see why, 
because some policy decisions might be required as a result of compliance with the recommendations 
and rulings of the DSB, the implementation process (including the preparatory process, consultations 
with stakeholders, and work on possible solutions to technical complexities) could not be initiated and 
moved forward under the current Administration a nd then completed after January 2009.  Issues 
relating to Presidential and Congressional elections and the transition to a new President, a new 
Administration, and a new Congress, or the controversial character of required changes in the domestic legal system, have arisen in previous arbitrations.
75  Like those arbitrators, I believe that the 
implementation process—particularly an admini strative one—should begin forthwith upon adoption 
of the DSB recommendations and rulings and be completed after the new Administration and 
Congress take office. 
63. Finally, Mexico points out that several WTO disputes resemble the present dispute in that 
they also concern the simple zeroing methodologies employed by the United States, and have led to 
DSB recommendations and rulings on this issue.76  Specifically, Mexico notes that the reasonable 
period of time for the United States to comply  with the DSB recommendations and rulings in 
US – Zeroing (EC) with respect to simple zeroing as applied in certain periodic reviews expired on 
9 April 2007, and in US – Zeroing (Japan)  with respect to simple ze roing in periodic reviews "as 
such", on 24 December 2007.77  At the oral hearing, the United States argued that the measures in the 
disputes referred to by Mexico and the measures at issue in the present dispute are different, and that 
the DSB recommendations and rulings in the prev ious disputes cannot be considered in this 
arbitration.78 
                                                      
74United States' submission, para. 11. 
75Award of the Arbitrator, US – 1916 Act , para. 40;  Award of the Arbitrator, Canada – Patent Term , 
paras. 59-60. 
76Mexico's submission, para. 12;  Mexico 's statement at the oral hearing. 
77See WT/DS294/19 in US – Zeroing (EC) ;  and WT/DS322/20 in US – Zeroing (Japan).  
78United States' response to questi oning at the oral hearing. WT/DS344/15 
Page 22  
 
64. The disputes to which Mexico refers are indeed  distinct from the present one.  Those disputes 
involved different complainants and were at diffe rent procedural stages of WTO dispute settlement, 
including proceedings under Article 21.5 of the DSU.
79  Given this context, I consider that the 
particular circumstances of those disputes should be  attributed limited releva nce to my determination 
of the reasonable period of time in this arbitration. 
IV. Award 
65. In the light of the above considerations, I dete rmine that the reasonable period of time for the 
United States to implement the recommendations and ru lings of the DSB in this dispute is 11 months 
plus 10 days from the date of adoption of the Pa nel and Appellate Body Re ports.  The reasonable 
period of time will thus end on 30 April 2009. 
 
 
Signed in the original at Manila this 20th day of October 2008 by: 
 
  
 
 
________________________ 
Florentino P. Feliciano 
Arbitrator 
                                                     
 
79Award of the Arbitrator, Canada – Pharmaceutical Patents , para. 42.