WT/DS322/RW 
 Page D-1 
 
 
  
ANNEX D 
  
SUPPLEMENTAL SUBMISSIONS OF THE PARTIES 
OR EXECUTIVE SUMMARIES THEREOF 
 
 
Contents Page 
Annex D-1 Executive Summary of the Supplemental Submission of Japan D-2 
Annex D-2 Response of the United Stat es to the Supplemental Submission of 
Japan D-7 
Annex D-3 Response of Japan to th e United States' Response to the 
Supplemental Submission of Japan D-14 
 
 WT/DS322/RW 
Page D-2  
 
ANNEX D-1 
  
EXECUTIVE SUMMARY OF THE SUPPLEMENTAL 
SUBMISSION OF JAPAN 
 
 
(17 October 2008) 
 
 
I. THE PANEL HAS JURISDICTION OVER THE 06/07 REVIEW 
 
1. As demonstrated below, the Panel has juri sdiction to assess the consistency with the Anti-
Dumping Agreement and the GATT 1994 of the 06/07 review.  Specifically, Japan's request for 
establishment of this Panel includes the 06/07 review , which constitutes a "measure taken to comply", 
within the meaning of Article 21.5 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU"). 
 
2. In this submission, Japan explains that the 06/ 07 review is a "measure taken to comply" under 
Article 21.5 of the DSU due to its close connections with the other Ball Bearing reviews at issue, and 
with the DSB's recommendations and rulings.  Therea fter, Japan responds to two arguments made by 
the United States that attempt to exclude this "m easure taken to comply" from the scope of these 
proceedings.  In particular, Japan shows that its panel request is sufficien tly specific to identify 
the 06/07 review, and that measures adopted during panel proceedings may fall within a panel's terms 
of reference. 
 3. The Appellate Body has recognized that "Artic le 21.5 proceedings involve, in principle, not 
the original measure, but rather a new and different measure which was not before the original panel ".  
Where such new measures have " a particularly close relationship  to the declared 'measures taken to 
comply', and to the recommendations and rulings of the DSB", or where there are " sufficiently close 
links " among them, the Appellate Body has concluded th at those new measures are subject to review 
by an Article 21.5 panel.  4. The 06/07 review enjoys the same close substantive relationship  to the reviews challenged in 
the original proceedings as do reviews 4, 5 and 6.  Specifically: 
 
• the 06/07 review, like the original reviews a nd the reviews 4, 5 and 6, resulted from anti-
dumping proceedings conducted by the United St ates Department of Commerce ("USDOC") 
and, in particular, the same type of proceeding, namely periodic reviews; 
 
• the 06/07 review, like several of the original reviews and reviews 4, 5 and 6, was conducted 
pursuant to an anti-dumping order concerning "B all Bearings and Parts Thereof From Japan", 
which is to say that it concerns the same s ubject product and the same exporting country as 
the original reviews and reviews 4, 5 and 6;  and, 
 
• the 06/07 review, like the original reviews and reviews 4, 5 and 6, concerns dumping 
determinations made with respect to exports from the same companies. 
 
5. Moreover, as with reviews 4, 5 and 6, the 06/07 review constitutes a replacement measure 
that "supersedes" the previous periodic review invol ving ball bearings (review 6).  That is, the 06/07 
review establishes a cash deposit rate that replaces the cash deposit rate from the previous review, and 
determines the importer-specific ass essment rate for entries initially subjected to the cash deposit rate 
from previous reviews.   WT/DS322/RW 
 Page D-3 
 
 
6. Finally, Japan notes that, as with the original  reviews and reviews 4, 5 and 6, Japan contests 
"a specific component" of the 06/07 review, namely, the use of the zeroing procedures in making the dumping determinations.  Japan challenges this spec ific component of the 06/07 review – and not 
other aspects of that measure – in these proceedings.  
7. Thus, the 06/07 review is part of a chai n of measures with extremely close substantive 
connections that succeed each other year after y ear, with each successive measure in essence changing 
only the rates determined in the previous measur e in the chain.  In a report circulated on 
1 October 2008, the panel in United States – Continued Existence and Application of Zeroing 
Methodology ("US – Zeroing II (EC) ") also examined a chain of successive periodic reviews, and 
reached a similar conclusion.  It found that a seri es of periodic reviews identified in the European 
Communities' panel request were w ithin its terms of reference, even if not identified in the 
consultations request, because they referred to "the same subject matter, the same dispute". 
 8. The United States resists the inclusion of the 06/07 review as a "measure taken to comply", 
for two reasons.  First , the 06/07 review is not properly within the Panel's terms of reference, because 
it was not identified in Japan's panel request with su fficient specificity, as required by Article 6.2 of 
the DSU;  and, second , the 06/07 review cannot be part of these proceedings because it did not exist at 
the time of panel establishment.  For the reasons provided below, the United States is in error. 
 9. Japan disagrees that the 06/07 review was not identified in Japan's panel request.  
Section III:B of Japan's panel request identifies the pe riodic reviews at issue, namely:  (i) five reviews 
at issue in the original proceedings;  (ii) three closely connected reviews that the United States argues 
have "superseded", and secured "wit hdrawal" of, certain measures at issue in the original proceedings; 
and, (iii) "any subsequent closely connected meas ures".  The 06/07 review is such a "subsequent 
closely connected measure", and for that  reason, is part of these proceedings. 
 
10. Although the United States now contends that  Japan's panel request is not sufficiently 
specific, in its First Written Submission, the Un ited States quoted Japan's reference in the panel 
request to "any subsequent closel y connected measures", and stated: 
 
… the United States is concerned that Japan is trying to include in the Panel's terms 
of reference any future administrative revi ews related to the eight identified in its 
panel request … . 
 11. The United States, therefore, understood that the words of Japan's request identified future 
periodic reviews related to the Ball Bearing reviews.  This confirms that th e terms of Japan's panel 
request are sufficiently specific to identify the 06/07 review. 
 12. With respect to the second objection raised – the timing of the 06/07 review – the United States argues that this review is not proper ly within the Panel's terms of reference, because it 
did not exist at the time of panel establishmen t.  Again, the United States is in error. 
 
13. Before turning to the specific arguments on the timing of the 06/07 review, Japan notes that 
the timing of subsequent periodic reviews is a major feature of the US attempts to force all disputes 
regarding such reviews into fresh WTO proceedings , thereby turning dispute settlement into a Ground 
Hog Day.  In particular, Japan notes that the United States contends that the timing of four Ball Bearing reviews – 03/04 (review 4), 04/05 (review 5) , 05/06 (review 6) and 06/07 reviews – excludes 
each from the scope of these proceedings.  In short, the United States' view is that the reviews were 
adopted too soon  to be part of these proceedings (reviews 4 and 5), not close enough  to the end of the 
reasonable period of time ("RPT") fo r implementation (review 6), or too late  (06/07 review).  It seems 
there is never a moment when the timing of a s ubsequent review would allow it to be part of 
compliance proceedings. 
 WT/DS322/RW 
Page D-4  
 
14. With respect to the 06/07 review, the United St ates argues that future measures can never be 
part of a panel's terms of reference.  This interpre tation is contradicted by pr evious interpretations of 
Articles 6.2 and 21.5 of the DSU.  In US – Zeroing II (EC) , circulated just last week, the panel, 
building on several earlier decisions, expressly recogni zed that, in appropriate circumstances, future 
measures identified in a panel request can be in cluded within a panel's terms of reference: 
 
There may be exceptional cases where panels may consider to make findings on measures not identified in the complaining party's panel request if circumstances justify it.  For that to happen, howeve r, the new measure or measures have to 
constitute "a measure" within the meaning of Article 6.2 of the DSU and have to 
come into existence during the panel proceedings. 
 15. The panel concluded that, although the Europ ean Communities' panel request had identified a 
category of measure that might exist at some time  in the future, the European Communities had failed 
to demonstrate that any such measure existed at any time before or subsequent  to panel establishment.  
The panel therefore declined to make findings with respect to those measures. 
 16. In these proceedings, the 06/07 review satisfies th e circumstances identified by the panel.  In 
contrast to the alleged measures cha llenged by the European Communities in US – Zeroing II (EC) , 
there is no dispute that the 06/07 review exists or that it came into existence during these panel proceedings.  Furthermore, as stated above, the meas ure was adequately identified in Japan's panel 
request. 
 17. The compliance panel in Australia – Salmon (21.5)  also found that measures adopted during 
panel proceedings may fall within a panel's terms of reference, particularly in the context of 
compliance proceedings.  In that dispute, the DS B's recommendations and rulings required Australia 
to bring a federal ban on salmon imports into conformity with its WTO obligations.  Although 
Australia withdrew the federal ban, the state of Tasmania imposed a new import ban on salmon 
subsequent to establishment of the compliance panel.    18. The panel undertook a two-step analysis to determine whether the Tasmanian ban was 
properly subject to its review.  In a first step, the panel assessed whether the Tasmanian ban was a 
"measure taken to comply" under Article 21.5 of th e DSU, and concluded that it was.  Japan recalls 
that it has similarly established that the 06/07 review  is a "measure taken to comply" on the basis of 
the close substantive relationship between the 06/ 07 review, the reviews subject to the original 
proceedings, and the DSB's recommendations and rulings regarding the original reviews.   
 
19. In a second step, the panel in Australia – Salmon (21.5)  considered whether the Tasmanian 
ban was properly within its terms of reference under Article 6.2 of the DSU, even though the ban 
"was only introduced subsequent to this Panel's establishment and therefore not expressis verbis  
mentioned in Canada's Panel request".  20. In finding that the ban was part of its terms of reference, the panel not ed that Canada's panel 
request identified measures taken to comply  that Australia "'has taken or does take
'", which the panel 
found to be a reference to "future measures".  The panel also found that "[t]he ban falls within the 
category of measures specified in the Panel request ".  Australia was, therefore, on notice that future 
measures belonging to an identified category of measures were at issue.  
21. The United States appears to believe that the Tasmanian ban was part of the panel's terms of 
reference in Australia – Salmon (21.5)  because it "implemented" or was "similar" to a declared 
compliance measure, namely the removal of the fede ral ban.  Japan is unsure why the United States 
takes the view that introducing a regional ban "imple ments" or is "similar" to the elimination of a 
country-wide ban.  The Tasmanian ban did not implem ent any aspect of the elimination of the federal 
ban;  nor is a new ban similar to  the elimination of an old ban.  WT/DS322/RW 
 Page D-5 
 
 
22. Instead, the crucial feature of Australia – Salmon (21.5)  is that a subsequent "measure taken 
to comply" was part of the panel's terms of reference because it belonged to a category of measures 
identified in the panel request .  Similar to Australia – Salmon (21.5) , the 06/07 review is a "measure 
taken to comply" that falls within a category of measures explicitly identified in the panel request, 
namely "any subsequent closely connected measures". 
 
23. The panel in Australia – Salmon (21.5)  also held that the particular characteristics of 
compliance proceedings compelled the inclusion of the Tasmania n ban within its terms of reference: 
 
What is referred to this Article 21.5 Pa nel is basically a disagreement as to 
implementation.  One measure was explicitly  identified [in Canada's panel request], 
with the knowledge, however, that further measures might be taken.  To exclude 
such further measures from our mandate once we have found that they are "measures taken to comply", would go against the objective of "prompt compliance" set out in Articles 3.3 and 21.1 of the DSU.  To rule that such measures fall within 
our mandate would not, in our view, deprive Australia of its right to adequate notice 
under Article 6.2.  On the basis of the Panel request Australia should have reasonably expected that any further measures it would take to comply, could be scrutinized by the Panel.  We are faced he re not with an Australian measure that was 
unexpectedly included by Canada in its cl aims, but with a measure taken during our 
proceedings by Australia, . . . and as part of Australia's implementation process to 
which Canada subsequently referred.  Argua bly, the surprise or lack of notice may, 
indeed, be more real for Canada than for Australia. 
 24. Thus, like Canada's panel request in Australia – Salmon (21.5) , Japan's panel request 
identified certain original and subsequent reviews "with the knowledge" of both Parties that future 
"closely connected", and identified, subsequent revi ews might be taken.  Indeed, the United States 
was very much aware that the 06/07 review might be adopted during these proceedings given that it initiated the review on 29 June 2007, during the RPT.  25. As the panel Australia – Salmon (21.5)  said, 
 
… compliance is often an ongoing or continuous process and once it has been 
identified as such in the panel request, as it was in this case, any "measures taken to 
comply" can be presumed to fall within th e panel's mandate, unless a genuine lack of 
notice can be pointed to. 
 
26. In these proceedings – as with Australia – Salmon (21.5)  – the respondent has received ample 
"notice".  The terms of Japan's request were suffici ently specific to alert the United States that the 
panel request addressed, in the United States' own words,  "any future administrative reviews related to 
the eight identified in its panel request … ".  Ther e was, therefore, nothing whatsoever "unexpected[]" 
in Japan's claims regarding the 06/07 review in these proceedings. 
 
27. As the panel in Australia – Salmon (21.5)  said, this interpretation of Article 6.2 promotes the 
prompt settlement of disputes under Articles 3.3 and 21.1 of the DSU.  With successive periodic reviews withdrawing, replacing, and succeeding each other year after year, compliance in these proceedings is an "ongoing or continuous" process, just as it was in Australia – Salmon (21.5) .  The 
settlement of any disputes regarding this "ongoi ng" process must be addressed in Article 21.5 
proceedings. 
 28. For all these reasons, the 06/07 review is a "me asure taken to comply" that is properly within 
the Panel's terms of reference.  WT/DS322/RW 
Page D-6  
 
II. THE 06/07 REVIEW IS INCONSISTENT WITH THE ANTI-DUMPING 
AGREEMENT AND THE GATT 1994 
 
29. In the 06/07 review, the USDOC calculated:  (1) a margin of dumping for each examined 
exporter that became the cash deposit rate
 for all entries of the product, from that exporter, occurring 
after 11 September 2008;  and (2) an  importer-specifi c assessment rate  based on the total amount of 
dumping attributable to each importer, which dete rmined that importer's final liability for anti-
dumping duties in connection with the entries that occurred during the review period.    30. In the review proceedings, several interest ed parties argued that the USDOC should not use 
the zeroing procedures to calculate either the cas h deposit or importer-specific assessment rates, 
because these procedures are WTO-inconsistent.  However, rejecting these arguments, the USDOC 
decided to maintain its use of zeroing:  
While the Department has modified its calculation of weighted-average dumping 
margins when using average-to-average co mparisons in antidumping investigations, 
the Department has not adopted any ot her modifications concerning any other 
methodology or type of proceedings, such as administrative reviews.  
 In concluding, the USDOC stated that it "has con tinued to deny offsets to dumping based on export 
transactions that exceed normal value in these reviews".   
 
31. Japan notes that the 06/07 review constitut es yet another example of the United States' 
maintenance of the zeroing procedures, following the expiry of the RPT on 24 December 2007, in 
situations other than weighted average-to-weighted av erage comparisons in original investigations.  In 
addition, the 06/07 review was completed with four  other reviews issued under separate anti-dumping 
orders concerning the importation of ball bear ings from France, Germany, Italy and the 
United Kingdom.  The United States also used zeroing in these four other reviews.  To reflect these 
five additional examples of the use of zeroing following the end of the RPT, Japan submits Exhibit JPN-68, which is an upda ted version of Exhibit JPN-46 th at includes these five reviews. 
 32. In addition to relying on the 06/07 review as evidence of the mainte nance of the zeroing 
procedures, Japan also makes claims regarding that review.  The sole element of the 06/07 review that 
Japan contests is the USDOC's use of the zeroing pro cedures.  The Appellate Body has ruled in three 
separate disputes, including in the original proceedi ngs in this dispute, that the United States acts 
inconsistently with the Anti-Dumping Agreement  and the GATT 1994 by relying on zeroing to 
calculate margins of dumping in periodic reviews.  Equally, in a report circulated on 1 October 2008, 
the panel in US – Zeroing II (EC)  reached the same conclusion. 
 33. For the reasons given in these rulings, Japan submits that the 06/07 periodic review is 
inconsistent with Article 9.3 of the Anti-Dumping Agreement  and Article VI:2 of the GATT 1994 due 
to the application of the zeroing procedures.  Moreover, for the reasons given in the original proceedings in this dispute, the review is also in consistent with the "fair comparison" obligation of 
Article 2.4. 
 34. Finally, Japan recalls its claim that the Un ited States has violated Article II of the GATT 1994 
by issuing instructions and notices for the liquidation of entries at WTO-inconsistent importer-specific assessment rates determined in the periodic reviews numbered (1), (2), (7) and (8) in paragraph 53 of 
Japan's First Written Submission.  Japan wishes to clarify that it does not pursue claims under 
Article II of the GATT 1994 in relatio n to liquidations instructions a nd notices issued pursuant to the 
06/07 review, because no such instru ctions have yet been issued.  WT/DS322/RW 
 Page D-7 
 
 
 
ANNEX D-2 
 
 
RESPONSE OF THE UNITED ST ATES TO THE SUPPLEMENTAL 
SUBMISSION OF JAPAN 
 
 
(3 November 2008) 
 
 
 
TABLE OF CONTENTS 
  Table of Reports............................................................................................................... ..................D-8 
 
I. INTRODUCTION ................................................................................................................ D-9 
 II. THIS PANEL DOES NOT HAVE JURISDICTION OVER THE 2006-07  
 ADMINISTRATIVE REVIEW OF BALL BEARINGS FROM JAPAN.......................... D-9 
 A. THE 06/07 REVIEW IS NOT A MEASURE TAKEN TO COMPLY..................................D-9 
 B. THE PANEL MAY NOT CONSIDER AN ADMINISTRATIVE REVIEW   NOT SPECIFIED IN JAPAN'S PANEL REQUEST ...........................................................D-11 
 
1. The Panel Should Reject Japan's Additional Arguments ...............................................D-11 
 2. Japan's Panel Request Does Not Meet the Specificity Requirement of DSU   Article 6.2................................................................................................................... ..........D-11 
 
III. THE PANEL SHOULD NOT REACH THE MERITS OF JAPAN'S   CLAIMS CONCERNING THE 06/07 REVIEW.............................................................D-13  IV. CONC LUSION ................................................................................................................. ..D-13 WT/DS322/RW 
Page D-8  
 
Table of Reports  
 
 
Short Form  
Full Citation 
Argentina – Poultry (Panel)  Panel Report, Argentina – Definitive Anti-
Dumping Duties on  Poultry from Brazil , 
WT/DS241/R, adopted 19 May 2003 
Australia – Salmon (Art. 21.5)  (Panel)  
 
 Panel Report, Australia – Measures Affecting 
Importation of Salmon – Recourse to Article 21.5 
of the DSU by Canada , WT/DS18/RW, adopted 
20 March 2000 
Japan – Film  (Panel)  Panel Report, Japan – Measures Affecting 
Consumer Photographic Film and Paper , 
WT/DS44/R, adopted 22 April 1998 
US – Softwood Lumber Dumping (AB)   
   Appellate Body Report, United States - Final 
Dumping Determination on Softwood Lumber 
from Canada , WT/DS264/AB/R, adopted 
31 August 2004 
US – Softwood Lumber IV (Art. 21.5) (AB)  
  Appellate Body Report, United States – Final 
Countervailing Duty Determination with Respect 
to Certain Softwood Lumber from Canada – Recourse to Article 21.5 of the DSU by Canada , 
WT/DS257/AB/RW, adopted 20 December 2005 
US – Upland Cotton (Panel)  Panel Report, United States – Subsidies on 
Upland Cotton , WT/DS267/R, adopted 
21 March 2005, as modified by the Appellate 
Body Report, WT/DS267/AB/R 
US – Zeroing (Japan) (AB)  
 
 Appellate Body Report, United States – Measures 
Relating to Zeroing and Sunset Reviews , 
WT/DS322/AB/R, adopted 23 January 2007 
US – Zeroing II (EC) (Panel)  Panel Report, United States – Continued 
Existence and Application of Zeroing 
Methodology , WT/DS350/R, circulated 
1 October 2008, not yet adopted 
   WT/DS322/RW 
 Page D-9 
 
 
I. INTRODUCTION 
 
1. The United States would like to thank the Panel for this opportunity to respond to Japan's 
supplemental submission of 10 October 2008.  Japan asserts that the 2006-07 administrative review of 
Ball Bearings from Japan falls within the scope of this proceeding.1  However, this administrative 
review is not a measure taken to comply within the meaning of Article 21.5 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes ("DSU") and is therefore outside the 
Panel's terms of reference.  Moreover, Japan impr operly uses its submission as an opportunity to re-
argue whether alleged "subsequent closely connected  measures" may fall within the scope of this 
proceeding.2  The Panel should therefore exclude Japan' s additional arguments from consideration.  
Even aside from the fact that the Panel should not take into account Japan's arguments on this issue, 
the United States has demonstrated throughout th is compliance proceeding and further discusses 
below, that under the DSU, the Pa nel may not consider future measu res that were not identified in 
Japan's panel request and that were not in existence at the time of panel establishment. 
 II. THIS PANEL DOES NOT HAVE JURISDICTION OVER THE 2006-07 
ADMINISTRATIVE REVIEW OF BALL BEARINGS FROM JAPAN 
 
A. T
HE 06/07  REVIEW IS NOT A MEASURE TAKEN TO COMPLY  
 
2. Japan erroneously claims that the 06/07 review  is a measure taken to comply with the DSB's 
recommendation and rulings.3  Japan's argument depends on the same flawed logic that Japan used 
when attempting to demonstrate why the three subsequent reviews of Ball Bearings were allegedly 
within the Panel's terms of reference.4  As the United States will show, the 06/07 review – just as the 
other three subsequent reviews – is not a measure taken to comply, and therefore does not fall within the scope of this proceeding under Article 21.5 of the DSU. 
 
3. Japan relies extensively on the alleged "particul arly close relationship" or "sufficiently close 
links" between the 06/07 review, the administrative reviews challenged in the original proceeding, 
and Review Nos. 4, 5, 6.
5  Japan highlights similarities, such as the fact that the reviews all involve 
the "same subject product", "the same exporting countries", and "the same companies".6  Further, 
Japan notes that the cash deposit rate from one revi ew replaces the rate from another, overlooking the 
fact that this is an incidental consequence of the US anti-dumping system.7  Based on Japan's 
reasoning, every subsequent review would be swept into the scope of an Article 21.5 proceeding.   
 
4. Japan's approach is so broad as to rende r the requirements of Article 21.5 of the DSU 
meaningless.  As the Appellate Body stated in US – Softwood Lumber IV (Art. 21.5) , "not . . . every 
assessment review will necessarily fall within the jurisdiction of an Article 21.5 panel".8  According to 
                                                      
1 Japan refers to this administrative review throughout its supplemental submission as the 
"06/07 review".  See, e.g. , Japan Supplemental Submission, para. 1.  For ease of reference, and to avoid 
confusion, the United States adopts the same terminology. 
2 Japan Panel Request, para. 12;  Japan Second Written Submission, paras. 59-65. 
3 Japan Supplemental Submission, para. 3. 
4 These three administrative reviews of Ball Bearings and Parts Thereof from Japan are identified as 
Review Nos. 4, 5, and 6 in Japan's first written submission.  See Japan First Written Submission, paras. 52-53.  
More specifically, the review s are:  Review No. 4 – Ball Bearings and Parts Thereof From Japan (1 May 2003 
through 30 April 2004) (JTEKT, NSK, NPB and NTN);  Review No. 5 – Ball Bearings and Parts Thereof From 
Japan (1 May 2004 through April 30 2005) (JTEK, NS, NPB, and NTN);  Review No. 6 – Ball Bearings and 
Parts Thereof From Japan (1 May 2005 through 30 April 2006) (Asahi Seiko, JTEKT, NSK, NPB and NTN). 
5 Japan Supplemental Submission, paras. 4-5. 
6 Japan Supplemental Submission, para. 5. 
7 Japan Supplemental Submission, para. 6. 
8 US – Softwood Lumber IV (Art. 21.5) (AB) , para. 93 (footnote omitted). WT/DS322/RW 
Page D-10  
 
the Appellate Body, "such an approach would be too sweeping."
9  This Panel should reject Japan's 
attempt to include the 06/07 review just because of the superficial similarities between that review, 
the original reviews, and the three subsequent reviews.  If the overlap between product, exporting 
country, and exporting company, or the incidental operation of the anti-dumping system, was sufficient to establish the type of "particularly close relationship" found in US – Softwood Lumber IV 
(Art. 21.5) , then every administrative review would fall within the jurisdiction of an Article 21.5 
panel.  In line with the Appellate Body's statements in US – Softwood Lumber IV (Art. 21.5) , the DSU 
does not permit such an approach.  5. The timing of the 06/07 review is important, despite Japan's attempt to downplay and dismiss 
this factor as somehow irrelevant.
10  The 06/07 review was initiated at the request of interested parties, 
on a schedule independent of dispute settlement and pursuant to domestic law implementing the rights 
and obligations in the Agreement on Implementation of Article VI of the General Agreement on Tariffs 
and Trade 1994 ("AD Agreement").  The results of the re view were not issued around the same time 
as the withdrawal of the measure that brought the United States into compliance,11 and not around the 
time of the expiry of the reasonable period of time ("RPT").12  By contrast, in US – Softwood 
Lumber IV (Art. 21.5) , the determination in the first administ rative review (allege d measure taken to 
comply) was issued a few days after the Sectio n 129 determination (declared measure taken to 
comply) and both closely corresponded to the expiry of the RPT.13  The Appellate Body accorded 
these facts considerable weight in finding that the subsequent review was a measure taken to comply.   
 
6. Japan further relies on the recent panel report in US – Zeroing II (EC) to demonstrate that the 
06/07 review is part of a "chain of measures" which falls within the scope of an Article 21.5 
proceeding.14  This report has been circulated to Members but has not been adopted by the DSB and is 
subject to appeal by either party.  In any ev ent, Japan misunderstands the panel's findings.  In US – 
Zeroing II (EC) , the panel was not addressing the issue of whether a subsequent review was a measure 
taken to comply within the meaning of Article 21.5.  In fact, that dispute was not a compliance dispute 
at all; rather, the panel was addressing the EC's "a s applied" zeroing claims.  Moreover, Japan relies 
on language from the panel's preliminary ruling that  measures included in the panel request but not 
included in the consultations request fell within the scope of the panel proceeding.15  The panel's 
treatment of that issue is irrelevant to the issue cu rrently before this Panel, which is not considering 
whether measures specified in a panel request, but not a consultation request, are properly before it. 
 
7. Perhaps of even greater significance from a sy stemic point of view is that Japan's "closely 
related" approach would mean that the terms of re ference of an Article 21.5 panel could spread ever 
outward like ripples in a pond.  This is because  a measure (referred to  as "measure B" for 
convenience) that is "closely related" to a measure  taken to comply (referred to as "measure A") is 
itself then deemed to be a measure taken to comply by  virtue of that close relationship.  In that case, 
any measure (e.g., "measure C") that is "closely rela ted" to measure B then itself becomes a "measure 
taken to comply."  In turn then, any measure cl osely related to measure C could become a measure 
taken to comply, with each succeeding iteration perh aps bearing a more and more remote relationship 
to the original measure, measure A.  Members nowhe re agreed to such an approach in the DSU. 
 
                                                      
9 US – Softwood Lumber IV (Art. 21.5) (AB) , para. 87 (footnote omitted). 
10 Japan Supplemental Submission, para. 14. 
11 The cash deposit rate for the most  recent administrative review of Ball Bearings that was subject to 
the DSB's recommendations and rulings (i.e., the 2002-03 review) was replaced by the cash deposit from the 2003-04 review in September 2005, about three years before the final results of the 06/07 review were 
announced.   
12 The RPT expired on December 24, 2007. 
13 US – Softwood Lumber IV (Art. 21.5) (AB) , para. 84. 
14 Japan Supplemental Submission, para. 8. 
15 US – Zeroing II (EC) (Panel) , paras. 7.11-7.28.  WT/DS322/RW 
 Page D-11 
 
 
B. THE PANEL MAY NOT CONSIDER AN ADMINISTRATIVE REVIEW NOT SPECIFIED 
IN JAPAN'S PANEL REQUEST 
 
1. The Panel Should Reject Japan's Additional Arguments  
 8. As an initial matter, Japan has used its s upplemental submission as an opportunity to attempt 
to rebut once again the US arguments regardi ng the specificity of Japan's panel request.
16  T h e  
United States recalls that it objected to Japan's a ttempt to include "any subsequent closely connected 
measures" that were not anywhere identified in Japan's panel request.17  The United States asked for a 
preliminary ruling under Article 6.2 of the DSU to exclude such future measures.  Japan had an 
opportunity to rebut the US arguments in its second written submission and attempted to do so.18  
Japan also raised this issue in its 15 September 2008 request to file a supplemental submission on an 
alleged additional measure taken to comply, and attempted to ju stify why it had the right to file a 
submission on future measures.19  The United States, as part of its second written submission, 
responded to Japan's rebuttal submission and Japan 's separate request to  file a supplemental 
submission.20  The Panel, without ruling on the issue of sp ecificity, then permitted Japan to file its 
supplemental submission regarding why the 06/07 re view was an alleged measure taken to comply. 
 9. Japan is now using its supplemental submissi on to address yet again an issue that has been 
fully argued by both parties and for which it did not request permission to file a supplemental 
submission.  The Panel should disregard Japan's furt her arguments as to why "any subsequent closely 
connected measures"– in this instan ce, the 06/07 review – are within the scope of this proceeding.  
Nevertheless, the United States will respond to Japan 's argument, without prejudice to its objection 
that Japan has improperly inserted additional ar gumentation into its supplemental submission.  
 
2. Japan's Panel Request Does Not Meet the Specificity Requirement of DSU Article 6.2 
 
10. Japan's panel request did not properly address th e specific measures at issu e – in this instance, 
the 06/07 review.  Under Article 6.2 of the DSU, a panel request must identify the specific measures 
at issue, and under Article 7.1, the Panel's terms of  reference are limited to those specific measures.  
Here, each anti-dumping determination that sets a ma rgin of dumping for a defined period of time is 
separate and distinct, and under Article 6.2, Japan had to identify each such measure in its panel 
request.  
 11. As the United States explaine d in its second written submission,
21 future administrative 
reviews, like the 06/07 review, also fall outside th e scope of this proceeding because under the DSU, 
measures not yet in existence at the time of pa nel establishment cannot be subject to dispute 
settlement.22  The results of the 06/07 review were i ssued in September 2008, months after Japan 
made its request for establishment.  The simple f act that Japan had to seek to make a "supplemental 
submission" well after Japan was to have provided all of its written submissions only highlights that 
the measure was not in existence at the time of th e Panel's establishment a nd could not have been 
specified by Japan in its panel request.  Therefore,  this subsequent administ rative review cannot fall 
within the Panel's terms of reference. 
                                                      
16 Japan Supplemental Submission, paras. 9-28. 
17 US First Written Submission, para. 50. 
18 Japan Second Written Submission, paras. 59-65. 
19 Japan's Letter to the Panel, 15 Sept. 2008 (citing Australia – Salmon (Art. 21.5) (Panel) ). 
20 US Second Written Submission, paras. 29-34. 
21 US Second Written Submission, para. 30. 
22 US – Upland Cotton (Panel) , paras. 7.158-7.160 (rejecting inclusion of the Agricultural Adjustment 
Act of 2003 in the panel's terms of reference because that law did not co me into existence until after panel 
establishment) ("In this case, the Agricultural Assistance Act of 2003 could not possibly have been impairing 
any benefits at the date of Brazil 's referral of its complaint to th e DSB because it did not yet exist."). WT/DS322/RW 
Page D-12  
 
12. Japan argues that the United St ates "received ample 'notice'" of Japan's intention to challenge 
future reviews;
23 this argument, however, is beside the point.  Article 6.2 of the DSU imposes no 
burden on a party to show that it failed to receive adequate notice as to certain measures not identified 
in the panel request, or that it was somehow prejudiced  by the lack of specificity in a panel request.  
And no such requirement is found in any other provisi on of the DSU, or anywhere else in the covered 
agreements.24  The requirements of Article 6.2 of the DSU are clear – the panel request must " identify  
the specific measures at issue."25   Measures not so identified do not fall within the panel's terms of 
reference.  Japan could not have identified a measure not yet in existence.  This is all that the 
United States is required to show in order to prev ail on its preliminary objection under Article 6.2 of 
the DSU. 
 
13. Japan cites to the recent, unadopted panel report in US – Zeroing II (EC)  to support its 
erroneous argument that future administrative revi ews may fall within a panel's terms of reference.26 
Again, this report has not been adopted by the DSB and may be appealed by either party.  In any 
event, in that report, the panel actually rejected the EC's attempt to obtain "a remedy which would 
affect anti-dumping proceedings that the USDOC may conduct in the future" following panel 
establishment.27  As the panel found, "in our view, Article 6. 2 of the DSU, in principle, does not allow 
a panel to make findings regarding measures that  do not exist as of the date of the panel's 
establishment."28  The panel noted that there may be "exceptional circumstances" where future 
measures could fall within the panel's terms of reference.29  But the panel found that this was not the 
case where a complaining Member was attempting to reach future anti-dumping determinations that 
were not in existence at the time of panel establishment. 
 14. Japan relies once again on the panel report in Australia – Salmon (Art. 21.5)  and accuses the 
United States of misreading the panel's findings.
30  As the United States has demonstrated,31 it is 
Japan that distorts the reasoning from that dispute to  argue that future reviews are properly before the 
Panel. 
 15. In Australia – Salmon (Art. 21.5) , Canada requested leave to file a supplemental submission 
on a Tasmanian import ban that was adopted after th e panel proceeding had begun.  Australia objected 
that the new measure was outside th e panel's terms of reference.  Canada's panel request identified 
measures that Australia "has taken or would take
" to comply "with the recommendations and rulings 
of the DSB by implementing the policies fo r non-viable salmonids outlined in AQPM 1999/51 ."32  
The compliance panel noted that future measur es that were taken "to implement AQPM 1999/51" 
(namely, AQPM 1999/64, 66, 69, 70, 77, and 79) were  within scope of proceeding, and that neither 
                                                      
23 Japan Supplemental Submission, para. 27. 
24 In US – Zeroing II (EC) (Panel) , the panel found that "neither Article 6.2 of the DSU nor any other 
provision of the WTO Agreement supports the argument th at the defendant has to show prejudice in cases where 
the complaining Member's panel request falls short of the requirements of Article 6.2."  US – Zeroing II (EC) 
(Panel) , para. 7.63. 
25 Emphasis added. 
26 Japan Supplemental Submission, paras. 15-17. 
27 US – Zeroing II (EC) (Panel) , para. 7.59. 
28 US – Zeroing II (EC) (Panel) , para. 7.59. 
29 The panel may have had in mind the panel report in Japan – Film , which it earlier dismissed as 
irrelevant to the issue under consideration.  See US – Zeroing II (EC) , para. 7.54.  In Japan – Film , the panel 
found that subsequent measures promulgated under a framework law that was identified in the panel request fell within its terms of reference.  It cons idered these measures "subsidiary" or "closely related" to the law of general 
application specifically identified.  See Japan – Film (Panel) , paras. 10.8-10.14.  Unlike Japan – Film , this 
dispute does not involve subsequent regulations issued under a law of general application. 
30 Japan Supplemental Submission, paras. 18-29. 
31 US Second Written Submission, paras. 32-33. 
32 Australia – Salmon (Art. 21.5) (Panel) , para. 7.10(25) (emphasis in original).  WT/DS322/RW 
 Page D-13 
 
 
party contested this fact.33  The panel then reasoned that the Tasmanian measure, " for similar reasons " 
was within scope of the Article 21.5 proceeding.34  In other words, the panel found that the Tasmanian 
ban fell within a "category of measures" to comply that were specified in the panel request, or was 
"closely related" to those measures.35  The panel also considered it important that Australia apparently 
had agreed, with respect to other, future measures, that such measures were within the panel's terms of 
reference.36 
 16. Japan ignores the key difference from Australia – Salmon (Art. 21.5) .  Here, Japan is not 
challenging future measures that implement or that  are "closely related" to a framework regulation 
that was adopted to comply with the recommendati ons and rulings of the DSB.  Rather, Japan is 
trying to challenge a subsequent administrative re view, which occurred upon request of interested 
parties based upon provisions of the AD Agreement and on a schedule established without regard for 
dispute settlement proceedings.  The 06/07 re view, and any other s ubsequent reviews of Ball 
Bearings, therefore are separate and distinct measures, independent of the present dispute, and 
independent of other prior reviews.  Japan's ch allenge is not analogous to challenging subsequent 
measures which implement or are closely re lated to a framework law or regulation. 
  
III. THE PANEL SHOULD NOT REACH THE MERITS OF JAPAN'S CLAIMS 
CONCERNING THE 06/07 REVIEW 
 
17. Japan claims that the 06/07 review violat es Articles 2.4 and 9.3 of the AD Agreement and 
Article VI:2 of the GATT 1994 due to the application of zeroing procedures.
37  As the United States 
has explained, this review is not a measure taken to  comply and is not properly within the scope of 
this proceeding.38  Therefore, this Panel should not reach the issue of the WTO consistency of this 
alleged measure. 
 
IV. CONCLUSION  
 
18. For the reasons set forth above, along with t hose set forth in the US written submissions, the 
United States requests that the Panel rej ect the 06-07 administrative review of Ball Bearings from 
Japan as outside the scope of this proceeding. 
 
 
 
                                                      
33 Australia – Salmon  (Art. 21.5) (Panel) , para. 7.10(26). 
34 Australia – Salmon ( Art. 21.5)  (Panel) , para. 7.10(27) (emphasis added). 
35 Australia – Salmon (Art. 21.5) (Panel) , para. 7.10(27).  The panel's reasoning was based in part on 
the panel report in Japan – Film , which similarly found that measures closely related to the implementation of a 
framework law could be included in a panel's terms of reference, even if they came into existence after the panel 
request.  See Australia – Salmon (Art. 21.5) (Panel) , para. 7.10(26) & n.144. 
36 Australia – Salmon  (Art. 21.5) (Panel) , para. 7.10(26). 
37 Japan Supplemental Submission, para. 34. 
38 In making its argument on the merits, Japan relies on the recent, unadopted panel report in US – 
Zeroing II (EC) , as well as the Appellate Body reports in US – Zeroing (EC) and US – Stainless Steel (Mexico) .  
See Japan Supplemental Submission, paras. 33-34 & nn. 35-3 7.  The United States notes that dispute settlement 
reports are not binding except  with respect to resolving the particular di spute between the parties to that dispute. 
See US – Softwood Lumber Dumping (AB), para. 111 (citing Japan–Alcohol Taxes (AB) ); Argentina–Poultry 
(Panel) , para. 7.41.  Although panels may take the persua siveness of other reports into account, there is no stare 
decisis in the WTO dispute settlement system, and prior report s from other disputes do not bind this Panel. WT/DS322/RW 
Page D-14  
 
 
ANNEX D-3 
 
 
RESPONSE OF JAPAN TO THE UNIT ED STATES' RESPONSE TO THE 
SUPPLEMENTAL SUBMISSION OF JAPAN 
 
 
(5 November 2008) 
 
 
 
I. INTRODUCTION 
 
1. Mr. Chairman, Japan appreciates the opportunity to make a short statement regarding the 
United States' rebuttal to our supplemental submissi on on the 06/07 periodic review.  Japan will not 
respond to every US argument, because the United St ates repeats many of the arguments it has made 
in connection with the other subsequent reviews.   
II. THE PANEL'S TERMS OF REFERENCE 
 
2. We begin with observations on the United States' argument that the terms of Japan's panel 
request  do not cover the 06/07 review.  This argument is contradicted by the fact that the 
United States understood Japan's panel request to in clude "future administrative reviews related to the 
eight identified in its panel request".
1  The United States' ability to identify the measures at issue 
confirms that Japan's panel request meets the speci ficity and due process requirements of Article 6.2.2 
 
3. The United States argues that a panel requ est cannot include measures that come into 
existence during the panel proceedings.3  In making this argument, the United States attempts to 
distinguish the situation in these co mpliance proceedings from those in Australia – Salmon (21.5) .  In 
so doing, it mis-states the findings of the panel in Australia – Salmon (21.5) .  As in its previous 
submissions,4 the United States argues that a measure imposing a regional ban  was found to be within 
the panel's terms of reference, because the regional ban was taken to implement , and was similar to , 
federal measures  withdrawing a federal ban  that were specified in the panel request.5 
 4. Besides reasserting its earlier argument, the United States has not explained how the 
introduction
 of a regional ban "implements" or is "similar" to the elimination  of a federal ban.  The 
regional ban did not implement  any aspect of the federal measures eliminating the federal ban; 
imposing a new ban is not similar  to eliminating an old ban.6  Japan does not, therefore, agree with the 
US reading of Australia – Salmon (21.5) . 
                                                      
1 United States' First Written Submission, para. 50. 
2 Appellate Body Report, Thailand – H-Beams , para. 88. 
3 United States' Supplemental Submission, para. 11. 
4 United States' Second Written Submission, paras. 32, 33. 
5 United States' Supplemental Submission, para. 15 (" The compliance panel noted that future measures 
that were take to implement AQPM 1999/51 . . . were within scope of proceeding, and that neither party contested this fact.  The panel then r easoned that the Tasmanian measure, ' for similar reasons ' was within scope 
of the Article 21.5 proceeding".). 
6 Japan's Supplemental Submission, para. 22.  WT/DS322/RW 
 Page D-15 
 
 
5. Instead, as the United States concedes,7 the panel found that the regional ban was within its 
terms of reference because it belonged to a category of measures identified in the panel request , 
namely any "measure taken to comply".  Similar to Australia – Salmon (21.5) , the 06/07 review is 
within this Panel's terms of reference because it  falls within a category of measures explicitly 
identified in the panel request, namely "any  subsequent closely connected measures". 
 
6. However, even if – as the United States asserts8 – the panel's findings in Australia – 
Salmon (21.5)  were based on the "close relationship" between the regional ban and the federal 
measures withdrawing the original federal ban, Australia – Salmon (21.5)  still supports inclusion of 
the 06/07 review in this Panel's terms of referenc e.  For reasons enumerated in our Supplemental 
Submission, the 06/07 review is, indeed, "similar" and "closely related" to other measures that the 
United States does not contest are iden tified in Japan's panel request:  five original reviews, and three 
subsequent reviews.9 
 
III. THE 06/07 REVIEW IS A "MEASURE TAKEN TO COMPLY" 
 7. We turn briefly to US arguments that the 06/07  review is not a "measure taken to comply".  In 
US – Zeroing II (EC) , the panel found that periodic revi ews under a single anti-dumping order, 
involving the same calculation methodology, were part  of "the same subject matter" and "the same 
dispute", because of the close substantive links between the reviews.
10  The panel correctly held that 
this close relationship may be important in defi ning a panel's terms of reference in original 
proceedings. 
 8. The United States contends that the panel's statement in US – Zeroing II (EC)  is "irrelevant" 
to these proceedings, because the statement was not made in compliance proceedings.
11  Japan 
disagrees.  Original and compliance proceedings are, in  fact, part of "the same  dispute".  As panels 
and the Appellate Body have sai d, "Article 21.5 proceedings do not occur in isolation from the 
original proceedings, but both proceedings form part of a continuum of events " that extends until 
compliance is fully achieved.12 
 9. As a result, where the original proceedings con cern a chain of periodic reviews that are part of 
"the same subject matter" and "the same dispute", new links in that chain involving the same disputed 
calculation methodology are necessarily part of a "continuum of events" prolonging "the same 
dispute".
13  In the context of such a dispute, there is no basis for artificially splitting the chain of 
measures and events, either at the end of the orig inal proceedings or after the end of the RPT. 
 10. The United States also suggests that the 06/07 re view bears a "more remo te relationship to the 
original measure[s]" than th e other subsequent reviews.
14  Again, Japan disagrees.  Japan has outlined 
that the close substantive  connections  linking the 06/07 review, and the other subsequent reviews, to 
the original measures.15  That is, the same substantive feat ures of the original periodic reviews – 
which define the contours of this dispute – are mirro red in each of the subsequent reviews.  The later 
measures are no less substantively connected to the dispute than the earlier measures. 
                                                      
7 United States' Supplemental Submission, para. 15 ("In other words, the panel found that the 
Tasmanian ban fell within a "categor y of measures" to comply that we re specified in the panel request , or was 
"closely related" to those measures") (underlining added). 
8 United States' Supplemental Submission, paras. 15-16. 
9 Japan's Supplemental Submission, paras. 5-7. 
10 Panel Report, US – Zeroing II (EC) , para. 7.28. 
11 United States' Supplemental Submission, para. 6. 
12 Appellate Body Report, Chile – Price Band System (21.5) , para. 136, citing  Appellate Body Report, 
Mexico  – Corn Syrup  (21.5), para. 121 (emphasis added). 
13 Panel Report, US – Zeroing II (EC) , para. 7.28. 
14 United States' Supplemental Submission, para. 6. 
15 See Japan's Supplemental Submission, paras 5-7. WT/DS322/RW 
Page D-16  
 
11. In reality, given that the key substantive feat ures of the periodic reviews are unchanged, the 
US "remoteness" argument is code for its argument on timing.  In essence, the United States argues that, where there is a chain of measures with a clo se substantive connection to  the original measures, 
the latest measure ceases to be part of the disput e if it is too distant in time from the original 
proceedings.  Japan has already expres sed its disagreement with this point.
16  Compliance is an 
"ongoing or continuous process",17 and panels must be able to scrutinize the latest measures that 
undermine the DSB's recommendations and rulings .  Otherwise, in a dispute regarding recurring  
measures – such as periodic reviews or recurring subsidies – an implementing Member is rewarded under Article 21.5 for its persistence in ignor ing the DSB's recommendations and rulings.  
 
12. Thank you, Mr. Chairman. 
   
_______________ 
 
 
                                                     
 
16 See, e.g., Japan's Opening Statement, para. 32. 
17 Panel Report, Australia – Salmon (21.5) , para. 7.10 (sub-para. 28).