UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS ("ZEROING")
Document: Recourse to Article 21.5 of the DSU by the European Communities Report of the Panel
Date: 17 December 2008
Document codes: WT/DS294/RW
Complainant: EU
Respondent: U.S.
Third parties: Argentina, Brazil, China, Taiwan, Hong Kong, India, Japan, South Korea, Mexico, Norway, Thailand, Turkey
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2.1, 2.4, 5.8, 9.1, 9.3, 9.5, 11  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 3  Anti-dumping

UNITED STATES – LAWS, REGULATIONS AND
METHODOLOGY FOR CALCULATING
DUMPING MARGINS ("ZEROING")

Recourse to Article 21.5 of the DSU by the European Communities

Report of the Panel

I. INTRODUCTION
1.1 On 13 September 2007, the European Communities requested the establishment of a panel
pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU") concerning the alleged failure of the United States to implement the
recommendations and rulings of the Dispute Settlement Body ("DSB") in United States – Laws ,
Regulations and Methodology for Calculating Dumping Margins ("Zeroing").1
1.2 At its meeting on 25 September 2007, the Di spute Settlement Body ("DSB") decided, in
accordance with Article 21.5 of the DSU, to refer this matter, if possible, to the original panel.
1.3 The Panel's terms of reference are the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by the European Communities in document , the matter referred to the
DSB by the European Communiti es in that document, and to make such findings as
will assist the DSB in making the recommendations or in giving the rulings provided
for in those agreements."
1.4 On 28 November 2007, the European Commun ities requested the Director-General to
determine the composition of the Panel.
1.5 Article 8.7 of the DSU provides:
"If there is no agreement on the panelists within 20 days after the date of the
establishment of a panel, at the request of either party, the Director-General, in
consultation with the Chairman of the DSB and the Chairman of the relevant Council
or Committee, shall determine the com position of the panel by appointing the
panelists whom the Director-General consid ers most appropriate in accordance with
any relevant special or additional rules or procedures of the covered agreement or
covered agreements which are at issue in th e dispute, after consulting with the parties
to the dispute. The Chairman of th e DSB shall inform the Members of the
composition of the panel thus formed no later than 10 days after the date the
Chairman receives such a request."
1.6 On 30 November 2007, the Director-General composed the Panel as follows:
 Chairperson: Mr. Felipe Jaramillo

 Members: Ms Usha Dwarka-Canabady
 Mr. Scott Gallacher
2

1.7 India, Japan, Korea, Mexico, Norway, Chinese Taipei and Thailand reserved their rights to
participate in the Panel proceedings as third parties.
1.8 The Panel met with the parties to the dispute on 9-10 April 2008. The Panel met with the
third parties on 10 April 2008.
1.9 The Panel submitted its interim report to the parties on 12 August 2008 and submitted its final
report to the parties on 10 October 2008.

1 WT/DS294/25.
2 WT/DS294/26.

II. BACKGROUND
A.
INTRODUCTION
2.1 This dispute concerns the implementation by the United States of the DSB's recommendations
and rulings in US – Zeroing (EC), the original dispute. The report of the panel in the original dispute
was circulated to Members on 31 October 2005; the re port of the Appellate Body was circulated to
Members on 18 April 2006. On 9 May 2006, the DSB adopted the report of the Appellate Body and
the report of the original panel, as modified by the Report of the Appellate Body . Pursuant to
Article 21.3(b) of the DSU, the "reasonable period of time" for the US to implement the
recommendations and rulings of the DSB was set, by agreement of the parties, for a period of
11 months expiring on 9 April 2007.
3
2.2 The dispute before the original panel concerned the use, by the United States Department of
Commerce ("USDOC"), of "zeroing" when determining margins of dumping in original
investigations, administrative (assessment) review s, new shipper reviews, changed circumstances
review, and sunset reviews.
B.
THE US ANTI-DUMPING SYSTEM
2.3 At issue, in both the original dispute and in th is compliance dispute, is the use of "zeroing" in
the calculation of margins of dumping in the context of the imposition, assessment and collection, by
the United States, of anti-dumping duties. Th e US system for the imposition, assessment and
collection of anti-dumping duties can be described as follows.
4
1. Original investigations
2.4 In order to determine whether the impositi on of anti-dumping measures on known exporters
of a product under consideration may be justif ied, the United States examines whether dumping
existed during a given period of investigation. Th is determination is made by the United States
Department of Commerce ("USDOC") and is published in a Notice of Final Determination of Sales at
Less Than Fair Value. The Notice of Final Determin ation of Sales at Less Than Fair Value sets out
the USDOC's assessment of the existence and level of dumping. The United States International
Trade Commission ("USITC") then determines whet her the relevant United States industry was
injured by reason of the dumped imports. When the USDOC finds dumping and the USITC finds that
dumping caused injury to the domestic industry, the USDOC issues a Notice of Antidumping Duty
Order imposing final measures, including a cash depos it rate equivalent to the margin of dumping
calculated for each known exporter. The Anti-Dump ing Order provides the United States with the
authority to require cash deposits at the time of importation and subsequently assess anti-dumping
duties.5

3 WT/DS294/19.
4 This description is based on the description contained in paras. 2.4-2.5 of the report of the original
panel, paras. 14-33 of the European Communities' First Written Submission (hereinafter, EC First Written
Submission) and paras. 6-11 of the United States' Fi rst Written Submission (hereinafter, US First Written
Submission).
5 The original dispute concerned, inter alia , the use of "model zeroing" by the USDOC in the
calculation of margins of dumping in the context of an original investigation: The USDOC, in applying the
weighted average-to-weighted average comparison method provided for under the first sentence of Article 2.4.2
of the Anti-Dumping Agreement, determines not only the overall product scope of the proceeding (referred to as
"subject product" or subject merchandise"), but also identifies sales of sub-products which it considers
"comparable", and includes such sales in an "averaging group" (an averaging group, as well as consisting of
merchandise that is identical or virtually identical in all physical characteristics, also consists of merchandise

2. Administrative reviews
2.5 Once an Anti-Dumping Order is in place, th e United States will assess the liability for anti-
dumping duties on specific entries of the subject product by individual importers for a specified
period of time on a retrospective basis. Under th is system, an anti-dumping duty liability attaches at
the time of entry, but duties are not actually assessed at that time. Rather, the United States collects
security in the form of a cash deposit at the time of entry, and determines the amount of duties due on
the entry at a later date. Once a year (during the anniversary month of the Order) interested parties
may request an "administrative revi ew" to determine the amount of duties – if any – owed on entries
made during the previous year.
6 The amount of anti-dumping duties owed by each individual
importer (the assessment rate) is calculated on the basis of a comparison of each individual import to a
contemporaneous average normal value. The tota l amount of dumping associated with each importer
is then aggregated and expressed as a percentage of that importer's imports into the United States.
This assessment rate is then applied to all imports by that importer during the period reviewed. The
amount of dumping found on all imports from a give n exporter (regardless of the importer) is also
used to derive a new cash deposit rate that applies on future entries from that exporter going forward.
If no review is requested, the cash deposits made on the entries during the previous year are
automatically assessed as the final duties. The final anti-dumping dut y liability for past entries and
the new cash deposit rate for future entries is cal culated by the USDOC and published in a Notice of
Final Results of Antidumping Duty Administrative Reviews.
2.6 When assessing an importer's final liability fo r paying anti-dumping duties and any future
cash deposit rate, the United States applies a met hodology that has been referred to as "simple
zeroing": When comparing a weighted-average norma l value with the price of an individual export
transaction, the amount by which the normal value ex ceeds the export price is considered to be the
"dumped" amount for that export transaction. If the export price exceeds normal value, the result of
that particular comparison is considered to be zer o. The total amount of dumping for each importer is
calculated by aggregating the results of each co mparison for which the average normal value exceeds
the export price. (In other words, while the va lue of all export transactions is included in the
denominator of the fraction used to calculate the im porter's liability, the results of the comparisons for
which export prices exceed the average normal va lue are excluded from the numerator of that
fraction).
2.7 Following the publication of the results of an administrative review, the USDOC
communicates the results of its determination to US Customs and Border Protection ("USCBP") by
issuing what are referred to as "assessment instruct ions". The instructions advise the USCBP of the
"assessment rate", i.e., the final anti-dumping duty to be collected from a given importer. The

that is sold at the same level of trade). The weight ed average-to-weighted average comparison between normal
value and export price is made within each averaging group. The amount by wh ich the normal value exceeds
the export price for a given averaging group is considered by the USDOC to be a "dumping margin" or dumped
amount; the margin of dumping for the overall product is calculated by combining the averaging group results
and the total of the dumped amounts is expressed as a percentage of the total export prices (including all
averaging groups). At the time of the original dispute, the USDOC used "model zeroing" in calculating the
margins of dumping in the context of original investigations: the USDOC treated as "zero" any amount by
which the export price exceeded the normal value (in ot her words, in any case wher e the export price exceeded
the normal value, the dumping margin for that averaging group was zero).
6 The period of time covered by the duty assessment proceedings is normally twelve months; however,
in the case of the first assessment proceeding (first administrative review), the period of time may extend to a
period of up to 18 months in order to cover all entries that may have been subject to provisional measures.

USCBP then instructs the US ports of entries to "liquidate" the relevant entries of subject imports at
the established rates.
7
3. Sunset reviews
2.8 Five years after publication of an anti-dumping duty order, the USDOC and the USITC
conduct a "sunset review" to determine respectively whether revocation of the order would be likely
to lead to a continuation or recurrence of dumpi ng, and the continuation or recurrence of material
injury.
2.9 The order is revoked unless both the USDOC a nd the USITC make affirmative "likelihood"
determinations.
C. FINDINGS BY THE PANEL AND THE APPELLATE BODY IN THE ORIGINAL DISPUTE
1. Panel
2.10 The European Communities, in the original disput e, made "as applied" claims with respect to
the use of zeroing, by the USDOC, in the calculation of dumping margins in 15 original investigations
and 16 administrative reviews concerning products from the European Commun ities. The European
Communities also made "as such" claims with respect to a number of US measures concerning the use
of zeroing by the USDOC in the context of origin al investigations, administrative reviews, new
shipper reviews, changed circumstances reviews, and sunset reviews.
(a) "As applied" claims – model zeroing in original investigations
2.11 The European Communities claimed that the Un ited States acted inconsistently with its
obligations under the Anti-Dumping Agreement and the GATT 1994 in 15 original AD investigations 8
because the USDOC, when calculating the wei ghted average dumping margin for exporters,
performed "model zeroing". The European Commun ities claimed that the US application of model
zeroing in the original investigations at issue violated Articles 1, 2.4, 2.4.2, 3.1, 3.2, 3.5, 5.8, 9.3, and
18.4 of the Agreement on implementation of Article VI of the GATT 1994 (the " Anti-Dumping
Agreement"), Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement.
The panel concluded that the United States had act ed inconsistently with Article 2.4.2 of the Anti-
Dumping Agreement with respect to the use of zeroing in these original investigations but declined to
make additional findings under the other provisions invoked by the European Communities.9

7 When the USCBP liquidates an entry, the importe r of record (or its authorised customs broker)
generally receives a notice of the liquidation. For each entry made, the importer receives either: (i) only a
notice, if the cash deposit amount collected at entry is exactly the same as the amount due at liquidation; (ii) a
notice and a bill, if the cash deposit amount collected at entry is less than the amount due at liquidation; or (iii) a
notice and a refund cheque, if the cash deposit amount collected at entry is more than the amount due at
liquidation.
8 The European Communities described the challenged measures with respect to the 15 "original
investigations" (included in Exhibits EC-1 to EC-15 of the European Communities in the original proceeding) as
"the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments, and
including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs
and Outputs to which they in turn refer, for all the firms investigated; each of the 15 Anti-dumping Duty Orders;
each of the assessment instructions issued pursuant to an y of the 15 Anti-dumping Duty Orders; and each of the
USITC final injury determinations." See Panel report, US – Zeroing (EC), para. 2.6.
9 Panel Report, ("US – Zeroing (EC)"), WT/DS294/R, adopted 9 May 2006, as modified by Appellate Body Report,
WT/DS294/AB/R, DSR 2006:II, 521, paras. 7.32, 7.33, 7.34, 8.1 (a) and 8.2.

(b) "As applied" claims – zeroing in administrative reviews
2.12 The European Communities also claimed, before the original panel, that the United States
acted inconsistently with its obligations under Artic les 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4 of the Anti-
Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO
Agreement as a consequence of comparing a weighted normal value with individual export
transactions, without explanation or justificati on, and the use of zeroing in 16 periodic reviews
("administrative reviews") 10 proceedings in which the USDOC ha d used zeroing in the context of
weighted average-to-transaction ("simple zeroing"). The original panel rejected all of the EC "as
applied" claims with respect to the 16 administrative reviews at issue.11
(c) "As such" claims
2.13 The European Communities made "as such" claims against the "Standard Zeroing Procedures
(or the US practice or methodology of zeroing)" 12 and various sections of the United States Tariff Act
of 1930 and of the USDOC Regulations with respect to the US use of zeroing in (i) original
investigations, (ii) administrative reviews, and ( iii) new shippers reviews, changed circumstances
reviews, and sunset reviews.
2.14 The original panel found that the US "zeroing methodology" is a norm which could be
challenged in WTO dispute settlement procedures. It found that this norm, as it relates to original
investigations is, as such, incons istent with Article 2.4.2 of the Anti-Dumping Agreement but found it
unnecessary to make findings under the other pr ovisions cited by the European Communities
(Articles 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of the
GATT 1994; and Article XVI:4 of the WTO Agreement).
13 The panel found that the sections of the

10 The European Communities described the challenged measures, with respect to the 16 administrative
reviews subject to its "as applied" claims as "the 16 Notices of Final Results of Antidumping Duty
Administrative Reviews, including any amendments, and including all the Issues and Decision Memoranda to
which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the
firms investigated; and each of the assessment instructions issued pursuant to any of the 16 Notices of Final
Results." Panel Report, US – Zeroing (EC) , para. 2.6. The 16 administrative reviews were detailed in Exhibits
EC-16 to EC-31.
11 Panel Report, US – Zeroing (EC), paras. 7.223, 7.284, 7.288 and 8.1 (d)-(f).
12 The European Communities used the term "Standard Zeroing Procedures" to refer to certain specific
lines of computer programming code in the computer programme used by the USDOC to calculate dumping
margins, which separated sales with "positive margins" an d sales with "negative margins" and subtotaled only
the dumping amounts for sales with "pos itive margins". As the EC claim wa s with respect to the "'standard
zeroing procedures' (or the US practice or methodology of zeroing)", the original panel sought clarification from
the European Communities whether it was challenging a practice or methodology as a measure distinct from the
standard zeroing procedures. In light of the EC clarifications, the original panel understood the EC claim to
concern both the "Standard Zeroing Procedures" and the US practice or methodology of zeroing. Panel Report,
US – Zeroing (EC), paras. 7.70-7.72. The panel considered that to characterize the Standard Zeroing Procedures
as an act or instrument that sets forth rules or norms intended to have general and prospective application was
difficult to reconcile with the fact that they are only applicable in a particular anti-dumping proceeding as a
result of their inclusion in the computer programme used in that particular proceeding. The panel found that the
"'Standard Zeroing Procedures' by themselves do not cr eate anything and are simply a reflection of something
else." As a result, the panel's findings concerned the zeroing methodology "manifested in the 'Standard Zeroing
Procedures'". Panel Report, US – Zeroing (EC), paras. 7.97-7.109.
13 Panel Report, US – Zeroing (EC) , paras. 7.106, 7.108-109, 8.1 (c) and 8.2. The European
Communities had also identified as a measure that it was challenging the US Import Administration Anti-
Dumping Procedures Manual, but the Panel found it unnecessary to make any finding as to the WTO-
consistency of the Manual, as it considered that the Ma nual had been referred to by the European Communities
principally as evidence to confirm the "standard" char acter of the "Standard Zeroing Procedures". See i dem,
para. 7.107.

Tariff Act challenged by the European Comm unities (Sections 771(35)(A) and (B), 731 and
777(A)(d)) were not as such inconsistent with Artic les 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-
Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO
Agreement with respect to the calculation of dumping margins in original investigations.
14
2.15 The original panel rejected the EC claims in respect of administrative reviews. The panel
considered the EC claims in this respect to be dependent upon a finding of violation of Articles 2.4
and 2.4.2 and on an interpretation of these provi sions as prohibiting zeroing and the use of an
"asymmetrical comparison" of export price and norma l value, which the panel had rejected in its
analysis of the EC "as applied" claims with respect to administrative reviews.15 The panel rejected the
EC's "as such" claims with respect to new shipper reviews, changed circumstances reviews and sunset
reviews on similar grounds.16
(d) Recommendation
2.16 The panel recommended that the Dispute Settleme nt Body request the United States to bring
its measures into conformity with its obligations under the Anti-Dumping Agreement.17
(e) Dissenting opinion by one panelist
2.17 One panelist wrote a dissenting opinion. That panelist concurred in th e panel's findings that
model zeroing in original investigations is prohibited by Article 2.4.2 of the Anti-Dumping
Agreement, that the Sections of the US Tariff Act ch allenged by the European Communities are not
inconsistent with the provisions of the Anti-Dumping Agreement, GATT 1994 and WTO Agreement
invoked by the European Communities and that the US zeroing methodology, as it relates to original
investigations, is a norm which is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping
Agreement, but disagreed with all other findings of the panel.
18 In particular, the dissenting panelist
would have accepted the EC claims (i) that si mple and model zeroing are inconsistent with
Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement in assessment proceedings (except where there
is targeted dumping); (ii) that Section 351.414 (c )(2) of the US Regulations, which foresees simple
zeroing in review proceedings, is inconsis tent with Articles 2.4 and 2.4.2 of the Anti-Dumping
Agreement; and (iii) that the US zeroing methodology used in assessment and review proceedings is
inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement.19

14 Panel Report, US – Zeroing (EC), paras. 7.69 and 8.1 (b).
15 Panel Report, US – Zeroing (EC) , paras. 7.291 and 8.1(g). With respect to administrative reviews,
the European Communities claimed that the Standard Zeroing Procedures "or the US or methodology of
zeroing)" and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(A)(i) of the US Tariff Act of 1930 and
Section 351.414(c)(2) of the USDOC Regulations were "as such" inconsistent with Articles 1, 2.4, 2.4.2, 9.3,
11.1, 11.2 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of GATT 1994; and Article XVI:4
of the WTO Agreement
16 Panel Report, US – Zeroing (EC) , paras. 7.294 and 8.1(h). With respect to these reviews, the
European Communities claimed that the "Standard Zero ing Procedures" "(or the United States practice or
methodology of zeroing)" and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a) (2)(A)(i) and (ii) of the
Tariff Act and Section 351.414(c)(2) of the Regulations were "as such" inconsistent with Articles 1, 2.4, 2.4.2,
9.3, 9.5, 11.1, 11.2, 11.3 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of GATT 1994; and
Article XVI:4 of the WTO Agreement.
17 Panel Report, US – Zeroing (EC), para. 8.4.
18 Panel Report, US – Zeroing (EC), para. 9.1.
19 Panel Report, US – Zeroing (EC), para. 9.62.

2. Appellate Body
(a) "As applied" claims – simple zeroing in administrative reviews
2.18 Following an appeal by the European Communiti es, the Appellate Body reversed the panel's
finding that the United States had not acted inconsistently with Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 with respect to administrative reviews. The Appellate
Body found, instead, that the United States ha d acted inconsistently with these provisions. 20 T h e
Appellate Body declared the panel's finding on Ar ticle VI:1 of the GATT 1994 "moot, and of no legal
effect".21 The Appellate Body did not find it necessary to rule on whether the US acted inconsistently
with the first sentence of Article 2.4 of the Anti-Dumping Agreement ("fair comparison"
requirement"), declared "moot and of no lega l effect" the panel's finding in this respect 22, upheld the
panel's finding that zeroing is not an impermissible al lowance or adjustment (Article 2.4, third to fifth
sentences),23 declined to rule on a conditional appeal of the European Communities under
Article 2.4.2 Anti-Dumping Agreement 24, upheld the panel's finding that the United States had not
acted inconsistently with Articles 11.1 and 11.2 of the Anti-Dumping Agreement 25, and considered
that it was not necessary to rule on whether the zer oing methodology, as applied in the administrative
reviews at issue, was also inconsiste nt with Articles 1 and 18.4 of the Anti-Dumping Agreement and
Article XVI:4 of the WTO Agreement.26
(b) Zeroing "as such" in original investigations
2.19 The Appellate Body upheld the original panel's finding (albeit for reasons different from those
set out by the panel) that the zeroing methodology u sed by the USDOC in original investigations in
which the weighted-average to we ighted-average method is used c ould be challenged, as such, in
WTO dispute settlement and that it was, as such, inconsistent with Article 2.4.2 of the Agreement.27
(c) Zeroing "as such" in administrative reviews
2.20 The European Communities appealed the orig inal panel's findings that the zeroing
methodology used by the United States in administrative reviews is not inconsistent, as such, with
certain provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement. The
Appellate Body declared "moot, and of no legal eff ect", the panel's findings in this respect. The
Appellate Body considered, however, that it could not "complete the analysis", i.e., could not make a
finding as to whether the zeroing methodology, as it relates to administrative reviews, was
inconsistent with these provisions.
28
2.21 The Appellate Body also rejected a conditiona l appeal by the European Communities of the
panel's conclusions or th e panel's exercise of judicial ec onomy regarding the Standard Zeroing

20 Appellate Body Report, (" US – Zeroing (EC) "), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1,
DSR 2006:II, 417, paras. 135 and 263(a)(i).
21 Appellate Body Report, US – Zeroing (EC), paras. 135 and 263(a)(vii).
22 Appellate Body Report, US – Zeroing (EC), paras. 147 and 263(a)(vii).
23 Appellate Body Report, US – Zeroing (EC), paras. 159 and 263(a)(iii).
24 Appellate Body Report, US – Zeroing (EC), paras. 164 and 263(a)(iv).
25 Appellate Body Report, US – Zeroing (EC), paras. 169 and 263(a)(v).
26 Appellate Body Report, US – Zeroing (EC), paras. 172 and 263(a)(vi).
27 Appellate Body Report, US – Zeroing (EC) , paras. 222 and 263(b). The Appellate Body also
rejected an appeal from the European Communities concerning the original panel's decision to exercise judicial
economy by not making findings with regard to the EC claims concerning the Anti-Dumping Manual.
Appellate Body Report, US – Zeroing (EC), paras. 227-228 and 263(c).
28 Appellate Body Report, US – Zeroing (EC), para. 228.

Procedures (i.e., lines of computer code). The European Communities had requested the Appellate
Body to find that the Procedures were inconsis tent, as such, with the provisions invoked by the
European Communities in its "as such" claims concerning the use of zeroing in administrative
reviews, new shippers reviews, changed circumst ances review, and sunset reviews. The Appellate
Body found that the Procedures were not, per se , a measure that could be challenged and, as a
consequence, that they could not be either WTO-c onsistent or inconsistent. It therefore declared
"moot, and of no legal effect, the panel's findings that the Standard Zeroing Procedures were not
inconsistent, as such, with the provisions of the Anti-Dumping Agreement, the GATT 1994 and the
WTO Agreement invoked by the European Communities.
29
(d) "As such" claims – USDOC Regulations
2.22 The European Communities appeal ed the panel's finding that Section 351.414(c)(2) of the
USDOC Regulations was not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2,
11.3 and 18.4 of the Anti-Dumping Agreement , Articles VI:1 and VI:2 of GATT 1994, and
Article XVI:4 of the WTO Agreement. The Appella te Body declared "moot, and of no legal effect"
the panel's finding that Section 351 .414(c)(2) is not inconsistent w ith these provisions. It refrained
from completing the legal analysis in this respect, i.e., from deciding whether the section of the
USDOC Regulations at issue was indeed inconsistent with the provisions relied upon by the European
Communities.30
(e) Recommendation
2.23 The Appellate Body recommended that the DS B request the United States to bring its
measures, which had been found in its Report, and in the report of the original panel (as modified by
the Appellate Body Report), to be inconsistent with the Anti-Dumping Agreement and with the GATT
1994, into conformity with its obligations under those Agreements.
3. DSB recommendations and rulings
2.24 In summary, the findings of inconsistency which were adopted by the DSB are as follows:
(a) Zeroing, "as applied" in original investigations : The original panel's finding that the
United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement
as a consequence of the USDOC performing "model zeroing" in the 15 original
investigations at issue in the original dispute.
31
(b) Zeroing "as such" in original investigations): The original panel's finding (upheld by
the Appellate Body on a different reas oning) that the US "zeroing methodology"
manifested in the "Standard Zeroing Procedures" (line of computer code) as it relates

29 Appellate Body Report, US – Zeroing (EC), paras. 231-232 and 263(d).
30 Appellate Body Report, US – Zeroing (EC) , paras. 242-243 and 263(g). The Appellate Body also
declined to rule on a conditional appeal of the European Communities regarding the original panel's decision to
exercise judicial economy with respect to what the European Co mmunities referred to as the US "practice" of
zeroing, as such. See Appellate Body Report, US – Zeroing (EC), paras. 233-234 and 263(f). It also rejected an
appeal by the European Communities to the effect that the original panel had erred in exercising judicial
economy with respect to the question of whether admini strative review proceedings based on model zeroing are
inconsistent with Article 9.3 of the Anti-Dumping Agreement and with respect to whether zeroing "as applied" in
the original investigations at issue was inconsistent with Article 2.4 of the Anti-Dumping Agreement . See
Appellate Body Report, US – Zeroing (EC), paras. 250 and 263((h) and (i). Finally, the Appellate Body rejected
claims by the EC that the panel had acted inconsistently with Article 11 DSU. See Appellate Body Report, US –
Zeroing (EC), paras. 262 and 263(j).
31 See supra, para. 2.11.

original investigations, is, as such, in consistent with Article 2.4.2 of the Anti-
Dumping Agreement.32
(c) Zeroing "as applied" administrative reviews : The Appellate Body's finding that the
United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement
and Article VI:2 of the GATT 1994 when it zeroed (simple zeroing) in the
16 administrative reviews at issue in the original dispute.33
2.25 The DSB recommended that the United States br ing its measures, which had been found in
the Appellate Body Report, and in the Panel Repor t as modified by the Appellate Body Report, to be
inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its
obligations under those Agreements.
2.26 Thus, the DSB adopted no findings and made no recommendation with respect to "as such"
claims by the European Communities with respect to administrative reviews or other types of reviews
(including sunset reviews).
III. FACTUAL ASPECTS
A. RELEVANT DEVELOPMENTS CONCERNING THE US MEASURES AT ISSUE IN THE ORIGINAL
DISPUTE
3.1 The following developments with respect to the measures at issue in the original dispute are
relevant to the Panel's examination of the US implementation of the DSB recommendations and
rulings:

32 The Panel further notes that the Appellate Body made it clear that the finding of inconsistency does
not extend to the "Standard Zeroing Procedures" (computer line) in and of themselves since they do not
constitute a measure that can be challenged under WTO dispute settlement.
33 See supra, para. 2.18.

With respect to the original investigations at issue in the original dispute
:34

(a) On 27 December 2006, the United States announced that it would abandon "model
zeroing" in original AD investigations in which the weighted average-to-weighted
average comparison methodology is used. The modification became effective on
22 February 2007 and concerned all pending and future original investigations as of
that date.35
(b) On 1 March 2007, the USDOC initiated pro ceedings pursuant to Section 129 of the
Uruguay Round Agreements Act covering twelve of the fifteen original antidumping
investigations at issue in the original dispute.36 37 The remaining three AD orders had
been previously revoked. 38 In the Section 129 determinations, the USDOC
recalculated, without zeroing, the relevant margins of dumping by applying the
modification of its calculation methodology announced in December 2006. The
USDOC issued its determinations with respect to eleven of the Section 129
determinations on 9 April 2007. These elev en Section 129 determinations became
effective on 23 April 2007.
39 The results in the last Section 129 determination were
issued on 20 August 2007 and became effective on 31 August 2007. 40 As a result of
these recalculations:

34 In this proceeding, the parties and the panel have referred to the 15 "original investigations" and
16 "administrative review" "cases" by reference to th e "case numbers" assigned to them by the European
Communities in its request for the establishment of a panel in the original proceeding (the same "case numbers"
were listed by the European Communities in its request for the establishment of the Article 21.5 panel). Cases 1
to 15 concerned original investigations, i.e. case 1: Certain Hot-Rolled Carb on Steel from the Netherlands;
case 2: Stainless Steel Bar from France; case 3: Stainless Steel Bar from Germany; case 4: Stainless Steel Bar
from Italy; case 5: Stainl ess Steel Bar from the United Kingdom; ca se 6: Stainless Steel Wire Rod from
Sweden; case 7: Stainless Steel Wire Rod from Spain; cas e 8: Stainless Steel Wire Rod from Italy; case 9:
Certain Stainless Steel Plate in Coils from Belgium; case 10: Stainless Steel Sheet and Strip in Coils from
France; case 11: Stainless Steel Sheet and Strip in Coils from Italy; case 12: Stainless Steel Sheet and Strip in
Coils from the United Kingdom; case 13: Certain Cut-to-Length Carbon-Quality Steel Plate from France;
case 14: Certain Cut-to-Length Carbon-Quality Steel Plat e from Italy; case 15: Certain Pasta from Italy.
Cases 16 to 31 concerned administrative reviews in 2004 and 2005, i.e. case 16: Industrial Nitrocellulose from
France; case 17: Industrial Nitrocellulose from the United Kingdom; case 18: Stainless Steel Plate in Coils
from Belgium; case 19: Certain Pasta from Italy; case 20: Certain Pasta fr om Italy; 21: Stainless Steel Sheet
Strip Coils from Italy; case 22: Stainless Steel Sh eet Strip Coils from Italy; case 23: Granular
Polytetrafluorethylene from Italy; case 24: Granular Poly tetrafluorethylene from Italy; case 25: Stainless Steel
Sheet Strip Coils from France; case 26: Stainless Steel Sh eet Strip Coils from France; case 27: Stainless Steel
Sheet Strip Coils from Germany; case 28: Stainless Steel Sheet Strip Coils from Germany; 29: Ball Bearings
from France; case 30: Ball Bearings from Italy; case 31: Ball Bearings from the United Kingdom. See EC
request for the establishment of Article 21.5 panel (WT/DS/294/25, reproduced at Annex A-1).
35 Exhibits EC-1 and EC-4; see also EC Firs t Written Submission, para. 16; US First Written
Submission, para. 17.
36 Exhibit US-9 and US First Written Submission, para. 18.
37 Section 129 of the Uruguay Round Agreements Act establishes the US legal framework for issuing
new determinations to comply with recommendations and rulings of the DSB.
38 Cases 10 (July 2004), 12 (July 2004) and 13 (Feb ruary 2005); see EC First Written Submission,
39 See Exhibits EC-2 (Preliminary Results of Sec tion 129 Determination), EC-5 (Notice of Final
Results of Section 129 Determination), Exhibit EC-7 (Issues and Decision Memo randum), US First Written
Submission, para. 19
40 Exhibits EC-6 (Notice of Section 129 Determination) and EC-8 (Issues and Decision Memorandum)
in case 11, Stainless Steel Sheet and Strip in Coils from Italy.

(i) Two original AD orders were revoked (as a result of the recalculated margins
being zero or de minimis for all involved producers/exporters);41
(ii) Ten original AD orders 42 were partially revoked (revoked with respect to
certain companies for which the USDOC found zero or de minimis margins
in the Section 129 determination) wh ereas for other companies, duties were
either reduced or increased as a result of the recalculation. The recalculated
margins of dumping established in the Section 129 determinations applied (as
the new cash deposit rate) with respect to unliquidated entries (imports)
made on or after 23 April 2007 (31 August 2007 with respect to case 11).43
(c) In addition, the USDOC issued in the ordinary course a number of administrative
review determinations with respect to AD orders concerned in the original
investigations that were at issue in the original dispute. The USDOC continued to
calculate margins of dumping in these administrative reviews by using zeroing
(simple zeroing).
With respect to the administrative reviews at issue in the original dispute:

(d) With respect to the sixteen administrative review determinations at issue in the
original dispute, the United States considered that the cash deposit rates established as
a result of each of those reviews – with the exception of one company – were no
longer in effect because they had been s uperseded by subsequent administrative
reviews: consequently, no further action was taken by the United States in order to
implement the DSB recommendations and rulings in respect of these administrative
review determinations.
44
Sunset review determinations:

(e) Following negative sunset review determin ations by the USITC (no likelihood of
continuation or recurrence of injury), th e USDOC revoked the AD orders in 4 cases,
effective 7 March 2007 (cash deposits on impor ts made on or after that effective date
were to be refunded and the concerned im ports would not be subject to a final
assessment of AD duties).45 Other sunset review determinations adopted with respect
to AD orders concerned in the original inves tigations at issue in the original dispute
or in the same USDOC investigations for which administrative reviews were
challenged in the original dispute resulte d in the continuation of the relevant AD
order.46
B. MEASURES AT ISSUE
3.2 The measures at issue in this dispute are, according to the European Communities, the
following:

41 Cases 1 and 6.
42 Cases 2, 3, 4, 5, 7, 8, 9, 11, 14 and 15.
43 See EC First Written Submission, para. 41.
44 See US First Written Submission, para. 21, and Exhibit US-17 for a list of the administrative review
determinations superseding, in its view, the reviews challenged in the original dispute.
45 Cases 2, 3, 4 and 5. See US First Written Submi ssion, para. 26, and Exhibits US-10, US-11, US-12,
US-13. The revocation was made on 8 February 2008, effective retroactively to 7 March 2007.
46 See EC request for the establishment of Article 21.5 panel (WT/DS/294/25 and Annex A-1).

(a) Certain of the Section 129 de terminations adopted by th e United States to implement
the rulings and recommendations of the DSB.
47
(b) Subsequent administrative reviews, changed circumstances reviews and sunset
reviews adopted in the "cases" at issue in some of the 15 original investigation
determinations and 16 administrative review determinations challenged in the original
dispute (as well as assessment instructions issued by the USDOC to the USCBP).
These reviews have, in the context of this dispute, been referred to as "subsequent
reviews" (as opposed to the administrative re views that were at issue in the original
dispute).48
(c) Liquidation of duties by the USCBP following instructions issued by the USDOC.
(d) Related omissions and deficiencies in the US compliance with the DSB's
recommendations and rulings.
3.3 The United States argues, as part of its request for preliminary rulings, that certain of these
measures – and in particular, each of the "subseque nt reviews" and assessment instructions – do not
fall within the Panel's terms of reference. The Pa nel addresses the US objection in this respect below,
in Section VIII.D.
IV. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. EUROPEAN COMMUNITIES
4.1 The European Communities requests the Panel to make the following findings:
(a) the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping
Agreement when extending the measures contained in the original dispute pursuant to
sunset review proceedings relying on margin of duties calculated with zeroing;
(b) the United States has not complied with the DSB's recommendations in the original
proceeding, since it continues to collect anti-dumping duties and establish new cash
deposit rates based on zeroing with respect to the original investigations and
administrative reviews challenged in the original dispute;
(c) the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994, since it still collects anti-dumping
duties calculated with zeroing with respect to measures challenged in the original
dispute (including the measures listed in the Annex to the Panel Request and any
other subsequent measures);

47 The European Communities makes claims with respect to the Section 129 determinations adopted in
case 2 (Stainless Steel Bar from France), case 3 (Stainle ss Steel Bar from Germany), case 4 (Stainless Steel Bar
from Italy), case 5 (Stainless Steel Bar from the Unite d Kingdom), case 11 (Stainless Steel Sheet Strip in Coils
from Italy).
48 The reviews are listed by the European Communities in the Annex to its Article 21.5 request for the
establishment of a panel. For ease of reference, the pa rties and the Panel have referred to the "case" number of
the dispute (case number of the original investigation/administrative review in accordance with the list in the EC
Annexes to its panel request in the original dispute and its Article 21.5 panel request). See the Annex to the EC
Article 21.5 panel request, WT/DS294/25, reproduced at Annex A-1.

(d) the United States has not complied with the DSB's recommendations in the original
proceeding, since it has failed to fully re voke the original investigation orders
contested in the original dispute;
(e) the United States has not complied with the DSB's recommendations in the original
proceeding, since the 16 administrative review investigations covered in the original
dispute have not been superseded ( i.e., the United States still collects duties based on
the dumping margins found in those proceedings with zeroing, and the United States
has also relied on those margins for the dete rmination of likelihood of recurrence of
dumping in sunset review proceedings);
(f) the United States violated Articles 21.3 and 21.3(b) of the DSU, since it did not take
any measure to comply with respect to the "as applied" measures covered in the
original dispute between 9 April and 23 April/31 August 2007;
(g) the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 when making an error in the
calculation of the unit value and then failing to have it removed pursuant to the
Section 129 Determination in case 11;
(h) the United States violated Article 6.8, Annex II and Article 9.4 of the Anti-Dumping
Agreement when using a weighted average of exporters with zero/ de minimis rates
and adverse facts available to calculate the "all others" rates pursuant to the
Section 129 determinations in cases 2, 4 and 5; and
(i) the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping
Agreement and Article VI:1 of the GATT 1994 when failing to reassess the injury in
light of the new volume of non-dumped imports pursuant to the Section 129
Determinations in cases 2, 3, 4 and 5 of the Annex to the Panel Request.
49
4.2 The European Communities also requests the Panel to find that its composition was not
consistent with Articles 21.5 and 8.3 of the DSU.
4.3 Further, the European Communities considers that, since the United States has failed to
comply with its obligations, the original recommenda tions of the DSB remain in effect, and apply to
the full extent of the findings requested above. The European Communities requests the Panel to
confirm the original panel's recommendation, pur suant to Article 19 of the DSU, that the
United States take the steps necessary to bring its measures into conformity with the cited WTO
provisions.
4.4 The European Communities also asks the Panel to make suggestions as to how the United
States should bring its measures in conformity with its obligations. The European Communities asks
the Panel to suggest that, in order to comply with the DSB's recommendations, the United States cease
using zeroing when calculating dumping margins in any anti-dumping proceeding with respect to the
measures challenged in the original dispute and any other subsequent amendments of those.
50

50 The European Communities asks the Panel to take into account the following comment when making
a suggestion as to how the United States should implement the DSB recommendations:
"The European Communities would like to clar ify that it is not requesting retrospective
application of DSB's recommendations and finding in this case. However, the European
Communities asks for prospective implementation of the DSB's recommendations after the
end of the reasonable period. In particular, the European Communities is of the opinion that

B.
UNITED STATES
4.5 The United States requests that the Panel reject the EC claims and find that it has met its
obligations to bring the measures found to be inconsistent with the Anti-Dumping Agreement and the
GATT 1994 into conformity and has, therefore, co mplied with the recommendations and rulings of
the DSB. The United States asks the Panel to d ecline to make the suggestion requested by the
European Communities.
V. ARGUMENTS OF THE PARTIES
5.1 The arguments of the parties are set out in thei r written and oral submissions to the Panel, and
in their answers to questions. The parties' ar guments, based on the summaries submitted by them
pursuant to paragraph 10 of the Panel's working procedures, are set forth in this section. The full non-
confidential text of the submissions of the Eur opean Communities can be downloaded from the EC's
web site.51 The full non-confidential text of the United States submissions can be downloaded from
the web site of the Office of the United States Trade Representative.52
A. US REQUEST FOR PRELIMINARY RULINGS
1. United States
5.2 The United States requests preliminary rulings con cerning the EC's apparent effort to include
certain determinations within the terms of re ference of this proceeding, including certain
administrative reviews and sunset reviews that are not measures taken to comply with the
recommendations and rulings of the DSB in the original proceeding. A number of these measures
also were not identified in the EC's Article 21.5 panel request.
53 The United States observes in this
context that Article 21.5 of the DSU applies when there is a disagreement as to the existence or
consistency with a covered agre ement of a measure taken to comply with recommendations and
rulings of the DSB and that the scope of an Artic le 21.5 compliance panel proceeding is inherently
limited – it may only examine a measure that is take n to comply, and then only if that measure is
specified in the request for the establishment of a panel.54
5.3 The only measures that were the subject of th e DSB recommendations and rulings were the
investigations and administrative reviews listed in th e annexes to the EC's original panel request. The
EC pursued a challenge against zeroing in administrati ve reviews "as such" but did not prevail. Upon

the United States should stop taking any positive acts providing for the final payment of duties
or retention of cash deposits based on zeroi ng with respect to those entries not finally
liquidated before the end of the reasonable period. In other words, the United States (i) should
not send new assessment instructions based on zeroing with respect to the measures covered
by this dispute; (ii) should not establish new cash deposit rates based on zeroing in those
cases; and (iii) should terminat e all proceedings seeking to collect duties based on zeroing
after the end of the reasonable period in cases wh ere there is no final liquidation. Finally, the
United States should reverse any positive acts ta ken after the end of the reasonable period
which sought the collection of anti-dumping duties or the establishment of new cash deposit
rates based on zeroing with respect to the measures successfully challenged in the original
dispute."
51 See http://trade.ec.europa.eu/wtodispute/search.cfm?code=1.
52See
http://www.ustr.gov/Trade_Agreements/Monitoring_Enforcement/Dispute_Settlement/WTO/Dispute_
Settlement_Index_-_Pending.html.
53 Executive Summary of the First Written Submissi on of the United States (hereinafter "US First
54 US First Written Submission, Executive Summary, para. 4.

reviewing the EC's first submission, the United St ates notes that the EC appears to seek to include
within the terms of reference determinations that are not properly within the terms of reference for
two reasons: first, because they were not identifie d in the EC's Article 21.5 panel request, as required
by Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU"), and second, because those determinations were not subject to the recommendations and
rulings of the DSB, nor are they measures taken to comply.55
5.4 Article 6.2 of the DSU provides that a panel re quest shall "identify the specific measures at
issue." The United States submits that the key passage in the EC's Article 21.5 request is paragraph 7.
This paragraph plainly states that the measures at issue are the investigations and administrative
review determinations from the original proceeding. In its submission, however, the EC appears to
take a different approach. The EC seeks to transfor m the "reviews" referenced in its panel request as
separate and distinct from the "measures at issue" in to "measures" within the terms of reference.
Under Article 6.2, however, the EC was obliged, in its panel request , to "identify the specific
measures at issue." The only measures identified as "measures in question" were the investigations
and administrative reviews from the original proceedi ng. Therefore, any "measures" other than those
reviews are not "measures" subject to findings in this proceeding.56
5.5 For the foregoing reasons, the United States request s that the Panel reject the EC's attempt to
use its first submission to expand the terms of re ference beyond the specific measures identified in its
panel request, i.e., the 16 administrative reviews in the original proceeding.57 The EC's attempt to use
its submission to expand the measures within the terms of reference of this proceeding is flawed for a
second reason. The scope of an Article 21.5 proceed ing is limited to the issue of the existence or
consistency of measures taken to comply. 58 Pursuant to Article 6.2 of the DSU, in its request for the
establishment of a panel in the original pr oceeding, the EC was required to "identify the specific
measures at issue " (emphasis added). That identification in turn informs the question of what is a
"measure taken to comply."59 The United States argues that there must be an express link between the
alleged measures taken to comply and the DSB's recommendations and rulings. Accordingly, in
assessing whether a challenged measure is a measure taken to comply, the Panel must first look to the
DSB's recommendations and rulings. Nonetheless, not every measure that has some connection with,
or that could have some impact upon a measure taken to comply may be scrutinized in an Article 21.5
proceeding. Rather, such measures falling within the competence of an Article 21.5 panel are those
"taken in the direction of , or for the purpose of achieving compliance [with the DSB's
recommendations and rulings]."
60 The United States argues that here, however, the EC seeks to
expand the terms of reference beyond the inquiry into the existence or consistency of measures taken
to comply. Precisely what the EC seeks to include is something of a moving target.61
5.6 The United States recalls that the EC challenged 16 administrative reviews, and the Appellate
Body concluded that those reviews were inconsiste nt with the Antidumping Agreement. Thus, those
16 reviews were the subject of the DSB recommendations and rulings. None of the other "measures"
the EC seeks to include in these pr oceedings – such as subsequent reviews or assessment instructions
– was the basis for a DSB recommendation or ruling.62

55 US First Written Submission, Executive Summary, para. 6.
56 US First Written Submission, Executive Summary, para. 7.
57 US First Written Submission, Executive Summary, para. 8.
58 US First Written Submission, Executive Summary, para. 9.
59 US First Written Submission, Executive Summary, para. 10.
60 US First Written Submission, Executive Summary, para. 11.
61 US First Written Submission, Executive Summary, para. 12.
62 US First Written Submission, Executive Summary, para. 13.

5.7 The United States notes at the outset that proceedings under Article 21.5 address
disagreements "as to the existence or consistenc y with a covered agreement of measures taken to
comply with the recommendations and rulings [of the DSB]."
63 A complaining Member may not use
a compliance proceeding to challenge measures that it could have challenged in the original panel
proceeding but did not. Nor may a complaining Member use Article 21.5 to challenge measures that
are not measures taken to comply. This is because Members only agreed to the truncated, expedited
procedures under Article 21.5 in the specific case i nvolving a measure taken to comply, and did not
agree to have these different dispute settlement proc edures used in the case of measures not taken to
comply.64 The United States observes in this contex t that to identify the proper scope of any
Article 21.5 proceeding, the appropriate starting point is the DSB's recommendations and rulings.65 A
panel composed under Article 21.5, therefore, begi ns with the recommendations and rulings of the
DSB, and examines measures that a Member ha s taken pursuant to those recommendations and
rulings to determine if that Member is in compliance. 66 In the US view, however, the EC attempts to
expand the scope of these proceedings by incorporat ing claims regarding measures entirely distinct
from those measures it originally challenged in its "as applied" claims and which were not measures
taken to comply.67
5.8 The United States recalls that in the original pr oceeding, the EC prevailed with respect to its
"as applied" claims involving 15 investigations and 16 administrative reviews. The EC did not
prevail with respect to its "as such" claims. 68 According to the DSB recommendations and rulings in
this dispute, 15 determinations by the US De partment of Commerce ("Commerce") in antidumping
investigations were found inconsis tent with a covered agreement. The recommendations and rulings
also include "as applied" findings of a breach with respect to 16 Commerce determinations in
administrative reviews. The original panel and the Appellate Body declined to make findings
concerning the EC's "as such" claim against zeroing in administrative reviews. 69 In the US view, it
seems clear, then, that the questions before this compliance panel pertain to US compliance with the
findings concerning those specific investigations and reviews. 70 Thus, the DSB's recommendations
and rulings were limited to "as applied" findings. 71 The United States maintains that it has removed
the border measures in question and that it has th erefore complied with the recommendations and
rulings of the DSB. 72 Therefore, this Panel should reject the EC's claims of non-compliance and its
effort to enlarge the obligations of the United States.73
5.9 The United States next notes that the EC has relied heavily on Softwood Lumber for the
proposition that these "subsequent reviews" have a su fficient "nexus" to the 15 investigations and
16 administrative reviews found to be inconsistent "as applied" in the original proceeding. According

63 US First Written Submission, Executive Summary, para. 1. See also, Executive Summary of the
United States, Opening Statement at th e substantive meeting of the Panel (h ereinafter "US Opening Statement,
Executive Summary"), para. 3. "The pu rpose of an Article 21.5 proceeding, which is to consider the "existence
or consistency with a covered agreement of measures taken to comply with the [DSB's] recommendations and
rulings."
64 US Opening Statement, Executive Summary, para. 3.
65 US Opening Statement, Executive Summary, para. 4.
66 US First Written Submission, Executive Summary, para. 1.
67 US First Written Submission, Executive Summary, para. 2.
68 Executive Summary of the United States Second Written Submission (hereinafter "US Second
69 US Opening Statement, Executive Summary, para. 4.
70 US Second Written Submission, Executive Summary), para. 1.
71 US Opening Statement, Executive Summary, para. 4.
72 US Second Written Submission, Executive Summ ary, para. 1., See also US First Written
Submission, Executive Summary para 3: "The United States has implemented the DSB's recommendations and
rulings, and thus has complied with its obligations under the DSU.
73 US First Written Submission, Executive Summary, para. 3.

to the United States, the EC's reliance is misplaced for factual and legal reasons. 74 First, the
United States maintains that the assessment reviews covered distinct sales during distinct periods of
time and could address different companies. As an illustration, the United States calls the Panel's
attention to the cases concerning pasta from Italy. In the investigation, Commerce examined the sales
of seven different Italian pasta companies. In the assessment revi ew for the 2001-02 period,
Commerce examined a total of ten companies, nine of which had not been examined in the original
investigation. Similarly, in the assessment revi ew for the 2002-03 period, Commerce reviewed eight
companies, none of which was examined in the original investigation.
75
5.10 Furthermore, the United States notes that the le gal and factual distinc tions between the two
types of proceedings with respect to the issue of zeroing are more relevant here than was the case in
Softwood Lumber. There, the issue was the pass-through of subsidies – and the legal basis for the
panel's consideration did not differ as between the i nvestigation and the administrative review. With
respect to the issue of zeroing, however, that is not the case. Even the EC implicitly recognized this
by referring to "model zeroing" in investigations a nd "simple zeroing" in reviews. This distinction
flows through to the legal bases for the findings agai nst zeroing – which rely significantly on the text
of Article 2.4.2 and, in particular, the phrase "all comparable export transactions" in the context of
investigations. In the context of reviews, however, that textual basis is absent and the Appellate Body
has, instead, relied on the term "product" and the non -textual phrase "product as a whole" to find that
a margin of dumping cannot be calculated in a proceeding using zeroing. Given the distinctions in the
factual and legal basis for the findings on inves tigations as compared to reviews, it would be
inappropriate to find that there is a sufficiently close nexus to address the subsequent reviews in an
Article 21.5 proceeding.76
5.11 Moreover, as the United States noted, to conclude that one administrative review always has a
nexus to the previous administrative review would run counter to the Appellate Body's admonition in
Softwood Lumber that administrative reviews are not per se measures taken to comply. One
administrative review routinely succeeds another. To conclude on that basis that subsequent reviews
are measures taken to comply would undermine the Appellate Body's express limitation of its findings
in this dispute to the measures "as applied." It woul d also contradict the Appellate Body's view that
Article 21.5 proceedings "logically must be narrower" than the original proceedings. 77 Were the EC
to prevail on its claims in this regard, the scope of these proceedings that the matter covered would be
nearly 3 times greater than those covered by the original proceedings.78
5.12 The United States reiterates that Commerce has revoked the antidumping duty orders relating
to three of the administrative reviews in their entirety. Moreover, with respect to another antidumping
duty order, Commerce has now excluded two of the co mpanies that were the subject of the EC's "as
applied" challenge from that antidumping duty order. 79 Notwithstanding these revocations, and the
fact that the EC accepts that relief is prospec tive only, the EC nevertheless contends that the
United States has failed to bring its measures into compliance.80
5.13 The United States observes that the EC advances an argument that the United States has failed
to bring its measures into compliance by challenging an additional 54 determinations, identified in the
annex to its Article 21.5 panel request ("the EC's annex"), and made subsequent to the

74 Executive Summary of the United States Closing St atement at the substantiv e meeting of the Panel
(hereinafter "US Closing Statement, Executive Summary"), para. 6.
75 US Closing Statement, Executive Summary, para. 7.
76 US Closing Statement, Executive Summary, para. 8.
77 US Closing Statement, Executive Summary, citing US – Softwood Lumber (CVD) (21.5), para. 72.
78 US Closing Statement, Executive Summary, para. 9.
79 US Opening Statement, Executive Summary, para. 8.
80 US Opening Statement, Executive Summary, para. 9.

31 determinations it originally cha llenged in its "as applied" clai ms, asserting that these subsequent
determinations were part of the original dispute, are measures taken to comply, or somehow constitute
"omissions."
81
5.14 The United States asserts that there are several facts that expose the hollowness of the EC's
argument concerning the additional 54 determinations, and, highlight the main reasons why these
determinations are not within th is Panel's terms of reference. 82 As an initial matter, the United States
notes that in its written submissions, it has shown that the EC did not identify these "subsequent
reviews" as measures in its Artic le 21.5 panel request. Therefore, they are not within the Panel's
terms of reference.83 Moreover, contrary to the EC's assertions, these subsequent determinations were
not part of the original dispute because they were not identified in the EC's original panel request.
The United States submits that neither the original panel nor the Appellate Body made any findings
with respect to these determinations, noting that some of these determinations did not even exist when
the EC made its original panel request.84
5.15 In addition, the United States argues that th ese determinations cannot be considered
"amendments" to the 31 determinations originally ch allenged. In this connection, the United States
clarifies that Commerce amends its determinations to correct a ministerial error, or as a result of
litigation. The EC understood this, and specifically identified in its original panel request those
determinations that had been amende d. In this context, the term "amendments" specifically refers to
those corrected Commerce determinations. The United States argues that the term "amendments"
does not refer to the 54 additional de terminations identified in the EC 's annex, which cover distinct
periods of time and, in some cases, distinct compan ies and which, therefore, are separate and distinct
from the 31 determinations originally challenged by the EC.85
5.16 Turning to the issue of whet her these additional determinations are "measures taken to
comply," the United States observes that the EC relies on Softwood Lumber to support its argument.
However, the United States considers that it is impo rtant to note that in that dispute, the Appellate
Body cautioned that "not . . . every assessment re view will necessarily fall within the jurisdiction of
an Article 21.5 panel." Indeed, "[a]s a whole, Article 21 deals with events subsequent to the DSB's
adoption of recommendations and rulings in a particular dispute." And the Softwood Lumber dispute
indeed involved a determination that was made after the DSB had adopted its recommendations and
rulings and that was published very close in time to the measure that both parties agreed was a
measure taken to comply. In that dispute, the Appellate Body first cautioned that there was no finding
that an administrative review is per se a "measure taken to comply," but rather the analysis was more
nuanced. Furthermore, in concluding that an aspect of an administrative review did come within the
terms of reference of an Article 21.5 proceeding, the Appellate Body found significant both this fact
of timing as well as the fact that the responding Member acknowledged that the determination at issue
was made "'in view of' the recommendations and rulings of the DSB."
 86
5.17 The United States argues that even if it accepts the principle that determinations made "in
view of" recommendations and rulings can be brought within the terms of reference of an Article 21.5
proceeding, it cannot be said in this dispute that the 54 additional determinations were made "in view
of" the DSB's recommendations and rulings. Of the 54 additional determinations, 16 are
determinations in sunset reviews. On this point, th e United States contends that the EC's original "as
applied" claims did not include any challenges to de terminations in sunset reviews. Consequently,

81 US Opening Statement, Executive Summary, para. 9.
82 US Opening Statement, Executive Summary, para. 10.
83 US Opening Statement, Executive Summary, para. 11.
84 US Opening Statement, Executive Summary, para. 12.
85 US Opening Statement, Executive Summary, para. 13.
86 US Opening Statement, Executive Summary, para. 14.

neither the original panel, nor the Appellate Body, made any findings in this dispute, whether "as
such" or "as applied," with respect to sunset reviews. These sunset reviews are, therefore, not part of
the terms of reference.87
5.18 Moreover, the United States submits that in 11 of the sunset reviews, Commerce issued its
determination regarding the likelihood of a continuation or recurrence of dumping before the DSB
had even adopted its recommendations and rulings in this dispute. The United States notes that four
resulted in the revocation of the antidumping or ders. In the one remaining sunset review
determination, the interested parties did not rai se, and Commerce made no mention of, the issue of
non-dumped sales. Thus, this determination coul d not have been made "in view of" the DSB's
recommendations and rulings.88 Two of the additional determinations identified by the EC were made
in changed circumstances reviews. The United States submits that Commerce made both of these
determinations before the adoption of the DS B's recommendations and rulings. Moreover, both
determinations addressed whether one company w as the successor in interest of a second company,
and was therefore entitled to the cash deposit rate already established for that second company.
Commerce did not recalculate any margins of dumpi ng in these two changed circumstances reviews.
Neither of these determinations, therefore, can be said to have been made "in view of" the DSB's
recommendations and rulings, which concerne d Commerce's treatment of non-dumped sales. 89 The
United States further notes that the remaining 36 de terminations were made in administrative reviews
and that Commerce made determinations in 26 of these reviews before the DSB adopted its
recommendations and rulings. 90 Of the remaining 10 determin ations, 4 gave no indication that
Commerce's treatment of non-dumped sales was an issu e in the review. Another 4 were made before
the end of the reasonable period of time. The United States clarifies that in those determinations,
Commerce made clear that the determinations were not being issued in view of the recommendations
and rulings. Thus, the factual predicate in Softwood Lumber – the Appellate Body's conclusion that
the United States acknowledged that the administ rative review was conducted "in view of" the
recommendations and rulings – does not exist here.91
5.19 The United States explains that in one of the two remaining determinations, the 2005-2006
administrative review of Stainless Steel Bar from the United Kingdom, no party specifically raised the
issue of non-dumped sales. However, one party raised the issue of the recalculation of the "all others"
rate from the Section 129 determination. In respon se, Commerce stated that the recalculation of the
all others rate from the Section 129 determin ation was not challengeable in the 2005-2006
administrative review. Commerce further noted that because the new all others rate did not take effect
until 23 April 2007, any imports covered by this review that were subject to an all others rate were
subject to the all others rate in existence before the recalculation. Thus, again, this determination was
not made "in view of" the DSB's recommendations and rulings.92
5.20 In respect of the only one outstanding the determination in the 2004-2005 administrative
review of Hot-Rolled Steel from the Netherlands, th e United States observes as an initial matter, that
the EC's original "as applied" challenge covered only Commerce's determination in the investigation
of Hot-Rolled Steel from the Netherlands, and not any determinations from subsequent administrative
reviews of the order. Commerce complied with the DSB's recommendations and rulings in the
Section 129 determination covering this investigation when it granted offsets for non-dumped sales in
the recalculation of the margin of dumping. Ind eed, that Section 129 determination resulted in the
revocation of the antidumping order on Hot-Rolled Steel from the Netherlands with respect to all

87 US Opening Statement, Executive Summary, para. 15.
88 US Opening Statement, Executive Summary, para. 16.
89 US Opening Statement, Executive Summary, para. 17.
90 US Opening Statement, Executive Summary, para. 18.
91 US Opening Statement, Executive Summary, para. 19.
92 US Opening Statement, Executive Summary, para. 20.

imports on or after the date of revocation. The Un ited States argues, therefore, that it had no further
obligation with respect to the Appellate Body's specific "as applied" finding, which was made only
with respect to that investigation determination.
93 Moreover, in the US view, Commerce's
determination in the 2004-2005 review cannot be sai d to have been made "in view of" the DSB's
recommendations and rulings. In addressing the i ssue of non-dumped sales, Commerce stated, "With
respect to the specific administra tive reviews at issue in [the US – Zeroing (EC) ] dispute, the
United States has determined that each of those reviews has been superseded by a subsequent
administrative review and the challenged reviews are no longer in effect." Thus, Commerce clearly
stated its position that the DSB's recommendations and rulings did not require Commerce to take any
action with respect to the treatment of non- dumped sales in this particular review. 94 In summary, the
United States maintains that the EC has failed to s how that any of these 54 subsequent determinations
have the required timing and connection with th e DSB's recommendations and rulings to qualify as
"measures taken to comply." All of these additi onal determinations are outside of the terms of
reference of this Panel.95
5.21 Finally, the United States asserts that the EC's argument that these additional determinations
constitute "omissions" which can be reviewed by th is Panel is contradictory, because the EC is
arguing simultaneously that the measures taken to co mply both exist and do not exist at the same
time.96
5.22 The United States has raised serious concerns about the EC's Article 21.5 panel request.
Noting that the EC dismisses its due process concerns as merely "formal," the United States finds that
a disturbing position to take. The provisions in the DSU were specifically negotiated and agreed
upon, and they cannot be casually dismissed wh enever adherence to those provisions proves
inconvenient.
97 In addition, the EC's view on the mutable nature of "words" goes far to explain what
the United States has found to be an ever-shifting sc ope of challenged measures, both in the original
proceeding and here. For example, the United Stat es understood from the EC's panel request that it
was not challenging the subsequent reviews themselves, but rather was presenting them as evidence of
the undermining of US measures taken to comply (t hat is, the EC was attempting to assert that these
subsequent reviews resulted in the "non-existence" of measures taken to comply in the language of
Article 21.5) in respect of the 15 investigations and 16 administrative reviews that were the subject of
the DSB recommendations and rulings in the original proceeding. The United States did not consider
that the subsequent reviews themselves would be transformed into "measures taken to comply," or
measures that were part of the DSB recommendati ons and rulings, which is how the EC began to
describe them in its first written submission. In th e original panel request, the EC identified certain
reviews "as amended." In its submissions in the original proceeding, the EC then referred to "any
amendments," a term not found in the panel request except to refer to determinations amended under
US law. The EC now seeks to construe the phr ase "any amendments" to mean any subsequent acts
relating to the original challenged measures. That is a far cry from the limited and specific use of the
term "amended" in the original panel request.98
5.23 Similarly, the United States notes that in its panel request in this proceeding, the EC
specifically referred to the "measures in question" as the 15 investigations and 16 administrative
reviews found to be inconsistent "as applied" in th e original proceeding. Now the EC considers that
the scope of the measures in this proceeding is not limited to the measures it identified as measures in
its panel request, but rather extends to any of the reviews listed in the Annexe s to its panel request.

93 US Opening Statement, Executive Summary, para. 21.
94 US Opening Statement, Executive Summary, para. 22.
95 US Opening Statement, Executive Summary, para. 23.
96 US Opening Statement, Executive Summary, para. 24.
97 US Closing Statement, Executive Summary, para. 10.
98 US Closing Statement, Executive Summary, para. 11.

To be sure, a Member is not necessarily obliged to refer to the measures in question as "measures";
but when a Member expressly uses the term "measure" – a term of art referenced in Article 6.2 – to
describe certain determinations, it can be reasonably inferred that not describing other determinations
as "measures" has meaning, and that those determ inations are in fact not measures subject to
challenge in the proceeding. Under Article 6.2 of the DSU, the complaining party bears a clear
obligation to identify, in its panel request, "the specific measures at issue."
99 I n t h a t w a y , t h e
responding Member and potential third parties are provided clear notification of the measures at issue.
It is not for the responding Member to have to guess which measures are at issue, nor should the
responding Member or potential third parties bear th e adverse consequences of what the complaining
party may later decide was an ill-advised word choice.
100 The United States argues that it is evident
that the EC wishes to undo the limited "as applied" findings of the Appellate Body – while accusing
the United States of declining to accept those same findings unconditionally. However, these results
cannot be obtained at the expense of the proce dural requirements set out in the DSU, both in
Article 6.2 and in Article 21. These concerns are not "merely formal" but flow from the results of the
particular negotiation and agreement by WTO Members.101
5.24 The United States also observes that the EC has stated repeatedly in this proceeding that the
"words" don't really matter. The United States finds that this is a somewhat astonishing position to
take in a dispute involving matters of treaty interp retation. The United States is reminded of similar
views taken by Humpty Dumpty in Through the Looking Glass. "When I use a word, it means just
what I choose it to mean." Alice replies, "The question is whether you can make words mean so
many different things." And Humpty Dumpty res ponds: "The question is, which is to be master –
that's all."102 The United States emphasizes that words do in fact matter – Members negotiated and
agreed on specific words in the covered agreements . Complaining parties may not "choose to be
master" by giving words different meanings over the course of a proceeding depending on what will
net the best result. That is precisely why due process matters.103
5.25 In summary, the United States argues that, by attempting to include these additional
54 determinations within the scope of this Article 21. 5 proceeding, the EC seeks to gain the benefit of
an "as such" finding where the Appellate Body expressly declined to make such a finding.104
5.26 The United States notes that in the EC's original panel request, the EC identified
determinations made by Commerce in sixteen ad ministrative reviews, but specifically challenged
particular margins in those determinations. The EC also challenged multiple reviews of the same
product. Thus, in the original proceeding, the EC treated each review as a separate measure and in
fact challenged specific margins within each such measure. More over, while the Appellate Body
found that Commerce's determination of margins of dumping "as applied" in the sixteen
administrative reviews was inconsistent with certain WTO obligations, the Appellate Body denied the
EC's request that it find Commerce's methodol ogy for calculating margins of dumping in
administrative reviews to be "as such" inconsistent with any WTO obligations.
105 This, according to
the United States, is consistent with the fact th at in each administrative review, Commerce examines
different facts, a different time period, and a differe nt set of transactions. Thus, in its initial panel

99 Emphasis added by the United States
100 US Closing Statement, Executive Summary, para. 12.
101 US Closing Statement, Executive Summary, para. 13.
102 US Closing Statement, Executive Summary, para. 14.
103 US Closing Statement, Executive Summary, para. 15.
104 US Opening Statement, Executive Summary, para. 25.
105 US First Written Submission, Executive Summary, para. 14.

request, the EC recognized that a determination from one administrative review is separate and
distinct from a determination made in a subsequent administrative review.
106
5.27 The United States argues that the EC cannot igno re the consequences of this and cannot bring
entirely new and distinct determinations concerni ng different periods of tim e into this compliance
proceeding simply because those determinations invo lved the same subject merchandise. Rather, the
scope of the DSB's "as applied" recommendations and rulings are limited to those specific
determinations that the EC indicated that it was challenging in its original panel request. Anything
else would, in view of the United States, be di rectly contrary to the fact that the DSB's
recommendations and rulings were limited to these 16 administrative reviews "as applied" and
explicitly did not include an "as such" recommendation or ruling. 107 The United States considers that
the EC apparently understood this, as it filed a second challenge to Commerce's calculation
methodology in an entirely separate DSB proceeding. In the US – Zeroing (EC) II panel request, for
example, the EC identifies the determination in the administrative review of Certain Pasta from Italy
covering sales made by PAM from 1 July 2002 thr ough 30 June 2003 as an "as applied" measure.
This very same determination is also identified by th e EC as a review in the annex to its panel request
that is "related to" the "measures in questi on." The EC recognized that these subsequent
determinations are distinct measures and not measures taken to comply with the DSB's
recommendations and rulings in this dispute.108 The United States argues that further undermining the
EC's contention that subsequent reviews are measures taken to comply is the EC's argument that it is,
in fact, challenging the US "omissions" to take the necessary measures to comply. The EC cannot
have it both ways: if the United States failed to comply by "omission," then any corresponding
finding against the United States should be that a measure was not taken to comply, not that
subsequent determinations are not consistent with US obligations.109
5.28 The United States maintains that many of the di stinct administrative review determinations
identified by the EC in its 21.5 panel request cannot be considered measures taken to comply because
they pre-date the adoption of the DSB's recommenda tions and rulings. "As a whole, Article 21 deals
with events subsequent to the DSB's adoption of recommenda tions and rulings in a particular
dispute." Determinations made by a Member prio r to the adoption of a dispute settlement report are
not taken for the purpose of achieving compliance and cannot be within the scope of an Article 21.5
proceeding.110
5.29 The United States understands the EC to argue th at the US implementation obligations with
respect to the "as applied" claims extend to dis tinct determinations which supercede the measures
described in its original panel request. To this end, the EC is attempting to use these Article 21.5
proceedings to obtain the effect of an "as such" fi nding that the Appellate B ody expressly declined to
make.111 The US recalls that the EC made an " as such" claim against Co mmerce's methodology for
calculating margins of dumping in administrative revi ews in its initial panel request. The original
panel rejected this claim. The Appellate Body also declined to find that Commerce's calculation
methodology in administrative reviews was inconsistent with US WTO obligations "as such." Rather,
the Appellate Body limited itself to "as app lied" findings concerning the sixteen Commerce
determinations originally challenged by the EC. 112 The United States contends, however, that the EC
would have the United States recalculate the margin s of dumping in any subsequent determination
which happened to involve the same products that were the subject of the measures challenged in the

106 US First Written Submission, Executive Summary, para. 15.
107 US First Written Submission, Executive Summary, para. 16.
108 US First Written Submission, Executive Summary, para. 17.
109 US First Written Submission, Executive Summary, para. 18.
110 US First Written Submission, Executive Summary, para. 19.
111 US First Written Submission, Executive Summary, para. 20.
112 US First Written Submission, Executive Summary, para. 21.

initial panel request. That is, the EC seeks the bene fit of an "as such" finding, when neither the
original panel nor the Appellate Body made one in this dispute. In light of the above, the
United States maintains that the panel should reject the EC's efforts.113
5.30 In its Second Written Submission, the United States notes that the EC's response to its request
for a preliminary ruling only reinforces the defici encies in the panel request. The United States
considers it is telling that the EC felt the need to include an entire section defending its view on the
scope of a proceeding that it initiated – before the United States had even filed its first submission.
Typically a complaining Party understands, and does not doubt, that its s ubmission is consistent with
the terms of reference in its panel request and ther efore feels no need to make anticipatory assertions
in that regard.114
5.31 The United States notes the EC's contention that the "subsequent determinations" identified in
the Annex to its panel request in this proceeding were part of the terms of reference of the original
proceeding, that they are measures taken to comply, and that they are "omissions". For instance, not
only is the EC arguing that these determinations ar e measures from the original proceeding as well as
measures taken to comply, but the EC also argues that measures taken to comply both exist and do not
exist, at the same time. These propositions are, of course, mutually contradictory, in view of the
United States.115 While the United States understands why the EC has great difficulty in finding a
legal theory to justify why this Panel should consider those determinations to fall within its terms of
reference, and why the EC would th erefore write a series of contradictory arguments in the hopes that
one of them might find favour, the United States regrets that – by the rebuttal submission – the
complaining party in this matter has been unable to simplify matters for the Panel.
116
5.32 The United States also regrets that the EC would resort to characterizing the US arguments in
connection with the preliminary ruling request as "s o patently absurd as to barely require further
comment." Having articulated that view, the EC nevertheless goes on to present two pages of
commentary that does not address the basic question.
117 The crux of the matter, according to the
United States, is simple: why would the EC elect to refer in its panel request to the determinations in
the 15 investigations and 16 administrative reviews as "measures" – a term with a particular meaning
in the context of Article 6.2 of the DSU – but to all other determinations referenced in that request as
"reviews"? The EC's own jurisdictional plea in its first submission exposes the EC's awareness that
the panel request would be read just that way, and thus the EC took great pains to argue, or overargue,
that the panel request should be read more broadly.118
5.33 The United States is not ignoring or deliberately misconstruing the express terms of
paragraph 7 of the panel request. According to th e United States, the EC acknowledges that the panel
request refers to "reviews related to the measures in question" but th e EC appears to assume that the
words "related to" transform the "reviews" into "me asures" included within the terms of reference for
purposes of its panel request. The United States contends, however, that nowhere does the panel
request state that those reviews ar e in fact the measures in question. 119 Noting that the EC continues
to argue that its reference to "omissions" brings the reviews in the Annex within the terms of
reference, the United States maintains that an omis sion is a failure to act, not an action; the reviews

113 US First Written Submission, Executive Summary, para. 22.
114 US Second Written Submission, Executive Summary, para. 5.
115 US Second Written Submission, Executive Summary, para. 6.
116 US Second Written Submission, Executive Summary, para. 7.
117 US Second Written Submission, Executive Summary, para. 8.
118 US Second Written Submission, Executive Summary, para. 9.
119 US Second Written Submission, Executive Summary, para. 10.

are "actions"; and the reviews are therefore not omis sions. Thus, a fair reading of the panel request
does not allow subsequent reviews to be read into the word "omission."
120
5.34 Finally, the United States notes that the EC has used a variety of terms to characterize its
views on the measures at issue, i.e., the EC uses "subsequent reviews," "assessment instructions," and
"amendments." The United States considers that that fact that the EC appears to use them somewhat
interchangeably adds to the confusion. 121 The United States understands the EC to argue that, the
subsequent reviews listed in the Annex to its panel request were actually measures from the original
dispute. It appears that the EC relies upon the use of the phrase "amendments" from the original
proceeding as support for this proposition. The EC has failed to establish that these subsequent
reviews are "amendments." The EC has failed to est ablish that the subsequent reviews were part of
the original proceeding.122
5.35 The United States points out that the EC, in its original panel request, directly referenced
amended determinations in the context of US an tidumping law. US law provides a procedure to
correct or remove any faults or errors in a Comme rce antidumping determination. Thus, the reference
to "amendments" has a precise meaning in the context of this dispute. It refers to corrections to the
measures identified in the original proceeding; but it does not refer to subsequent determinations,
which involve different entries, different time periods , and perhaps even different parties. The Annex
to the original dispute itself reflects this fact. In Annex II, the EC lists as separate "cases" multiple
administrative reviews relating to the same order. The EC's own original panel request therefore
confirms that the phrase "amendments" did not refe r to subsequent determinations, and that the
argument that the EC makes in this proceeding is therefore incorrect.123
5.36 Similarly, the United States argues that sunset reviews are not amendments "to the original
measures" either, despite the EC's assertion to th e contrary. The United States maintains that
administrative reviews are distinct proceedings because they involve different time periods and
transactions. Sunset reviews are distinct from inv estigations and administrative reviews because they
determine whether the expiration of an antidumping du ty would be likely to lead to the continuation
or recurrence of dumping and injury. They do not determine antidumping duty liability. 124 Thus,
according to the United States, a determination in a sunset review is not a mere correction or removal
of the faults or errors from an investigation, bu t rather a separate determination for a separate purpose
based on different evidentiary standards. Like many of the other determinations listed in the EC's
annex to its Article 21.5 panel request, these sunset re view determinations did not exist at the time of
the establishment of the original panel.
125
5.37 The United States asserts that a further flaw with the EC's attempt to expand the terms of
reference to include the subseque nt determinations listed in the Annex is that many of these
determinations did not yet exist at the time of the establishment of the original panel. A matter may
only be referred to a panel if "final action has been taken by the administering authorities." Anti-
Dumping Agreement , Article 17.4. Measures that are not yet in existence at the time of panel
establishment are not within a panel's terms of reference under the DSU.
126
5.38 The United States argues that the EC's original "as applied" claims could not be as broad as
the EC now contends because that would mean that the EC's claim encompassed Commerce

120 US Second Written Submission, Executive Summary, para. 11.
121 US Second Written Submission, Executive Summary, para. 12.
122 US Second Written Submission, Executive Summary, para. 13.
123 US Second Written Submission, Executive Summary, para. 14.
124 US Second Written Submission, Executive Summary, para. 15.
125 US Second Written Submission, Executive Summary, para. 16.
126 US Second Written Submission, Executive Summary, para. 17.

determinations and actions that were not in existence at the time of the establishment of the original
panel. The original panel was established at th e March 19, 2004 DSB meeting. Yet most of the
subsequent determinations identified by the EC in its annex to its Article 21.5 panel request were
made after March 19, 2004. 127 The United States further notes that some determinations listed in the
Annex were made prior to the EC's original corrected panel request. Thus, the EC is using the
concept of "subsequent determinations" to include in this proceeding determinations that it could have
included not only in its original panel request, but in its corrected request. This is still a further
expansion of the findings in the original proceeding.128
5.39 The United States also notes the EC's argument that the subsequent determinations listed in its
annex to its Article 21.5 panel request are measures ta ken to comply, and are thus within the scope of
this proceeding. 129 The EC has asserted that these determin ations are "closely connected" to the
original investigations and administrative reviews identified in the original proceeding. Whether a
determination has a connection to the DSB recommendations and rulings is not sufficient to bring that
determination within the scope of an Article 21.5 proceeding. The United States recalls that as the
Appellate Body stated, not every measure that h as "some connection with," "could have an impact
on," or could "possibly undermine" a measure taken to comply may be scrutinized in an Article 21.5
proceeding.130
5.40 In light of the above arguments by the EC, the United States concludes that not only is the EC
seeking to have the Panel transform the as applied findings of the original proceeding to future events,
but it is also trying to go back in time to have the Panel extend these findings to past events.
However, the Panel's terms of reference are clear. They are limited to the determinations in the
15 investigations and 16 administrative reviews, and not to reviews occurring prior to the adoption of
the recommendations and rulings in this dispute.131
5.41 The United States further observes that the EC's argument that it is not only challenging these
subsequent determinations as me asures taken to comply, but th at it is, rather, challenging the
"omissions or deficiencies" of the United States as reflected in these subsequent determinations, only
further demonstrates, that the EC is attempting to ga in the benefits of an "as such" finding, when the
Appellate Body declined to make one.132 That is, the "as applied" findings made by the original panel
and the Appellate Body covered the determina tions made in the 15 investigations and
16 administrative reviews identified by the EC in its original panel request. As demonstrated above,
the "as applied" findings did not cover the subseque nt determinations identified by the EC in the
annex to its Article 21.5 panel request. 133 An "as applied" challenge concerns the "application of a
general rule to a specific set of facts." By contr ast, "an 'as such' claim challenges laws, regulations, or
other instruments of a Member that have general an d prospective application . . .". As demonstrated
in the US First Written Submission, the United St ates has removed the cash deposit rate established
by the challenged determinations , and thus complied with the DSB's recommendations and rulings
concerning the "as applied" claims.134
5.42 The United States lastly reiterates that by co mplaining about the "continued" use of the
allegedly "same methodology" that was the subject of the DSB recommendations and rulings "when
carrying out dumping determinations in the subse quent review proceedings", the EC effectively

127 US Second Written Submission, Executive Summary, para. 18.
128 US Second Written Submission, Executive Summary, para. 19.
129 US Second Written Submission, Executive Summary, para. 20.
130 US Second Written Submission, Executive Summary, para. 21.
131 US Second Written Submission, Executive Summary, para. 22.
132 US Second Written Submission, Executive Summary, para. 23.
133 US Second Written Submission, Executive Summary, para. 24.
134 US Second Written Submission, Executive Summary, para. 25.

complains of the general and prospective applicati on of the so-called "zeroing" methodology and that,
despite the EC's contentions to the contrary, by seeking the application of the DSB's recommendations
and rulings to "subsequent review proceedings," the EC is attempting to gain the benefit of an "as
such" finding, when the Appellate Body declined to make one.
135
2. European Communities
5.43 The European Communities submits that the request for a prelim inary ruling by the
United States is unfounded.136 The EC notes in this regard that the United States 137 requests the Panel
to find that the only measures within the terms of reference of this proceeding are the 15 original
investigations and 16 administrative reviews referenc ed in paragraph 7 of the EC's Panel Request. In
particular, the United States argues that certain admi nistrative and sunset review proceedings listed in
the EC's Panel Request are not properly before this Panel because (1) they were not identified in the
EC's Panel Request, and (2) they were not subject to the DSB's recommendations and findings in the
original dispute and, thus, they are not measures taken to comply.
138
5.44 The European Communities observes that proceedings under Article 21.5 of the DSU relate to
"measures taken to comply with the recommendati ons and rulings" of the DSB. Thus, the phrase
"measures taken to comply" refers to measures wh ich have been, or which should be, adopted by a
Member to bring about compliance with the reco mmendations and rulings of the DSB. In other
words, a complaining Member can challenge either a Member's implementing actions ( i.e., measures
which have been adopted) or their omissions ( i.e., measures which should have been adopted). The
European Communities recalls that an Article 21.5 pr oceeding is not only about the consistency of a
measure taken to comply with the covered agreements , but also about the existence of such a measure
and that this was explicitly conf irmed by the Appellate Body in US – Softwood Lumber IV (21.5) .
Thus, if the recommendations and rulings of the DS B have not been complied with, a measure taken
to comply does not "exist". 139 In this context, the European Communities argues that the
United States has failed to adopt measures necessary to comply with the DSB's recommendations.140
5.45 The European Communities asserts that th e "measures taken to comply with the
recommendations and rulings" for the purposes of Ar ticle 21.5 of the DSU necessarily flow from the
particular "recommendations and rulings" in questio n: in the present case, those adopted by the DSB
in May 2006.141
5.46 The European Communities recalls in this connec tion that the original dispute concerned the
application by the United States of the so-calle d "zeroing methodology" when determining dumping
margins in anti-dumping proceedings, including proceedings resulting in the initial imposition of anti-
dumping measures and proceedings relating to the collection of anti-dumping duties. 142 The EC
observes that the "as applied" measures it challenge d in the original dispute were (i) 15 original
investigations, including "any amendments" and "each of the assessment instructions issued pursuant
to any of the 15 Anti-dumping Duty Orders"; and ( ii) 16 administrative reviews, also including "any
amendments" and "each of the assessment instructio ns issued pursuant to any of the 16 Notices of

135 US Second Written Submission, Executive Summary, para. 26.
136 Executive Summary of the European Communities Second Written Submission (hereinafter "EC
Second Written Submission, Executive Summary"), para. 7.
137 US First Written Submission, paras. 30-54.
138 EC Second Written Submission, Executive Summary, para. 7.
139 Executive Summary of the European Communities First Written Submission (hereinafter "EC First
140 EC First Written Submission, Executive Summary, para. 14.
141 EC First Written Submission, Executive Summary, para. 17.
142 EC First Written Submission, Executive Summary, para. 6.

Final Results".143 In this respect, the European Communiti es argues that all the measures it challenges
are clearly connected to the original Pane l and Appellate Body re ports, as explained in US – Upland
Cotton (21.5). The Annex to the Panel Request descri bes the subsequent measures adopted by the
United States from the original investigations and ad ministrative review investigations identified in
the original dispute. These include (i) administ rative reviews which, in essence, collect the anti-
dumping duties due with respect to a particular pe riod of review and establish new cash deposit rates
amending the ones calculated in the original investiga tions (or administrative reviews); and (ii) sunset
reviews, which prolong the original anti-dumping order and, thus, the duties.144
5.47 The European Communities argues that it has show n in detail in its Rebuttal Submission that
those subsequent reviews were covered by the descr iption of the measures challenged in the original
dispute. In this context the European Commun ities specifically notes that the EC's First Written
Submission in the original dispute described the measures at issue as 15 original investigations,
including any amendments and assessment instructions, and 16 administrative reviews, also including
any amendments and assessment instructions. 145 The European Communities notes that the Panel in
the original dispute correctly captured the desc ription of the measures at issue not only in
paragraph 2.6 of its Report, but also in other sections, including its findings 146, and that the adopted
DSB reports found the 15 original investigations and 16 administrative reviews inconsistent with
Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 , and
recommended the United States to bring its measures into conformity with its obligations. 147 T h e
European Communities also observes that its Notice of Appeal contai ned the same description of the
measures. Accordingly, the Appellate Body ruled on the basis of such a description. In light of the
above, the European Communities maintains that the DBS's recommendations and rulings in the
original dispute comprised the 15 original investiga tions and the 16 administrative reviews, including
any amendments and any assessment instructions. 148 Therefore, according to the EC, the
United States was required to bring those measures, including any amendments and assessment
instructions, into conformity with the mentioned agreements.
149
5.48 The European Communities argu es that according to WTO juri sprudence, a measure that
essentially replaces an earlier measure remains within th e terms of reference of an original panel.
Thus, a 21.5 panel must be in a position to assess whether an annual administrative review
determination (or sunset review) that confirms a nd supersedes the original determination relating to
the same anti-dumping duty and the same methodology ( i.e., zeroing) constitutes a "continuing
violation".150 Therefore, the European Communities cons iders that all matters referred to in its
submission fall within the scope of this proceeding. In particular, the measures mentioned in the
Annex to the Panel Request, in addition to the S ection 129 Determinations explicitly mentioned by
the United States as "measure taken to comply", fall within the scope of this proceeding.151
5.49 The European Communities observes that the Unite d States has hardly raised any substantive
arguments in its First Written Submission; rather, it h as relied on purely formal ones. In this respect,
the European Communities notes its vi ew that the United States misint erprets the EC's claims with
respect to the scope of this proceeding. Any am endments and assessment instructions connected to
the 15 original administrations and 16 administrativ e reviews were covered by the description of the

143 EC First Written Submission, Executive Summary, para. 16.
144 EC First Written Submission, Executive Summary, para. 17.
145 Executive Summary of the European Communities Opening Statement at the substantive meeting of
the Panel (hereinafter "EC Opening Statement, Executive Summary"), para. 2.
146 EC Opening Statement, Executive Summary, para. 2.
147 EC First Written Submission, Executive Summary, para. 18.
148 EC Opening Statement, Executive Summary, para. 2.
149 EC First Written Submission, Executive Summary, para. 18.
150 EC First Written Submission, Executive Summary, para. 20.
151 EC First Written Submission, Executive Summary, para. 14.

measures at issue in the original dispute. Therefor e, the subsequent review proceedings listed in the
Annex to the Panel Request, as well as the US omis sions and deficiencies in its compliance with the
DSB's recommendations and findings, fall within th e scope of this proceeding. Likewise, the
European Communities claims that those subsequent reviews are measures taken to comply with the
DSB's recommendations and findings and, thus, are subject to this proceeding.
152
5.50 The European Communities considers that in its Rebuttal Submission, the United States is
trying to change what the Panel in the original dispute and the Appellate Body found to be the
"measures at issue" in the origin al dispute. The United States cannot reopen now an issue that was
already settled by the Panel (and the Appellate Bo dy) in the original dispute. Moreover, the
description of the measures in the original dispute referred to " any amendments", which indicates the
broad coverage of the measures at issue. 153 The European Communities th erefore maintains that, as
subsequent reviews were covered by the DSB's recommendations and rulings, the United States
should have stopped using zeroing with respect to those measures, at least, after the end of the
reasonable period of time ( i.e., 9 April 2007). Since the United States has failed to do so, the
European Communities challenges in this proceeding the US omissions and deficiencies when
complying with the DSB's recommendations and rulings.154
5.51 The European Communities argues in the alternative that, should the Panel consider that the
subsequent reviews were not included in the desc ription of the measures in the original dispute
(although the European Communities finds it impossi ble to envisage any basis on which the Panel
could reach such a conclusion), the European Comm unities also argues that they equally fall within
the terms of reference of this Panel because they are "measures taken to comply". Even if the
subsequent review proceedings we re to be considered as separate determinations or different
measures from those covered by the DSB's recommenda tions and rulings in the original dispute, the
European Communities is of the view that they can be regarded as "measures taken to comply"
because of their close nexus with the 15 original investigations and the 16 administrative reviews in
the original dispute. The particular facts of this case show that the nature of the subsequent reviews
is, in essence , the same as the measures in the original dispute. Moreover, the violation originally
challenged (i.e., the use of zeroing when calculating dumping margins) still remains in the subsequent
review proceedings, either by a pplying simple zeroing when calculating the duties to be collected or
establishing new deposit rates, or by relying on dumpi ng margins previously calculated with zeroing.
Furthermore, the subsequent review proceedings relate to the same products, the same countries and
the same exporting companies. In other words, according to the EC, they are a continuation of the 15
original investigations and the 16 administra tive reviews in the original dispute, whose effects based
on zeroing still remain in place after the end of the reasonable period of time. Finally, as the
Appellate Body observed in US – Softwood Lumber IV (21.5) , the European Communities considers
that measures predating the adoption of the DSB's recommendati ons and rulings may also be covered
by Article 21.5 DSU proceedings. Otherwise, Members could adopt new measures diametrically
against compliance in a particular case just th e day before the adoption of the DSB report. 155 In light
of this close nexus, the European Communities submits that th e subsequent review proceedings listed
in the Annex to the Panel Request can also be considered as "measures taken to comply" falling
within the scope of this proceeding.156
5.52 The EC maintains that, despite the US efforts to argue otherwise, the measures at issue in the
original dispute were the 15 original investigations and the 16 administrative reviews, including any
amendments and their assessment instructions. Since the subsequent reviews proceedings listed in the

152 EC Second Written Submission, Executive Summary, para. 1.
153 EC Opening Statement, Executive Summary, para. 3.
154 EC Opening Statement, Executive Summary, para. 4.
155 EC Opening Statement, Executive Summary, para. 5.
156 EC Opening Statement, Executive Summary, para. 6.

Annex to the Panel Request are amendments to the original measures, they fall within the scope of
this proceeding. Furthermore, an examination of those subsequent review proceedings and the acts
(and omissions) taken by the United States after the end of the reasonable period of time, shows that
the United States (i) has continued collecting duti es and establishing cash deposits based on zeroing,
and (ii) has relied on dumping margins equally b ased on zeroing to extend the original measures
pursuant to sunset review proceedings. Therefore, the US omissions and deficiencies in this case fully
confirm the jurisdiction of this Panel to examine this matter.
157 Alternatively, the European
Communities argues that it has shown that the subs equent reviews listed in the Annex to the Panel
Request are "measures taken to comply", since they have a close nexus with the DSB's
recommendations and rulings in the original dispute. Indeed, the subsequent reviews relate to the
same products , the same countries and the same exporters and, thus, are a continuation of the 15
original investigations and 16 administrative reviews in the original dispute. No matter which legal
theory the Panel chooses to follow, it is eviden t that the United States cannot escape from a ruling on
the substance of this case: once again, the meaning of immediate compliance with the DSB's
recommendations and rulings.158
5.53 The European Communities emphasi ses that through this compliance proceeding it is merely
seeking to have the "as applied" findings adopte d by the DSB in the original dispute fully
implemented by the United States, concluding that regardless of the characterisation of the findings
made by the Panel and the Appellate Body in th e original dispute, the DSB's recommendations and
rulings clearly stated that the zeroing methodology applied by the United States in the 15 original
investigations and the 16 administrative reviews wa s inconsistent with Artic le 2.4.2 and 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Consequently, in the EC view, when
applying the same zeroing methodology in the subse quent reviews listed in the Annex to the Panel
Request, the United States failed to comply with the DSB's recommendation to bring the measures
into conformity with its obligations.159
5.54 The European Communities argues that all matters referred to this Panel fall within the scope
of this proceeding.160 The European Communities asserts that the Panel Request clearly identifies the
measures at issue. It disputes the US argument that the European Communities has not complied with
Article 6.2 of the DSU since it has failed to identify the sp ecific measures at issue in its Panel
Request. The European Communities argues that th e US submission is entirely without merit.
According to the European Co mmunities, the United States simply ignores or deliberately
misconstrues the express terms of paragraph 7 of th e Panel Request, which refers to "the reviews
related to the measures in question", and which e xpressly cross-refers to the Annex to the Panel
Request, which lists the measures that the Europ ean Communities does place before this compliance
Panel.161
5.55 Moreover, the European Communities submits th at it has adequately identified the measures
at issue in this dispute in its Panel Request. As the Appellate Body observed in US – FSC (21.5 II), in
order to identify the "specific me asures at issue" in an Article 21. 5 proceeding, the complaining party
must (i) cite the recommendations and rulings that the DSB made in the original dispute which,
according to the complaining party, have not yet been complied with; and (ii) identify, with sufficient
detail, the measures allegedly taken to comply with those recommendations and rulings, as well as

157 Executive Summary of the European Communities, Closing Statement at the substantive meeting of
the Panel (hereinafter "EC Closing Statement, Executive Summary") para. 3.
158 EC Closing Statement, Executive Summary, para. 4.
159 EC Opening Statement, Executive Summary, para. 7.
160 EC Second Written Submission, Executive Summary, para. 7.
161 EC Second Written Submission, Executive Summary, para. 8.

any omissions or deficiencies therein, or state that no such measures have been taken by the
implementing Member. The EC's Panel Request fully meets these requirements.
162
5.56 The European Communities contends that the measures listed in the Annex to the Panel
Request fall within the scope of this proceeding. It rejects the US argument that the "subsequent
reviews" listed in the Annex to the Panel Request (i ncluding administrative review and sunset review
proceedings) were not covered by the original dis pute and, thus, are not "measures taken to comply"
subject to this proceeding. In this respect, the European Communities submits that the United States
tries to narrow the scope of the Article 21.5 pro ceedings and seeks to exclude measures that were
subject to the DSB's recommendations and findings in the original dispute and/or are measures taken
to comply within the jurisdiction of this compliance Panel. 163 The European Communities submits
that the omissions by the United States are also c overed by the Article 21.5 proceeding, and the Panel
is called upon to examine the "existence" (or inex istence) of measures taken to comply by the
United States, in particular, by examining the sub sequent review proceedings listed in the Annex to
the Panel Request.164
5.57 The European Communities argues that the "subseq uent reviews" listed in the Annex to the
Panel Request are measures which were covered by the DSB's recommendations and findings in the
original dispute and/or are measures taken to comply . In this regard it notes that the United States
argues that the subsequent reviews and their assess ment instructions that the European Communities
contests in this proceeding were not the basis for the DSB's recommendations and ruling in the
original dispute. According to the United Stat es, the European Communities merely obtained DSB's
recommendations and rulings with respect to th e USDOC's determinations in the 15 original
investigations and the 16 administrative reviews. The United States also main tains that the European
Communities cannot bring new dumping determinations concerning different periods of time into this
proceeding simply because those determinations involved the same product. Finally, the
United States argues that many of the subsequent re view proceedings listed in the Annex to the Panel
Request pre-date the adoption of the DSB reports and, thus, cannot be within the scope of an
Article 21.5 proceeding.165
5.58 The European Communities considers that the United States misunderstands the EC's claim
on this point. The European Communities is not only arguing that subsequent reviews and assessment
instructions are "measures taken to comply" and, thus, that they fall within the scope of this
proceeding. Nor is the Europ ean Communities simply arguing that it can challenge new dumping
determinations because they relate to the same product. Rather, the European Communities also
argues that subsequent reviews and assessment in structions with respect to the 15 original
investigations and 16 administrative reviews challenge d in the original dispute were covered by the
DSB's recommendations and findings, and thus that US omissions or deficiencies in that respect – as
reflected in the said reviews – also clearly fall within the jurisdiction of this compliance Panel.
166
5.59 The European Communities observes that its Fi rst Written Submission, the Panel Report, the
EC's Notice of Appeal and the Appellate Body Report refer to "any amendments" and "assessment
instructions" when describing the original investig ations and administrative reviews at issue in the
original dispute. Thus, the European Communities submits that the "subsequent reviews" listed in the
Annex to the Panel Request (as well as any assessment instruction therein) are covered by the DSB's
recommendations and finding and, thus, fa ll within the scope of this proceeding. 167 In particular, the

162 EC Second Written Submission, Executive Summary, para. 9.
163 EC Second Written Submission, Executive Summary, para. 10.
164 EC Second Written Submission, Executive Summary, para. 11.
165 EC Second Written Submission, Executive Summary, para. 12.
166 EC Second Written Submission, Executive Summary, para. 13.
167 EC Second Written Submission, Executive Summary, para. 13.

European Communities considers that the United St ates has failed to take the necessary measures to
eliminate zeroing in those subsequent reviews. In other words, the United States has continued using
the same methodology which was found inconsistent with the Anti-Dumping Agreement and the
GATT 1994 by the reports adopted by the DSB in May 2006 when carrying out dumping
determinations in the subsequent review proceedings referring to the 15 original investigations and 16
administrative reviews in the original dispute. Thus, the US omissions and deficiencies in its
compliance with the DSB's recommendations and findi ngs fall within the scope of this compliance
proceeding.
168
5.60 The European Communities also ar gues that the subsequent review proceedings listed in the
Annex to the Panel Request are "measures taken to comply" since they are cl osely connected to the
original investigations and administrative review s identified in the original dispute and the DSB's
recommendations and rulings. The European Communiti es observes that the nature of the subsequent
reviews is, in essence, the same as the measures in the original dispute ( i.e., collect anti-dumping
duties and establish cash deposits based on zeroing) . The violation originally challenged ( i.e., the use
of zeroing when calculating dumping margins) still re mains in the subsequent review proceedings.
Further, the subsequent review proceedings relate to the same products, the same countries and the
same exporting companies. In other words, they ar e a continuation of the 15 original investigations
and 16 administrative reviews in the original disp ute, whose effects based on zeroing still remain in
place after the end of the reasonable period of time.169
5.61 The European Communities submits that the sun set reviews mentioned in the Annex to the
Panel Request also fall within the scope of this pr oceeding. In response to the argument made by the
United States that, since the Eur opean Communities did not challenge any sunset reviews in the
original proceeding and, thus, there are no DSB's recommendations or findings relating to these, the
sunset review proceedings listed in the Annex to th e Panel Request do not fall within the scope of this
proceeding170, the European Communities recalls that the adopted DSB's recommendation also
covered any amendments to the 15 original investigations and 16 administrative reviews. Article 11.3
of the Anti-Dumping Agreement provides for the termination of anti-dumping duties after five years in
the absence of a positive determination in a sunset review, which restarts a new five-year period of
application. Determinations in sunset review proceedings, which are based on previous dumping
margins, may lead to the continuation of the me asures based on the level of duties found in the
original LTFV investigation or the most recent administrative review which reflects the most
representative degree of dumping. Therefore, in vi ew of the European Comm unities, by their nature,
sunset review proceedings are amendments to the original measures because they restart the
application of the duty for another five years ( i.e., in their absence the duty would not longer be in
force) and, thus, they were covered by the DSB' s recommendations and findings in the original
dispute. The European Communities argues that the US omissions or deficiencies in that respect – as
also reflected in the said reviews – clearly fall w ithin the jurisdiction of this compliance Panel.
Likewise, as mentioned before, the sunset review s listed in the Annex to the Panel Request are
"measures taken to comply" since they are closel y connected to the original investigations and
administrative reviews in the original dispute.171
5.62 Noting the argument of the United States that th e European Communities is attempting to use
this Article 21.5 proceeding to obtain the effect of an "as such" finding that the Appellate Body
declined to make with resp ect to the use of simple zeroing in administrative reviews
172, the

168 EC Second Written Submission, Executive Summary, para. 14.
169 EC Second Written Submission, Executive Summary, para. 15.
170 EC Second Written Submission, Executive Summary, para. 16.
171 EC Second Written Submission, Executive Summary, para. 17.
172 EC Second Written Submission, Executive Summary, para. 18.

European Communities argues that the United States misinterprets the EC's claim in this regard.
173
The European Communities argues that it is merely seeking the implementation of the "as applied"
finding of the panel report in the original disput e. Therefore, the European Communities is not
arguing in general, as the United States believes, that the US implementation obligations with respect
to the "as applied" claims extend to distinct determ inations – for example related to other products or
other sub-regions of the European Communities, or en tirely new original investigations – or indeed to
measures that may or may not "supersede" the measures described in the original Panel Request. In
contrast, the European Communities argues that, in this particular case, since the subsequent reviews
and assessment instructions were part of the meas ures challenged in the original dispute, the US
implementation obligations with respect to the " as applied" claims extend to any subsequent
determination and assessment instruction in connec tion with the measures as described by the Panel
and the Appellate Body in the original dispute, as well as the related US omissions or deficiencies. In
other words, the scope of the "as applied" finding co vered every instance of application (and omission
or deficiency) of the zeroing methodology by the United States with respect to any amendments,
including assessment instructions, of the 15 origin al investigations and 16 administrative reviews,
since those were part of the measures challenged "as applied".
174 In light of the foregoing, the
European Communities requests this Panel to fully re ject the request for preliminary ruling made by
the United States. The European Communities invites this Panel to make a preliminary finding on the
US request at an earlier stage of this proceeding, provided that this does not delay the conclusion of
the proceeding in due time.175
B. PANEL COMPOSITION
1. European Communities
5.63 The European Communities raises the issue of the Panel composition as a procedural matter
which must be examined in this case, also in view of the obvious and important systemic interest of a
finding on this point.176
5.64 The European Communities recalls that in the c ontext of an exchange of views between the
Parties when discussing the composition of this Article 21.5 Panel, the WTO Secretariat indicated that
the Chair of the Panel and one Member of the Panel were not available. It was therefore clearly
necessary, in the EC's view, to appoint at least two new panelists and to appoint one of the three
panelists as Chair. The remaining Panelist is fro m the European Communities. On 1 October 2007,
the European Communities sent a letter to the WTO Secretariat opposing the exclusion of this
panelist, since he was available to serve as a panelist. However, the EC states that in a meeting held
with the parties on 5 October 2007, the WTO Secretar iat expressed the view that, without prejudice to
the correct interpretation of the DSU on this point, three new panelists should be appointed.
177
5.65 The European Communities calls upon this Panel to interpret the relevant provisions of the
DSU, in the exercise of its inherent jurisdiction to consider and make findings with respect to such
matters. More specifically, the European Commun ities submits that a correct interpretation of the
relevant provisions of the DSU necessarily leads to the conclusion that, when panelists of the original
dispute are available to serve in Article 21.5 pro ceedings, they cannot be unilaterally removed from
the panel by one of the Parties. This is equally the case even if the remaining panelists are of the
nationality of one of the parties, since the origin al agreement pursuant to Article 8.3 of the DSU

173 EC Second Written Submission, Executive Summary, para. 19.
174 EC Second Written Submission, Executive Summary, para. 19.
175 EC Second Written Submission, Executive Summary, para. 20.
176 EC Second Written Submission, Executive Summary, para. 3.
177 EC Second Written Submission, Executive Summary, para. 4.

cannot be revoked at any stage of the dispute proceeding, including subsequent compliance
proceedings.178
5.66 Finally, the European Communities is of the view that a panel may be requested to rule on the
propriety of its own composition, resulting in findings subject to appellate review. Even if the parties
do not address this issue directly in their submissions, the Panel has a duty to address it, as it is of
fundamental importance for the correct interpreta tion of the DSU and for the smooth and equitable
operation of the WTO dispute settlement system. Therefore, the European Communities requests the
Panel to find that the composition of the Panel was not consistent with Articles 21.5 and 8.3 of the
DSU.179
2. United States
5.67 The United States notes that the EC has asked th e Panel to rule on its own composition, and,
in particular, to find that it was not composed in a manner consistent with Articles 21.5 and 8.3 of the
DSU for the first time in its rebuttal submission. It would be tempting for a responding party to agree
with such a claim, as it would mean the panel in qu estion had no authority to make findings on either
of these claims, or the claims in the panel re quest. However, taking that position would do an
injustice to the dispute settlement system, and thus th e United States simply points out that it is struck
by the irony in the EC's self-defeating, illogical, and unsupportable claim. 180 The United States
submits that these claims are not within the terms of reference of this Panel because they are not part
of the "matter" referred to the DSB by the EC in its panel request. It argues that these claims are not
about a measure identified in that panel request and that, in fact it is unclear, in light of DSU 6.2 and
7.1, how such a claim could ever be within the scope of a panel's terms of reference.
181
5.68 At the same time, the United States notes that the EC did not have the permission of the
United States to disclose anything that the United States may or may not have said during the panel
composition process. The United States is deeply c oncerned by the EC's unilateral actions in this
regard. The United States therefore requests the Pane l to strike from the record any discussion of the
panel selection process (other than the EC's own selective allegations con cerning its own positions)
and request that third parties destroy or return this information.
182
C. VIOLATIONS WITH RESPECT TO ALL MEASURES COVERED IN THIS PROCEEDING
1. Whether the United States extended the measures challenged in the original dispute
pursuant to sunset review proceedings which relied on dumping margins calculated with
zeroing
(a) European Communities
5.69 The European Communities argues that the United States has extended the duration of the
original measures challenged in the original disput e pursuant to sunset review proceedings concluded
before and after 9 April 2007 183, i.e., beyond the end of the reasonable period of time, notably as a
result of sunset review investigations. 184 The European Communities observes that although the
future duty rate has generally been set based on the non-zeroed "Section 129 " re-determinations, the
fact remains that, in the sunset reviews, the Unite d States expressly relied on the results of previous

178 EC Second Written Submission, Executive Summary, para. 5.
179 EC Second Written Submission, Executive Summary, para. 6.
180 US Second Written Submission, Executive Summary, para. 2.
181 US Second Written Submission, Executive Summary, para. 3.
182 US Second Written Submission, Executive Summary, para. 4.
183 EC First Written Submission, Executive Summary, para. 21.
184 EC First Written Submission, Executive Summary, para. 7.

administrative review investigations, based on zeroing.
185 In particular, it asserts that the USDOC
decided to extend the measures challenged in the original dispute because, based on the previous
levels of dumping found with zeroing in prior pro ceedings, it considered that it was likely that
dumping would recur. In this respect, the Europe an Communities submits that the United States
violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement .186 T h e
European Communities argues that the Anti-Dumping Agreement and the established case-law are
clear on this point. If a sunset review relies on a zeroed dumping margin, the sunset review is
necessarily inconsistent with the Anti-Dumping Agreement.
187
5.70 The European Communities maintains that the United States has relied on the dumping
margins calculated with zeroing when finding the likelihood of recurrence of dumping in sunset
review proceedings. In this sense, the European Communities challenges the omissions by the
United States to take the necessary measures to comply in this case, i.e., (i) that the United States
should, on 9 April 2007, have stopped collecting anti-dumping duties based on zeroing in connection
with any of the measures described in the original dispute and, thus, with respect to the measures
contained in the Annex to the Panel Request; and ( ii) that the United States should have recalculated,
without zeroing, the previous dumping margins base d on zeroing, in order to rely on them for the
assessment of likelihood of recurrence of dumping in sunset review proceedings with respect to the
measures mentioned above.188
5.71 The European Communities recalls that, as highlighted by the Appellate Body in US –
Corrosion-Resistant Steel Sunset Review , if a likelihood determination under Article 11.3 of the Anti-
Dumping Agreement is based on a dumping margin calculated using a methodology inconsistent with
Article 2.4 of the Anti-Dumping Agreement , then this defect taints the likelihood determination too
and, thus, the USDOC's likelihoo d determination could not constitute a proper foundation for the
continuation of anti-dumping duties under Article 11.3 of the Anti-Dumping Agreement. Moreover,
the Appellate Body had the occasion to rule on th e inconsistency of the use of zeroing in sunset
review proceedings in measures adopted by the United States in US – Zeroing (Japan) , where it also
noted that the USDOC relied on past margins that were calculated during administrative reviews on
the basis of "simple zeroing". Having previously concluded that zeroing in administrative review
investigations is inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement, the Appellate
Body found that the determinations in the sunset re views at issue were inconsistent with Article 11.3
of the Anti-Dumping Agreement.189 In light of the foregoing, the European Communities submits that,
by relying in the sunset review proceedings men tioned in the Annex to the Panel Request on margins
calculated in prior proceedings using model or simp le zeroing, the United States did not comply with
its obligations pursuant to Articles 2.1, 2.4 and 2. 4.2 because these margins were not based on a fair
comparison and not calculated for the product as a whole. As a result, the United States acted in
breach of Article 11.3 of the Anti-Dumping Agreement.
190
5.72 The European Communities notes that the Unite d States has not contested this claim in
substance191, and that it has not produced any substa ntive evidence to rebut the EC's claims. 192 The

185 EC First Written Submission, Executive Summary, para. 2.
186 EC First Written Submission, Executive Summary, para. 21.
187 EC First Written Submission, Executive Summary, para. 2.
188 EC First Written Submission, Executive Summary, para. 19.
189 EC First Written Submission, Executive Summary, para. 22.
190 EC First Written Submission, Executive Summary, para. 23.
191 EC Second Written Submission, Executive Summary, para 21. See also, European Communities,
Opening Statement at the substantive m eeting of the Panel (hereinafter "EC Opening Statement"), para. 8. "As
regards the sunset review proceedings listed in the Annex to the Panel Request, the European Communities has
shown that the United States has extended the life of the 15 original investigations and the 16 administrative
reviews in the original dispute in a manner contrary to Article 11.3 of the Anti-Dumping Agreement. The
United States has not contested this claim in substance".

European Communities observes that on this point , the United States only argues that, since the
European Communities did not challenge any sunset re views in the original proceeding, there are no
DSB's recommendations or findings relating to these a nd, therefore, the sunset reviews listed in the
Annex to the Panel Request do not fall within the scope of this proceeding. In this respect, the
European Communities recalls its arguments that the adopted DSB's recommendation also covered
any amendments to the 15 original investigati ons and 16 administrative reviews, including sunset
review proceedings, and related US omissions or deficiencies therein. Thus, the sunset reviews
proceedings listed in the Annex to the Panel Request fall under the scope of this proceeding.
193
Therefore, the European Communities requests the Panel to find that United States did not comply
with the DSB's recommendations and rulings and violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-
Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset
review proceedings relying on margin of duties calculated with zeroing.194
(b) United States
5.73 In response to the EC's attempts to challenge certain sunset reviews, the United States recalls
that the EC did not challenge any sunset reviews in the original proceeding and, thus, there are no
DSB recommendations or rulings relating to sunset reviews. Consequently, the sunset reviews
identified in the EC's 21.5 panel request cannot be within the terms of reference of this panel. 195 The
EC relies on US – Zeroing (Japan) for support. However, in view of the United States, that dispute
only confirms the fundamental flaw in the EC's posture. In US – Zeroing (Japan) , Japan in its panel
request in the original proceeding expressly challeng ed sunset reviews and included a claim that the
United States had acted inconsistently with Article 11.3. By contrast, in its panel request in the
original proceeding, the EC did not challenge sunset reviews nor set out a claim concerning
Article 11.3. (Indeed, the EC appears to have rec ognized that claims against sunset reviews must be
made in the original panel request, because it has expressly done so in its other zeroing dispute against
the United States.) The United States argues that the EC cannot cure its failure to pursue a claim in
the original proceeding by seeking to include it in a compliance proceeding. 196 In addition, the
United States argues that the EC's Article 21.5 pane l request did not identify the sunset reviews as
measures within the terms of reference of this pr oceeding. Rather, the sunset reviews are simply
identified as "reviews" related to the measures in question. Therefore, with respect to those reviews,
the EC did not "specify the measures at issue" as required by Article 6.2. 197 Thus, the United States
respectfully requests the Panel to find that the only measures within the term s of reference of this
proceeding are the 15 original investigations and 16 administrative reviews referenced in paragraph 7
of the EC's Article 21.5 panel request.198

192 EC Closing Statement, Executive Summary, para. 5.
193 EC Second Written Submission, Executive Summary, para. 21.
194 EC Second Written Submission, Executive Summary, para. 22.
195 US First Written Submission, Executive Summary, para. 23.
196 US First Written Submission, Executive Summary, para. 24.
197 US First Written Submission, Executive Summary, para. 25.
198 US First Written Submission, Executive Summary, para. 26.

2. Whether the United States continues to co llect anti-dumping duties and impose cash
deposits inflated by zeroing after 9 April 2007, has failed to revoke the original orders
entirely, and whether the 16 administrative rev iews challenged in the original dispute
have been "superseded"
(a) European Communities
5.74 The European Communities argues that after the end of the reasonable period of time, the
United States continues to take positive acts, incl uding new administrative review investigations,
assessment instructions and final liquidations, based on zeroing.
5.75 The European Communities clarifies that it ha d challenged certain US legal instruments,
procedures, methodologies and practice, "as such" and "as applied". In the 15 "as applied" cases
referred to by the European Comm unities as "original investigations " the challenged measures were:
the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments,
and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin
Program Logs and Outputs to which they in turn re fer, for all the firms investigated; each of the 15
Anti-dumping Duty Orders; each of the assessment in structions issued pursuant to any of the 15 Anti-
dumping Duty Orders; and each of the USITC final in jury determinations. In the 16 "as applied"
cases referred to by the European Communities as "administrative reviews" the challenged measures
were: the 16 Notices of Final Results of Anti dumping Duty Administrativ e Reviews, including any
amendments, and including all the Issues and Decisi on Memoranda to which they refer, and all the
Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; and
each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results.
199
5.76 The European Communities notes that on 31 October 2005, the Panel in the original
proceedings circulated its report, finding that the United States had acted inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement when, in the original anti-dumping investigations
concerned, the USDOC used "model zeroing". The Pa nel in the original proceedings also found that
the same methodology was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping
Agreement. However, the Panel concluded that the Un ited States did not act inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement when using "simple zeroing" in the administrative
reviews at issue. On 18 April 2006, the Appellate Body, following an appeal by the European
Communities, issued its report, finding that the Unite d States had acted inconsistently with Article 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the administrative review
investigations at issue due to its use of a "simpl e zeroing" methodology, and reversing Panel's finding
to the contrary. Moreover, the Appellate Body u pheld the Panel's conclusion that "model zeroing"
was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping Agreement . However, the
Appellate Body was unable to complete the analys is to determine whether "simple zeroing" in
administrative reviews was inconsistent, "as such", with the provisions of the Anti-Dumping
Agreement.
200
5.77 The European Communities recalls that th e Appellate Body recommended that the DSB
request the United States to bring its measures, which had been found to be inconsistent with the Anti-
Dumping Agreement and with the GATT 1994 , into conformity with its obligations under those
Agreements. On 9 May 2006, the DSB adopt ed the Appellate Body Report contained in
WT/DS294/AB/R and the Panel Report contained in WT/DS294/R, as modified by the Appellate
Body Report.201

199 EC First Written Submission, Executive Summary, para. 7.
200 EC First Written Submission, Executive Summary, para. 8.
201 EC First Written Submission, Executive Summary, para. 9.

5.78 The European Communities observes that on 28 July 2006, the Eur opean Communities and
the United States agreed, pursuant to Article 21.3(b) of the DSU, that the reasonable period of time
for the United States to implement the recommenda tions and rulings of the DSB in the original
dispute "shall be 11 months", expiring on 9 April 2007.202 The European Communities points out that
on 27 December 2006, the United States published a notice whereby it announced that it was
abandoning "zeroing" in average-to-average comparisons in anti dumping original investigations. The
final modification became effective on 22 February 2007. The European Communities explains that
with this, the United States committed to abandon the use of "model zeroing" in all current and future
anti-dumping original investigations as of the effec tive date. Subsequently, the United States began a
recalculation of the margins of dumping in 12 of th e 15 original investigations challenged in the
original dispute. In three of the 15 original inv estigation measures, the United States considered that
it did not have to take any action since the anti- dumping orders had been previously revoked for
reasons other than zeroing. The United States, having issued provisional findings on
26 February 2007, issued its final findings in 11 of the revised original investigations on 9 April 2007,
which entered into effect on 23 April 2007, and on 20 August 2007 issued its final findings in Certain
Stainless Steel Sheet and Strip from Italy (which entered into force on 31 August 2007) (the "Section
129 Determinations").
203
5.79 Despite the fact that the subsequent meas ures amended the 15 original orders and
16 administrative reviews challenged in the original dispute, the European Communities asserts that
the United States continued after the end of the reasonable period of impl ementation and still now
continues collecting duties calculated using zeroing as a result of those measures. 204 In other words,
the EC argues that despite the fact that the use of zeroing has been f ound repeatedly inconsistent with
WTO rules in previous cases, the United States is relu ctant to comply with its obligations and, thus,
has failed to fully implement the recommendations of the DSB in the original dispute.205
5.80 The European Communities asserts that the United States cannot change reality: after the end
of the reasonable period of time, it has taken pos itive acts providing for final payment of the duties
due or retention of the cash deposits made based on zeroing with respect to those entries not finally
liquidated before the end of the reasonable period.206
5.81 In the EC's view, in order to comply imme diately with the DSB's recommendations and
rulings in the original dispute, (i) the United States should have stopped taking any positive acts
providing for the final payment of duties or retention of cash deposits based on zeroing with respect to
those entries not finally liquidated before the end of the reasonable period in connection with any of
the measures described in the origin al dispute and, thus, with respect to the measures contained in the
Annex to the Panel Request; and (ii) the United St ates should have recalculated, without zeroing, the
previous dumping margins based on zeroing, in order to rely on them for the assessment of likelihood
of recurrence of dumping in sunset review proceedings with respect to the measures mentioned above.
In addition, the United States, once it recalculated the dumping margins without zeroing pursuant to
the Section 129 Determinations and revoked the me asures, should have stopped collecting any duties
at all, since the measures were thereby, in eff ect, void. All these acts are, in the EC's view,
prospective in nature. 207 The European Communities observes that it cannot understand why the
United States, would not, in a simple accounting exer cise, adjust its calculations so as to properly
reflect the degree of dumping, if any, (i.e. without zeroing) that occurred, having a full opportunity to
do so (in subsequent reviews of the measures co ncerned or in the appeals and protests filed by

202 EC First Written Submission, Executive Summary, para. 10.
203 EC First Written Submission, Executive Summary, para. 11.
204 EC First Written Submission, Executive Summary, para. 19.
205 EC First Written Submission, Executive Summary, para. 1.
206 EC Closing Statement, Executive Summary, para. 5.
207 EC Closing Statement, Executive Summary, para. 6.

importers against them) and at least with effect from the end of the reasonable period of time, noting
that the United States has failed to provide any explanation on this point.
208
5.82 In the particular circumstances of this case, in which such positive acts were expressly found
to be part of the original measures at issue, th e European Communities is of the view that it is
impossible to characterise the actions (and omissi ons) of the United States as constituting immediate
compliance.209 The European Communities recalls that the matter addressed by the Panel in the
original proceedings was the use of zeroing when calculating dumping margins in original
investigations as well as in administrative review s and that the European Communities referred to
15 original investigations and 16 administrative re views in order to demonstrate how the US zeroing
methodology was inconsistent, inter alia, with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement.
The Appellate Body agreed with the European Communities position. Despite the DSB's findings and
recommendation to bring its measures into conformity , the United States has manifestly failed to do
so.210
5.83 In support of its position, the European Communitie s asserts that, first, with respect to the
original investigations covered in the original dispute, the United States has issued assessment
instructions to collect anti-dumping duties in sub sequent administrative reviews where simple zeroing
was used and whose results were obtained afte r 9 April 2007. Second, even in cases where
administrative review proceedings were not requested by the companies concerned, after 9 April 2007
the United States still seeks to collect duties at the rate established in the original investigations
covered by the original dispute, where "model zer oing" was used. Third, in addition to issuing
assessment instructions to collect anti-dumping duties, the United States has also established new cash
deposits as a result of subsequent administrative revi ews proceedings in connection with the original
investigations challenged in the original dispute us ing simple zeroing after the end of the reasonable
period. Fourth, with respect to administrative review proceedings covered in the original dispute, the
United States has also issued asse ssment instructions to collect anti-dumping duties and has
established new cash deposits in subsequent admi nistrative reviews where simple zeroing was used
and whose results were obtained after 9 April 2007. Fifth, with respect to both the original
investigations and administrative reviews covered in the original dispute, after 9 April 2007 the
United States still actively seeks to collect anti-du mping duties as a result of modifications of the
original measures pursuant to subsequent admini strative review proceedings for which assessment
instructions were sent before 9 April 2007 and where "simple zeroing" was used and that after
9 April 2007, the United States still takes positive acts providing for final payment of the duties due or
retention of the cash deposits made based on zer oing with respect to those entries not finally
liquidated before the end of the reasonable period to implement the DSB's recommendations.211
5.84 The European Communities submits that the measures adopted by the United States described
above cannot be considered as "compliance with the DSB's recommendations". The
European Communities observes that the DSB recommended that the United States bring the
measures found inconsistent with the Anti-Dumping Agreement and the GATT 1994 into conformity
and maintains that those measures included in the original dispute "any amendments" as well as "each
assessment instructions issued pursuant to" the original order and/or administrative review.212
5.85 The European Communities argues that the modi fications made by the United States have not
changed the "essence" of the contested measure in the original dispute ( i.e., use of zeroing in original

208 EC First Written Submission, Executive Summary, para. 3. See also, EC Closing Statement,
Executive Summary, para. 7, See also EC Second Written Submission, Executive Summary, para. 27
209 EC First Written Submission, Executive Summary, para. 3.
210 EC First Written Submission, Executive Summary, para. 24.
211 EC First Written Submission, Executive Summary, para. 25.
212 EC First Written Submission, Executive Summary, para. 26.

investigations and administrative reviews) because the products from the countries concerned in the
original dispute still are subject to anti-dumping duties unfairly imposed pursuant to the use of a
methodology which has been found inconsistent by the adopted DSB reports and by the Appellate
Body in other occasions. 213 Therefore, the European Communities considers that, since the
United States still collects anti-dumping duties calcu lated with zeroing with respect to the cases
identified in the original dispute after 9 April 2007, the United States continues to violate
Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.214
5.86 Since it is not possible to relitigate the same issue twice in Article 21.5 proceedings, the
European Communities submits that this Panel shoul d not enter again into the conformity of the
zeroing methodology with the mentioned agreements . This has already been confirmed by the
adopted DSB reports in the original dispute, and is res judicata.215 Accordingly, since it is established
that the United States still collects anti-dumping duties calculated with zeroing with respect to
measures challenged in the original dispute, the European Communities requests the Panel to find that
the measures listed in the Annex to the Panel Request are inconsistent with Articles 2.4.2 and 9.3 of
the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and that the United States remains
in violation of these provisions.216
5.87 The European Communities notes that the United States has not contested the facts provided
by the European Communities that it has conti nued collecting duties and imposing cash deposits
based on zeroing with respect to the measu res challenged in the original dispute. 217 The European
Communities observes that, instead the United Stat es argues that it has complied with the DSB's
recommendations and rulings in the original dispute since no duties, as resulting from the
determinations made in the 15 orig inal investigations and 16 administrative reviews identified in the
original dispute, are collected with respect to imports made on or after the end of the reasonable
period. Moreover, the United States consid ers that the cash deposits resulting from the 16
administrative review proceedings challenged in th e original dispute (the only element which may
have remained after the end of the reasonable peri od), are no longer in place since they have been
superseded and replaced by new determinations in subsequent administrative review proceedings.218
5.88 As a preliminary remark, the European Communities notes that the US arguments purporting
to demonstrate compliance with the DSB's recommenda tions and rulings in the original dispute are
incorrect. But even following th e US theory that compliance in this case means that no imports
relating to the 15 original investigations and the 16 administrative reviews made after the end of the
reasonable period of time are subject to duties based on zeroing, the European Communities argues
that the facts of the case show something different . The European Communities notes in this context
that the United States has recognised that imports of stainless steel wire rod from Sweden (Case 6 in
the Annex of the Panel Request) after 9 April 2007 are subject to the original anti-dumping duties
based on model zeroing. Likewise, the United Stat es has admitted that it continues collecting anti-
dumping duties and imposing cash deposits on impo rts of ball bearings from the United Kingdom
(Case 31 in the Annex to the Panel Request) made by one company (NSK) at the rate based on simple
zeroing in the administrative review challenged in th e original dispute. Therefore, according to the
EC, even under the US own theory, it is evident that the United States has not complied with the

213 EC First Written Submission, Executive Summary, para. 27.
214 EC First Written Submission, Executive Summary, para. 28.
215 EC First Written Submission, Executive Summary, para. 29.
216 EC First Written Submission, Executive Summary, para. 30.
217 EC Second Written Submission, Executive Summary, para. 2.
218 EC Second Written Submission, Executive Summary, para. 23.

DSB's recommendations and rulings in the original dispute
219, and that the US lack of compliance
with the DSB's recommendations and rulings in the original dispute is obvious and manifest.220
5.89 The European Communities explains that the lia bility to pay anti-dumping duties in the US
system is determined at a later stage than the ti me of importation. The United States argues that the
anti-dumping liability is created at the time of impor tation and, thus, imports made before or during
the reasonable period of time to comply with the DSB's recommendations and rulings can be subject
to WTO-inconsistent measures. In contrast, the Eu ropean Communities considers that, in light of the
particularities of the US system of duty assessment, the final amount to be collected and, thus, the
obligation to pay any anti-dumping duties, is determined at a later stage than the time of importation.
According to the US system of duty assessment, th e final and true liabilities are established by the
USDOC based on a subsequent retrospective accounti ng exercise. This exercise may lead to the
conclusion that the importer is not responsible for the payment of duties. Moreover, importers can
appeal the amounts established by the USDOC in accordance with US municipal law. These
proceedings may result in a finding of no liability at all and, thus, no obligation to pay duties (or,
alternatively, a modification of the amounts to be collected due to, for exam ple, arithmetical errors
made by the USDOC when calculating the duties). 221 In these circumstances, the
European Communities cannot understand why the Unite d States would not adjust its calculations so
as to properly reflect the degree of dumping ( i.e., without zeroing) that occurred (if any), having a full
opportunity to do so (in subsequent reviews of th e measures concerned or in the appeals and protests
filed by importers against them), and at least w ith effect from the end of the reasonable period of
time.222
5.90 According to the EC, what the United States ar gues in this case is that it can collect duties
based on zeroing after the end of the reasonable period of time even if the original anti-dumping order
has been revoked because, absent zeroing, no dumpi ng was found (or because of any other reason).
Therefore, the United States acknowledges that its m easure should never have been taken in the first
place, while still claiming the right to collect anti-dumping duties (on a non-existent measure) long
after its revocation.223 In other words, in the view of the EC, the United States is seeking to squeeze
the juices out of the WTO-inconsistent measures until their last drop, even after the end of the
reasonable period to comply agreed by the Parties to the dispute. Once more, this cannot be the
meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply that the measures have
been withdrawn, as required by Article 3.7 of the DSU.
224 Moreover, the US interpretation of
compliance will render the US system of duty assessment untouchable, as a moving target that

219 EC Second Written Submission, Executive Summary, para. 24. See also, EC, Opening Statement,
para. 9:
"In addition, the European Communities has already shown in its submissions how the
United States, even after the end of the reasonable period of time, has continued taking
positive acts providing for the final payment of duties or retention of cash deposits based on
zeroing with respect to those entries not finally liquidated before the end of such a period. In
a nutshell, with respect to the 15 original inve stigations and the 16 administrative reviews in
the original dispute, including their amendments as contained in the Annex to the Panel
Request, the United States has carried out fi nal duty assessments, has sent assessment
instructions, has liquidated duties and has continued proceedings seeking final liquidation of
duties all based on zeroing after 9 April 2007. Further, the United States has continued
collecting duties even if the original anti-dumping orders were revoked because the non-
zeroed recalculation of the dumping margin from the original investigation resulted in a
negative final determination of dumping."
220 EC Opening Statement, Executive Summary, para. 10.
221 EC Second Written Submission, Executive Summary, para. 26.
222 EC Second Written Submission, Executive Summary, para. 27.
223 EC Second Written Submission, Executive Summary, para. 31.
224 EC Second Written Submission, Executive Summary, para. 32.

escapes from anti-dumping duty disciplines. Each administrative review proceeding would have to be
subject to a new panel request, and by the tim e the panel, Appellate Body and implementation
procedure was completed, another administrative review proceeding would have superseded the
results of any previous review. A new panel woul d have to be started ag ainst this review. The
European Communities considers that this would run diametrically contrary to the purpose and
objective of Article 21 of the DSU.225
5.91 The European Communities maintains that the US theory to assess compliance in this case is
inappropriate226, as well as inaccurate and insufficient.227 The European Communities considers that
the application of the US theory as regards implementa tion would lead to absurd results in light of the
circumstances of this case228, because it would imply that a Member whose measure has been found to
be inconsistent with the WTO Agreements could still effectively apply that measure even after the end
of the reasonable period of time to comply with the DSB's recommendations and findings. 229 Thus,
the European Communities submits that the Panel should reject it.230
5.92 The European Communities sets out why it considers the US's compliance theory is
inaccurate. As the United States has acknowledged and not contested, it has continued levying anti-
dumping duties at the rates originally established pursuant to model zeroing on imports of stainless
steel wire rod from Sweden (Case 6 in the Annex of the Panel Request) after 9 April 2007; and has
equally continued collecting anti-dumping duties and imposing cash deposits at the rates based on
simple zeroing on imports of ball bearings from th e United Kingdom (Case 31 in the Annex to the
Panel Request), i.e., the same rates of the administrative review challenged in the original dispute.
Therefore, it is evident that the United States ha s not complied with the DSB's recommendations and
rulings in the original dispute.231 Next, the European Communities explains why it considers the US's
compliance theory is insufficient - because, in the EC view, it allows the United States to keep its so-
declared WTO inconsistent measures effectively in place even after the end of the reasonable period
of time. In simple terms, what the United States argu es in this case is that it can collect duties based
on zeroing after the end of the reasonable period of time even if the original anti-dumping order has
been revoked because, absent zeroing, no dumping was found. Likewise, the United States also
claims that it can, after the end of the reasonable pe riod to comply, liquidate duties at rates that were
significantly higher than those which should have been collected absent zeroing. In this respect, the
measures challenged in the original dispute are s till in place since, until the United States stops taking
positive acts to enforce them, their effects persist even after the end of the reasonable period. Once
more, this cannot be the meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply
that the measures have been withdraw n, as required by Article 3.7 of the DSU.232 In addition, the
European Communities notes that the United States also seeks to make the "date of entry" the
backbone principle as regards compliance in anti-dumpi ng disputes. In this respect, the US theory on
compliance disregards its own system, where the "d ate of entry" is not determinative of final
liability.233
5.93 Therefore, the European Communities considers th at, in light of the characteristics of the US
system, the anti-dumping liability – whether or not it is "created" at the time of importation – is not
finally determined at that time, but only at a la ter stage. In these circ umstances, the European

225 EC Second Written Submission, Executive Summary, para. 33.
226 EC Second Written Submission, Executive Summary, para. 25.
227 EC Opening Statement, Executive Summary, para. 10.
228 EC Second Written Submission, Executive Summary, para. 25.
229 EC Second Written Submission, Executive Summary, para. 33.
230 EC Second Written Submission, Executive Summary, para. 25.
231 EC Opening Statement, Executive Summary, para. 11.
232 EC Opening Statement, Executive Summary, para. 12.
233 EC Opening Statement, Executive Summary, para. 13.

Communities cannot understand why the United States would not, in that simple accounting exercise,
adjust its calculations so as to properly reflect the degree of dumping ( i.e., without zeroing) that
occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned
or in the appeals and protests filed by importers against them), and at least with effect from the end of
the reasonable period of time. Simply put, in the EC 's view, the US efforts to find arguments to keep
its measures in place even after the end of the r easonable period should be confronted by a clear
ruling from this Panel.
234
5.94 The European Communities considers that, in or der for the United States to comply with the
DSB's recommendations and rulings, immediately after the end of the reasonable period of time the
United States should have refrained from taking positive acts providing for the final payment of duties
or retention of cash deposits based on zeroing with respect to those entries not finally liquidated
before the end of the reasonable period, regard less of when those imports where made. The
European Communities asserts that this approach does not imply a retrospective relief, as the
United States argues235 and that it does not argue that the WTO dispute settlement system provides for
retrospective relief. The European Communities cons iders that it has clarified in its First Written
Submission that it asks for prospective implementation of the DSB's recommendations after the end of
the reasonable period. 236 In addition, the European Communities notes that it is possible for the
United States to take positive steps after the end of the reasonable period to comply with the DSB's
recommendations and rulings in respect of entri es which were made before then, without this
involving any retrospective relief. In fact, the European Communities observes that, according to the
United States, Section 129(c)(1) permits the USDOC to apply new, WTO-consistent methodologies to
entries made before the date of implementation of a Section 129 Determination. 237 Therefore, the
European Communities considers that the Un ited States would comply with the DSB's
recommendations and findings in a prospective manner in this case if it stops taking any positive acts
providing for the final payment of duties or retention of cash deposits based on zeroing with respect to
those entries not finally liquidated before the end of the reasonable period. However, the
European Communities contends that this has not yet been the case.238
5.95 The European Communities notes that the United States has also argued that the "date of
entry" should be the reference for assessing compli ance in the case of anti-dumping measures. In
particular, it has emphasised that prospective and retrospective anti-dumping systems should lead to
the same results when bringing WTO-incons istent measures into conformity with the Anti-Dumping
Agreement. The European Communities agrees. Unde r both systems, WTO Members are prevented
from taking positive acts that are contrary to the ad opted DSB reports after the end of the reasonable
period of time.239
5.96 Further, as a result of the 12 Section 129 Determinations, (i) two original orders were revoked
because of the new calculation of dumping margins wit hout zeroing; and (ii) ten original orders were
partially revoked with respect to certain compan ies, whereas with respect to others, duties were
reduced or increased as a result of specific calculations of dumping margins without zeroing or the
general application of ne w "all others" duty levels. 240 The European Communities considers that any

234 EC Opening Statement, Executive Summary, para. 14.
235 EC Second Written Submission, Executive Summa ry, para. 25. See also, EC Second Written
Submission, para. 28 "In the European Communities' view, in order to comply with the DSB's recommendations
and rulings, the United States should stop taking any positive acts providing for the final payment of duties or
retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of
the reasonable period."
236 EC Second Written Submission, Executive Summary, para. 28.
237 EC Second Written Submission, Executive Summary, para. 29.
238 EC Second Written Submission, Executive Summary, para. 30.
239 EC Closing Statement, Executive Summary, para. 8.
240 EC First Written Submission, Executive Summary, para. 12.

future liquidation of entries subject to a revoked order (including those revoked because of reasons
other than zeroing) or with respect to an exporter excluded from the scope of the relevant order would
be illegal since, again, as mentioned in the prev ious section, this would amount to taking a positive
act, already found to be WTO inconsistent, af ter the expiry of the implementation period. 241 The
European Communities argues that the United States seems to ignore the fact that, under its duty
assessment system, the final liability of importers is determined at a later stage than the time of
importation. Thus, any time after the end of th e reasonable period of time the United States could
carry out a simply accounting exercise to establis h without zeroing the true and final liabilities to
which entries are subject (if any). Finally, even if the legal basis for collecting duties has been
revoked, the United States has not stayed proceedings to obtain final payment of those duties.242
5.97 Finally, the European Communities submits, with respect to the 16 administrative reviews at
issue in the original dispute, that the United Stat es considered that in each case the results were
superseded by subsequent reviews and, thus, no fu rther action was necessary for the United States to
bring the challenged measures into compliance with the recommendations and rulings of the DSB.243
5.98 The European Communities argues that in orde r for the 16 administrative reviews challenged
in the original dispute to be "superseded", the United States should have stopped them (by not
collecting duties calculated with "simple zeroing") and replaced them (by collecting the duties and
establishing new cash deposits based on a methodol ogy without zeroing). The United States has
failed in both respects.244 Firstly, the European Communities notes that the United States still collects
duties established in the administrative reviews cont ested in the original dispute. Second, the
European Communities argues that the United Stat es has failed to recalculate the dumping margins
without zeroing in all the administrative reviews covered in the original dispute. Finally, the fact that
the United States has not recalculated the dumping ma rgins in the administrative reviews concerned
also affects the extension of the original orders pursuant to sunset review investigations.245
(b) United States
5.99 The United States considers that it has implem ented the DSB's recommendations and rulings
and thus, has complied with the its obligations under the DSU. The Panel should reject the EC's
claims non-compliance and its efforts to en large the obligations of the United States. 246 Turning to
the 15 antidumping investigations, the United Stat es notes that by the time the DSB adopted its
recommendations and rulings, Commerce had alread y revoked 3 of the antidumping orders resulting
from those investigations. With respect to the other 12 investigations where antidumping orders
remained in place, Commerce conducted proceedi ngs under US domestic la w, called Section 129
proceedings, to recalculate the margins of dumping. The Section 129 determinations resulted in the
revocation of two additional orders. Later, Comme rce revoked 4 more orders as a result of sunset
reviews. Thus, with respect to the 15 determina tions made in investigations, 9 concern antidumping
orders that are now revoked. Thus, the United States submits that for all nine of the revoked
antidumping duty orders, no antidumping duties will be assessed on entries of the goods made after
the effective date of the revocation.247
5.100 Turning to the 16 administrative reviews, the United States notes that the purpose of such
reviews is to determine the final assessment rate on imports that occurred before the review

241 EC First Written Submission, Executive Summary, para. 31.
242 EC Second Written Submission, Executive Summary, para. 2.
243 EC First Written Submission, Executive Summary, para. 13.
244 EC First Written Submission, Executive Summary, para. 32.
245 EC First Written Submission, Executive Summary, para. 33.
246 US First Written Submission, Executive Summary, para. 3.
247 US Opening Statement, Executive Summary, para. 5.

commenced, and to calculate a new cash deposit rate that will be applicable to subject imports
occurring after the determination is made.
248 What the United States considers is noteworthy for
purposes of this proceeding is that the 16 administra tive reviews in question all involved entries that
occurred prior to the adoption of the DSB recommendations and rulings. Noting that the EC
concedes, that implementation of WTO obligations is prospective, the United States observes that
nevertheless, according to the EC, the United Stat es was obligated to refund duties in respect of
entries that were made prior to the adoption of th e recommendations and rulings. In other words, in
the US view, the EC attempts to argue that th e United States was effectively required to provide
retroactive relief – i.e., refunds of duties collected on prior entries solely as a result of the WTO
dispute. However, in view of the principle of pros pective relief to which even the EC subscribes, the
United States submits that it was under no obligation to do so.249
5.101 The United States observes that in the underlying dispute, the EC obtained DSB
recommendations and rulings with respect to Comme rce determinations in sixteen administrative
reviews. The United States has taken measures to comply with respect to each of those
determinations, and as a result of those measure s, the United States has complied with those
recommendations and rulings.
250
5.102 The United States clarifies th at in some instances, the United States has revoked the
antidumping duty order giving rise to the determinati ons challenged by the EC. Under US law, the
United States no longer has the authority to co llect cash deposits, or assess antidumping duties, on
products subject to a revoked antidumping order which are imported on or after the date of revocation.
This is the situation with respect to the four of th e sixteen determinations challenged by the EC. With
respect to the remaining reviews that the EC ch allenged, the cash deposit rate established in the
challenged determination (the only aspect of the ad ministrative review that could – absent the US
compliance – have continued beyond the expiration of th e RPT), is no longer in effect. To the extent
that a cash deposit rate is currently in effect with respect to these same products from the same
Member States of the EC, that is the result of a separate determination of dumping made in a separate
administrative review examining distinct facts during a subsequent period of time.251
5.103 Turning first to the antidumping duty orders revoked, the United States notes that these orders
form the basis under US law for the authority to impose antidumping duties. That is, without an
antidumping duty order in place, the United States cannot collect cash deposits and assess
antidumping duties on imports made on or after the date of revocation.
252 The United States observes
that, in its annex to its panel request, the EC acknowledges that the following antidumping orders
have been revoked in whole or with respect to certa in companies identified in the EC's original panel
request:
(1) Industrial Nitrocellulose from France (revocation effective 1 August 2003)
(2) Industrial Nitrocellulose from the United Kingdom (revocation effective 1 July 2003)
(3) Certain Pasta from Italy (revoked for Ferrara effective 9 February 2005, and for
Pallante on 29 November 2005); and
(4) Stainless Steel Sheet and Strip in Coils from France (revocation effective
27 July 2004).253

248 US Opening Statement, Executive Summary, para. 6.
249 US Opening Statement, Executive Summary, para. 7.
250 US First Written Submission, Executive Summary, para. 45.
251 US First Written Submission, Executive Summary, para. 46.
252 US First Written Submission, Executive Summary, para. 47.
253 US First Written Submission, Executive Summary, para. 48.

5.104 The United States observes, by way of example, with regard to Industrial Nitrocellulose from
France, that it revoked the antidumping duty order effective 1 August 2003. This means that the
United States ceased collecting cash deposits on imports occurring on or after that date, and such
imports incur no antidumping duty liability. Therefore, as of the date of the EC's panel request in this
Article 21.5 proceeding (and, in fact, as of the expiry of the reasonable period of time established in
this dispute), no imports are affected by that an tidumping duty order, and the measure challenged by
the EC in the underlying proceeding has been terminat ed. The same is true with respect to the other
antidumping duty orders that the United States has revoked. The United States submits that the
elimination of these orders has thus brought the United States into compliance with the
recommendations and rulings related to those orders.
254
5.105 The United States maintains that it has im plemented the recommendations and rulings
because each of the reviews has been superseded by Commerce determinations in subsequent
administrative reviews. The chart attached as Exhibit US-17 specifies the subsequent Commerce
determinations that have super seded each of the administrative reviews subject to the DSB's
recommendations and rulings. The determinations in these subsequent reviews cover the same
merchandise and the same exporters or producers id entified by the EC. However, the subsequent
reviews examined a wholly different set of sale s transactions occurring during a different period of
time. Given that in these subsequent determina tions, Commerce calculated new margins of dumping,
and put in place new cash deposits for the companie s examined, as a result, the cash deposit rates that
had been established in the determinations that th e EC originally challenged have been superceded,
because cash deposit rates from a determination in one administrative remain in effect only until a
determination in a subsequent administrative review establishes a new cash deposit rate – once
Commerce issues a determination in a subseque nt administrative review involving the same
merchandise and the same exporter or producer, the former cash deposit rate is terminated. 255
Consequently, as of the date of the EC's panel requ est in this Article 21.5 proceeding (and in fact, as
of the expiry of the reasonable period of time established in this dispute), no further entries are subject
to antidumping rates established in the administ rative reviews that the EC challenged in the
underlying proceeding. Accordingly, because the ch allenged determinations, a nd in particular their
cash deposit rates, have been superceded, the United States maintains that it has brought the
challenged measures into compliance with the DSB's recommendations and rulings.256
5.106 In this connection, the United States notes that it is puzzled by the occasional references in the
EC's first submission to "definitive assessment of du ties" and "collect[ion] of duties pursuant to
liquidation instructions" after Apr il 9, 2007 (the end of the reasonable period of time established in
this dispute). While the point of these references is not at all clear, the United States assumes that the
EC remains faithful to its long-held and of t-repeated position that, for purposes of assessing
compliance with the rulings and recommendations of the DSB relating to duties, one examines the
treatment accorded to goods entered on or after the expiration of the reasonable period of time. The
EC took a similar view when it implemented the recommendations and rulings of the DSB in the
dispute EC – Customs Classification of Frozen Boneless Chicken Cuts.257
5.107 The United States notes that this EC position fo llows logically from the fact that the WTO
dispute settlement provides prospective relief, not re trospective relief. For example, Article 19.1 of
the DSU provides, "Where a panel or the Appellate Body concludes that a measure is inconsistent
with a covered agreement, it shall recommend that the Member concerned bring the measure into
conformity with that agreement" (footnotes omitted). The ordinary meaning of the term "bring" is to
"[p]roduce as a consequence," or " cause to become." These definitions give an indication of future

254 US First Written Submission, Executive Summary, para. 49.
255 US First Written Submission, Executive Summary, para. 50.
256 US First Written Submission, Executive Summary, para. 51.
257 US First Written Submission, Executive Summary, para. 52.

action. Furthermore, under DSU Article 3.7, "the first objective of the dispute settlement mechanism
is usually to secure the withdrawal of the measure s concerned if these are found to be inconsistent
with the provisions of any of the covered agreements ." The withdrawal of the inconsistent measure is
meant to provide a prospective solution to the nulli fication or impairment of the benefits accruing
under the covered agreements, and not to provide compensation for any past harm.
258
5.108 Furthermore, the United States observes that in a WTO dispute challenging an antidumping or
countervailing duty measure, the measure in question is a border measure. Accordingly, eliminating a
WTO-inconsistent antidumping or countervailing duty measure prospectively at the border will
constitute "withdrawal" of the measure within the m eaning of DSU Article 3.7. And in this case, by
superceding the administrative reviews at issue in the underlying proceeding, the United States has
withdrawn the challenged measures.259
5.109 The United States notes that in its First Written Submission, the EC raised two arguments
concerning the determination in the investigati on of Certain Hot-Rolled Carbon Steel Products from
the Netherlands. First, the EC argued that the United States has assessed antidumping duties pursuant
to determinations made in subsequent administ rative reviews, where Commerce continued to deny
offsets for non-dumped sales. Second, the EC contends that as a result of a rescission of an
administrative review, the United States assessed antidumping duties at the cash deposit rate
established in the original investigation.
260 The United States clarifies in this connection that these
final assessments are the result of determinations distinct from the determination made in the
investigation. With respect to the EC's first ar gument, those assessment instructions were issued
pursuant to the determination made in the 2004-05 ad ministrative review. With respect to the EC's
second argument, those assessment instructions were issued pursuant to the determination (in that
case to terminate) the 2005-06 administrative review.
261 The United States argues that neither of these
two subsequent determinations are within the scope of this Article 21.5 proceeding. The EC's original
panel request identified only Commerce's determin ation in the investigation of Certain Hot-Rolled
Carbon Steel Products from the Netherlands. Simila rly, the original panel's "as applied" findings
covered only Commerce's determina tion from the investigation. Thus, the United States maintains
that the Panel should reject the EC's claims as beyond the scope of this Article 21.5 dispute.262
5.110 Turning to Commerce's Section 129 determinati on concerning the investigation of Stainless
Steel Wire Rod from Sweden, the United States points out that Commerce complied with the
recommendations and rulings of the DSB by prov iding offsets for non- dumped sales in the
recalculation of the margin of dumping. As a re sult of the Section 129 determination, Commerce
revoked the antidumping duty order on Stainless Steel Wire Rod from Sweden effective
23 April 2007.
263 The United States argues that the EC c ontention that that the United States has
established new cash deposit rates in Stainless Steel Wire Rod from Sweden based on an
administrative review that Commerce published af ter concluding the Section 129 determination,
however, is in error. 264 Commerce did publish the amended final results of the 2004-05
administrative review of Stainless Steel Wire R od from Sweden on 9 May 2007. According to the
United States, in those amended final results, Co mmerce did state that it would notify CBP of the
revised cash deposit resulting from the review, that th e cash deposit rate would be effective as of the
date of publication, and that "the cash deposit require ment shall remain in effect until further notice."
However, on 10 May 2007, Commerce provided "further notice" by issuing instructions to CBP

258 US First Written Submission, Executive Summary, para. 53.
259 US First Written Submission, Executive Summary, para. 54.
260 US First Written Submission, Executive Summary, para. 35.
261 US First Written Submission, Executive Summary, para. 36.
262 US First Written Submission, Executive Summary, para. 37.
263 US First Written Submission, Executive Summary, para. 38.
264 US First Written Submission, Executive Summary, para. 39.

informing it of the revocation resulting from the Section 129 determination. These instructions
informed CBP that any cash deposits paid on imports of wire rod from Sweden made on or after
23 April 2007, were to be refunded. All imports made on or after 23 April 2007, would not be subject
to the final assessment of antidumping duties.
265 The United States submits that as a result of the
revocation of the antidumping duty order on stainl ess steel wire rod from Sweden, Commerce did not
issue new cash deposit instructions to CBP b ased on the determination made in the 2004-05
administrative review. Accordingly, the United Stat es requests that this Panel reject the EC's claim
regarding the Section 129 determination in Stainless Steel Wire Rod from Sweden because Commerce
provided offsets for non-dumped sales in the recalculation of the margin of dumping and that measure
is no longer in effect.
266
5.111 The United States observes that when the DS B's recommendations and rulings concern a
border measure, such as an antidumping duty, impl ementation occurs when the Member removes the
border measure. Thus, the United States complied with the DSB's recommendations and rulings in
two ways. First, with respect to some of the antidumping measures challenged by the EC, the
United States revoked the antidumping duty orders , thereby removing the antidumping duty liability
for entries occurring on or after the date of revoca tion. Second, the United States removed the border
measure, the cash deposit rate, with respect to entries occurring on or after the date of
implementation.267 The United States notes that the text of GATT 1994 and the Anti-Dumping
Agreement confirms that it is the legal regime in exis tence at the time that an import enters the
Member's territory that determines whether th e import is liable for the payment of antidumping
duties.268
5.112 The interpretive note to GATT Article VI clarifies that, notwithstanding that duties are
generally levied at the time of importation, Members may instead require a cash deposit or other
security, in lieu of the duty, pendi ng final determination of the releva nt information. Thus, the cash
deposit serves as a place-holder for the liability which is incurred at the time of entry. Consistent with
the interpretive note, final assessment in the US system occurs after the date of importation. Indeed, a
Commerce determination in an administrative revi ew normally covers impor tations of the subject
merchandise during the 12 months prior to the month in which the review is initiated.
269 S e v e r a l
provisions of the Anti-Dumping Agreement further demonstrate that determining whether relief is
"prospective" or "retroactive" can only be determin ed by reference to date of entry. Thus, by
implementing the DSB's recommendations and ruli ngs regarding its antidumping measures with
respect to entries made on or after the date of implementation, the United States has complied with
those recommendations and rulings. The United States has acted consistently with the principle of
prospective implementation, as understood in the antidumping duty context.270
5.113 This result is consistent with the effect th at a finding of inconsistency would have on an
antidumping measure in a prospective antidumping system. Under such systems, the Member collects
the amount of antidumping duties at the time of importation. If an antidumping measure is found to
be inconsistent with the Anti-Dumping Agreement, the Member's obligation is merely to modify the
measure as it applies at the border to imports occurring on or after the date of importation [sic]. That
is, the Member changes the amount of antidumping duties to be collected on importations occurring
after the end of the reasonable period of time. The Member need not remedy the effects of the
measure on imports that occurred prior to the date of implementation. That is, the Member is under

265 US First Written Submission, Executive Summary, para. 40.
266 US First Written Submission, Executive Summary, para. 41.
267 US Second Written Submission, Executive Summary, para. 27.
268 US Second Written Submission, Executive Summary, para. 28.
269 US Second Written Submission, Executive Summary, para. 29.
270 US Second Written Submission, Executive Summary, para. 30.

no obligation to refund any antidumping duties assessed on importations occurring prior to the end of
the reasonable period of time.
271
5.114 The EC argues that prospective implementati on of the DSB's recommendations and rulings
with respect to US administrative reviews would make the US system of duty collection
"untouchable" and a "moving target." In this regard, the US system is no different from a prospective
antidumping system – the EC's system. An "as applied" challenge to the allegedly improper
collection of antidumping duties in a prospective sy stem would necessarily come after the duties have
been collected. By that time, the complaining Member could not recover the duties collected.
Moreover, if the allegedly incons istent collection continues during the pendency of the dispute, the
complaining Member will be required to initiate further disputes in order to address the situation
pursuant to the WTO dispute settlement system. This is the system to which the Members agreed, and
it applies to all Members equally. This Panel should reject the attempts of th e EC to gain a greater
degree of relief from this system than that the Members provided for.
272
5.115 Finally, the United States notes that there is a fundamental problem with the EC's arguments
in this dispute. In paragraph 72 of its Rebutta l Submission the EC argues, "Therefore, even if the
products at the time of importation are potentially liable for anti-dumping duties, the US system of
duty assessment implies that such a responsibility only materializes when the amount of the duties due
for a particular period is determined pursuant to ad ministrative review proceedings." If it were true
that liability for antidumping duties only arose after the completion of an administrative review, this
would mean that there would be no "final action" as required by Article 17.4 of the Anti-Dumping
Agreement for the EC to challenge whenever Commerce issued a determination in an antidumping
investigation. Rather, the EC could only challenge a Commerce antidumping duty determination after
such a determination was made in an administrative review.
273
5.116 The United States notes that the EC agreed in its written submissions that WTO relief is
prospective. In its submissions, the EC took pain s to describe the US duty assessment system and the
fact that "final" liability attaches at a point later in time than entry. Thus, it is the EC that emphasized
the relevance of a retrospective system to the issues in this dispute. The United States argues that it
responded by pointing out that "final" liability is not germane to the question of when a Member's
duty to provide relief is triggered. The United States pointed out that the date of entry of the good is
the only date upon which to evaluate whether relie f is due. To conclude otherwise would be to
discriminate against Members like the United St ates for having a retrospective duty assessment
system, one expressly provided for under Article 9.3.1 of the Antidumping Agreement. As the
United States explained, and as the original panel f ound, in a retrospective system, liability attaches at
the time of entry, but final liability attaches at a later date. By contrast, in a prospective system, final
liability is determined at the time of entry. This is precisely the distinction the EC emphasized when,
as recently as its rebuttal submission, it referred to the "particularities of the US system of duty
assessment."
274 If final liability is the relevant point for assessing whether relief must be provided,
then Members with prospective systems will have no implementation obligations in respect of entries
made prior to the expiry of the reasonable period of time, but Members with retrospective systems
will have such obligations in the event that final liability is calculated after the expiry of the RPT.275
5.117 Notably, the EC seems to be abandoning its th eory that the determination of final liability
after importation is "particular" to retrospective system s, implying that it is equally applicable to
prospective systems. Perhaps this new theory re flects acknowledgment of the fact that, otherwise,

271 US Second Written Submission, Executive Summary, para. 31.
272 US Second Written Submission, Executive Summary, para. 32.
273 US Second Written Submission, Executive Summary, para. 33.
274 See EC Second Written Submission, para. 69.
275 US Closing Statement, Executive Summary, para. 2.

using final liability as the basis for establishing im plementation obligations would put retrospective
systems at a disadvantage. However, the EC's sudde n change of position is not supported by the text
of Articles 9.3.1 and 9.3.2, its written submissions 276, or the panel report 277, all of which make clear
that calculation of "final liability" after importation is a facet "particular" (to borrow the EC's term) to
the US retrospective system.278
5.118 In addition, the EC argued that the Ikea case is an example of how the EC provides
retrospective relief. Ikea does not stand for the proposition that the EC provides retrospective relief in
connection with its implementation of recommendations and rulings. In the Ikea case, the European
Court of Justice expressly rejected the notion of refunding the duties on that basis. 279 Instead, the
Court found that zeroing was inconsistent with para graph 2(11) of the EC's basic regulation and was
"a manifest error of assessment with regard to Community law." 280 On that basis – that zeroing was
inconsistent with the EC's ow n regulations, rather than the Antidumping Agreement – the Court
ordered repayment of duties. 281 Thus, the EC may in some circumstances provide refunds under its
municipal law; but that does not mean that there is any WTO obligation to do so.282
5.119 The United States observes that it has great trouble reconciling the EC's current litigation
position – that entries made before the end of the reasonable period of time are subject to refunds –
with: (1) EC statements to the contrary, as cited in the US first submission at paragraph 100, in which
the EC makes clear that it will not provide reimburse ments for prior entries; (2) the very nature of
"prospective relief"; and (3) the EC's emphasis on the f act that "final liability" attaches at a later point
in time in a retrospective system. 283 If the United States accepts the th eory proffered by the EC at the
panel meeting – that refunds must be given on imports dating back to some undetermined date
preceding the expiry of the RPT – the question of "final" liability particular to a retrospective
assessment system would be irrelevant.284
5.120 Turning to the EC's claims regarding the dete rmination in the investigation of Certain Hot-
Rolled Carbon Steel Products from the Netherlands, the United States asserts that it has complied with
the recommendations and rulings of the DSB by providing offsets for non-dumped sales when it
recalculated the margin of dumping in the Section 129 determination. As a result of the Section 129
determination, the antidumping duty order was revoked effective 23 April 2007. Moreover, as a
result of a subsequent Commerce determination in a sunset review, the revocation of the antidumping
duty order became effective as of November 29, 2006. All cash deposits made on imports occurring
on or after 29 November 2006 have been or will be re funded. Additionally, imports made on or after
29 November 2006 are not subject to any final assessment of antidumping duties. Thus, the
United States submits that the EC's claims concern a measure that is no longer in effect.285

276 See EC Second Written Submission, paras. 69-76.
277 Panel Report, US – Zeroing (EC), para. 2.4.
278 US Closing Statement, Executive Summary, para. 3.
279 See Paragraphs 35, 67, and 69 (Exhibit US-34).
280 Paragraph 56 (Exhibit US-34).
281 Paragraph 69 (Exhibit US-34).
282 US Closing Statement, Executive Summary, para. 4.
283 See, e.g., EC Second Written Submission, paras. 69-76.
284 US Closing Statement, Executive Summary, para. 5.
285 US First Written Submission, Executive Summary, para. 34.

3. Whether the United States failed to put into effect new measures between 9 April and
23 April/31 August 2007
(a) European Communities
5.121 The EC submits that it is not contested that th e United States was late in its implementation.
The European Communities seeks findings from the Pane l also on this point. The EC notes that the
Appellate Body has made clear that it is for the co mplaining Member to judge whether or not dispute
settlement may be fruitful. In this case, the Eu ropean Communities observes that it remains of the
view that the findings it seeks may have autonomous consequences in US municipal law.
286
5.122 The European Communities notes that the measure s adopted by the United States to comply
with the DSB's recommendations and rulings concerning the "as applied" violations, i.e., the Section
129 Determinations, entered into force on 23 April and 31 August 2007. However, the parties had
agreed on a reasonable period of time which ended on 9 April 2007. This allows the United States to
still collect duties which refer to a period of time where compliance should have been achieved.287
5.123 Article 21 of the DSU requires WTO Memb ers to comply immediately with the
recommendations of an adopted DSB report. In particular, Article 21.1 of the DSU states that
"[p]rompt compliance with the recommendations and rulings of the DSB is essential in order to
ensure effective resolution of disputes to the benefit of all Members" ( emphasis added). Article 21.3
of the DSU also highlights that "[i]f it is impracticable to comply immediately with the
recommendations and rulings, the Member concerned shall have a reasonable period of time in which
to do so" ( emphasis added ). In this respect, WTO Members must bring their measures found
inconsistent with their obligations immediately after the date of adoption of the DSB report or, should
a reasonable period be agreed between the parties to the dispute, at the end of such a period at the
latest.288
5.124 Since the United States manifestly failed to do so with respect to the "as applied" violations
found in the original dispute, the European Comm unities considers that the United States violated
Articles 21.3 and 21.3(b) of the DSU when failin g to adopt new measures between 9 April and
23 April/31August 2007.289
5.125 The European Communities requests this Panel to make an explicit finding that no measure
taken to comply existed at all during the mentioned period of time. This is different from a finding on
the existence or consistency with a covered agreemen t of measures taken to comply "at the end of the
reasonable period of time" in addition to a finding on the existence of a measure taken to comply "as
of the date of the establishment of a panel". In other words, the European Communities is not asking
the Panel to rule on the existence of measures taken to comply "at the end of the reasonable period of
time", i.e., on 9 April 2007. In contrast, the European Communities wants the Panel to declare that no
measure taken to comply existed between 9 Apr il 2007 and 23 April/31 August 2007. A similar
finding of non-compliance in past periods was made by the panel in Australia – Salmon (21.5).290
5.126 The European Communities notes that the Unite d States opposes the request for a specific
finding by the European Communities that, since the United States did not take new measures
between 9 April 2007 ( i.e., the end of the reasonable period) and 23 April/31 Augus t 2007 (when all
the Section 129 Determinations were completed and entered into force), it failed to comply with the

286 EC First Written Submission, Executive Summary, para. 4.
287 EC First Written Submission, Executive Summary, para. 34.
288 EC First Written Submission, Executive Summary, para. 35.
289 EC First Written Submission, Executive Summary, para. 36.
290 EC First Written Submission, Executive Summary, para. 37.

DSB's recommendations and ruling in a timely manner and, thus, violated Articles 21.3 and 21.3(b) of
the DSU. In particular, it argues that Articles 21.3 and 21.3(b) of the DSU do not impose obligations
on Members.291 The European Communities argues that a careful reading of Article 21 of the DSU
implies that WTO Members must bring their meas ures found inconsistent with their obligations
immediately after the date of adoption of the DS B report or, should a reasonable period be agreed
between the parties to the dispute, at the end of such a period at the latest .292 T h e
European Communities considers that unlike in US – Upland Cotton (21.5) , in this case the
European Communities is not asking the Panel to ru le on the existence of measures taken to comply
"at the end of the reasonable period of time", i.e., on 9 April 2007. In contrast, the
European Communities wants the Panel to declare th at no measure taken to comply existed between
9 April 2007 and 23 April/31 August 2007. The EC's re quest is similar to the one made by Canada in
Australia – Salmon (21.5), which was granted by the panel.293
5.127 Finally, the European Communities argues that the United States seems to agree with its
observation that the Panel should refrain from entering in to the analysis of the effects of its report in
the US municipal law jurisdiction. The European Communities considers that the Panel is called
upon to interpret Article 21.3 of the DSU and infer the necessary consequences from the facts of this
case.294
5.128 The European Communities argues th at it has shown that the United States failed to take new
measures to comply with the DSB's recommendations and rulings in the original dispute before the
end of the reasonable period of time ( i.e., 9 April 2007) and the United States has not contested that
imports subject to anti-dumping duties in the or iginal proceeding made between 9 April 2007 and
23 April/31 August 2007 must pay duties based on zeroing. The European Communities asks a
specific finding from this Panel on this issu e, again, showing that this cannot be immediate
compliance.295 The European Communities considers that, by failing to put into effect the measures
taken to comply between 9 April and 23 April/31 August 2007, the United States violated
Articles 21.3 and 21.3(b) of the DSU, and failed to comply with the DSB's recommendations and
rulings.
296 In light of the foregoing, the European Comm unities submits that the United States has not
complied with the DSB's recommendations in the orig inal proceeding and, thus, remains in violation
of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it
continues collecting anti-dumping duties and est ablishing new cash deposit rates based on zeroing
with respect to the original investigations and administrative reviews as described in the original
dispute.297
5.129 In conclusion, the European Communities request s the Panel to make an explicit finding on
this matter since there are entries which have not yet been liquidated by the United States. Such a
finding may lead the relevant authorities to stop pr oceedings for collection of duties and, thus, is of
relevance to the effective resolution of the present dispute. 298 In light of the foregoing, the European
Communities considers that the United States has faile d to show that it has complied with the DSB's
recommendations and ruling in the original dispute.299

291 EC Second Written Submission, Executive Summary, para. 35.
292 EC Second Written Submission, Executive Summary, para. 36.
293 EC Second Written Submission, Executive Summary, para. 37.
294 EC Second Written Submission, Executive Summary, para. 38.
295 EC Closing Statement, Executive Summary, para. 9.
296 EC Opening Statement, Executive Summary, para. 15.
297 EC Second Written Submission, Executive Summary, para. 34.
298 EC Second Written Submission, Executive Summary, para. 39.
299 EC Second Written Submission, Executive Summary, para. 40.

(b) United States
5.130 The United States understands the EC to claim that the United States breached Article 21.3
and Article 21.3(a) by implementing its measures ta ken to comply on April 23, 2007, two weeks after
the conclusion of the reasonable period of time. However the United States argues, the EC fails to
explain how US implementation of the recommendati ons and rulings of the DSB constituted a breach
of Article 21.3 or Article 21.3(a).
300 The United States argues that contrary to the EC's assertion, the
report in Australia – Salmon does not support the EC's position. That panel simply concluded that the
measures taken to comply did not exist at the end of the reasonable period of time. The panel made
no finding that Australia had breached Article 21.3, or any of its subparagraphs, as a result. By
contrast, the United States does find support for the futility of such a finding in the report in US –
Upland Cotton (21.5). There, the panel explained that a finding of a breach of Article 21.3 would "be
of little relevance to the effective resolution of disputes."301
5.131 In light of the above, the United States submits that this Panel should decline to make the
suggestion requested by the EC. It observes in th is context that a Member retains the right to
determine the manner of implementing DSB recomme ndations and rulings. The question in this
proceeding is the existence or consistency of the me asure taken to comply, not what future actions the
United States should take to ensure compliance.302
5.132 The United States reiterates that there is no te xtual basis for the EC's claim of a breach of
Article 21.3. The EC has continued to fail to explai n the textual basis for its claim. The EC asserts
that Article 21.3 "requires WTO Members to co mply immediately with the recommendations of
adopted DSB reports." Article 21.3 does no such thing. Indeed, Article 21.3 acknowledges that
immediate compliance may be impracticable and t hus confers a right on the responding Member to a
reasonable period of time.303 The United States observes that the EC's reliance on Australia – Salmon
(21.5) is of no help in this regard. The panel in that dispute did not find a breach of Article 21.3,
which is what the EC is requesting here. In that context, the EC's attempt to distinguish US – Cotton
Subsidies (Article 21.5) (Panel) is unavailing. The panel in that dispute squarely rejected the claim
the EC is advancing here: a breach of Article 21.3.304
D. VIOLATIONS WITH RESPECT TO SPECIFIC MEASURES (SECTION 129 DETERMINATIONS)
1. Whether there has been a violation in respect of case 11 – Stainless Steel Sheet and Strip
in Coils from Italy
(a) European Communities
5.133 The European Communities considers that the "measures taken to comply" by the
United States in this case ( i.e., the Section 129 Determinations relati ng to the original investigations
challenged in the previous Panel proceedings) are inconsistent with its WTO obligations. 305 T h e
European Communities submits that the Section 129 Determinations adopted by the United States to
bring its measures into conformity violated certain provisions of the Anti-Dumping Agreement and the
GATT 1994 . In this respect, the European Commun ities notes that the scope of Article 21.5
proceedings allows for new legal claims against "measures taken to comply". The Appellate Body
has already clarified that panels are to review the "totality" of claims relating to the consistency of

300 US First Written Submission, Executive Summary, para. 55.
301 US First Written Submission, Executive Summary, para. 56.
302 US First Written Submission, Executive Summary, para. 57.
303 US Second Written Submission, Executive Summary, para. 54.
304 US Second Written Submission, Executive Summary, para. 55.
305 EC First Written Submission, Executive Summary, para. 5.

"measures taken to comply" with the covered agr eements (continuing violations, new violations and
consequential violations of the covered agreements). Thus, a co mpliance panel is not limited to
examining the consistency of the "measures taken to comply" with the original DSB's rulings and
recommendations. The task of a compliance panel is rather to examine the consistency of the
measures with "the covered agreements".306
5.134 The European Communities submits that the United States committed, and then failed to
remove, an obvious calculation error when adopting a Section 129 Determination in Stainless Steel
Sheet and Strip in Coils from Italy, listed in the Annex to the Panel Request as Case 11.307
5.135 The Section 129 Determination covered one manufacturer/exporter of stainless steel sheet and
strips in coil from Italy, ThyssenKrupp Acciai Speciali Terni S.p.A and ThyssenKrupp AST USA
(collectively "TKAST"). Errors were made in the dumping margin calculation by the USDOC in the
original less-than-fair value (LTFV) investigation. In particular, the USDOC incorrectly calculated
the average unit value of 84 TKAST US sales. Th e USDOC applied a "facts available" rate to these
84 unreported US sales. The USDOC, in its calculati on, erroneously inverted the fraction: instead of
dividing total value by total volume, it divided tota l volume by total value. This error artificially
inflated the unit value and, therefore, the amount of dumping found. Despite realising this obvious
error, the United States failed to correct it.308
5.136 The European Communities notes that if, in add ition to eliminating zeroing, the United States
had corrected this obvious calculation error, the dum ping margin would have been negative and, thus,
the measure would have been revoked. Thus, as re gards this obvious calculation error, the European
Communities submits that the United States violated Ar ticles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.309
5.137 The European Communities notes the argument made by the United States that the EC's claim
that the USDOC made an error in the calculation of the unit value and then failed to have it removed
pursuant to the Section 129 Determination at hand is beyond the scope of this proceeding, since that
clerical error is not part of the measure taken to comply with the DSB's recommendations and rulings
in the original dispute. It also notes that th e United States also maintains that the European
Communities has not made a prima facie case since the EC's claims are based on unsupported
assertions. Finally, the EC observes that the Unite d States notes that the failure by the USDOC to
disregard the allegations of error made by the respondents in that Sec tion 129 Determination is
consistent with an investigating authority's right to the orderly conduct of its proceedings. The
European Communities submits that these arguments should be rejected.310
5.138 The European Communities is of the view that the Section 129 Determinations are "measures
taken to comply". The United States agrees with th is. The European Communities also notes that the
scope of Article 21.5 proceedings allows for new legal claims against "measures taken to comply"
and, thus, panels are to review the "totality" of cl aims relating to the consistency of "measures taken
to comply" with the covered agreements (continui ng violations, new violat ions and consequential
violations of the covered agreemen ts). Consequently, since the exis tence of the calculation error has
not been contested by the United States, and remains in the "measure taken to comply" ( i.e., the
Section 129 Determination concerning stainless steel sh eet and strip in coils from Italy), it is part of
that measure and, thus, may be subject to claims within this Article 21.5 proceeding. Indeed, when
the USDOC recalculated the non-zeroed anti-du mping duty for TKAST in the Section 129

306 EC First Written Submission, Executive Summary, para. 38.
307 EC First Written Submission, Executive Summary, para. 39.
308 EC First Written Submission, Executive Summary, para. 40.
309 EC First Written Submission, Executive Summary, para. 41.
310 EC Second Written Submission, Executive Summary, para. 41.

proceeding, it repeated exactly th e same calculation error (the inversion of the fraction) that it had
made in the original investigation. Without this error, the dumping margin for TKAST would have
been negative. Therefore, the calculation error in question was actually committed in the Section 129
proceeding, while makes it even clearer that it is part of the "measure taken to comply".
311
5.139 The European Communities argues that even assuming arguendo the US argument that the
calculation error is not part of the "measure take to comply", the European Communities considers
that it would still fall under the scope of th is proceeding. Indeed, measures having a close nexus with
the "measure taken to comply" can also fall with in the scope of Article 21.5 proceedings. The
European Communities observes that the arithmetical error in questi on artificially inflated the unit
value and, therefore, affected the amount of dumpi ng found by the USDOC. In this respect, the error
it is part of the calculation exercise carried out by the USDOC when determining the new amount of
dumping in the Section 129 Determination. The United States could not recalculate the correct
dumping margin without zeroing and bring the measure into compliance if there are basic errors in the
data used for this purpose. 312 Consequently, the European Comm unities maintains that EC's claim
that the USDOC made an error in the calculation of the unit value and then failed to have it removed
pursuant to the Section 129 Determin ation at hand falls within the scope of this proceeding. The
calculation error is part of the new dumping determination, i.e., the measure taken to comply by the
United States in this case. 313 On the basis of the above, the European Communities considers that it
has sufficiently made a prima facie case that the failure by the United States to correct the arithmetical
error pursuant to the Section 129 Determination at hand violates the Anti-Dumping Agreement.314
5.140 In addition, the European Communities rejects the argument of the United States that, in the
Section 129 Determination at hand, the USDOC rejected all claims of errors by all interested parties
on the basis of the need for finality of proceedings and for equitable treatment of all parties. The
European Communities submits that the USDOC, in this particular case, should have taken into
account all claims of errors and, in fact, had enough time to do so. 315 It notes that, as the United States
confirmed, the Section 129 Determinatio n concerning this case was delayed for four months precisely
because the USDOC was examining the claims brought by interested parties. The European
Communities explains that the USDOC decided to do so even if the scope of the Section 129
Determination was, allegedly, "limited to recalculate the margins of dumping by applying a
methodology without zeroing". However, at the end of the proceeding, the USDOC decided to reject
all claims. Thus, contrary to what the United St ates asserts, the examination of the claims concerning
errors made by the USDOC in the calculation of the new margin of dumping was part of the
Section 129 proceeding. Moreover, the European Communities notes that the USDOC has taken into
account (and corrected) other errors in Section 129 proceedings. Finally, the European Communities
submits that the USDOC could not have remained passive and refuse to correct its own mistake.
Otherwise, this would imply that clerical erro rs made by the investigating authorities remain
untouchable for interested parties.
316 In light of the above, the European Communities submits that the
Panel should reject the arguments raised by the Un ited States with respect to Case 11 relating to the
arithmetical error.317
5.141 The European Communities notes that the United St ates has made several arguments to try to
justify the fact that, thanks to an arithmetical error, anti-dumping duties have remained in place as a
result of its Section 129 Determination in Stainless Steel Sheet and Strip in Coils from Italy .

311 EC Second Written Submission, Executive Summary, para. 42.
312 EC Second Written Submission, Executive Summary, para. 43.
313 EC Second Written Submission, Executive Summary, para. 44.
314 EC Second Written Submission, Executive Summary, para. 45.
315 EC Second Written Submission, Executive Summary, para. 46.
316 EC Second Written Submission, Executive Summary, para. 47.
317 EC Second Written Submission, Executive Summary, para. 48.

However, in the EC's view, this Panel should reject those unfounded arguments in order to avoid the
abusive application of the Anti-Dumping Agreement by the United States and provide compliance
proceedings with effectiveness.318
5.142 In particular, the European Communities notes that the calculation error is part of the measure
taken to comply and, thus, may be subject to claims within this Article 21.5 proceeding. The fact that
the USDOC decided, at the last moment, to disregard the claim on the clerical error and stated so in
its decision , shows that the error (and particularly the d ecision to fail to correct it) was part of the
measure taken to comply. Further, the European Communities observes that there is an important
difference between EC – Bed Linen (21.5) and the case at hand. In the present case, the clerical error
affecting the calculation of the normal value is on e of the elements included in the set of data
necessary to recalculate the correct amount of dumpi ng. In other words, both the error and the
zeroing methodology affect the calculation of the dumping margin, which the United States had to
"bring into conformity with its obligations". Th erefore, it is not possibl e to separate in the re-
determination made by the USDOC pursuant to th e Section 129 proceeding one of the elements ( i.e.,
the normal value) from the rest of the calculation of the dumping margin.
319 Moreover, the European
Communities has sufficiently made a prima facie case that the failure by the United States to correct
the arithmetical error pursuant to the Sec tion 129 Determination at hand violates the Anti-Dumping
Agreement.320
5.143 Finally, the European Communities considers th at the United States cannot maintain its anti-
dumping duties in force, once it has been alerted repeat edly by the interested parties in the context of
the Section 129 Determination, since it is evident that, without the arithmetical error, there is no
dumping. Therefore, the United States is ignoring the basic principle that anti-dumping duties can
only be levied in order to offset dumping.321 In sum, the European Communities maintains that the
Panel should reject the arguments raised by the Un ited States with respect to Case 11 relating to the
arithmetical error.322
(b) United States
5.144 In respect of the EC's claims that in the original investigation of stainless steel sheet and strip
in coils ("SSSS") from Italy, Commerce made a calc ulation error, the United States contends that
these claims are made for the first time in this compliance proceeding. Although the EC could have
made these claims in the original dispute, it did not. Therefore, the United States submits that the
EC's claims are beyond the terms of reference of this proceeding. 323 In addition, the United States
argues that the EC has failed to make a prima facie case with respect to the claims asserted. 324
Moreover, according to the United States, Commerc e's decision not to consider the respondent's
argument, when raised for the first time in the se ction 129 proceeding, is fully consistent with an
investigating authority's right to the orderly conduct of its proceedings.325
5.145 The United States observes that, in its rebuttal su bmission, the EC continues to maintain that
the alleged error in question is with in the terms of reference of this Article 21.5 panel. Specifically,
the EC contends that the alleged error is part of the measure taken to comply because it "was actually
committed" in the context of the Section 129 procee ding. Additionally, the EC avers that it has

318 EC Opening Statement, Executive Summary, para. 16.
319 EC Opening Statement, Executive Summary, para. 17.
320 EC Opening Statement, Executive Summary, para. 18.
321 EC Opening Statement, Executive Summary, para. 19.
322 EC Opening Statement, Executive Summary, para. 20.
323 US First Written Submission, Executive Summary, para. 42.
324 US First Written Submission, Executive Summary, para. 43.
325 US First Written Submission, Executive Summary, para. 44.

established a prima facie case with respect to its claims, and that the United States could not disregard
an "obvious mistake" in the Section 129 proceeding.
326
5.146 The EC's arguments are without merit. As the United States discusse s below, the alleged
error is an unchanged aspect of the original measure a nd, therefore, is not a part of the measure taken
to comply. Moreover, the EC still has not made a prima facie case with respect to the claims asserted,
nor has it put forth any authority to support its contention that the United States could not disregard an
"obvious mistake" in the instant proceeding.327
5.147 As a preliminary matter, the EC advances factua l inaccuracies in support of its argument that
the alleged error "was actually committed" in th e Section 129 proceeding. The only change that
Commerce made within the computer program applie d to the part of the program that caused the
program to disregard non-dumped comparisons. Once that part of the program was changed in a
manner consistent with the DSB's recommendations and rulings, Commerce re-ran the program to
calculate a revised margin for the respondent.328
5.148 Commerce made no other changes to the program and made no changes to the sets of data
used by the program to calculate the dumping marg in. Moreover, to the extent that Commerce had
found, in the original investigation, that the res pondent had failed to provide information with respect
to 84 transactions, the original program include d certain information in order to address those
transactions, using "the facts available." In the course of the Section 129 proceeding, Commerce
made no changes to the program related to these 84 un reported transactions. Thus , to the extent that
the EC contends that an error was made with respect to the treatment of these 84 unreported
transactions, it is clear that the alleged error was not "actually committed" in the Section 129
proceeding as the EC asserts.
329
5.149 This fact is of critical importance because an unchanged aspect of the original measure is not
a part of the measure taken to comply . The Appellate Body's decision in EC – Bed Linen (21.5) (AB)
confirms this point.330
5.150 The EC's alternative argument – that the alleged error is within the scope of this proceeding
because it bears a close nexus to the measure taken to comply – is inapposite. In Softwood Lumber,
there was an original investigation, which was f ound inconsistent with the covered agreements. The
United States revised the determination relating to th e original investigation. Canada argued that a
separate measure, an administrative review, constitu ted a measure taken to comply. For the reasons
described above, the Appellate Body concluded that , under those particular facts, the administrative
review was within the scope of that Article 21.5 proceeding.331
5.151 Here, however, there is no third measure. There is the original investigation and the measure
taken to comply. Thus, this situation is analogous to Bed Linen, not Softwood Lumber. The EC failed
to advance a claim (assuming arguendo that there is a basis in the Antidumping Agreement for such a
claim) in the original proceeding, and is using th e Article 21.5 proceeding to challenge an aspect of
the original measure that was unchanged, and that the United States did not have to change, to bring
its measure into compliance. Here, the EC is seeking precisely what it opposed (and the Appellate
Body did not permit) in EC – Bed Linen: affording complaining parties a second bite at the apple.332

326 US Second Written Submission, Executive Summary, para. 38.
327 US Second Written Submission, Executive Summary, para. 39.
328 US Second Written Submission, Executive Summary, para. 40.
329 US Second Written Submission, Executive Summary, para. 41.
330 US Second Written Submission, Executive Summary, para. 42.
331 US Second Written Submission, Executive Summary, para. 43.
332 US Second Written Submission, Executive Summary, para. 44.

5.152 The United States notes that in its first submissi on, the EC asserted that the United States'
failure to address the alleged errors is in consistent with various Articles of the Anti-Dumping
Agreement. Even if, arguendo, this Panel could reach this claim (though for the reasons given in the
previous subsection it should not), the EC's clai ms fail. The United States rebutted the EC's
arguments by noting that the EC failed to make a prima facie case with respect to the claims asserted.
The EC has not responded to that argument, other than to assert that "the mere text of those provisions
reflects the obligations that the United States, by failing to correct the error, has infringed." 333 As the
United States noted in its first written submissi on, the Appellate Body has stated that "a prima facie
case must be based on 'evidence and legal argument' put forward by the complaining party in relation
to each of the elements of the claim." The EC, as the complaining party, bears the burden of coming
forward with evidence and legal argument to establish a prima facie case of a violation. A bald
assertion that a clerical error breaches a series of provisi ons is insufficient. Having failed at that task
yet again, the United States respectfully requests that this Panel reject the EC's claims.334
5.153 The EC argues that "obvious mistakes" shoul d have been addressed in the Section 129
proceeding. According to the EC, the United States should have addressed all claims of error and, in
fact, had ample time to do so. The EC is offering a test that is not found in the Anti-Dumping
Agreement or the DSU – indeed, the EC offers no text ual support for its assertion. Moreover, the
EC's test would tend to create more problems than it solves. What is an "obvious" mistake? To
whom? Why would "obvious" mistakes be exempt from the limitations on compliance proceedings,
but "non-obvious" mistakes would not? And if the mistake were "obvious," why did the EC fail to
raise it in the original proceedings?
 335 To support its view that obvious mistakes should be corrected,
the EC attempts to demonstrate that the United States has corrected mistakes in the past. The
United States maintains that whether the United St ates has used section 129 proceedings to correct
mistakes is not germane to the question at hand, which is whether the United States – or any other
responding party – is obligated to do so.
336
2. Whether there has been a violation in respect of cases 2, 4 and 5 – Stainless Steel Bar
from France, Italy and the United Kingdom ("all others" rate)
(a) European Communities
5.154 The European Communities submits that in the Section 129 Determinations adopted by the
United States in the Cases listed in the Annex to th e Panel Request as 2, 4 and 5, the United States
established new duty levels based on an unjus tified increase in the "all others" rates. 337 In two of the
cases, Stainless Steel Bar from France and Stainless Steel Bar from the United Kingdom , the Section
129 Determination led to the revocation of the orde r for Ugitech and Corus r espectively and created a
situation where all the company-speci fic dumping margins were either zero/ de minimis or based on
adverse facts available. In both cases, the US DOC changed the "all others" rate (previously
equivalent to the "zeroed" rate of Ugitech and Corus) to a simple weighted average of the zero/ de
minimis and adverse facts available rates. This resulte d in an astronomic increase in the "all others"
rate, from 3.9 per cent to 35.92 per cent in Fr ance and 4.48 per cent to 83.85 per cent in the
United Kingdom.338

333 US Second Written Submission, Executive Summary, para. 45.
334 US Second Written Submission, Executive Summary, para. 46.
335 US Second Written Submission, Executive Summary, para. 47.
336 US Second Written Submission, Executive Summary, para. 48.
337 EC First Written Submission, Executive Summary, para. 42.
338 EC First Written Submission, Executive Summary, para. 43.

5.155 In the case of Stainless Steel Bar from Italy , the exclusion of Valbruna and Foroni led to an
increase of the "all others" rate from 3.81 per cent to 6.6 per cent, following a similar averaging
exercise which included an adverse facts available rate.
339
5.156 The European Communities observes that the a bove situations have come about because the
USDOC, following the provisions of Article 9.4 of the Anti-Dumping Agreement, had originally based
the "all others" rate on the highest dumping margin for a co-operating exporter, thus excluding zero/de
minimis margins and margins based on facts availabl e from the calculation. Once the impact of
zeroing was removed in the Section 129 proceeding, all co-operating exporters had zero or de minimis
margins. Thus, USDOC had to find another basis for setting the "all others" rate. The method it
chose led to the steep increases described above. The European Communities submits that such
increases in the "all others rate" are unreasonable a nd inconsistent with Articles 9.4 and 6.8 of the
Anti-Dumping Agreement.340
5.157 According to the European Communities, in th e three cases concerned, the United States had
originally used a methodology consistent with Article 9.4 of the Anti-Dumping Agreement . In
contrast, when carrying out the Section 129 Dete rminations, in the absence of any remaining co-
operating exporters with a dumping margin above de minimis , not only did the United States use
margins based on facts available, but also zero/ de minimis margins ( i.e., the new ones calculated
without zeroing). In fact, the United States made a weighted average between the two types of
margins to calculate the final "all others" rates. The European Communities considers that this is
directly contrary to the text of Article 9.4 of the Anti-Dumping Agreement , as interpreted by the
Appellate Body.341
5.158 In addition, the European Communities argues that, basing the "all others" rate on adverse
facts available rates also violates Article 6.8 and Annex II of the Anti-Dumping Agreement. Indeed,
the method applied by the USDOC to calculate the "a ll others" rate in practice moves from a situation
where the "all others" rate is based on "facts available" ( i.e., the highest rate for a co-operating
exporter) to one where it is largely based on "adverse inferences" ( i.e., a rate for an exporter which
has failed to "act to the best of its ability to comp ly with a request for information"). By basing the
rate on adverse facts available, the USDOC effectiv ely determined that exporters subject to the "all
others" rate were guilty of behaviour that would wa rrant the application of adverse inferences and has
put them in the same basket as firms which are a lleged to have actively im peded the investigation,
without demonstrating that such treatment is appropriate.342
5.159 The European Communities notes that the United States asks the Panel to reject the EC's
claim concerning the Section 129 Determinations on Stainless Steel Bar from France, Italy and the
United Kingdom because the original anti-dumping or ders were revoked and, thus, the measures are
no longer in place. Moreover, the United States ma intains that the European Communities has failed
to demonstrate that the calculation of the "all othe rs" rates from the Section 129 Determinations was
inconsistent with the Anti-Dumping Agreement. The European Communities submits that the US
arguments should be rejected in light of the following reasons. 343 First, as the United States points
out, pursuant to sunset reviews of the anti-dumping duty orders on Stainless Steel Bar from, inter alia,
France, Italy and the United Kingdom, the USITC found that the revocation of the orders would not
be likely to lead to the continuation or recurrence of material injury to the domestic industry. Thus,
on 7 February 2008 the USDOC revoked the original or der. However, this revocation is not final and
conclusive because, under US law, interested parti es may challenge the USITC's determination within

339 EC First Written Submission, Executive Summary, para. 44.
340 EC First Written Submission, Executive Summary, para. 45.
341 EC First Written Submission, Executive Summary, para. 46.
342 EC First Written Submission, Executive Summary, para. 47.
343 EC Second Written Submission, Executive Summary, para. 49.

30 days after the publication of the notice in the Fe deral Register. Should the appeal be successful,
the measure would be reintroduced. Therefore, th e European Communities considers that the Panel
should examine the conformity of this measure with the Anti-Dumping Agreement and the GATT
1994.344 Second, the European Communities observes that the fact that a challenged measure is no
longer in effect, of itself, does not necessarily prev ent the Panel from assessing that measure, even
though it may affect the Panel's rulings in connection with implementation. The
European Communities recalls that several panels have indicated their willingness to examine and
make findings regarding measures that have al ready expired or allegedly expired. The
European Communities argues that this approach is necessary in order to provide a positive solution
to the dispute, and to prevent the purpose of th e dispute settlement system from being defeated. 345
Third, the European Communities contends that it h as demonstrated that the calculation of the "all
others" rates from the Section 129 De terminations is inconsistent with the Anti-Dumping Agreement,
having sufficiently addressed this issue in its First Written Submission. 346 In light of the above, the
European Communities submits that the Panel should reject the arguments raised by the United States
with respect to Cases 2, 4 and 5 relating to the unjustified increased of "all others" rates.347
5.160 The European Communities observes that it has explained in its submissions how the
significant increase of "all others" rates (sometimes even almost twenty times higher that the original
"all others" rates") as a result of the Sec tion 129 Determinations in the cases concerning Stainless
Steel Bar from France , Italy and the United Kingdom violates Articles 9.4 and 6.8 of the Anti-
Dumping Agreement. The United States has not contested these claims.348
5.161 As for the revocation of the original orders, the European Communities requests this Panel to
continue with its analys is of consistency of all the measures challenged in this proceeding with the
Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders
have been revoked or not. Otherwise, it would need to come back to a new panel to discuss the same
issue and, thus, a positive solution to the dispute on th is point would have to wa it. This cannot be the
purpose of the dispute settlement system which, according to Article 3.2 of the DSU, must provide
"security and predictability" and serves to "cla rify the existing provisions" of the covered
agreements.349
5.162 As regards the observation made by the United States that the EC's arguments are result-
oriented, the European Communities adds that the situation is rather the contrary. It is the
United States which is seeking to artificially incr ease the "all others" rates, in disregard of its
obligations contained in Articles 9.4 and 6.8 of the Anti-Dumping Agreement . If the United States
finds it difficult to justify its duties on the basis of the Anti-Dumping Agreement, it might well be, as
the European Communities has sugg ested, that the only WTO-consistent solution available for the
United States is that the level of "all others" rate should be zero. Yet it should not be forgotten that
this situation arose because the anti-dumping duti es for the major exporters, as selected by the
United States in the original investigation, were revoked after zeroing was eliminated from the
calculation. Should the United States have disregarded those companies at the very beginning of the
original investigation (because dumping would not have been found without zeroing), the
United States could have selected other sources of information in order to calculate the "all others"
rates.
350 Consequently, the European Communities s ubmits that it has demonstrated that the
calculations of the "all others" rates in the Secti on 129 Determinations in qu estion are inconsistent

344 EC Second Written Submission, Executive Summary, para. 50.
345 EC Second Written Submission, Executive Summary, para. 51.
346 EC Second Written Submission, Executive Summary, para. 52.
347 EC Second Written Submission, Executive Summary, para. 53.
348 EC Opening Statement, Executive Summary, para. 21.
349 EC Opening Statement, Executive Summary, para. 22.
350 EC Opening Statement, Executive Summary, para. 23.

with Articles 9.4 and 6.8 of the Anti-Dumping Agreement, and that the United States has not rebutted
this claim.
351
(b) United States
5.163 The United States first submits that the EC's cl aims regarding the Section 129 determinations
on Stainless Steel Bar from France, Germany, Italy and the United Kingdom should be rejected
because these claims concern measures that are no longer in effect. Commerce revoked the orders
covering Stainless Steel Bar from France, Germany, Italy and the United Kingdom effective as of
7 March 2007.
352
5.164 The United States observes in this context that the Section 129 determinations, which resulted
in a change to the all others rates, became effective on April 23, 2007. Thus, imports made on or after
23 April 2007, from exporters or producers who did not have their own cash deposit rate were subject
to the posting of a cash deposit at the new all others rate. However, the revocation of the antidumping
duty orders on Stainless Steel Bar from France, Italy and the United Kingdom became effective as of
7 March 2007. Pursuant to this revocation, th e United States will refund any cash deposits posted on
imports of stainless steel bar from these countries made on or after 7 March 2007 and those imports
will not be subject to any final assessment of anti dumping duties. Alternatively, the EC also has
failed to demonstrate that the calculation of the all others rates from the Section 129 determinations
was inconsistent with the Anti-Dumping Agreement.
353
5.165 Despite the revocation of the antidumping duty orders covering Stainless Steel Bar from
France, Italy and the United Kingdom, the EC persists with its claim against the "all others" rate
resulting from Commerce's Section 129 determinations. The United States argues that the EC's claim
continues to be unfounded.354
5.166 The United States explains that consistent with Article 6.10, in the original investigations
Commerce limited its examination to the largest pe rcentage of the volume of the exports from the
country in question which could reas onably be investigated. Commerce then calculated an all others
rate to apply to imports from those exporters or producers who did not have their own margin of
dumping, consistent with Article 9.4. In the S ection 129 Determinations, Commerce recalculated the
rates for the selected respondents as well as the all others rate. For the three stainless steel bar
determinations challenged by the EC, each of the margins of dumping Commerce calculated were
either zero or de minimis, or based on facts available. Article 9.4 does not address this situation, and
Commerce determined the simple average of the margins of dumping calculated in each of the Section
129 Determinations to establish the all others rate for that determination. 355 The United States notes
in this regard that the EC's contention here is not with the reasonableness of the methodology
Commerce employed. Rather, the EC's arguments are results-oriented, pointing to the fact that the
resulting all others rates were higher than those calcu lated in the original investigations. Should the
Panel reach this claim, which it need not, the United States argues that the EC has failed to
demonstrate that Commerce acted inconsisten tly with Articles 6.8, 6.10 or 9.4 of the Anti-Dumping
Agreement, and the Panel should so find.356
5.167 According to the United States, the EC contends that under Article 9.4 of the Anti-Dumping
Agreement, the United States could not use zero or de minimis margins or margins based on facts

351 EC Opening Statement, Executive Summary, para. 24.
352 US First Written Submission, Executive Summary, para. 27.
353 US First Written Submission, Executive Summary, para. 28.
354 US Second Written Submission, Executive Summary, para. 34.
355 US First Written Submission, Executive Summary, para. 29.
356 US First Written Submission, Executive Summary, para. 30.

available in calculating the new all others rate. This is despite the fact that these were the only
margins remaining after Commerce recalculated th e margins of dumping to implement the DSB's
recommendations and rulings. 357 The EC contends that its altern ative methods would be consistent
with WTO obligations. Namely, the EC argues th at Commerce could have continued to use the
original all others rates. The EC, however, ignor es the inconsistency of its own argument. The EC
originally challenged Commerce's determinations in these investigations because Commerce did not
grant offsets for the non-dumped sales. The original all others rates were based on the very margins
of dumping challenged by the EC. Following the EC's logic in the original dispute, therefore, the
original all others rates were tainted with the sa me inconsistencies present in the challenged margins
of dumping. Accordingly, when implementing the DSB's recommendations and rulings, Commerce
could not simply use those same all others rates.358
5.168 The United States observes indeed that, had Commer ce used the original all others rates, as
advocated by the EC in this dispute, and had an average of zero or de minimis margins and margins
based on facts available resulted in lower all other rates, the United States anticipates that the EC
would have claimed that the use of the original all others rates was inappropriate as the underlying
margins were tainted with "zeroing." The EC's ar guments in this dispute are thus clearly results-
oriented, and not based on the obligations found in the Anti-Dumping Agreement.359
3. Whether there has been a violation in respect of cases 2, 3, 4 and 5 – Stainless Steel Bar
from France, Germany, Italy and the United Kingdom ("injury")
(a) European Communities
5.169 The European Communities observes that pursuant to the Section 129 Determinations
concerning Cases 2 to 5 listed in the Annex to th e Panel Request, the United States recalculated the
dumping margins without zeroing and found that some exporters were not dumping or had de minimis
dumping margins. However, in those cases the United States maintained the anti-dumping duties
without establishing (i) whether the remaining amount of dumped imports was causing injury to the
domestic industry, and (ii) whether this volume of du mped imports was not negligible. In particular,
the United States disregarded the fact that, afte r the recalculation of duties without zeroing, on
average around 75 per cent of the volume of imports which had been considered as dumped, could no
longer be considered as dumped. The European Comm unities submits that this is inconsistent with
Articles 3.1, 3.2, 3.5, 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994.
360
5.170 The European Communities notes that the Un ited States argues that the EC's claim
concerning the Section 129 Determinations on Stainless Steel Bar from France, Germany, Italy and
the United Kingdom should be rejected because the original anti-dumping orde rs were revoked and,
thus, the measure is no longer in place. In this r espect, the European Communities refers the Panel to
the arguments made in Section IV.2(a) of its Re buttal Submission, arguing that the Panel must
continue with its analysis of c onsistency of all the measures challe nged in this proceeding with the
Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders
have been revoked or not.361
5.171 The European Communities further notes that the United States is of the view that the
European Communities made the same claim in the or iginal proceeding, but the Panel in the original
dispute declined to consider it. Thus, the United States argues that such cl aims are not within the

357 US Second Written Submission, Executive Summary, para. 35.
358 US Second Written Submission, Executive Summary, para. 36.
359 US Second Written Submission, Executive Summary, para. 37.
360 EC First Written Submission, Executive Summary, para. 48.
361 EC Second Written Submission, Executive Summary, para. 54.

terms of reference of this proceeding. The Eur opean Communities observes in this respect that the
United States has not based this argument on any legal claims or provisions of the DSU. Nor have the
United States referred to the specific documents wh ere the European Communities made such claims
in the original proceeding. Thus, the Panel should reject it as unfounded.
362
5.172 In any event the European Co mmunities maintains, that, should the Panel examine the
argument raised by the United States on this point, the claim concerning the failure to reassess the
injury in the Section 129 Determinations concerned refers to new measures ( i.e., measures taken to
comply) and, thus, new claims can be made against them. 363 In light of the foregoing, the European
Communities submits that the Panel should reject the arguments made by the United States against the
violations identified by the European Communities with respect to the Section 129 Determinations
covered in this proceeding.364
5.173 The European Communities observes that it has extensively argued that the US failure to
reassess injury when, after the recalculation of duties without zeroing, on average around 75 per cent
of the volume of imports which had been consider ed as dumped could no longer be considered as
dumped, is inconsistent with Artic les 3.1, 3.2, 3.5, 5.8 of the Anti-Dumping Agreement and
Article VI:1 of the GATT 1994.365
5.174 The European Communities argues that the claims made by th e European Communities with
respect to the Section 129 Determinations at issue are not "dependent claims" as the United States has
characterised them. They relate to new measures (i.e., the Section 129 Determinations), against which
new claims can be made, and with respect to whic h the European Communities is asking for a finding
from this Panel.366
5.175 In addition, the European Communities notes that the Panel in the original dispute did not
reject the EC's claims, as the US prete nds to argue; rather, the Panel exercised judicial economy since
the EC's claims were consequential of the violation when calculating the dumping margin. In this
respect, it is worth remembering that, in US – OCTG (Sunset Reviews) (21.5) , the Appellate Body
held that a claim relating to an aspect of a measure on which the panel in the original proceeding had
exercised judicial economy was properly within the scope of Article 21.5 of the DSU. Therefore, the
EC's claim in the present case is equally properly before this Panel.367
5.176 Thus, the European Communities requests a finding that the United States violated
Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994
when failing to reassess the injury in light of th e new volume of non-dumped imports in the Section
129 Determinations concerned.368
5.177 As regards the Section 129 Determinations sp ecifically challenged in this proceeding, the
European Communities requests this Panel to find that the calculation error, the unjustified increase in
"all others" rates and the failure to reass ess injury amount to violations of the Anti-Dumping
Agreement and the GATT 1994. Even if the United States has re voked some of these measures, it is
vital for a proper solution to this dispute, including the correct interpretation of the relevant provisions
of the Anti-Dumping Agreement and the GATT 1994 , that this Panel provides a clarification of the
relevant rules. Otherwise, nothing would prevent the United States from infringing the rules again in

362 EC Second Written Submission, Executive Summary, para. 55.
363 EC Second Written Submission, Executive Summary, para. 56.
364 EC Second Written Submission, Executive Summary, para. 57.
365 EC Opening Statement, Executive Summary, para. 25.
366 EC Opening Statement, Executive Summary, para. 26.
367 EC Opening Statement, Executive Summary, para. 27.
368 EC Closing Statement, Executive Summary, para. 10.

new anti-dumping measures. In fact, a lack of a ru ling on this issue would allow the United States to
introduce WTO inconsistent measures at one point, wait for a challenge brought by a WTO Member,
wait for the panel proceedings to be initiated and then modify the measure at the last minute, in order
to prevent a negative finding. Again, this would set a bad example not only applicable to compliance
cases, but to the dispute settlement system in general.369
(b) United States
5.178 The United States asserts that the Panel should reject the EC's contention that the United
States acted inconsistently with the Anti-Dumping Agreement and GATT 1994 by maintaining the
orders with respect to Stainless Steel Bar fro m France, Germany, Italy and the United Kingdom
without reconsidering the issue of injury after th e Section 129 Determinations found that some of the
exporters originally investigated were not dumping because it concerns measures that are no longer in
effect.370 The United States clarifies that pursuant to the sunset reviews, it revoked the orders on
Stainless Steel Bar from France, Germany, Italy a nd the United Kingdom effective March 7, 2007.
Thus, contrary to the EC's contention, the United States no longer maintains antidumping duties on
products subject to these orders. Indeed, the revocati on is effective more than one month prior to the
end of the reasonable period of time. The Unite d States observes that it will refund the cash deposits
on any imports occurring on or after March 7, 2007. Additionally, these imports will not be subject to
any final assessment of antidumping duties in the future.
371
5.179 As a procedural matter, the United States not es that the EC asserted these claims in the
original proceeding, and the original panel declin ed to consider them. Should the EC pursue these
claims even though the order has been revoked, the United States reserves its right to request a ruling
from the Panel that such claims are not within its terms of reference.372
5.180 The United States notes, with respect to the EC 's claims involving injury, that the EC has
failed to demonstrate that these claims are within the terms of reference of this proceeding. The
United States considers that the EC, by including a brief statement that its claim "refers to new
measures (i.e., measures taken to comply) and, thus, new clai ms can be made against them," the EC,
however, is not making "new claims", instead trying to resuscitate failed claims from the original
dispute. The United States recalls that the Appe llate Body has clarified that "adopted panel and
Appellate Body reports must be accepted by the parties to a dispute" and complian ce bodies will
decline to revisit original panel and Appellate B ody reports that have been adopted and accepted by
the parties.
5.181 The EC raised these claims in the original pr oceeding, and the original panel affirmatively
declined to make findings on them. 373 The United States, referring to the EC's First Written
Submission, notes that the EC does not dispute this fact. The United States understands that the EC
asks the United States to identify wh ere in the original proceeding the EC made these claims. The
United States responds by noting that that these clai ms appear in the corrected version of the EC's
original Panel request under Section 3.2, "as applied claims," 374 and that the EC is precluded from
pursuing these claims here for two reasons. First, in view of the United States, the original Panel did
not find that the United States had breached its obliga tions with respect to Articles 3.1, 3.2, 3.5, and
5.8. The United States recalls that the Appellate Body noted and did not disturb the original panel's
treatment of the injury claims. Thus, the recommendations and rulings of the DSB did not pertain to

369 EC Closing Statement, Executive Summary, para. 11.
370 US First Written Submission, Executive Summary, para. 31.
371 US First Written Submission, Executive Summary, para. 32.
372 US First Written Submission, Executive Summary, para. 33.
373 US Opening Statement, Executive Summary, para. 26.
374 US Second Written Submission, Executive Summary, para. 49.

any findings on these claims, and the United States was under no obligation to take a measure to
comply with respect to such claims
375 -- the United States cannot be faulted for a failure to comply
since there was nothing to comply with. 376 Observing that the EC now argues, however, that the
United States was in fact obliged to take steps with respect to the injury claims, the United States
submits that that argument contradicts the express finding of the original panel that no such steps
would need to be taken. 377 The original Panel specifically foun d those claims unavailing, stating it
"perceive[d] no need to pronounce on the dependent claims raised by th e European Communities"
under, inter alia, Articles 3.1, 3.2, 3.5, and 5.8 of the Anti-Dumping Agreement. Because the original
panel rejected the EC's injury claims in the orig inal dispute on the basis that addressing them would
provide no further guidance to the United States for purposes of implementation, the United States
maintains that the EC is precluded from renewing those claims here.378
5.182 The United States argues that the reasons give n by the original Panel for dismissing the
claims similarly apply to compel rejection of the EC's reiterated argument here. Now, according to
the United States, as in the original proceeding, it is not necessary for the Panel to address dependent
claims where the United States has implemented the DSB's recommendations with respect to the
violations found. As the original Panel stated, "[d]eciding such dependent claims would provide no
additional guidance as to the steps to be undertaken by the United States in order to implement our
recommendation regarding the violation on which it is dependent."379
5.183 The United States also recalls that the orders in question have been revoked. Petitioners
appealed the determination that resulted in revocation, but that appeal has been dismissed. Thus, the
antidumping duty orders in question no longer exist.380
4. Requests for findings
(a) European Communities
5.184 The European Communities requests the Panel to make the following findings:381
• the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping
Agreement when extending the measures contained in the original dispute pursuant to
sunset review proceedings relying on margin of duties calculated with zeroing;
• the United States has not complied with the DSB's recommendations in the original
proceeding, since it continues to collect anti-dumping duties and establish new cash
deposit rates based on zeroing with respect to the original investigations and
administrative reviews challenged in the original dispute;
• the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 , since it still collects anti-dumping
duties calculated with zeroing with respect to measures challenged in the original
dispute (including the measures listed in the Annex to the Panel Request and any
other subsequent measures);

375 US Second Written Submission, Executive Summary, para. 50.
376 US Opening Statement, Executive Summary, para. 26.
377 US Second Written Submission, Executive Summary, para. 52. See also, US Opening Statement,
Executive Summary, para. 26.
378 US Second Written Submission, Executive Summary, para. 53.
379 US Second Written Submission, Executive Summary, para. 51.
380 US Opening Statement, Executive Summary, para. 27.
381 See also, EC Second Written Submission, Executive Summary, para. 58 and EC Opening Statement,
Executive Summary, para. 29

• the United States has not complied with the DSB's recommendations in the original
proceeding, since it has failed to fully re voke the original investigation orders
contested in the original dispute;
• the United States has not complied with the DSB's recommendations in the original
proceeding, since the 16 administrative review investigations covered in the original
dispute have not been superseded ( i.e., the United States still collects duties based on
the dumping margins found in those proceedings with zeroing, and the United States
has also relied on those margins for the dete rmination of likelihood of recurrence of
dumping in sunset review proceedings);
• the United States violated Articles 21.3 and 21.3(b) of the DSU, since it did not take
any measure to comply with respect to the "as applied" measures covered in the
original dispute between 9 April and 23 April/31 August 2007;
• the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 when making the error in the
calculation of the unit value and then failing to have it removed pursuant to the
Section 129 Determination in Case 11 of the Annex to the Panel Request;
• the United States violated Article 6.8, Annex II and Article 9.4 of the Anti-Dumping
Agreement when using a weighted average of exporters with zero/ de minimis rates
and adverse facts available to calculate th e "all others" rates pursuant to the Section
129 Determinations in Cases 2, 4 and 5 of the Annex to the Panel Request; and
• the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping
Agreement and Article VI:1 of the GATT 1994 when failing to reassess the injury in
light of the new volume of non-dumped imports pursuant to the Section 129
Determinations in Cases 2, 3, 4 and 5 of the Annex to the Panel Request.
382

5.185 The European Communities also requests the Panel to find that its composition was not
consistent with Articles 21.5 and 8.3 of the DSU.
5.186 The European Communities considers that, since the United States has failed to comply with
its obligations, the original recommendations of the DS B remain in effect, and apply to the full extent
of the findings requested above. Thus, the Europ ean Communities requests this Panel to confirm its
previous recommendation, pursuant to Article 19 of the DSU, that the United States takes the steps
necessary to bring its measures into conformity with the cited WTO provisions.383
5.187 In the European Communities' view, the Panel should suggest that, in order to comply with
the DSB's recommendations, the United States cease using zeroing when calculating dumping
margins in any anti-dumping proceeding with respect to the measures challenged in the original
dispute and any other subsequent amendments of tho se. This suggestion will be appropriate to help
promote the resolution of the dispute.
384
5.188 The European Communities clarifies that it is not requesting retrospective application of
DSB's recommendations and finding in this case. However, the European Communities asks for
prospective implementation of the DSB's recommendati ons after the end of the reasonable period. In
particular, the European Communities is of the opinion that the United States should stop taking any
positive acts providing for the final payment of duti es or retention of cash deposits based on zeroing
with respect to those entries not finally liquidated before the end of the reasonable period. In other
words, the United States (i) should not send new assessment instructions based on zeroing with
respect to the measures covered by this dispute; (ii) should not establish new cash deposit rates based
on zeroing in those cases; and (iii) should terminate all proceedings seeking to collect duties based on

382 EC First Written Submission, Executive Summary, para. 49.
383 EC First Written Submission, Executive Summary, para. 50.
384 EC First Written Submission, Executive Summary, para. 51.

zeroing after the end of the reasonable period in cases where there is no final liquidation. Finally, the
United States should reverse any positive acts take n after the end of the reasonable period which
sought the collection of anti-dumping duties or the establishment of new cash deposit rates based on
zeroing with respect to the measures successfully challenged in the original dispute.
385
(b) United States
5.189 The United States considers that it has implem ented the DSB's recommendations and rulings,
and thus has complied with its obligations under the DSU. Thus, the Panel should reject the EC's
claims of non compliance and its effort to enla rge the obligations of the United States. The
United States also considers that the Panel should decline to make the suggestion requested by the EC.
A Member retains the right to determine the manner of implementing DSB recommendations and
rulings. The question in this proceeding is the ex istence or consistency of the measure taken to
comply, not what future actions the United States should take to ensure compliance.386
VI. ARGUMENTS OF THE THIRD PARTIES
6.1 The arguments of the third parties are set out in their written and oral submissions to the
Panel, and in their answers to questions. The third parties' arguments, based on the summaries
submitted by them pursuant to paragraph 10 of the Pa nel's working procedures, are set forth in this
section. Certain of the third parties made only an oral submission, while others did not make either an
oral or written submission, but attended the Panel's meeting with the parties and third parties.387
1. India
6.2 At the Panel meeting with third parties, India stated that it has strong systemic interests in the
interpretation and application of various provisions of the Anti-Dumping Agreement , which
individually and collectively, prohibit the utilizati on of zeroing practice in all proceedings regulated
by the Anti-Dumping Agreement.388
6.3 India considers that the issue of zeroing is of extreme systemic importance to the multilateral
trading system. India strongly opposes the pract ice of zeroing in dumping margin calculations in
every comparison methodology under Article 2.4.2 in the original investigations as well as in all kinds
of reviews – administrative, interim, sunset. India considers that it is regrettable that the United States
continues to apply the zeroing methodology for determining the anti-dumping margins, except in the
comparison of weighted-average normal value with weighted average export price during original
investigations, despite the fact that the panel and the Appellate Body unequivocally held that the US
DOC's application of zeroing in both the original investigations and subsequent reviews constitute
violation of relevant provisions of the Anti-Dumping Agreement.
389
6.4 India has strong concerns on the manner in which the US claims to have complied with panel/
Appellate Body rulings in this dispute. The US states in paragraph 50 of the Executive Summary of
its First Written Submissions of February 8, 200 8 that it has implemented the recommendations and

385 EC First Written Submission, Executive Summary, para. 52.
386 US First Written Submission, Executive Summary, paras. 3, 57.
387 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu; India; Mexico and
Thailand informed the Panel that they would not be providing written submissions in this dispute. Furthermore,
the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, Mexico; Norway and Thailand
informed the Panel that they would not be making oral statements at the Panel meeting with the parties and third
parties.
388 Opening Statement of India at the meeting of th e Panel with third partie s (hereinafter "India's
Opening Statement"), para. 1.

rulings because each of those revi ews has been superseded by determinations in subsequent
administrative reviews. The US further states th at the subsequent reviews examined a wholly
different set of sales transactions occurring during a different period of time. Further in these
subsequent determinations, Commerce calculated new margins of dumping, and put in place new cash
deposits for the companies examined. India disagrees with this argument of the US. Even if the
original measures may have been reviewed on diffe rent occasions, these are continuation of original
measures, the results of the previous review still affect interested parties and subsequent equally
critical procedures. The Appellate Body in its report, found that the United States had acted
inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in
the administrative review investigations at issue due to its use of a "simple zeroing" methodology, and
reversed Panel's finding to the contrary.
390
6.5 India notes that from the US claim of its stated compliance with the rulings in this dispute it
seems that there is no discipline for calculating dumpi ng margin in administrative reviews. Whereas,
as per Article 9.3, the margin of dumping has to be established as per Article 2 even in the
administrative reviews. Therefore, the principle of 'fair comparison' as enshrined in Article 2.4 must
apply. Further, the margins are to be establis hed as per the comparison methodology provided in
Article 2.4.2. As seems to be the US practice, during the administrative reviews, the US compares the
weighted average normal value with individual export transactions (para. 24 of EC's First Written
Submissions). In this process of comparison, the US takes into account only those transactions where
the margin is positive. Those transactions havi ng negative margins are not taken into account, and
thereby assigned 'zero' value.
391
6.6 Article 2.4.2 of Anti-Dumping Agreement lays down the rules for comparison of normal value
with export price. The margins of dumping are normally to be established on the basis of a
comparison of weighted average normal value with weighted average export price. The third option
of W to T comparison of weighted average normal value with individual export transactions can only
be used in special circumstances where the authorities find a pattern of export prices which differ
significantly among different purchasers, regions or time periods, and if an explanation is provided as
to why such differences can not be taken into acc ount appropriately by the use of the other two
methodologies of comparison. It seems the third methodology of W to T (weighted average to
weighted transaction) comparison becomes the defa ult option by the US during the administrative
reviews and by use of this methodology the US tries to justify use of 'zeroing' in the dumping margin
calculations in administrative reviews. India wo uld like to request the US delegation to kindly
clarify:
• Under which provisions of the Anti dumping agreement, does the US determine the dumping
margin in administrative reviews?
• While determining the dumping margin in ad ministrative reviews by using the W to T
comparison, does the US follow the principles set out in the provisions of the Article 2.4.2,
and if so, does the US provide an explanation in each of its determinations as regards the use
of the W to T methodology and why the other two methodologies can not be used?
 392
6.7 India has strong systemic concerns on this con tinuous practice of zeroing, despite the settled
jurisprudence by the panel and the Appellate Body th at the practice of zeroing is WTO inconsistent.
India believes that reliance on previous case law act ually flows from the necessity to ensure in any

legal system security, consistency and predictability, and therefore, the use of "zeroing", at every
stage, either in the original investigations or in reviews of all kinds is impermissible.
393
6.8 To conclude, India believes that the periodic reviews challenged by the EC are closely
connected to the original measures that are the s ubject of the DSB's recommendations and rulings and
therefore with in the jurisdiction of this panel. 394
2. Japan
6.9 Japan's reading of the EC's panel request is that the review measures were explicitly
"identified" by the EC because they were among the "measures at issue" in these proceedings.
Moreover, the EC devoted paragra ph 7 of its request to explaining that the reviews specifically
identified in the annex were related to the original measures, and involved the continued use of the
disputed zeroing methodology. In fact, in that para graph of its request, the EC described the reviews
as being " in question ", the very words that the United Stat es says were not used by the EC in
connection with these measures. 395 Thus, Japan believes that the EC's panel request specifically
identified the periodic and sunset reviews that are related to the original measures.396
6.10 In the original proceedings, the EC success fully challenged a group of 31 anti-dumping
measures resulting from 15 original investigations and 16 periodic reviews on the grounds that
zeroing had been used in the dumping determinations. In these proceedings, the EC contests, among
others, the United States' omission or failure to ta ke steps to eliminate zeroing from certain of these,
and other closely related, measures; additionally, the EC challenges the United States' adoption of
measures very closely related to the original measu res, including periodic reviews, sunset reviews,
and measures that impose and collect definitiv e anti-dumping duties based on inflated dumping
margins calculated with zeroing.
397
6.11 The United States argues that these connected measures cannot be subject to Article 21.5
proceedings because they are not "measures taken to comply" with the DSB's recommendations and
rulings. Japan's arguments focus on the periodic review measures challenged by the EC.398
6.12 It is well-established that, Article 21.5 proceedings may concern measures in the form of both
acts and omissions. In US – Softwood Lumber IV (Article 21.5) , the Appellate Body observed that
"[t]he word 'existence' [in Article 21.5] suggests th at measures falling within the scope of Article 21.5
encompass not only positive acts, but also omissions."399 Indeed, an Article 21.5 dispute may involve
"a combination of both [acts and omissions] in situations where the measures taken to comply,
through omissions or other deficiencies , may achieve only partial compliance." 400 Thus, the EC is
entitled to challenge omissions by the United States to take action to eliminate zeroing from its
measures, as well as acts by the United States in adopting measures that involve the further
application of zeroing, or measures involving a combination of both.401

395 Executive Summary of the Third Party Submission of Japan (hereinafter "Japan's Third Party
Submission, Executive Summary"), para. 2.
396 Japan's Third Party Submission, Executive Summary, para. 3.
397 Japan's Third Party Submission, Executive Summary, para. 4.
398 Japan's Third Party Submission, Executive Summary, para. 5.
399 Japan's Third Party Submission, Executive Summary, para. 6, citing Appellate Body Report, US –
Softwood Lumber IV (Article 21.5), para. 67 (original italics).
400 Japan's Third Party Submission, Executive Summary, para. 6, citing Appellate Body Report, US –
FSC (Article 21.5 – II), para. 93 (emphasis added).
401 Japan's Third Party Submission, Executive Summary, para. 7.

6.13 In one of the very first Article 21.5 pr oceedings, the Appellate Body observed that
"Article 21.5 proceedings involve, in principle, not the original measure, but rather a new and
different measure which was not before the original panel ."402 In other words, compliance
proceedings normally involve a measure that is separ ate and distinct from the original measure, and
that was not the subject of the DSB's recommendations and rulings.403 The panel report of Australia –
Salmon (Article 21.5)404 and the rulings of the panel and Appellate Body in US – Softwood Lumber IV
(Article 21.5) 405 also contradicts the United States' argumen ts. As will become clear below, the two
measures in US – Softwood Lumber IV (Article 21.5) stood in virtually the same relationship to each
other as do the original and subsequent reviews challenged by the EC in these proceedings.406
6.14 In US – Softwood Lumber IV (Article 21.5) , the Appellate Body emphasized that Article 21.5
establishes an "express link" between the measures covered by Article 21.5 and the DSB's
recommendations and rulings. 407 Accordingly, in determining whether particular measures are
covered by Article 21.5, a compliance panel is to examine whether a close relationship exists between
those measures, and the measures subject to the DSB's recommendations and rulings. In conducting
this analysis, the Appellate Body held that a panel must examine the "connection" between the
measures challenged under Article 21.5 and the or iginal measures using what was described as a
"nexus-based test".408 As part of that test, an Article 21.5 panel is to examine the "nature" or "subject
matter"409 of the measures to establish whether the measure(s) challenged in Article 21.5 proceedings
and the original measure(s) have a connection in terms of their substance. With respect to the
"nature" and "subject matter" of the measures, US – Softwood Lumber IV (Article 21.5) is highly
instructive for these proceedings.410
6.15 In terms of the "nature" and "subject matter", Jap an argues that the links between the original
and subsequent measures are virtually the same as those that led the Appellate Body, in US –
Softwood Lumber IV (Article 21.5) , to conclude that a subsequent periodic review was subject to the
Article 21.5 proceedings. In particular:
 the original measures and the subsequent periodic reviews all resulted from anti-
dumping proceedings conducted by the USDOC;
 these measures all involved that authority's determination of the dumping margin;
 in any given group of measures (identified in the annex to the EC's panel request
by numbered rows), the subject product is always identical;
 in any given group of measures, the exporter is always identical (identified in the
annex to the EC's panel request in the fifth column);

402 Japan's Third Party Submission, Executive Summary, para. 8, citing Appellate Body Report,
Canada – Aircraft (Article 21.5) , para. 41 (emphasis added) and Appellate Body Report, US – Softwood
Lumber IV (Article 21.5), para. 89. See also, Opening Statement of Ja pan at the meeting of the Panel with third
parties (hereinafter "Japan's Opening Statement "), para. 5.
403 Japan's Third Party Submission, Executive Summary, para. 8.
404 Japan's Third Party Submission, Executive Summary, para. 9, citing Panel Report, Australia –
405 Japan's Third Party Submission, Executive Summary, para. 9, citing Appellate Body Report, US –
406 Japan's Third Party Submission, Executive Summary, para. 9.
407 Japan's Third Party Submission, Executive Summary, para. 10, citing Appellate Body Report, US –
408 Japan's Third Party Submission, Executive Summary, para. 10, citing Appellate Body Report, US –
Softwood Lumber IV (Article 21.5), paras. 77 and 79. See also Japan's Opening Statement, para. 6.
409 Japan's Third Party Submission, Executive Summary para. 11, citing Appellate Body Report, US –
410 Japan's Third Party Submission, Executive Summary, para. 11.

 any given group of measures is adopted pursuant to the same anti-dumping order;
and,
 for any given order, the measures provide succeeding bases for the continued
imposition of anti-dumping duties on the subject product, with each new measure
replacing the cash deposit rate of the previous measure, and determining the
definitive duty rate for entries initially s ubjected to the cash deposit rate of the
previous measure.
411

6.16 Japan considers that another important parallel between this dispute and US – Softwood
Lumber IV (Article 21.5) is that this dispute also concerns " a specific component " of the original
measures and the subsequent periodic reviews challenged under Article 21.5; and in both disputes, the
specific component concerns a calculation methodology applied by the USDOC.
412 The word chosen
by the United States – "superseded" – expresses clear ly that the challenged periodic reviews are
substantively linked, creating an unbroken chain of measures in which the newest measure supersedes
the previous one.413 In this dispute, the connections between the original and the subsequent periodic
reviews are extremely close indeed. The meas ures constitute an unbroken chain that provides
succeeding legal bases for the continued imposition of anti-dumping duties on the same product and
the same exporters , under the same order, and, with respect to each measure, the dispute concerns
same "specific component", namely the application of the zeroing methodology.414
6.17 In sum, Japan asserts that the case-law shows th at a series of closely linked measures adopted
over time – starting with the original measure s, continuing with measures adopted during
consultations415, the original proceedings 416, and into implementation 417 – may all relate to
"fundamentally the same 'dispute'",418 and all be subject to the DSB's recommendations and rulings in
that dispute, provided they are substantively the same. 419 As Japan has explained, the periodic
reviews that the EC challenges in these proceedings constitute just such a chain of inter-connected
measures. Each measure is, in its essence, precisel y the same as the previous "superseded" measure
with respect to "the specific component" 420 that is disputed. The orig inal measures and the measures
challenged in these compliance proceedings all concern the application of the same zeroing
methodology to the same products and the same exporting companies , under the same anti-dumping
order, and they provide succeeding bases for the continued imposition of anti-dumping duties under
that order.421

411 Japan's Third Party Submission, Executive Summary, para. 12. See also, Japan Opening Statement,
para. 8.
412 Japan's Third Party Submission, Executive Summary, para. 13.
413 Japan's Third Party Submission, Executive Summary, para. 14.
414 Japan's Third Party Submission, Executive Summary, para. 15.
415 Japan's Third Party Submission, Executive Summary, citing Appellate Body Report, Brazil –
Aircraft.
416 Japan's Third Party Submission, Executive Summary, para. 16, citing Appellate Body Report, Chile
– Price Band System ; Panel Report, Dominican Republic – Cigarettes ; Panel Report, Argentina – Footwear
Safeguards, para. 8.45; and Appellate Body Report, EC – Chicken Cuts.
417 Japan's Third Party Submission, Executive Summary, para. 16, citing Appellate Body Report, US –
Softwood Lumber IV (Article 21.5) ; Panel Report, Australia – Salmon (Article 21.5) , para. 6.5; and Panel
418 Japan's Third Party Submission, Executive Summary, para. 16, citing Panel Report, Brazil –
Aircraft, para. 7.11.
419 Japan's Third Party Submission, Executive Summary, para. 16.
420 Japan's Third Party Submission, Executive Summary, para. 17, citing Appellate Body Report, US –
421 Japan's Third Party Submission, Executive Summary, para. 17.

6.18 Japan notes that in this dispute, the United States avers that, because the periodic reviews
challenged in the original proceedings have been superseded by subsequent reviews, no further action
is required to bring the WTO-inconsistent periodic reviews into conformity with the United States'
obligations.422 In Japan's view, as a general matter, inaction by an implementing Member to bring its
WTO-inconsistent measure into conf ormity with WTO law is justifie d solely in circumstances where
the measure at issue is no longer legally operational after th e end of the implementation period . In
that event, no affirmative action is needed by th e implementing Member to prevent the measure from
continuing to cause nullification or impairment beca use, by the end of the RPT, the measure has
ceased to have effects, and the result require d by Article 19.1 of the DSU has already been
achieved.423
6.19 For Japan, a WTO-inconsistent measure that is still "operational" 424 after the end of the RPT
continues to cause the nullification or impairment of benefits at a time when the measure must be
fully compliant with WTO law. Such a measure mu st be brought into conformity with the covered
agreements to ensure that the nullification or impairment ceases. 425 In this dispute, the importer-
specific assessment rates in the c ontested periodic reviews have not expired, been revoked, modified
or replaced in a manner that makes them WTO-consistent. 426 The rates continue to be inflated as a
result of the application of the simple zeroing methodology. Thus, the amount of duties yet to be
collected on the basis of these rates continues to ex ceed the properly determined margin of dumping,
which is in violation of Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT
1994. In these proceedings, the issue is whether the contested periodic reviews continue to operate in
this fashion after the end of the RPT.
427
6.20 Japan notes that if the United States has already collected the definitive duties, and liquidated
an entry, before expiration of the RPT, it cannot be required to undo that action through repayment of
the duties.428 However, if at the end of the RPT, the United States has not yet taken action to collect
the definitive duties, and liquidate an entry, its future actions in so doing must be based on an
importer-specific assessment rate in a periodic review that has been brought into conformity with
WTO law. In Japan's view, the United States has omitted to take any action to bring the periodic
reviews into conformity with WTO law, and ensure that the importer-specific assessment rate
provides a WTO-consistent basis for duty collection after the end of the RPT.
429
6.21 At the Panel meeting with third parties, Japan focused on two issues: (1) the scope of these
compliance proceedings with respect to subseque nt periodic reviews; and (2) the prospective
character of the implementation action sought by the European Communities ("EC").430
6.22 Japan noted that the United States argues that periodic reviews not expressly addressed by the
DSB's recommendations and rulings are outside the scope of these proceedings. Japan asserted it had
demonstrated, at length, that this Panel has juri sdiction over these periodic reviews, which were

422 Japan's Third Party Submission, Executive Summary, para. 18, citing US First Written Submission,
paras. 96 ff. See also the US statement to the DSB, WT/DS294/20/Add.6, 20 August 2007.
423 Japan's Third Party Submission, Executive Summary, para. 19.
424 Japan's Third Party Submission, Executive Summary, para. 20, citing Panel Report, EC –
Commercial Vessels, para. 8.4.
425 Japan's Third Party Submission, Executive Summary, para. 20.
426 (original footnote) Japan references to contested and WTO-inconsistent periodic reviews includes
all the periodic reviews challenged by the EC that are closely connected to the DSB's recommendations and
rulings.
427 Japan's Third Party Submission, Executive Summary, para. 21.
428 Japan's Third Party Submission, Executive Summary, para. 22.
429 Japan's Third Party Submission, Executive Summary, para. 23.

identified in the EC's Panel Request.
431 Japan did not repeat its written arguments in its opening
statement but highlighted, briefly, several key points regarding the scope of Article 21.5 of the DSU.
Japan also notes that the United States has failed to address Japan's written arguments.432
6.23 Japan observed that the United States argues that the subsequent periodic reviews challenged
by the EC are not "measures taken to comply" with in the meaning of Article 21.5 of the DSU and,
therefore, are outside the scope of these compliance proceedings. 433 According to the United States,
this is because the reviews in qu estion are "separate and distinct" 434 and "[n]one of the[se] other
'measures' . . . was the basis for a DSB recommendation or ruling." 435 The United States requests this
Panel to find instead "that the only measures within the terms of reference of this proceeding are the
15 original investigations and 16 administrative revi ews" that were the basis of the recommendations
and rulings of the DSB.436 However, as Japan demonstrated, there is no support for the United States'
arguments.437 On the contrary, Article 21.5 panels and the Appellate Body have specifically found
"separate and distinct" measures – that is, measures not challenged in the original proceedings – to fall
within the scope of Article 21.5 of the DSU when those measures are closely connected to the original
measures.438
6.24 In the present dispute, Japan has shown that a close connection exists between the subsequent
periodic reviews and the original measures that are the subject of the DSB's recommendations and
rulings.439 In US – Softwood Lumber IV (Article 21.5) , the Appellate Body also concluded that the
new measure at issue – that is, the subsequent peri odic review – "directly affected" the United States'
compliance with the DSB's recommendations and rulings. 440 Similarly, the periodic reviews
challenged by the EC in the present dispute have a direct effect on the United States' compliance by
moving the United States away from compliance with each successive review undertaken under a
given anti-dumping order.441
6.25 Moreover, as Japan explained 442, the United States' claim that measures covered by
Article 21.5 of the DSU are those "taken in the direction of, or for the purpose of achieving
compliance [with the recommendations and rulings of the DSB]"
443 is devoid of support. In fact, the
Appellate Body reached the exact opposite conclusion in US – Softwood Lumber IV (Article 21.5) .
Recognizing that Article 21.5 of the DSU provid es a mechanism by which to assess compliance,
while also accepting that implementing Members may fail to adopt any compliance measures, the
Appellate Body concluded that "measures taken to comply" may include measures that move away

431 Japan's Third Party Submission, paras. 7-75.
433 Japan's Opening Statement, para. 3, citing US Fi rst Written Submission, paras. 36-47; US Rebuttal
Submission, paras. 28-32.
434 Japan's Opening Statement, para. 3, citing US First Written Submission, para. 42.
435 Japan's Opening Statement, para. 3, citing US First Written Submission, para. 40.
436 Japan's Opening Statement, para. 3 citing US First Written Submission, para. 54 and US Rebuttal
Submission, para. 32.
437 Japan's Opening Statement, para. 4, citing Japan's Third Party Submission, paras. 7-75.
438 Japan's Opening Statement, para. 4, citing Japan's Third Party Submission, paras. 27-32
439 Japan's Opening Statement, para. 7, citing Japan's Third Party Submission, paras. 45-75.
440 Japan's Opening Statement, para. 9, citing Appellate Body Report, US – Softwood Lumber IV
(Article 21.5), para. 85.
442 Japan's Opening Statement, para. 10, citing Japan's Third Party Submission, paras. 21-26.
443 Japan's Opening Statement, para. 10, citing US First Written Submission, para. 38 (emphasis in
original omitted).

from, and do not have the objective of achieving, compliance. 444 Japan notes that the United States
did not respond to Japan's argument in its Rebuttal Submission.445
6.26 Finally, contrary to the United States' claim, Ja pan asserts that the timing of the adoption of a
subsequent measure is not the decisive criterion in determining whether that measure is covered under
Article 21.5 of the DSU. Otherwise, a Member woul d be able to circumvent Article 21.5 proceedings
by adopting new measures, even ones very closed c onnected to the original measures, prior to the
adoption of the DSB's recommendations and ruli ngs. Moreover, as the Appellate Body has
emphasized, a measure may be subject to Article 21.5 of the DSU, even though it was not adopted
with the intention of complying with the DSB's recommendations and rulings. The crucial
consideration is whether, viewed as a whole, su fficiently close links exist between the original
measure and the new measure.
446 Furthermore, with respect to the facts surrounding the periodic
reviews taken before the adoption of the DSB's recommendations and rulings, Japan notes that an
important temporal connection ex ists between these reviews and the recommendations and rulings
because, after adoption, the United States issues liquidation instructions and payment notices pursuant
to these reviews. Thus, besides the substantiv e connections already addressed, these measures enjoy
important temporal links with the DSB's recommendations and rulings.447
6.27 In short, as discussed in greater detail in Jap an's written submission, the periodic reviews
challenged by the EC are closely connected to the or iginal measures that are the subject of the DSB's
recommendations and rulings and therefore are within the jurisdiction of this Panel.448
6.28 According to Japan, the question before the compliance Panel is whether the United States
must amend the WTO-inconsistent periodic reviews at issue by the end of reasonable period of time
or "RPT" in order to ensure that, after the e nd of the RPT, any definitive anti-dumping duties are
collected pursuant to revised review determinations that are consistent with Article 9.3 of the Anti-
Dumping Agreement.449 The United States contends that, on implementation, it was not required to
take any action to change the WTO-incons istent periodic reviews with respect to imports that had
occurred before the end of the RPT . As regards these imports, the United States believes that it can
collect definitive duties, after the end of the RPT, on the basis of periodic reviews that should have
been brought into conformity with WTO law by that time. 450 The United States argues that "the text
of the GATT 1994 and the Anti-Dumping Agreement confirms that it is the legal regime in existence
at the time that an import enters the Member's territory that dete rmines whether the import is liable
for the payment of anti-dumping duties." 451 In support of this argument, the United States relies on
Articles VI:2 and VI:6(a) of the GATT 1994, and Articles 8.6, 10.1, 10.6, and 10.8 of the Anti-
Dumping Agreement.452 The United States' reliance on these provisions, however, is misplaced.453
6.29 In Japan's view, these provisions establish that the importation of goods is an event that
triggers potential liability to pay anti-dumping duties. Furthermore, the provisions set forth
obligations limiting the retroactive application of an anti-dumping measure. The United States

444 Japan's Opening Statement, para. 10, citing Appellate Body Report, US – Softwood Lumber IV
(Article 21.5), paras. 66-67.
446 Japan's Opening Statement, para. 11, citing Japan, Third Party Submission, paras. 61-75.
452 Japan's Opening Statement, para. 17, citing US Rebuttal Submission, paras. 38-42.

appears to believe that, provided it respects these ru les, no other WTO obligatio ns apply to its actions
after importation, including the determination of the amount of definitive anti-dumping duties due.
454
6.30 The United States' argument ignores, in particular, Article 9.3 of the Anti-Dumping
Agreement, the very provision that the United States was found to have violated. Under that
provision, irrespective of the "legal regime", or le gal framework, that applies to an individual import
on the date of importation, a Member is required to take action, long after importation, to ensure that
the amount of definitive anti-dumping duties collected does not exceed the margin of dumping. The
mere fact that a Member correctly applies the provisions cited by the United States on importation
does not mean that it is liberated from its obligations under Article 9.3 to ensure that the amount of
definitive anti-dumping duties collected does not exceed the margin of dumping.
455
6.31 The same holds true on implementation. For these purposes, Japan assu mes that, at the time
of importation, the United States correctly applied th e legal provisions it cites with respect to the
entries covered by the WTO-inconsistent periodic re views at issue. However, by so doing, the
United States was not absolved of its duty to comply with other provisions of the Anti-Dumping
Agreement, including Article 9.3, when conducting the peri odic reviews with respect to those entries.
Likewise, having initially failed to comply with Ar ticle 9.3, the United States is not exonerated from
its duty to bring the periodic reviews into conform ity with Article 9.3 simply because, at the time of
importation, it respected the provisions it cites.456
6.32 The existence of the review procedure in Article 9.3, which is always carried out long after
importation, demonstrates another fallacy in the Unite d States' argument. To recall, the United States
argues that the "legal regime" that applied at the time of importation determines "whether [an] import
is liable" for anti-dumping duties, and a Member is not required to change that "legal regime" during
implementation.457 The premise of this argument is that alte ring the "legal regime" that applied at the
time of importation would retrospectively "undo" a legal situation definitively fixed on importation.458
6.33 Japan considers that the United States' argument is wrong. The "legal regime" that applies to
an import at the time of importation is merely provisional, and notably does not even include the
contested periodic reviews that were adopted, under Article 9.3, long after importation . The
United States itself recognizes that, at the time of importation, the importing Member establishes only
that an import is potentially liable for duties. Indeed, the United States even argues that, on
importation into the United States, no anti-dumping du ties are paid, and a cash deposit is paid merely
as a form of security, pending the determination and collection of definitive duties some time after
importation.459
6.34 Whether the cash deposit is regarded as a secu rity or as anti-dumping duties, Japan agrees
with the following statement:
"The United States argues that in no case is assessment – whether at the cash deposit
rate or otherwise – conducted at the time of entry , and in all cases the cash deposit
collected at the time of entry is a baseline proxy of the amount that may ultimately be
assessed, and is never itself the final liability."460

460 Japan's Opening Statement, para. 23, citing Panel Report, US – Customs Bond Directive , para. 7.89
(emphasis added).

6.35 In other words, Japan asserts, the United States accepts – as it must – that, at the time of
importation, solely a potential liability for duties arises, a nd this potential liability "is never itself the
final liability". Thus, the "legal regime" that a pplies to an entry at the time of importation is a
provisional regime that serves merely as a " baseline proxy" pending the subsequent determination of
the "final liability".461 The consequence of the provisional character of the "legal regime" in place at
the time of importation is that, at that time, the importing Member does not definitively establish any
right to collect a specific amount of anti-dumping duties. Instead, when a periodic review occurs, that
right is established much later in the procedure under Article 9.3.462
6.36 For example, in the United States' system, at the time of importation, a cash deposit is paid for
the duties potentially due on the imported merchandise. Only later, in a subsequent periodic review,
is the "final liability" established in the importer-specific assessment rate – which may be more or less
than the cash deposit rate – and definitive duties are subsequently collected on each import at the
importer-specific assessment rate. A WTO-consiste nt periodic review may even determine that no
duties are due on entries that were potentially liable for duties at the time of importation, which leads
to a refund of the deposit.
463 Thus, a periodic review under Article 9.3 establishes a new "legal
regime" that replaces the provisional regime that applied, at the time of importation, pursuant to other
provisions of the Anti-Dumping Agreement and the GATT 1994.464
6.37 As a result, Japan argues, there is a logical in consistency in the United States' argument. Its
excuse for not correcting the WTO-inconsistent periodic reviews is that the provisional "legal regime"
that applied on importation as a "baseline proxy" cannot be changed. However, that provisional "legal
regime" has already been changed by the periodic reviews at issue , which establish the "final
liability" for anti-dumping duties.465 Thus, again, the United States' arguments ignore the significance
of Article 9.3. First, as noted above, as a matter of law, Article 9.3 imposes obligations on the
United States additional to those it cites; 466 and second, as a matter of fact, the contested periodic
reviews carried out under Article 9.3 had already changed the provisional "legal regime" that the
United States now argues must be preserved.467
6.38 Japan, therefore, sees no basis in law or in f act for the United States' argument that the
periodic reviews cannot be brought into conformity with WTO law simply because a long-since-
changed provisional "legal regime" must be preserved. Indeed, the fact that the United States has
already changed the provisional "legal regime" once – when it adopted the contested periodic reviews
– demonstrates that the alleged need to preserve the provisional "legal regime" is, in reality, not an
impediment to changing the "legal regime" again, by bringing the periodic reviews into conformity
with WTO law.
468
6.39 Finally, the "legal regime" in existence at th e time of importation is not without significance
because it fixes the universe of imports that are potentially liable to anti-dumping duties. Bringing the
periodic reviews into conformity with WTO law does not alter that universe – if and when the
periodic reviews are brought into conformity with WT O law, the same entries that were potentially
liable to duties at the time of importation will con tinue to be potentially liable to duties following
implementation. However, the amount of definitive duties collected on these entries, after the end of
the RPT, cannot exceed a WTO-consistent margin of dumping, as required by Article 9.3 of the Anti-

466 Japan's Opening Statement, para. 29, referring to paras. 15-20 of its Opening Statement.

Dumping Agreement and Article VI:2 of the GATT 1994.
469 In sum, given the provisional character
of the "legal regime" in place at the time of importation, the United States is wrong to suggest that
requiring a Member to bring a periodic review into conformity with WTO law by the end of the RPT
would change a legal situation definitively fixed at the time of importation.
470
6.40 For Japan, the United States' argument that its implementation obligations apply solely to new
entries that occur on or after the end of the RPT produces absurd consequences that nullify the
disciplines in Article 9.3 of the Anti-Dumping Agreement.471 By definition, new entries that occur on
or after the end of the RPT are not covered by the WTO-inconsistent periodic reviews at issue, which
relate solely to past entries. The new entries would necessarily be subject to a new periodic review
that, in the United States' view, would have to be challenged in a new WTO proceeding. Yet, if that
new review were WTO-inconsistent, the United St ates contends that no implementation obligations
would apply because the new review, by defi nition, covers entries that occurred before the end of the
new RPT. 472 In short, the United States' argument creates a "Catch-22" that deprives exporting
Members of the protection afforded by Article 9.3: viewed from the perspective of the end of the
RPT, a WTO-inconsistent periodic review always relates to past entries , whereas the WTO
implementation obligations with respect to that review could apply solely to future entries.473
6.41 Japan asserts that the consequence of this argume nt is that an individual "as applied" periodic
review is totally immune from the disciplines in Article 9.3. Ignoring the requirements of that
provision, a Member could always determine a WTO- inconsistent "margin of dumping" in a review,
and there would be no obligation to bring the periodic review into conformity with WTO law because,
by definition, the WTO-inconsistent periodic review relates to entries that occurred before the end of
the RPT. Implementing the review with respect to future entries would be both impossible and
meaningless because these entries are not subject to the review at issue. The United States' circular
argument, therefore, eviscerates Article 9.3.474
6.42 The United States' argument also reduces to a nullity its obligation to bring the WTO-
inconsistent reviews into conformity with WTO law. Despite the explicit terms of the
recommendations and rulings made regarding th e WTO-inconsistent periodic reviews, the
United States believes that no action is required with respect to these measures because they relate to
past entries.475
6.43 In Japan's view, the decisive issue in decidi ng whether the United States must modify the
WTO-inconsistent periodic reviews is whether these reviews continue to produce legal effects after
the end of the RPT. If a review continues to operate after that date, it must be modified to ensure that
it is applied in the future in a WTO-consistent fashion.476 Japan's written submission explains how the
importer-specific assessment rate in a periodic re view continues to be legally operational until
definitive duties are collected, and entries liquidated, on the basis of the review. 477 Thus, where the
United States collects definitive duties on entr ies covered by a contested periodic review after the end
of the RPT, it does so by applying the importer-specific assessment rate determined in the review478.479

477 Japan's Third Party Submission, paras. 78, 80-83.
478 Japan's Third Party Submission, paras. 78, 80-83.

6.44 Accordingly, Japan considers that with respect to any periodic reviews for which there are
unliquidated entries at the end of the RPT, the DSB's recommendations and rulings require the United
States to bring the measure into conformity with WTO law to ensure that it is applied in a WTO-
consistent fashion after the RPT expires. In s hort, after the end of the RPT, the United States'
subsequent actions taken pursuant to the contested periodic reviews must be WTO-consistent. The
United States should have ensured that they were WTO-consistent by re-calculating the importer-
specific assessment rate without zeroing by the end of the RPT.480
6.45 Japan emphasizes that, by correcting the importer-specific assessment rate, the United States
would not retrospectively "undo" a legal situation definitively fixed at an earlier time. The EC's
claims focus on situations where liquidation had not occurred by the end of the RPT. Prior to
liquidation, the United States has not collected any definitive anti-dumping duties. Thus, there is no
question of repaying duties that have already been definitively collected on an entry. Nor does the EC
seek to reduce retrospectively the cash deposit coll ected on the entries in question. Instead, the
implementation of DSB's recommendations and rulings ensures the WTO-consistency of the
United States' future actions in collecting definitive duties for the first time after the end of the
RPT.481
6.46 Concerning the equal footing between the re trospective duty assessment system and the
prospective duty assessment system, Japan disagrees with the United States' argument that this
interpretation places "retrospective" duty assessment systems at a disadvantage compared with
"prospective" systems.482 The same interpretive principles apply to both systems. A periodic review
may occur under either system. If that periodic revi ew is found to be WTO-inconsistent, it must be
brought into conformity with WTO law to the extent that the review remains legally operational after
the end of the RPT. In other words, even in a prospective duty assessment system under Article 9.3.2,
once the DSB finds that a final liability determined th rough this system is inconsistent with certain
provisions of the anti-dumping agreement, as long as the entries concerned have not been liquidated at
the time of expiration of the RPT, the importing Memb er is required to re-calculate the margin of
dumping and apply this newly calculated margins in the coming liquidation procedures in order to
comply with the DSB's recommendation and rulings. In both systems, a periodic review could
continue to produce legal effects well after the e nd of the RPT because, for example, a Member's
actions pursuant to that review are delayed by domestic litigation regarding the review.
483
6.47 As Japan described in its third party submission and this oral statement, in order to comply
with the DSB's recommendation and rulings concerning the periodic reviews, fi rst, the United States
is not allowed to liquidate entries subject to this proceedings with the margins of dumping calculated
with zeroing after the end of RPT. Second, the United States was required to take positive actions,
i.e., recalculation of the margins of dumping without zeroing, by the end of the RPT in order to ensure
that the USDOC and the USCBP would not liquidate these entries in a WTO inconsistent manner. 484
3. Korea
6.48 Korea observes that it has systemic interests in the interpretation and application of various
provisions of the Anti-Dumping Agreement , which, individually and collectively, prohibit the
utilization of the zeroing practice in all proceedings regulated by the Anti-Dumping Agreement .

482 Japan's Opening Statement, para. 42, citing US Rebuttal Submission, paras. 45 and 46.

Therefore, Korea reserved its third party rights pursuant to Article 10.2 of Understanding on Rules
and Procedures Governing the Settlement of Dispute ("DSU").
485
6.49 In Korea's view, although the Appellate Body unequivocally held that the USDOC's
application of "zeroing" in both the original investigations and subsequent reviews constitute violation
of relevant provisions of the Anti-Dumping Agreement, the United States simply failed to implement
the recommendations. The United States resorts to various technical elements of its domestic
procedure to avoid the implementation, to dela y the implementation as much as possible or to
effectively neutralize the effect of the decision of the Appellate Body in the original dispute.486 Korea
therefore supports the arguments raised by the EC in its first submission dated 11 January 2008.
Korea offers its comments below on certain core issu es discussed in the submissions of the disputing
parties. For the interest of brevity, Korea only focuses on some key issues in Korea's opinion. This
should not be interpreted as Korea approving US positions in other issues omitted in this
submission.487
6.50 Korea notes that, in its decision of April 18, 2006 , the Appellate Body held that the utilization
of zeroing by the United States Department of Co mmerce ("USDOC") in challenged administrative
reviews constitutes violation of Article 9.3 of the Anti-Dumping Agreement.488 The Appellate Body
thus recommended that the United States bring the me asure into conformity with its obligations under
the Anti-Dumping Agreement . The EC and the United States agreed upon an RPT of 11 months,
which ended on 9 April 2007.489
6.51 Regarding 16 administrative reviews challenge d in the original dispute, however, Korea
contends that the United States effectively ignore d the recommendation of the Appellate Body. The
United States now attempts to justify its position by arguing that in each administrative review case, a
prior administrative review is superseded by a s ubsequent review, and that since the administrative
reviews challenged in the original dispute do not ex ist any more, the United States is not required to
do anything to implement.490 In Korea's view, however, the US position completely misconstrues the
operating mechanism of an administrative review and seriously threatens to undermine the basic
purpose of the dispute settlement procedure of the WTO. Such interpretation would make it
impossible for a Member, who successfully challenged an administrative review by another Member,
to get a viable remedy.491
6.52 It appears that the United States equates the completion of a new administrative review with
the termination of the previous review. In Korea' s view, however, that is not the case. Unlike other
instances where a measure is terminated, an admini strative review does not simply disappear when a
new, subsequent review is under way or completed. The results of the previous review still affect
interested parties and subseque nt, equally critical, procedures. 492 For instance, a cash deposit rate
(that is, inflated by zeroing) will continue to be applied before it is replaced with a new one, which
directly affects foreign respondents and importers of the subject merchandise. Likewise, a zero
margin in one review may be combined with previ ous or subsequent zero margins to potentially lead

485 Third Party Submission of Korea (hereinafter "Korea's Third Party Submission"), para. 1.
486 Korea's Third Party Submission, para. 2. See also , Korea, Opening Statement at the meeting of the
Panel with third parties (hereinafter "Korea's Opening Statement"), para. 2.
487 Korea's Third Party Submission, para. 3.
488 Korea's Third Party Submission, para. 4, citing Appellate Body Report, US – Zeroing (EC) ,
para. 263(a)(i).
489 Korea's Third Party Submission, para. 4.
490 Korea's Third Party Submission, para. 5. S ee also, Korea's Opening Statement, Executive
Summary, para.3.
491 Korea's Third Party Submission, para. 6. S ee also, Korea's Opening Statement, Executive
Summary, para.4.
492 Korea's Third Party Submission, para. 7.

to revocation of the underlying order. 493 A zero or low margin in an administrative review is also an
important factor to be taken into account when the underlying order is subject to a sunset review494 495
6.53 Therefore, Korea considers that by all account s, an administrative review has not been
terminated yet simply because there is a new admi nistrative review going on or completed. An
administrative review found to be WTO-inconsistent thus equally requires adequate implementation
by the losing party irrespective of existence or completion of a subsequent review or reviews.496
6.54 In Korea's opinion, each administrative review ex amined in the original dispute constitutes a
distinct measure that has not been terminated yet and that has a continuing effect to the foreign
manufacturers or importers. By maintaining that the previous reviews have been superseded by
subsequent reviews, the United States simply attempts to create a fiction which does not reflect
reality. As a matter of fact, as a measure an admi nistrative review can only be terminated when the
underlying order is terminated, either through a sun set review, a changed circumstances review or for
some other grounds.497
6.55 Furthermore, Korea contends, the US position w ould lead to bizarre consequences. If we
adopt the US logic, no Member could successfully challenge an administrative review at the WTO
dispute settlement procedure or even if the Memb er is successful, it cannot hope for an effective
remedy. Given that an administrative review takes about a year followed by continuing
administrative reviews on an annual basis, it is almost certain that there is always a new review going
on or completed by the time a panel procedure rega rding an administrative review of a Member is
completed.498 Thus, it would be like "chasing a ghost" from the perspective of the Member
challenging the measure. A challenged measure is al ways gone or terminated by the time a panel
reaches its decision and the Member is required to initiate a new dispute to challenge a subsequent
review, which would also be gone by the time that panel reaches its decision. Such being the case, the
US position effectively insulates administrative reviews from any meaningful oversight by a panel or
the Appellate Body. Given the significant role an administrative plays in the operation of domestic
Anti-dumping proceedings of Members and detailed obligations laid out in the Anti-Dumping
Agreement relating to administrative reviews, such a position should be flatly rejected.
499
6.56 In the light of the above, Korea requests th e Panel to reject the US position that all
administrative reviews originally challenged did not require any action on the part of the United States
simply because there were subsequent reviews afterw ards. Korea requests the Panel to hold that the
United States failed to implement the recommendation in this respect.500
6.57 Korea asserts that for a losing Member to co mply with the recommendation of the Appellate
Body, the Member must "withdraw" or "eliminate" the measure, or take otherwise comparable action,
before the expiration of the RPT. If the challenged measure continues for whatever reason after the
lapse of the RPT, the Member has simply failed to comply with the recommendation. 501 In the
original dispute, the United Stat es agreed to an RPT of 11 months and it ended on 9 April 2007.

493 Korea's Third Party Submission, para. 8, citing Code of Federal Regulation of the USDOC ,
Section 351.222(b).
494 Korea's Third Party Submission, para. 8, citing Code of Federal Regulation of the USDOC ,
Section 351.218(d).
495 Korea's Third Party Submission, para. 8.
496 Korea's Third Party Submission, para. 9. S ee also, Korea's Opening Statement, Executive
Summary, para.6.
497 Korea's Third Party Submission, para. 10.
498 Korea's Third Party Submission, para. 11.
499 Korea's Third Party Submission, para. 12.
500 Korea's Third Party Submission, para. 13.
501 Korea's Third Party Submission, para. 14.

Therefore, if any aspect of the challenged measure which has been confirmed by the panel and the
Appellate Body to be WTO-inconsistent continues after 9 April 2007, it simply constitutes US failure
to comply with the recommendation.
502
6.58 In this case, the record evid ence proves that the USDOC continued to apply the zeroing
practice for original investigations and administra tive reviews after 9 April 2007. The United States,
therefore, simply failed to implem ent the recommendation in due course. 503 Here again, however, the
United States attempts to avoi d the required implementation by imposing a technical "timing"
element. In its 129 Determinations, the USDOC states that the effect of the Determinations will apply
only to entries made on or after the date on which the USTR directs the USDOC to implement an
adverse ruling of the DSB (9 April 2007 in this case). 504 In other words, as long as particular subject
merchandise entered the United States customs territory before 9 April 2007, the merchandise will not
be affected by the 129 Determinations and will be subject to model or simple zeroing, even if the
liquidation or other consummation of procedures occurs after the date.505
6.59 Korea considers that what was challenged and f ound to be WTO-inconsistent in the original
dispute was a "measure" called "zeroing." The origin al dispute was not about dates of entries or any
other date for that matter. The United States cannot try to minimize or circumvent the impact of the
DSB recommendation by simply establish ing an arbitrary entry date deadline. 506 In Korea's view, it
does not and should not matter when an entry date w as for a particular subject product in the current
process. What matters instead is whether a challenged measure which was found to be WTO-
inconsistent is still maintained even if the RPT has lapsed. As long as the measure continues as of the
date of the RPT expiration, the Member has failed to implement the recommendation. 507 In this case,
the USDOC continues to apply the zeroing methodol ogy for certain original investigations and
administrative reviews even after 9 April 2007. Th is should be dispositive in this inquiry and the
Panel should find for the EC for this issue.508
6.60 Korea argues that in conducting a sunset revi ew, the margins and results of the original
investigations and administrative reviews are regarded by the USDOC as key factors in reaching a
likelihood determination.509 If applicable margins or results are inflated as a result of the application
of zeroing and if the inflated data are then taken in to account in a sunset review, such a sunset review
also constitutes violation of relevant provisions of the Anti-Dumping Agreement, such as Articles 2.1,
2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.510
6.61 In Korea's view, the sunset reviews of the USDOC cannot be separated from previous anti-
dumping proceedings. Rather, considering the way it is implemented, sunset reviews are more or less
an extension of previous findings or prediction based on previous findings, to the extent the USDOC

502 Korea's Third Party Submission, para. 15. S ee also, Korea's Opening Statement, Executive
Summary, para.7.
503 Korea's Third Party Submission, para. 16.
504 Korea's Third Party Submission, para. 17, citing United States Department of Commerce, Issues and
Decision Memorandum for the Final Results of he Section 129 Determinations (9 April 2007), at 17.
505 Korea's Third Party Submission, para. 17. S ee also, Korea's Opening Statement, Executive
Summary, para. 8.
506 Korea's Third Party Submission, para. 18. S ee also, Korea's Opening Statement, Executive
Summary, para. 9.
507 Korea's Third Party Submission, para. 19. S ee also, Korea's Opening Statement, Executive
Summary, para. 10.
508 Korea's Third Party Submission, para. 20. S ee also, Korea's Opening Statement, Executive
Summary, para. 11.
509 Korea's Third Party Submission, para. 21, citing Code of Federal Regulation of the USDOC ,
Section 351.218(d).
510 Korea's Third Party Submission, para. 21.

relies on dumping margins calculated in a prior origin al investigation or an administrative review as
the basis for the sunset review's likelihood determinat ion. Therefore, Korea submits that the violation
of these provisions is unavoidable.511
6.62 Korea considers that despite the Appellate Body 's decisions and recommendations to bring its
measures into conformity, the United States has si mply failed to do so. Nor have the USDOC's
129 Determinations adequately addressed the decisi ons and recommendations of the Appellate Body.
The United States repeatedly a ttempts to locate loopholes in DSB recommendations and technical
requirements in its domestic statutes for an apparent reason: to refuse to accept the decisions of the
Appellate Body.
512
6.63 At the Panel meeting with third parties, Korea agreed with the EC that, not only an
affirmative action to implement an adverse ruling of the Appellate Body, but also omissions and
deficiencies thereof clearly fall under the jurisdictio n of an implementation panel. Korea notes that
the EC is challenging in this proceeding not onl y an affirmative action by the United States ( i.e., its
Determinations under 129), but also omissions of the United States to take a necessary step to comply
with the decisions of the Appellate Body.513
6.64 Furthermore, what the EC seeks in this proceed ing is a prospective remedy. The EC is not
asking the Panel to provide a remedy that applies retrospectively. All it points out is that the
United States continues to fail to eliminate the zeroing practice at issue after the lapse of the RPT (i.e.,
9 April 2007). This clearly constitut es a request for a prospective remedy. 514 Korea respectfully
submits that for the reasons stated above the Panel should hold that the United States failed to comply
with recommendations of the DSB in the original dispute.515
4. Norway
6.65 As a third party to this dispute, Norway a ddresses the following issues discussed in the First
Written Submission of the EC and United States:
• What measures are included in the scope of this proceeding – in other words – what measures
are within the Panel's jurisdiction; and
• The extension of the measures challenged in th e original dispute pursuant to sunset review
proceedings which relied on dumping margins calculated with the use of zeroing.516

6.66 Norway notes the EC claims that in addition to the measures that the United States recognizes
as being taken to comply, also measures that have confirmed, superseded and replaced the original
measures may be included in the scope of the current proceedings. 517 The United States, on the other
hand, sets out that the EC attempts to "include certa in determinations within the terms of reference of
this proceeding (…) that are not measures taken to comply". 518 In addition, the United States claims

511 Korea's Third Party Submission, para. 22.
512 Korea's Third Party Submission, para. 23. S ee also, Korea's Opening Statement, Executive
Summary, para. 14.
515 Korea's Third Party Submission, para. 24. S ee also, Korea's Opening Statement, Executive
Summary, para. 15.
516 Executive Summary of the Third Party Submission of Norway (hereinafter "Norway's Third Party
Submission, Executive Summary"), para. 1.
517 Norway's Third Party Submission, para. 2, citing EC First Written Submission, para. 47.
518 Norway's Third Party Submission, para. 3, citing United States First Written Submission, para. 30.

that the administrative reviews and the sunset reviews are not properly identified in the Panel request
submitted by the EC.
519 This point will not be discussed by Norway.520
6.67 Norway observes that Article 21.5 of th e Dispute Settlement Understanding (DSU)
determines the scope of a Panel's jurisdiction in compliance proceedings. Panels and the Appellate
Body have ruled on the scope of this Article several times, and set out the correct legal interpretation
to be given to the provision. 521 It follows from the wording of Article 21.5 that both positive acts
taken to comply and omissions are covered. The Appellate Body confirmed this in US – Softwood
Lumber IV (21.5 – Canada) .522 A complaining Member may thus challenge measures that have been
adopted to comply with the recommendations and rulings of the DSB ("consistency"), but also lack of
such measures ("existence").523 Further, Panels and the Appellate Bo dy have underlined that it is not
up to the complaining Member alone to determin e what constitute a measure taken to comply.
Rather, it is for the panel to make this determination. 524 To assist a panel in making a decision on
what is a measure taken to comply, the Appellate Body has identified some additional criteria,
requiring the panel to scrutinize the relationship be tween the relevant measures and to examine the
timing, nature and effects of the various measures.525
6.68 The EC claims that the United States after the end of the reasonable period of time continued
to take positive acts, including administrative review investigations, assessment instructions and final
liquidations, based on zeroing. 526 The EC is of the opinion that the Panel may examine these acts as
parts of the current proceeding, and it "challenges the omissions by the United States to take the
necessary measures to comply in this case". 527 The United States disagrees with the view set out by
the EC, and contends that none of the subsequent review procee dings and assessment instructions
mentioned by the EC are measures taken to comply 528
6.69 As is set out above, both omi ssions and positive acts are covered by Article 21.5. Any
subsequent administrative reviews, assessment inst ructions and liquidations based on zeroing must in
Norway's opinion be viewed as evidencing omissions to comply with the recommendations and
rulings by the DSB, and as such be within the Pa nel's jurisdiction. The United States should after the
reasonable period of time have stopped collecting anti-dumping duties calculated with the use of
zeroing in connection with any of the measures that were part of the original dispute, as well as in
connection with any administrative review of the dumping margins in these cases. The same
assessment goes for the contested sunset reviews: The United States was under an obligation to
recalculate without the use of zeroing the previous du mping margins, in order to rely in these margins
when assessing the likelihood of recurrence of dumping in sunset review proceedings. The omission
to do so falls within the Panel's jurisdiction.
529

519 Norway's Third Party Submission, para. 3, citing United States First Written Submission, paras. 33,
34 and 53.
520 Norway's Third Party Submission, para. 3.
521 Norway's Third Party Submission, para. 4.
522 Norway's Third Party Submission, para. 5, citing Appellate Body Report, US – Softwood Lumber IV
(Article 21.5 – Canada), para. 67.
523 Norway's Third Party Submission, para. 5.
524 Norway's Third Party Submission, para. 6, citing Appellate Body Report, US – Softwood Lumber IV
525 Norway's Third Party Submission, para. 6, citing Appellate Body Report, US – Softwood Lumber IV
(Article 21.5 – Canada), para. 77.
526 Norway's Third Party Submission, para. 7, citing EC First Written Submission, para. 6.
527 Norway's Third Party Submission, para. 7, citing EC First Written Submission, para. 60.
528 Norway's Third Party Submission, para. 8, citing US First Written Submission, para. 46.
529 Norway's Third Party Submission, para. 9.

6.70 The United States argues that the determinations attacked by the EC were not part of the
original panel proceeding, and that there con sequently are no DSB recommendations and rulings
relating to these determinations, and that the de terminations cannot fall within the scope of
Article 21.5. Regarding this argument, Norway would like to point out that the panel in US –
Subsidies on Upland Cotton (21.5 – Brazil) found that even if a measure has not been the subject of
DSB's recommendations and rulings in the original proceeding, a "claim relating to a measure that has
sufficiently close nexus with the measure taken to comply or with the DSB recommendations and
rulings in the original proceeding can be within the scope of Article 21.5.530
6.71 As mentioned, the Appellate Body has set out th ree elements – nature, effect and timing – as
additional criteria when assessing whether a measure wh ich is not declared by the respondent to be a
"measure taken to comply" nevertheless may be characterized as such. In Norway's opinion, a
consideration of these three elements with regard to the current case, supports the view that the
determinations that constitute the contested omissions must be evaluated as having a sufficiently close
relationship with the recommendations and rulings of the DSB to be included in the scope of the
proceeding.531
6.72 As regards nature, there can be no doubt that there exist a clear link between the measures in
the original dispute and the contested administrative and sunset reviews. The dumping determinations
(with zeroing) that were found to violate the Anti-Dumping Agreement in the original dispute are the
ones that are reviewed and continued in the contested reviews. The effect of these administrative and
sunset reviews is to continue the violations of the Anti-Dumping Agreement through measures that
supersede or replace the measures that were the subject of the original dispute.532
6.73 Norway would also like to point to the effe ct of the line of argument set out by the
United States: If these determinations were not to fall within the scope of the proceeding, a new panel
would need to be started for each administrative review, and when another administrative review
superseded the first, another panel would have to be started. This would run counter to the aim of
Article 21.5, which is "to promote the prompt compliance with DSU recommendations and rulings
and the consistency of "measures taken to comp ly" with the covered agreements by making it
unnecessary for a complainant to begin new proceedings and by making efficient use of the original
panelist and their relevant experience".533
6.74 With regard to the timing element, the Unite d States argues that "determinations made by a
member prior to the adoption of a dispute settlement report are not taken for the purpose of achieving
compliance and cannot be within the scope of an Article 21.5 proceeding". 534 In Norway's view, the
timing of a review is not the determining factor when it comes to whether or not it is a "measure taken
to comply". 535 The important point is rather whether it was completed and/or continued to have
effects after the end of the reasonable period of time.536

530 Norway's Third Party Submission, para. 10, citing Panel Report, US – Subsidies on Upland Cotton
(Article 21.5 – Brazil), para. 9.26.
531 Norway's Third Party Submission, para. 11.
532 Norway's Third Party Submission, para. 12.
533 Norway's Third Party Submission, para. 13, citing Appellate Body Report, US – OCTG Sunset
Review (Article 21.5 – Argentina) , para. 151, referring to Appellate Body Report, US – Softwood Lumber IV
(Article 21.5 – Canada), para. 72.
534 Norway's Third Party Submission, para. 14, citing US First Written Submission, para 46.
535 Norway's Third Party Submission, para. 14, observing that this is also recognized by the Appellate
Body: In US – Softwood Lumber IV (Article 21.5 – Canada) it found a measure that was initiated prior to the
adoption of the original report to be within the scope of the proceeding.
536 Norway's Third Party Submission, para. 14.

6.75 In light of the above, it is Norway's opinion that all measures referred to in EC's First Written
Submission fall within the scope of the Panel's jurisdiction as provided for in Article 21.5 of the DSU,
including measures that have confirmed, superseded and/or replaced the original measures.
537
6.76 Norway notes that the EC contends that th e United States has extended the duration of the
measures challenged in the original dispute pursuant to sunset review proceedings concluded partly
before and partly after the expiry of the reas onable period of time, by relying on past dumping
margins calculated with the use of zeroing in determining the likelihood of dumping in those cases. 538
The EC submits that the United States by doing so violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the
Anti-Dumping Agreement.
539
6.77 Norway contends that the Appellate Body h as held that all dumping margins in sunset
reviews conducted in accordance with Article 11.3, must conform to the disciplines of Article 2.4. If
the margins are calculated using a methodology that is inconsistent with Article 2.4, then this could
give rise to an inconsistency not only with Article 2.4, but also with Article 11.3. 540 The Appellate
Body has confirmed that this also applies wher e the investigating authority relies on margins
calculated (with the use of zeroing) during periodic reviews.541
6.78 Based on the above, Norway considers that the United States has violated Article 2.1, 2.4,
2.4.2 and 11.3 of the Anti-Dumping Agreement by relying on past dumping margins calculated with
zeroing, in determining the likelihood of dumping in the sunset review proceedings related to
measures challenged in the original dispute. 542 Norway respectfully requ ests the Panel to examine
carefully the facts presented by the parties to this case in light of its arguments, in order to ensure a
proper and consistent interpretation of the DSU and the Anti-Dumping Agreement.543
VII. INTERIM REVIEW
7.1 On 12 August 2008, the Panel issued its Interi m Report to the Parties. On 9 September 2008,
both parties submitted requests for the review of precise aspects of the Interim Report, and on
16 September 2008, the parties submitted comments on each other's requests for review. In addition,
on 23 September 2008, the United States submitted a le tter in response to the EC Comments, and the
European Communities submitted a letter in response on 26 September 2008. Neither party requested
an interim review meeting.
7.2 This section of our Report summarizes each party's request for interim review as well as our
response to the arguments made at the interim review stage, wherever we felt that an explanation was
necessary. Due to changes as a result of interim review, the numbering of paragraphs and footnotes in
the Final Report has changed from the Interim Report. The parties' requests and comments referred to
sections, paragraph numbers and footnotes in the In terim Report. For the sake of clarity, we have
indicated the corresponding paragraphs and footnot es in the Final Report where changes have been
made. We have also made additional editorial co rrections to the Interim Report for the purposes of
clarity and accuracy.

537 Norway's Third Party Submission, para. 15.
538 Norway's Third Party Submission, para. 16, citing EC First Written Submission, para. 69.
539 Norway's Third Party Submission, para. 16, citing EC First Written Submission, para. 71.
540 Norway's Third Party Submission, pa ra. 17, citing Appellate Body Report, US – Corrosion
Resistant Steel Sunset Review, paras. 127 and 130.
541 Norway's Third Party Submission, para. 17, citing Appellate Body Report, US – Zeroing (Japan).
542 Norway's Third Party Submission, para. 18.
543 Norway's Third Party Submission, para. 19.

A. EC REQUESTS FOR REVIEW
7.3 The European Communities request s that we include, in the description of the measures at
issue contained in paragraph 3.2 of the Interim Report, the "US omissions or deficiencies when
complying with the DSB's recommendations and rulings", which it submits it has brought before us in
addition to contesting US measures in the form of certain Section 129 Determinations and subsequent
reviews (including cash deposits and liquidations resu lting from the measures at issue in the original
dispute and subsequent reviews). 544 The United States objects to the EC request, arguing that neither
such omissions nor deficiencies were set forth as di stinct measures in the EC panel request or First
Written Submission, and considers that paragraph 62 of the EC First Written Submission does not
support its request.
7.4 We note that the European Communities has, in its arguments before us, referred to the US
omissions and deficiencies in the US implementa tion of the DSB's recommendations and rulings.
Those references were, however, primarily made in the context of the EC arguments that all the
measures challenged by the European Communities, and in particular the subsequent reviews, fall
within our terms of reference. Yet, it is clear from the EC requests for findings and from Section VIII
of our report that part of the "measures" placed by the European Communities before us are indeed
not positive acts, but rather omissions on the part of the US in bringing itself into compliance with the
DSB's recommendations and rulings. We have th erefore made the addition to paragraph 3.2
suggested by the European Communities, but have qualified it by the addition of the term "related", to
better reflect the subsidiary role of such "omissions" in the EC arguments.
7.5 The European Communities request s that we include, in paragraphs 4.1 and 5.185 of the
Interim Report, a reference to its request for a finding concerning the Panel's composition. The
United States did not comment on the EC request fo r review in this respect. We have made the
inclusion suggested by the European Communities in what are now paragraphs 4.2 and 5.185 of the
Final Report.
7.6 The European Communities requests, and we have made, an additio n to what is now
paragraph 8.22, to reflect an EC argument that th e United States seems to have correctly understood
the measures covered by this dispute when referring to Charts I and II of the Annex to the EC panel
request in its First Written Submission. As it is clear that this paragraph reproduces the EC arguments
before the Panel, we see no need to use the altern ative language suggested by the United States in its
Comments on the EC request. In addition, the Euro pean Communities also requests that we insert,
after the third sentence of paragraph 8.31 of the Interim Report, a cross-re ference to this same
paragraph 8.22. The United States objects to this EC request. We decline to make the change
requested by the European Communities. The Eu ropean Communities has provided no justification
for its request in this respect. Paragraph 8.31 of the Interim Report sets out the Panel's interpretation
of Article 6.2 (as opposed to the parties' argument s) and, as pointed out by the United States, the
change suggested by the European Communities would modify the sense of this paragraph.
7.7 The European Communities requests that we make certain changes to the description of the
measures at issue by the original panel and the Appe llate Body in paragraphs 8.67-8.71 of the Interim
Report.
7.8 First, the European Communities requests that we specify, in paragraph 8.67 of the Interim
Report, that the footnote at the end of paragraph 8.1( a) of the report of the original panel refers back
to the findings contained in paragraph 7.32 of that same report which, as indicated in paragraph 8.66
of the Interim Report, refers back to footnote 1 19. The United States does not comment on this EC

544 The European Communities refers to para. 62 of its First Written Submission.

request, and we made the modification suggested by the European Communities to what is now
paragraph 8.66.
7.9 Second, the European Communities requests that we modify paragraph 8.69 of the Interim
Report, substituting the words "refer to this footnote di rectly or indirectly" to the words "refers either
to this footnote
608 or to Exhibits EC-16 to EC-31 609", and making corresponding changes to footnotes
608 and 609 in the Interim Report, to reflect the fact that all the paragraphs cited refer directly or
indirectly to footnote 202. The United States sugge sts alternative language. Rather than making the
change suggested by the European Communities, we have amended what are now footnotes 610 and
611 to reflect the fact that even where the original pa nel refers to Exhibits EC-16 to EC-31, by virtue
of cross-references, the reference to these Exhibits in turn, eventually refers back to footnote 202.
7.10 Third, the European Communities requests that we add, at the beginning of paragraph 8.70 of
the Interim Report, a reference to footnote 9 of the Appellate Body report concerning the original
investigations at issue in the original dispute, and which refers to paragraph 2.6 and footnote 119 of
the report of the original panel. The United States objects to the change proposed by the
European Communities, on the ground that para graph 8.70 of the Interim Report concerns
administrative reviews, not original investigations. We decline to make the addition suggested by the
European Communities. Our report includes a discu ssion of the Appellate Body's description of the
administrative reviews at issue because, with respect to administrative reviews, it was the findings of
the Appellate Body that were adopted by the DSB. The Appellate Body did not disturb the panel's
findings on the EC "as applied" claims with respect to original investigations; we therefore see limited
relevance in describing the Appellate Body's descr iption of these measures in the introductory section
of its report. We now explain this in new footnote 6 12. In any case, the Appellate Body merely refers
back to paragraph 2.6 and footnote 119 of the report of the original panel, which are already
reproduced in paragraph 8.63 of the Final Report.
7.11 Fourth, the European Communities requests that we include, in footnote 612 to
paragraph 8.71 of the Interim Report, additional re ferences to other paragraphs of the Appellate Body
Report where, the European Communities indicates, the Appellate Body also referred to original
investigations and administrative reviews "at issue" . The United States objects to the EC request. It
submits that paragraph 8.71 pertains to administ rative reviews and that some of the additional
paragraphs listed by the EC concern original inv estigations; others concern the Appellate Body's
summarization of either the EC or the US arguments. We have, in response to the EC request, made it
clear that the list contained in what is now footnot e 613 is not exhaustive ( it lists those paragraphs
most relevant to the Appellate Body 's findings with respect to the EC "as applied" claims concerning
administrative reviews). Consistent with the preced ing paragraph, we see no need to make reference
to the Appellate Body's description of the measures at issue with respect to the EC claims concerning
original investigations.
7.12 Finally, the European Communities requests that we include, before paragraph 8.71 of the
Interim Report, a reference to its Notice of Appeal in the original dispute, which described the
measures at issue by reference to paragraph 2.6 of the report of the original panel, and that we indicate
that the US did not bring any claims against su ch a description before the Appellate Body. The
United States submits that the EC's own description of the measures at issue has no place in this
portion of the report. In addition, the US contests the EC assertion that "the United States did not
contest such a description before the Appellate Body". As the United States points out, this section of
our report describes the description of the measures at issue by the panel and the Appellate Body in
the original dispute. While we consider that the EC 's panel request in the or iginal dispute sheds light
on the scope of the measures at issue (see paragraph 8.74 of the Final Report), in our view the EC's
Notice of Appeal did not have the effect of delimiti ng the scope of the original proceeding. Indeed,
the EC's Notice of Appeal described the measures at issue by reference to paragraph 2.6 of the report

of the original panel. As a result, we declin e to make the addition suggested by the European
Communities.
7.13 The European Communities requests that we a dd language at the end of paragraph 8.114 of
the Interim Report in order to fully reflect its arguments. The United States does not object to this
request of the European Communities, and we have made the addition suggested by the European
Communities in what is now paragraph 8.113. Th e European Communities also requests that we
insert the words "based on zeroing" in the text of paragraph 8.119 of the Interim Report. The
United States objects to this proposed change, wh ich it submits would change the meaning of the
Panel's finding. While the EC request concerns, as the United States points out, our findings, we
consider that the addition suggest ed by the European Communities eliminates an ambiguity which
existed in the text of the Interim Report and better reflects the intent behind our findings. We have
therefore made the change requested by the European Communities in what is now paragraph 8.118.
7.14 The European Communities requests that, in orde r to provide a complete description of the
issues not contested by the United States on this poin t, the Panel make a reference, at the end of
footnote 897 of the Interim Report to the fact that the United States has not contested the 75 per cent
figure provided by the European Communities. The United States objects to the EC request,
submitting that, as indicated in footnote 897 of the Interim Report, the Eur opean Communities failed
to support the 75 per cent figure with any documentary evidence and failed to even make a prima
facie case. Therefore, the United States considers that no response from it was necessary on this
point. We have, in light of the parties' comments, clarified what is now footnote 905 by noting the
fact that the United States did not comment on the 75 per cent figure presented by the European
Communities. We have also made it clear that our conclusion that the European Communities has
made a prima facie case that the volume of "dumped imports" decreased by virtue of the Section 129
determinations is not dependent on the evidence submitted by the European Communities with respect
to the precise volume of imports that could no longer be regarded as dumped.
7.15 The European Communities requests that, in order to fully reflect its argument on this point,
we insert the term "cooperating" in paragraph 8.280 of the Interim Report to qualify the terms
"exporters and producers". The United States did not comment on this EC request. We do not
consider that the addition requested by the Eur opean Communities is warranted. What is now
paragraph 8.281 contains our findings on the scope of Article 9.4. Its primary aim is not to reproduce
the detail of the EC argument. Further, making the addition suggested by the European Communities
would detract the reader from the point that this paragraph seeks to make, i.e., the contrast between
disciplines with respect to the calculation of the "all others" rate itself (the EC argument) and
disciplines concerning the ceiling applicable to the "all others" rate (our interpretation of Article 9.4).
B.
US REQUESTS FOR REVIEW
7.16 The United States requests that we eliminate the re ferences to the original panel in the fourth
and fifth sentences of paragraph 8.107 of the Interim Report. The United States submits that it was
the Appellate Body, and not the panel in the original dispute that relied on the rationale discussed in
the fifth sentence of paragraph 8.107, and that the original panel did not find that the definition of
dumping in Article 2 contained a general obligatio n not to zero. The European Communities objects
to the US request and disagrees with the US view th at the original panel did not rely on the rationale
quoted in the fifth sentence of paragraph 8.107. In addition, the European Communities submits that
the United States fails to read the original panel report as modified by the Appellate Body Report,
which is what was adopted by the DSB. The Eu ropean Communities further submits that the present
panel is correct to observe that the considerations th at have played a role in prior panel and Appellate
Body reports condemning zeroing are fundamentally slightly different ways of expressing the same
basic point, reflecting coherent reasoning that respects the overall design and architecture of the
relevant provisions and the Anti-Dumping Agreement and Article VI of the GATT 1994, considered as

a whole. We agree with the United States that paragraph 8.107 of the Interim Report primarily
reflected the Appellate Body's reasoning in the origin al dispute. We have, in order to clarify the
situation, added a discussion of the rationale for the original panel's finding with respect to zeroing in
original investigations in new paragraph 8.106. That being said, we agree with the European
Communities concerning the reasoning of the panel a nd Appellate Body, and believe it is clear from
new paragraph 8.106 that the panel and the Appella te Body both relied in their reasoning on a basic
requirement to calculate dumping for the product as a w hole, and to take into account all intermediate
comparisons where such comparisons are made by the investigating authority, which derives from
Article 2.1 of the Anti-Dumping Agreement , and also finds expression in Article 2.4.2 ("all
comparable export transactions").
7.17 The United States suggests that the Panel clarify the first sentence of paragraph 8.175 of the
Interim Report by deleting the words "the da te of the final assessment of the duties, i.e." The
United States submits that this phrase does not specif ically characterize either of the two dates to
which the Panel refers, and that it creates ambiguity as to the Panel's view of the appropriate dates.
The European Communities objects to the US request in this resp ect. The European Communities
considers that the phrase at issue does not create ambiguity, and that its deletion would imply that the
Panel would only provide a partial explanation of its views. In addition, the European Communities
notes that the Panel refers to "final assessment of duties" in other paragraphs of the Interim Report.
545
We do not consider that the phrase at issue creates any real ambiguity as to our views on the relevant
date. When read in light of paragraph 8.174, it is clear that the relevant date is that of the
determination of the amount of anti-dumping liability due. We have now made this more explicit.
Further, we consider it useful to maintain the ph rase at issue because the pur pose of the first sentence
of paragraph 8.175 is to explain th at such a determination occurs either at the time of the conclusion
of the administrative review proceedings or, where such proceedings are not requested, on the date on
which the right to request such a review has laps ed. In addition, where an administrative review
proceeding is rescinded, the relevant date would be th at of the rescission of the proceeding. This has
now been made clear in what is now footnote 769.
7.18 The United States submits that the last clause of the fifth sentence of paragraph 8.192 of the
Interim Report, ("even where the court proceedings were unsuccessful in challenging the final duty
liability determination"), could be misinterpreted to mean that the outcome of litigation is somehow
relevant to the date of implementation, and sugge st that we replace it with "as a result of court
proceedings". In addition, the United States submits that the relevant date of implementation appears
less clear in the phrase "at the time of the ad ministrative review proceedings" contained in
paragraph 8.193 of the Interim Report. In order to be consistent with our finding that the relevant date
for implementation is the date of the final determ ination, the United States suggests that we use the
formulation "the date that the United States made its final administrative review determination". The
European Communities objects to th ese US requests. The European Communities considers that the
United States bases its request on an incorrect inte rpretation of footnote 798 of the Interim Report,
and submits that the reference to "court proceedin gs" in paragraph 8.192 of the Interim Report is
clearly made in the context of the Panel's rebuttal of the EC's theory of implementation and, thus, does
not mean that the Panel implied that "the outcome of litigation is somehow relevant to the date of
implementation". Finally, the European Communities considers that the reference to "at the time of
the administrative review proceedings" in paragraph 8.193 of the Interim Report is sufficiently clear.
7.19 We decline to make the changes requested by the United States. We do not agree with the
United States that paragraph 8.192 of the Interim Re port, as drafted, suggests that the outcome of the
litigation is relevant to the date of implementation, and note in this respect, our use of the term "even"
at the beginning of the phrase at issue. Likewise, we see no need to modify paragraph 8.193 of the

545 The European Communities refers to, e.g., paras. 8.110, 8.183, 8.207, and 8.212 of the Interim
Report.

Interim Report as requested. In this respect, we have now made it clear in what is now footnote 769
that we do not use the term "final determination" to distinguish between th e issuance of the "Final
Results" and any "Amended Results" in the administrative review process.
7.20 The United States argues that our finding, set forth in paragraphs 8.211-214 and 8.127 of the
Interim Report, that the 2004-2005 administrative revi ew in case 6 falls within our terms of reference
is contrary to our finding that our terms of reference only properly include definitive duty
determinations made after the end of the reasonable period of time. The United States also submits
that we have elsewhere emphasized that the releva nt date for implementation is that on which the
administering authority makes the decision of final liability (paragraph 8.174 of the Interim Report).
The United States notes that while the final determination of the 2004-2005 review in case 6 was
published in the Federal Register on 10 April 20 07, it was signed by the USDOC on 4 April 2007.
The United States considers that it is this date th at is relevant under the Panel's line of reasoning
because that is the date on whic h the USDOC made its substantive decision of final liability
Furthermore, the United States argues that the date of the USDOC's amended final determination (9
May 2007) cannot legitimately be construed as the date the USDOC made its decision because the
sole purpose of that amended determination was to make ministerial corrections to the substantive
decision made on 4 April 2007. The United States su bmits that, were the Panel to include this
determination within its terms of reference by virtue of the date of the amended final determination, it
would in effect be requiring the USDOC to remake a substantive determination that was made prior to
the end of the reasonable period of time, and solely as a result of the USDOC's decision to recognize
and correct ministerial errors that have nothing to do with the substantive issues being argued before
this Panel. As a result, the United States requests th at we find that the determination falls outside our
terms of reference and otherwise not make any findings with respect to this determination in our Final
Report.
7.21 The European Communities objects to the US reque st for review, and submits that, as stated
in paragraph 8.127 of the Interim Report, the Pane l's terms of reference in clude subsequent reviews
"adopted" following the date when the original reports were adopted by the DSB. Thus, the
assessment review at hand (conducted in 2007) clearly falls under the Panel's terms of reference.
Further, the European Communiti es observes that the United States mistakenly assumes that the
Panel took into account the date on which the inves tigating authority "makes the decision of final
liability". Yet, it is evident from Interim Report th at the Panel took into account the date when the
results of the assessment proceeding were published in the Federal Register, as this is the moment
when the results of the assessment re view are made public to all interested parties, and the date as of
which new cash deposits are established. The European Communities also notes that the results of the
amendment published on 9 May 2007 did not modify the cash deposits resulting from the original
determination made on 10 April 2007: the notice pub lished in the Federal Register on 9 May 2007
states that "The Department will also notify CBP of the revised cash deposit rate for FSAB, effective
upon publication of these amended final results of the review". Thus, the amended cash deposit
entered into force on 9 May 2007. Consequently, si nce the original and the amended determinations
were published after the end of the reasonable pe riod of time, the European Communities requests
that the Panel reject the US request for review.
7.22 We see no reason to modify our finding that the 2004-2005 administrative review in case 6
falls within our terms of reference and that th e US obligation to implement extended to that
determination. First, as is clear from what is now pa ragraph 8.121, we consider that this review falls
within our terms of reference because it was published following the adoption of the DSB's
recommendations and rulings. Second, we have, in our findings with respect to the temporal scope of
the US obligation to implement, made it clear that it is the date of the determination of the final anti-
dumping liability that is the relevant date to dete rmine the US obligation to implement. Here, the
final anti-dumping liability was determined on th e date of the amended administrative review
determination, since that determination changed the margin of dumping established for Fagersta in the

original administrative review determination from 20.42 per cent to 19.36 per cent, and thus changed
its liability for anti-dumping duties. See also, in this respect, new footnote 769. Further, we consider
that the relevant date cannot, in this context, be the date of the internal decision-making process, but
rather, has to be the date on which a measure takes effect, i.e., the date of publication.
7.23 The United States requests that we amend foot note 825 to paragraph 8.219 of the Interim
Report and suggests alternative language to clarify it. The European Communities considers that the
original footnote reads well and reflects the US arguments. The European Communities also suggests
alternative language, should the Panel wish to modify the footnote. We agree with the United States
that the footnote could be better formulated and have clarified what is now footnote 819.
7.24 The United States requests that we reverse our findings on the injury determinations in cases
2, 3, 4 and 5 (paragraphs 8.252-8.270 of the Inte rim Report). The main elements of the lengthy
argument submitted by the United States on this issue are as follows: First, the United States submits
that we need not address the EC claims with respect to "injury", and that our findings in this respect
will do nothing to help resolve the dispute, given th at the AD orders at issue have been revoked.
Next, United States submits that the injury determin ations are not within our terms of reference as
they are not "measures taken to comply". The Un ited States also argues th at the Appellate Body
Report in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5), on which, the United States
argues, we rely to support our findings, is disti nguishable from the instant compliance proceeding. In
addition, the United States argues th at there is no obligation in the Anti-Dumping Agreement
automatically to revise an injury determination in light of a revised dumping determination. In the US
view, other provisions of the Anti-Dumping Agreement, specifically Articles 11.2 and 11.3, provide a
vehicle to review an injury determination in orde r to address developments arising after the issuance
of the determination. The United States concl udes by noting that how it complies with DSB
recommendations and rulings is up to the United St ates and that, in this case, it conducted sunset
reviews of the orders that took into account the USDOC's Section 129 determinations, and led to the
revocation of the orders.
7.25 The European Communities objects to the US re quest. The European Communities considers
that the Panel was required to make the findings at issue given that, at the time of the Panel's
establishment, the orders were still in place. The European Communities also submits that, contrary
to what the United States asserts, our findings did not concern the original injury determinations per
se: rather, our findings concerned the US failure to reassess the injury determinations in light of the
new volumes of dumped imports when keeping the anti-dumping duties in place as a result of the
Section 129 Determinations. The European Comm unities adds that a compliance panel can examine
the "totality" of claims relating to the consistenc y of "measures taken to comply" with the covered
agreements (continuing violations , new violations and consequen tial violations of the covered
agreements) and that, in this case, it argued that its claims related to new measures ( i.e., the
Section 129 Determinations) against which new clai ms could be made. In this respect, the US
obligation to reassess the injury determinations derives from the original DSB recommendation to
bring its measures into conformity with the Anti-Dumping Agreement ; if the measures taken to
comply do not comply with the
Agreement, then the United States cannot argue that there is no
obligation to revise its injury determinations as a consequence of the revised dumping determinations.
Finally, the European Communities argues that th e United States has, in its request for review,
submitted new evidence, and made new arguments that were not made previously during this
compliance proceeding – for instance, the Europe an Communities submits that the United States
never argued that the injury determinations were not measures taken to comply, and cannot do so at
the interim review stage.
7.26 We note first that the US request for review contains a number of arguments which were not
made, or at least were not developed, during the co urse of this proceeding. For instance, while the
United States argued during the course of the pr oceeding that there were no DSB recommendations

and rulings concerning the issue of "injury", the Un ited States did not previo usly explicitly assert that
the EC claims regarding injury concerned measures which are not "measures taken to comply". The
purpose of the interim review stage is not to a llow a party to raise new arguments or develop
arguments which were at most merely alluded to du ring the course of the proceeding. That said, we
consider it useful to address certain of the points made by the United States in its request for review.
7.27 First, while it may be permissible for the United States to bring its measures into conformity
through the conduct of sunset reviews resulting in th e revocation of the orders as a general matter, in
this case, as of the date of establishment of this panel, the orders remained in fo rce. As we explain in
our findings, it is for that reason, i.e., the fact that the United States had allegedly not brought itself
into conformity as of the date of the Panel's establis hment, that we consider that the US measures at
issue fall within our terms of reference. The US ar gument that it could bring itself into conformity in
the manner it chose, in this case, through the revocati on of the orders as a result of the sunset review
determinations, overlooks that tempor al element of the US obligation to bring itself into conformity
with its obligations. We need not comment furt her on the US arguments that it can do nothing more
to bring itself into conformity; we have already addr essed this issue in paragraph 8.249 of the Report.
We have, however, substantially revised that same pa ragraph to make it clear that while we consider
that the US measures taken to comply fall within ou r terms of reference, we consider that we, as any
other panel, retain the discretion to make, or not make, findings with respect to the claims and
measures falling within our terms of reference (the "matter" referred to us by the DSB).
7.28 We have already addressed, at paragraph 8.2 58 of our Report, the US arguments (already
made in its Response to Panel Question 51) concerning the Appellate Body Report in US – Oil
Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) . The Appellate Body Report in
that case concerns more than the scope of the meas ure take to comply, the aspect of the decision to
which the United States limits its comments; it also addresses the applicability of the "stare decisis"
principle enunciated in EC – Bed Linen (Article 21.5 – India) . This latter element is the one which
was specifically addressed in the report at paragraphs 8.258-8.259. Finally, and related to this, even
though in our view the United States did not, in th e course of this proceeding, argue that the EC
claims concerned measures that are not "measures ta ken to comply", for the sake of completeness, we
have now addressed that issue explicitly in our findings. See what is now paragraph 8.264.
C. REQUESTS BY BOTH PARTIES CONCERNING THE SAME ASPECTS OF THE INTERIM REPORT
7.29 The European Communities requests that the Pane l make certain changes to paragraphs 8.139
and 8.140 of the Interim Report in order to avoid a potential contradiction between these two
paragraphs. The European Communities requests th at we modify the first sentence of paragraph
8.140 of the Interim Report to read "even if the EC has made a prima facie case" or, alternatively, that
we delete the first part of the first sentence of paragraph 140, and start with "[H]owever, we cannot
make ..."
7.30 In its own request for review, the United Stat es submits that the European Communities has
not supplied any evidence to demonstrate that zeroing was actually employed in calculating the
margins relied upon in the sunset reviews at issue and has therefore not made a prima facie case in
this respect. For this reason, the United States does not believe that there exists a basis for our
conclusion that the margins relied upon in the sun set reviews were calculated by using zeroing and
requests that we delete the last sentence of paragr aph 8.139. In its Comments on the EC request, the
United States indicates that it considers that both th e last sentence of paragraph 8.139 and the first
sentence of paragraph 8.140 are not relevant to the Panel's finding because the Panel ultimately
declines to make a finding as to th e contested sunset reviews. The Un ited States also agrees with the
EC's alternative suggestion to modify the firs t sentence of paragraph 8.140. The European
Communities objects to the US request to delete the last sentence of paragraph 8.139, and disagrees

with the US view that it has failed to make a prima facie case that zeroing was actually employed in
the margins relied upon in the sunset reviews at issue.
7.31 We have examined the parties' requests to amend paragraphs 8.139-8.140 of the Interim
Report, as well as their comments on each other's request, and decline to amend either of these
paragraphs. We consider that they are clear and accurately reflect our reasoning.
7.32 Both parties submit that paragraph 8.208 of the Interim Report contains a factual error: the
rate challenged by the European Communities in the 2004-2005 administrative review in case 1 stems
from the 2004-2005 administrative review, not from the original investigation. Each party suggests
alternative language. We agree that as originally dr afted, what is now paragraph 8.207 suggested that
the Panel was referring to the cash deposit rate fro m the 2004-2005 review in the sentence identified
by the parties. We have reformulated this para graph, and the following paragraph, in order to
eliminate that confusion.
VIII. FINDINGS
A. O
RDER OF THE PANEL'S ANALYSIS
8.1 Our findings are organized as follows: In the ne xt few pages, we recall the basic principles
that govern the exercise of our authority under Article 21.5 of the DSU. Next, we examine two
preliminary issues. The first concerns claims of the European Communities in relation to the
composition of this Panel. The second concerns US requests for preliminary rulings, in which the
United States requests us to find that "subsequent" administrative and sunset reviews, taken in relation
to the same AD orders as the measures at issue in th e original dispute, and with respect to which the
European Communities makes claims, are not properly before us.
8.2 We will then proceed to examine the substance of the EC claims insofar as they are within our
terms of reference. We will first consider the EC claims with respect to all the measures which the
European Communities includes in its panel reques t; these claims concern whether the United States
has complied with the recommendations and rulings of the DSB in the original dispute. Lastly, we
will address EC claims concerning the consistency of certain US measures taken to comply (specific
Section 129 determinations) with the Anti-Dumping Agreement and the GATT 1994.
B. RELEVANT PRINCIPLES REGARDING STANDARD OF REVIEW , TREATY INTERPRETATION AND
BURDEN OF PROOF
1. Rules of treaty interpretation
8.3 Article 3.2 of the DSU provides that the dis pute settlement system serves to clarify the
provisions of the covered agreements "in accordance with customary rules of interpretation of public
international law". It is generally accepted that these customary rules are reflected in Articles 31-32
of the Vienna Convention on the Law of Treaties. Article 31(1) of the Vienna Convention provides:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose".
2. Standard of review
8.4 Article 11 of the DSU provides the standard of review applicable in WTO panel proceedings
in general. This provision imposes upon panels a comprehensive obligation to make an "objective
assessment of the matter before it". Article 11 of the DSU provides, in relevant part:

"The function of panels is to assist th e DSB in discharging its responsibilities under
this Understanding and the covered agreements. Accord ingly, a panel should make
an objective assessment of the matter before it, including an objective assessment of
the facts of the case and the applicability of and conformity with the relevant covered
agreements, and make such other findi ngs as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements."
8.5 Article 17.6 of the Anti-Dumping Agreement sets forth a special standard of review applicable
to disputes under that Agreement. It provides that:
"(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their evaluation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objectiv e, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the rele vant provisions of the Agreement in
accordance with customary rules of interpreta tion of public international law. Where
the panel finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the panel sha ll find the authorities' measure to be in
conformity with the Agreement if it rests upon one of those permissible
interpretations."
8.6 Taken together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement
establish the standard of review this Panel must a pply with respect to both the factual and the legal
aspects of the present dispute.
3. Burden of proof
8.7 The general principles regarding the allocati on of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO agreement by another
Member assert and prove its claim.
546 These rules apply equally to proceedings under Article 21.5 of
the DSU. 547 The European Communities, as the comp laining party, must therefore make a prima
facie case of violation of the relevant provisions of the WTO agreements it invokes, which the United
States must refute. A prima facie case is one which, in the absence of effective refutation by the other

546 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India ("US – Wool Shirts and Blouses "), WT/DS33/AB/R, adopted 23 May 1997, and Corr.1,
DSR 1997:I, 323, p. 14. With respect to these general rules on allocation of the burden of proof, the Appellate
Body has observed:
"[I]n WTO dispute settlement, as in most legal systems and international tribunals, the burden
of proof rests on the party that asserts the affi rmative of a claim or defence. A complaining
party will satisfy its burden when it establishes a prima facie case by putting forward adequate
legal arguments and evidence. The nature and scope of arguments and evidence required 'will
necessarily vary from measure to measure, prov ision to provision, and case to case'. When a
claim is brought against a WTO Member's legislation or regulation, a panel may, in some
circumstances, consider that the text of the relevant legal instrument is sufficiently clear to
establish the scope and meaning of the law. However, in other cases, a panel may consider
that additional evidence is necessary to do so. Once the complaining party has established a
prima facie case, it is then for the responding party to rebut it." (footnotes omitted).
Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain
Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina (" Chile – Price Band System
(Article 21.5 – Argentina) "), WT/DS207/AB/RW, adopted 22 May 2007, para. 134.
547 Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina), para. 136.

party, requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie
case. We also note, however, that it is generally for each party asserting a fact, whether complainant
or respondent, to provide proof thereof.
548 In this respect, therefore, it is also for the United States to
provide evidence supporting the facts which it asserts.
8.8 The Appellate Body recently discussed the appli cation of the general rules on the allocation
of the burden of proof in the context of Article 21.5 of the DSU as follows:
"The text of Article 21.5 expressly links the 'measures taken to comply' with the
recommendations and rulings of the DSB con cerning the original measure. A panel's
examination of a measure taken to comply cannot, therefore, be undertaken in
abstraction from the findings by the original panel and the Appellate Body adopted by
the DSB. Such findings identify the WTO-in consistency with respect to the original
measure, and a panel's examination of a me asure taken to comply must be conducted
with due cognizance of this background. Thus, the adopted findings from the original
proceedings may well figure prominently in proceedings under Article 21.5,
especially where the measure taken to comply is alleged to be inconsistent with WTO
law in ways similar to the original measure. In our view, these considerations may
influence the way in which the complaining party presents its case, and they may also
be relevant to the manner in which an Article 21.5 panel determines whether that
party has discharged its burden of proof and established a prima facie case."
549
C. EC CLAIMS WITH RESPECT TO THE COMPOSITION OF THE PANEL
8.9 We first address an issue raised by th e European Communities in its Second Written
Submission concerning the composition of this Panel. The European Communities considers that this
is an issue which the Panel has an inhe rent jurisdiction and the duty to examine ex officio by
providing a proper interpretation of the DSU. The Un ited States argues that the EC claims in this
respect are not within the terms of reference of th e Panel because they are not part of the "matter"
referred to the DSB by the European Communities in th is dispute, and that this claim is not about a
measure identified in the EC Article 21.5 panel request.
1. Main arguments of the parties
8.10 The European Communities 550 argues that the Panel was improperly constituted under
Articles 8.3 and 21.5 of the DSU. The European Communities notes that with the agreement of the
parties pursuant to Article 8.3 of the DSU, the or iginal panel included citizens of the Members whose
governments are parties the dispute. When this Article 21.5 panel was established, two members of
the original panel were unavailable. During th e ensuing composition process, the United States
withdrew its agreement pursuant to Article 8.3 to the service of citizens of Members whose
governments are parties to the dispute. The Eur opean Communities argues that it "had to accede" to
the appointment of three new panelists in order for composition to proceed, whilst protesting that it
was not consistent with the DSU and without prejudice to its rights.
8.11 Substantively, the European Communities argues that under Articles 8.3 and 21.5 of the DSU,
when panelists of the original dispute are availa ble to serve in a 21.5 proceedings, they cannot be
unilaterally removed from the panel by one of the pa rties. In the EC view, the original agreement
under Article 8.3 DSU cannot be revoked at any st age of the dispute proceedings, including the
compliance panel stage. The European Communities finds contextual support for its interpretation of

548 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
549 Appellate Body Report, Chile – Price Band System (Article 21.5 – Argentina), para. 136.
550 EC Second Written Submission at paras. 4 ff.

Article 8.3 of the DSU in Article 8.6, pursuant to which parties shall not oppose panelists other than
for "compelling" reasons. According to the Europ ean Communities, the nationality of a panelist may
not constitute a "compelling" reason to dismiss him, when both parties have already agreed to him
serving on any panel concerned with the dispute. The European Communities also finds further
support for its arguments in the object and purpose of the DSU, which includes the prompt and
effective settlement of disputes (Article 12) by independent panelists (Art icle 8.2), resulting in
binding panel reports (Article 17). The European Communities argues that the Panel has an inherent
jurisdiction and a duty to rule ex officio on the propriety of its own composition, and requests the
Panel to find that composition was not consistent with Articles 21.5 and 8.3 of the DSU.
8.12 The United States551 considers that the EC claim is not within the terms of reference of the
Panel because it is not part of the "matter" referre d to the DSB by the European Communities in this
dispute, and that this claim is not about a measure identified in the EC Article 21.5 panel request – in
fact, the United States questions whether such a clai m could ever fall within the scope of a panel's
terms of reference.552
2. Evaluation by the Panel
8.13 The European Communities claims that Articles 8. 3 and 21.5 of the DSU were violated in the
panel composition process and that, as a resu lt, this Panel was improperly composed. 553 Should we
agree with the European Communities that we ma y rule on the issue of our own composition and
agree with the EC arguments on substance, we would have to conclude that we have no jurisdiction to
examine and rule on the other EC claims in this dispute.
8.14 The EC claims and arguments raise the question whether a panel may rule on the propriety or
consistency with the DSU of its own composition. It is surprising that it is the complaining party in
this dispute that raises this issue. But in any ev ent, we do not believe that we need to address this
question comprehensively.
8.15 We note that this Panel was composed by the Director-General of the WTO pursuant to the
provisions of Article 8.7 of the DSU. That paragraph provides:
"If there is no agreement on the panelists within 20 days after the date of the
establishment of a panel, at the request of either party, the Director-General , in
consultation with the Chairman of the DSB and the Chairman of the relevant Council
or Committee , shall determine the composition of the panel by appointing the
panelists whom the Director-General cons iders most appropriate in accordance with

551 US Second Written Submission at para. 4 ff.
552 The United States also submits that the European Communities did not have its permission to
disclose anything that the United States may or may not have said during the panel composition process, and
requests the Panel to strike from the record any discussion of the panel selection process other than the EC
allegations concerning its own positions, and to request thir d parties to destroy or return this information. In
response to the US request, we have edited the summar ies of the parties' arguments in order to redact any
reference to statements by the United States during the panel composition process.
553 Article 8.3 of the DSU provides as follows:
"Citizens of Members whose governments are parties to the dispute or third parties as defined
in paragraph 2 of Article 10 shall not serve on a panel concerned with that dispute, unless the
parties to the dispute agree otherwise." (footnote omitted)
Article 21.5 provides, in relevant part, that:
"Where there is disagreement as to the existen ce or consistency with a covered agreement of
measures taken to comply with the recommendations and rulings such dispute shall be decided
through recourse to these dispute settlement procedures, including wherever possible resort to
the original panel."

any relevant special or additional rules or procedures of the co vered agreement or
covered agreements which are at issue in the dispute, after consulting with the parties
to the dispute . The Chairman of the DSB shall inform the Members of the
composition of the panel thus formed no later than 10 days after the date the
Chairman receives such a request." (emphasis added)
8.16 The European Communities has failed to point to any provision of the DSU, and we know of
none, that would give us authority to make a finding or ruling with respect to the application, by the
Director-General of the WTO, of the provisions of the DSU regarding panel composition contained in
Article 8.7.
554
8.17 Article 8.7 is clear that whenever there is no agreement between the parties, the ultimate
power to compose the panel rests with the Director -General of the WTO. Consequently, we refrain
from ruling on the substance of the EC claim with respect to the composition of this panel by the
Director-General.555
D. US REQUEST FOR PRELIMINARY RULINGS
8.18 The United States makes a request for preliminar y rulings, based on two grounds. First, the
United States argues that the Eur opean Communities seeks to include within the terms of reference of
this proceeding measures that were not identified in the EC Article 21.5 request for the establishment
of a panel as required by Article 6.2 of the DSU. Second, the United States argues that the European
Communities makes claims with respect to determinations that are not measures taken to comply with
the recommendations and rulings of the DSB in the original proceeding. Specifically, the
United States challenges the inclusion, by th e European Communities, of claims concerning
administrative reviews that were not at issue in th e original proceedings and of claims concerning
sunset reviews.
8.19 We examine, in turn, each of the two grounds raised by the United States, starting with the
US argument that some measures were not identified by the European Communities in its Article 21.5
panel request.
1. Whether the European Communities makes cl aims with respect to measures that were
not identified in its panel request
(a) Main arguments of the parties
8.20 The United States 556 notes that Article 6.2 of the DSU provides that a panel request shall
"identify the specific measures at issue". The United States submit s that the key passage of the EC

554 At least two prior WTO panels have taken a similar view. See Panel Report, United States –
Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil ("US – Upland Cotton (Article 21.5
– Brazil) "), WT/DS267/RW and Corr.1, adopted 20 June 2008, as modified by Appellate Body Report,
WT/DS267/AB/RW, para. 8.28; Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico (" Guatemala – Cement II "),WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, 5295, para. 8.11.
555 In light of our conclusion that the DSU provides no legal basis for us to make any ruling on the
exercise, by the Director-General, of his authority under Article 8.7 of the DSU, we do not consider it necessary
to examine further the US argument that the EC claims with respect to our composition are not within our terms
of reference.
556 The US arguments are found in the US First Wr itten Submission, paras. 33-35, and in the US
Second Written Submission, paras. 10-36.

Article 21.5 panel request in this respect is paragraph 7. 557 The United States asserts that this
paragraph plainly states that the measures at issue in this proceeding are the 15 original investigations
and 16 administrative reviews that were at issue in the original proceeding. The United States notes
that the European Communities, in its submissions, st ates that the measures listed in the Annex to its
Article 21.5 panel request fall with in the terms of reference of the Panel. According to the
United States, the only reference in the EC Article 21 .5 panel request to the Annex is in paragraph 7
("Details of the reviews in question are set out in the annex"), and that paragraph is clear that the
subsequent reviews listed in the Annex are not them selves "measures in question", but only "related
to" the "measures in question". For the United St ates, the European Communities seeks to expand the
terms of reference beyond the specific measures id entified in its panel request to transform the
"reviews", referenced in its panel request as separat e and distinct from the "measures at issue", into
"measures" within the terms of reference. Theref ore, the United States argues, any "measures" other
than those reviews are not "measures" subject to findings in this proceeding.
8.21 The European Communities 558 asks the Panel to reject the US arguments. The European
Communities considers that the United States either ignores or misconstrues the express terms of
paragraph 7 of its Article 21.5 panel request when it asserts that the phrase "measures in question" in
that paragraph, which refers to the 15 original inv estigations and 16 administrative reviews at issue in
the original dispute, does not encompass the meas ures that the European Communities seeks to place
before this compliance panel. The European Communities submits that the express terms of
paragraph 7 refer to "the reviews related to the measures in question", and expressly cross-reference
the Annex to the panel request, which lists the measures that the European Communities does place
before this compliance panel.
8.22 In any event, the European Communities considers that it h as adequately identified the
measures at issue in this dispute in its panel request. The European Communities refers to the
Appellate Body Report in US – FSC (Article 21.5 – EC II) , where the Appellate Body observed that
in order to identify the "specific measures at issu e" in an Article 21.5 proceeding, the complaining
party must (i) cite the recommendations and rulings made by the DSB in the original dispute, which
have allegedly not been complied w ith, and (ii) identify with suffi cient detail the measures allegedly
taken to comply with those recommendations and rulings, as well as any omissions or deficiencies
therein, or state that no such measures have been taken. The EC panel request fully meets these
requirements. The EC request identifies not onl y the positive acts taken by the United States to
comply, but also the omissions and deficiencies in the US compliance: paragraphs 4 and 7 of the EC
Article 21.5 panel request state that the "US con tinues to impose, collect, or liquidate anti-dumping
duties at a rate inflated by 'zeroing' beyond 9 Apr il 2007" and that "the US has continued zeroing in
the reviews related to the measures in question. Th e United States has not eliminated zeroing in these
reviews...". Moreover, for the purpose of further detailing the omissions and deficiencies, the EC
panel request includes an Annex listing "subsequent reviews" carried out by the United States in
connection with the 15 original investigations and 16 administrative reviews referred to in the original
dispute. Finally, the European Communities argues th at the list of "subsequent reviews" contained in
the Annex is sufficiently clear so that the United States can know of the measures which are the object
of this proceeding. The European Communities observes that the United States seems to have

557 Quoted at para. 8.28 below – see WT/DS/294/25, Annex A-1 cited in US First Written Submission,
para. 33.
558 See EC Second Written Submission, paras. 25-31. We note that the European Communities
anticipated the US request for a preliminary ruling: the European Communities addressed the issue of the
jurisdiction of the panel in its First Written Submission, before the United States challenged the jurisdiction of
the Panel over EC claims with respect to certain measures. See EC First Written Submission, paras. 47-64.

correctly understood the measures covered by this di spute when referring to Charts I and II of the
Annex in its First Written Submission.
559
8.23 In response, the United States submits that the European Communities elected, in its panel
request, to refer to the determinations in the 15 or iginal investigations and 16 administrative reviews
at issue in the original proceeding as "measures", which the United States considers is a term of art
having a particular meaning in the context of Article 6.2 DSU, but only referred to all other
determinations in that request as "reviews". Th e European Communities app ears to assume that the
words "related to" transform the "reviews" into "me asures" included within the terms of reference for
purposes of its panel request. However, nowhere does the panel request state that those reviews are in
fact the measures in question. Further, the United States submits that the reviews are "actions", not
omissions, so a fair reading of the panel request does not allow subsequent reviews to be read into the
panel request.
560 In response to the EC argument that the US ability to reference the reviews in the
Annex is somehow evidence that those reviews are measures, the United States argues that the
question is not whether the European Communities listed the reviews. Rather, it is whether the
European Communities identified those reviews as measures for purposes of this proceeding. Finally,
while the European Communities contends that its re ference to "omissions" brings the reviews in the
Annex within the terms of reference, an omission is a failure to act, not an action; the reviews are
"actions"; and the reviews are therefore not omissions . Thus, a fair reading of the panel request does
not allow subsequent reviews to be read into the word "omission."
(b) Main arguments of the third parties
8.24 Japan
561 believes that the EC panel request specifically identified the periodic and sunset
reviews that are related to the original measures. Japan notes that the US First Written Submission
itself states that the EC panel request "identif ies" the very measures that the United States
simultaneously says were not "identified". 562 Thus, for Japan, the United States takes issue with the
fact that the EC panel request does not stat e that the reviews are "measures in question ", even though
it specifically "identifies" them. Japan notes that paragraph 7 of the panel request explains that the
reviews specifically identified in the Annex were related to the original measures and describes these
reviews as being "in question", the very words that the United States says were not used by the
European Communities in connection with the measures.
(c) Evaluation by the Panel
8.25 Article 6.2 of the DSU provides that:
"The request for the establishment of a pane l shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly...." (emphasis added)
The Appellate Body confirmed, in its Report in US – FSC (Article 21.5 – EC II) , that the Article 6.2
requirement to identify the measures at issue in the panel request applies in the context of an
Article 21.5 compliance dispute. The Appellate Body observed that:

559 EC Second Written Submission, para. 30, referring to US First Written Submission, paras. 23-25.
560 See also footnote 49 to the US First Written Subm ission and paras. 12-17 of the US Second Written
Submission, where the United States mentions that by using different terms to describe the reviews in question,
the EC First Written Submission (as opposed to the EC Article 21.5 panel request) fails to precisely identify the
matters and measures at issue.
561 Japan's Third Party Submission, paras. 7-12.
562 Japan refers to paras. 24 and 25 of the US First Written Submission.

"in order to identify the "specific measures at issue" and to provide "a brief summary
of the legal basis of the complaint" in a panel request under Article 21.5, the
complaining party must identify, at a minimum, the following elements in its panel
request. First, the complaining party must cite the recommendations and rulings that
the DSB made in the original dispute as well as in any preceding Article 21.5
proceedings, which, according to the complain ing party, have not yet been complied
with. Secondly, the complaining party must either identify, with sufficient detail, the
measures allegedly taken to comply with those recommendations and rulings, as well
as any omissions or deficiencies therein, or state that no such measures have been
taken by the implementing Member. Thirdly, the complaining party must provide a
legal basis for its complaint, by specifying how the measures taken, or not taken, fail
to remove the WTO-inconsistencies found in the previous proceedings, or whether
they have brought about new WTO-inconsistencies ..."
563
8.26 In US – FSC (Article 21.5 – EC II) , the United States had argued that the European
Communities failed to properly identify certain of the measures at issue in its second Article 21.5
panel request.564 Thus the issue before the Appellate Body was that of the identification of measures
(the second element identified by the Appellate B ody in the paragraph quoted above); the Appellate
Body characterized this issue as "whether the EC panel request put the United States on sufficient
notice that a challenge was being brought against the continued operation of" the measure at issue in
the first compliance dispute.565
8.27 The US arguments before us are, similarly, limited to the issue of the identification of the
measures in the EC panel request. Consequently, we must determine whethe r the EC panel request
sufficiently put the United States on notice that it w as bringing a challenge against the measures listed
in the Annex to that panel request, which the partie s and we have, in the course of this proceeding,
referred to as "subsequent reviews". The other c onsideration is, in our view, whether the EC panel
request clearly defines the scope of this compliance dispute. 566 Expressed differently, we need to
determine whether the EC Article 21.5 panel request creates uncertainty as to the measures that are
the subject of this compliance proceeding.
8.28 The parties agree that the paragraph of the EC Article 21.5 panel request that is relevant to the
issue of the identification of the "subsequent re views" as measures at issue in this dispute is
paragraph 7, which reads as follows:

563 Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Second
Recourse to Article 21.5 of the DSU by the European Communities (" US – FSC (Article 21.5 – EC II) "),
564 Specifically, the United States argued that the European Communities had failed to explicitly
reference Section 5 of the ETI Act, the measure at issue in the first compliance proceeding.
565 Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 65
566 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant
Carbon Steel Flat Products from Germany (" US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted
19 December 2002, DSR 2002:IX, 3779, para. 126:
"The requirements of precision in the request for the establishment of a panel flow from the
two essential purposes of the terms of reference. First, the terms of reference define the scope
of the dispute. Secondly, the terms of reference, and the request for the establishment of a
panel on which they are based, serve the due process objective of notifying the parties and
third parties of the nature of a complainant's case. ...'" (footnotes omitted)
See also Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain
("Canada – Wheat Exports and Grain Imports "), WT/DS276/R, adopted 27 September 2004, upheld by
Appellate Body Report, WT/DS276/AB/R, DSR 2004:VI, 2817, para. 6.10, subparas. 5 and 16-17.

"With regard to the 15 original investigati ons and 16 administrative reviews, the US
has continued zeroing in the reviews rela ted to the measures in question. The
United States has not eliminated zeroing in these reviews though they determine the
cash deposit rate currently applicable, and/ or are relied upon to maintain the AD
measure or to impose, collect or liquidate anti-dumping duties at a rate inflated by
zeroing after 9 April 2007. Details of the reviews in question are set out in the annex.
For the reasons set out above, this is incons istent with Article 2, including 2.1, 2.4
and 2.4.2, Article 9.3, and Article 11, incl uding 11.1, 11.2 and 11.3 (since, by relying
on zeroed dumping margins, the United States did not properly determine that the
expiry of the duty would be likely to lead to continuation or recurrence of dumping
and injury) of the AD Agreement and Articles VI:1 and VI:2 of the GATT 1994."
567
8.29 It is obvious from the text of paragraph 7 that th e purpose of this paragraph is to indicate that
the European Communities considers that the fact that the United States continued to zero in the
"subsequent reviews" listed in the Annex is in consistent with a number of provisions of the Anti-
Dumping Agreement and of the GATT 1994. In other words, it is clear that the purpose of that
paragraph is to identify the "subsequent reviews" as measures at issue, and it does so by stating that
the United States "has continued zeroing" and "has not eliminated zeroing" in the reviews listed in the
Annex.
8.30 The United States draws a contrast between the u se in paragraph 7 of the term "measures" or
"measures in question", which the European Comm unities employs when referring to the measures
(15 original investigations and 16 administrative reviews) at issue in the original proceeding, and the
description of "subsequent reviews", in the same paragraph of the panel request, as "reviews related to
the measures in question". As part of this argument, the United States asserts that the term
"measures" is a term of art having a particul ar meaning in the context of Article 6.2 DSU. 568 The

567 WT/DS/294/25, reproduced in Annex A-1.
568 The United States states, in para. 13 of its Second Written Submission, that:
 "The crux of the matter is simple: why would the EC elect to refer in its panel request to the
determinations in the 15 investigations and 16 administrative reviews as 'measures' – a term
with a particular meaning in the context of Article 6.2 of the DSU – but to all other
determinations referenced in that request as 'reviews'?
Later, in its Answers to the Panel's Questions, the US nuanced its arguments in this respect. See US
Answer to Panel Question 1:
"Q1. US: Is it the US position that, in order to "identify" the "subsequent reviews" as
measures at issue in this proceeding consis tent with Article 6.2 of the DSU, the EC's
Article 21.5 panel request should have, when referring to these (subsequent) reviews, used the
precise terms 'measure', 'measure in question', or 'measures at issue'? If so, where does the US
find support, in the DSU, or in WTO case law, for such a requirement?"
US Answer:
"The United States does not take the position that, in general, a panel request must use the
term 'measure' to identify the measures at issu e. However, the EC's panel request must be
examined on the basis of the language used.' In its Article 21.5 panel request, the EC used the
word 'measure' to describe the determinations that it had challenged as applied in the original
proceeding. In that same panel request, the EC did not use the term 'measure' to describe what
we have come to term the 'subsequent reviews. ' The EC repeated its deliberate choice of
words in the Annexes to its Article 21.5 pane l request. Examining the panel request 'on the
basis of the language used,' and reading the panel request 'as a whole,' one must give meaning
to the EC's deliberate use of 'measures' to describe the determinations in the original
proceeding, and its deliberate use of a different term to describe the 'subsequent reviews.'
This is particularly so when the EC chose to use the operative term from the text of Article 6.2
itself since the EC is to be understood as invoking Article 6.2 to the extent it uses the language
therein, and thus to be understood as choosing not to have the legal effect under Article 6.2
when using different language. ...

United States also submits that "the question is not whether the European Communities listed the
reviews. The question is whether the European Communities identified those reviews as measures for
purposes of this proceeding".569
8.31 Insofar as the United States may be ascribing pa rticular significance to the use, by the
European Communities, of the term "measure" only in relation to the 31 determinations at issue in the
original dispute, we consider that the US argum ents are overly formalistic. Article 6.2 does not
mandate the use of any particular term in identif ying the measures at issue. What that provision
requires is that the panel request state with suffi cient precision the measures that the complainant is
bringing before the panel, so that the respondent is put on notice of which measures are challenged
and no uncertainty remains on the scope of the disput e. Whether in doing so the complainant uses the
term "measure" is, in our view, at most secondary. Reading the EC Article 21.5 panel request as a
whole, as we must570, we find that it clearly expresses the EC intent to place the "subsequent reviews"
before us as part of the "specific measures at issue" in this compliance dispute.
8.32 In light of the above, we find that the EC Artic le 21.5 panel request sufficiently identifies the
"subsequent reviews" as "measures at issue" in th is dispute and we therefore decline to make the
ruling under Article 6.2 of the DSU requested by the United States.
2. Whether the "subsequent reviews"571 fall within our terms of reference
(a) Arguments of the parties
8.33 The United States submits that the subsequent review s are not "measures taken to comply"
and therefore do not fall within the Panel's terms of reference. The United States requests the Panel to
find that the only measures within the terms of re ference of this proceeding are the 15 original
investigations and 16 administrative reviews at issue in the original dispute. 572 The United States

The United States is not asking the Panel to find that Article 6.2 would require the EC to use
the term 'measure' to describe the subsequent re views. Rather, the United States is asking the
Panel to find that, reading the EC's panel request as a whole and in context, the EC's deliberate
use of the term 'measure' to describe the determinations challenged as applied in the original
proceeding, and its deliberate choice not to use that term to describe the 'subsequent reviews,'
leads to the conclusion that the EC's Article 21.5 panel request did not identify the 'subsequent
reviews' as measures for purposes of this proceeding."
See also United States, Closing Statement at the substa ntive meeting of the Panel (hereinafter "US Closing
Statement"), para. 12:
"To be sure, a Member is not necessarily obliged to refer to the measures in question as
'measures'; but when a Member expressly uses the term 'measure' – a term of art referenced in
Article 6.2 – to describe certain determina tions, it can be reasonably inferred that not
describing other determinations as 'measures' has meaning, and that those determinations are
in fact not measures subject to challenge in the proceeding."
569 US Second Written Submission, para. 15 (emphasis original).
570 Appellate Body Report, US – Carbon Steel , para. 127: "[C]ompliance with the requirements of
Article 6.2 must be determined on the merits of each cas e, having considered the panel request as a whole, and
in the light of attendant circumstances ." See also Appellate Body Report, US – FSC (Article 21.5 – EC II) ,
para. 67.
571 As noted above, we use the terms "subsequent reviews" as a shorthand for the various
administrative and sunset review determinations listed in the Annex to the EC Article 21.5 Panel Request, other
than the 15 original investigations and 16 administrative reviews at issue in the original dispute.
572 US First Written Submission, para. 54. The United States also argues that the European
Communities apparently understood this to be the case, as it filed a second challenge to the US calculation
methodology in an entirely separate proceeding (DS350) and, in its panel request in that dispute, included some

argues that there must be an express link between the alleged measures taken to comply and the
recommendations and rulings of the DSB, and that not every measure that has some connection with,
or could have some impact upon a measure taken to comply may be scrutinized in an Article 21.5
proceeding. Rather, only those measures "taken in the direction of , or for the purpose of achieving
compliance [with the recommendations and rulings of the DSB]" fall within the competence of an
Article 21.5 panel.
573
8.34 The United States argues that the European Comm unities seeks to add to the Panel's terms of
reference reviews that are distinct from the measures that were the subject of the DSB
recommendations and rulings. With respect to administrative reviews, only the 16 administrative
reviews at issue in the original proceeding were the subject of DSB recommendations and rulings;
none of the other measures the European Communities seeks to include in these proceedings was the
basis for a DSB recommendation or ruling. Further, the European Communities, in its original panel
request, identified USDOC determinations in 16 administrative reviews, but challenged particular
margins in those determinations. The European Communities also challenged multiple reviews
arising out of the same AD order. Thus, in th e original proceeding, the European Communities
treated each review as a separate measure, and cha llenged specific margins in such measures and, in
its original panel request, recognized that a determin ation in one administrative review is separate and
distinct from a determination made in a subsequent administrative review. For the United States, this
is consistent with the fact that in an inves tigation and in each administrative review, the USDOC
examines different facts for a different time period, and a different set of transactions. The
European Communities cannot bring entirely new and distinct review determinations concerning
different periods of time into the scope of th is proceeding simply b ecause these determinations
involved the same subject merchandise.
8.35 The United States also argues based on the timing of the subsequent reviews. First, the
United States contests the inclusion by the Eu ropean Communities of administrative review
determinations that pre-date the adoption of the DSB recommendations and rulings.
574 Relying on the
Appellate Body’s statement in US – Softwood Lumber IV (Article 21.5 – Canada) that "[a]s a whole,
Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a
particular dispute",575 the United States considers that determinations that pre-date the adoption of a
dispute settlement report are not taken for the pur pose of achieving compliance and cannot be within
the scope of an Article 21.5 proceeding. The United States notes that some of the disputed
determinations even pre-date the revised panel request in the original dispute, meaning that the
European Communities is seeking to include in this proceeding dete rminations that it could have
challenged, but did not challenge, in the original dispute.
576
8.36 The United States argues that the European Comm unities attempts to use this proceeding to
obtain the effect of an "as such" finding with respect to administrative reviews when it argues that the
US implementation obligations with respect to the "as applied" claims extend to distinct
determinations which supersede the measures at issue in the original dispute. The United States notes
that only "as applied" findings were made with r espect to administrative reviews in the original
dispute and thus there are no DSB recommendations or rulings relating to "as such" findings. With

of the same measures that are listed in the Annex to its panel request in the present dispute. US First Written
Submission, para. 44.
573 The United States cites from Appellate Body Report, United States – Final Countervailing Duty
Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of
the DSU (" US – Softwood Lumber IV (Article 21.5 – Canada) "), WT/DS257/AB/RW, adopted
20 December 2005, DSR 2005:XXIII, 11357, para. 66 (emphasis in the original).
574 See US First Written Submission, footnote 62 for the determinations identified by the United States
as having been made prior to the adoption by the DSB of the panel and Appellate Body reports.
575 Appellate Body Report, US – Softwood Lumber (Article 21.5 – Canada), para. 70.

respect to sunset reviews, the United States recalls that the European Communities did not challenge
any sunset review in the original proceeding an d thus, there are no DSB recommendations or rulings
relating to sunset reviews. The United States argues that, as a consequence, the sunset reviews
identified in the EC Article 21.5 panel request cannot be within the terms of reference of this Panel.577
8.37 The European Communities578 considers that all the measures referred to in its submissions
(i.e., the measures mentioned in the Annex to its Panel request, in addition to the Section 129
determinations explicitly designate d by the United States as "measures taken to comply") fall within
the scope of this proceeding. The European Co mmunities submits that a complaining party in an
Article 21.5 proceeding can challenge either a Member's implementing actions ( i.e., measures which
have been adopted) or their omissions ( i.e., measures which should have been adopted) – an
Article 21.5 proceeding is not only about the consistency of a measure taken to comply with the
covered agreements, but also about the existence of such a measure.
8.38 The European Communities first argues that the subsequent reviews and assessment
instructions with respect to the measures challenge d in the original dispute are measures which were
covered by the DSB's recommendations and rulings in the original dispute and adds that the
"measures taken to comply" necessarily flow from the particular "recommendations and rulings" in
question. The European Commun ities argues that in the present case, the "as applied" measures
challenged in the original dispute were describ ed as: (i) the 15 original investigations, including "any
amendments" and "each of the assessment instructions issued pursuant to any of the 15 Anti-Dumping
Duty Orders" and (ii) the 16 administrative reviews, including " any amendment " and " each of the
assessment instructions issued pursuant to any of the 16 Notices of Final Results". 579 Therefore, the
United States was required to bring the 15 original investigations and 16 administrative reviews at
issue in the original dispute, in cluding any amendments and assessment instructions, into conformity.
The European Communities considers, in particular , that the United States has failed to take the
necessary measures to eliminate zeroing in the sub sequent reviews – it has continued using the same
methodology which was found inconsistent with the Anti-Dumping Agreement and the GATT 1994 by
the reports adopted by the DSB when carrying out dumping determinations in subsequent review
proceedings referring to the measures at issue in the original dispute. The European Communities
also submits that the United States cannot now reope n an issue that was already settled by the panel
and the Appellate Body in the original disput e. The European Communities asserts that the
United States had tried without success to change th e description of the measures when the original
panel issued the descriptive part of its report, but th at the panel considered that the description of the
measures was clear and respected the EC description of the measures, including any amendments and
any assessment instructions.580 The European Communities further argues that the ordinary meaning
of the term "amendment" is "change , modification", which is not limited only to "corrections", as the
United States submits.

577 The United States observes that "the EC appears to have recognized that claims against sunset
reviews must be made in the original panel request, because it has expressly done so in its other zeroing dispute
[DS350] against the United States". US First Writte n Submission, para. 52. The United States adds, in
footnote 70 to its First Written Submission, that four of the sunset review determinations cited by the
European Communities have been terminated because the USDOC revoked the AD orders (cases 2, 3, 4 and 5)
effective 7 March 2007. The United States refers to Exhibit US-13.
578 The European Communities included in its First Written Submission a section entitled "Preliminary
Issue: Jurisdiction of the Panel". EC First Written Submission, paras. 47-64.
579 The European Communities indicates that the original panel described the measures at issue, both in
its description of the EC claims, and in its findings, as including "any amendments, including the assessment
instructions" to the AD orders, and that the Appellate Body merely referred to the original panel's description of
the measures. EC Second Written Submission, paras. 39-43.
580 EC Opening Statement, para. 13, referring to Exhibit EC-32 and Panel Report, US – Zeroing (EC) ,
paras. 6.12-613.

8.39 The European Communities also submits that the omissions and deficiencies by the
United States are also covered by this proceedi ng and that, accordingly, the Panel is called upon to
examine the existence (or non-existence) of measu res taken to comply by the United States, in
particular by examining the subsequent review proc eedings listed in the Annex to the Panel Request.
The complainant in an Article 21.5 case can cha llenge either a Member's implementing actions
(measures that have been adopted, i.e., measures taken to comply) or omissions (measures which
should have been adopted, i.e., measures which do not exist).
581 The European Communities
considers that the Section 129 determinations are insufficient to comply with the DSB
recommendations and rulings because the United Stat es has continued using zeroing when calculating
the duties to be collected and establishing new cash deposits with respect to the measures challenged
in the original dispute (including those listed in the Annex as subsequent measures), and because the
United States has relied on the dumping margins cal culated with zeroing when finding a likelihood of
recurrence of dumping in sunset review proceedings. In this sense, in addition to challenging certain
Section 129 determinations, the European Communities challenges the omissions by the United States
to take the necessary measures to comply. According to the Euro pean Communities, the
United States, on 9 April 2007, (i) should have stopped taking any positive acts providing for the
collection of anti-dumping duties based on zeroing in connection with any of the measures at issue in
the original dispute, and thus, with respect to the "subsequent reviews",
582 and (ii) should have
recalculated, without zeroing, the previous dumping margins based on zeroing in order to rely on
them in assessing likelihood of dumping in sunset re view proceedings with respect to the measures at
issue in the original proceedings . According to WTO jurisprude nce, a measure that essentially
replaces an earlier measure remains within the terms of reference of an original panel. 583 T h e
European Communities asserts that an Article 21.5 panel must be in a position to assess whether an
annual administrative review (or sunset review) that confirms and supersedes the original
determination relating to the same anti -dumping duty and the same methodology ( i.e., zeroing)
constitutes a "continuing violation".
8.40 For the European Communities, the consequence of concluding that the subsequent
administrative and sunset reviews are not before the panel would be that the US system of duty
assessment is turned into a moving target that escapes from AD disciplines: each administrative
review would have to be the subject of a new panel request, and by the time the panel, Appellate Body
and implementation procedures were completed, another administrative review would have overtaken
the results of any Section 129 determination. Such a result would run contrary to the purpose and
objective of Article 21.5 of the DSU.584
8.41 In the alternative, the European Communities argues that even if the subsequent reviews were
to be considered as separate dete rminations or different measures than those covered by the DSB's
recommendations and rulings in the original disput e, they can be regarded as "measures taken to
comply" because they are closely connected with the 15 original investigations and the 16

581 The European Communities rejects the US argument that only measures that are "taken in the
direction of, or for the purpose of achieving compliance" fall under the jurisdiction of an Article 21.5 panel.
582 The European Communities, in its Opening Statement, clarified its argument in this respect: "the
United States should, on 9 April 2007, have stopped taking any positive acts providing for the final payment of
duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before
the end of the reasonable period of time, in connectio n with any of the measures described in the original
dispute, and thus, with respect to the measures contained in the Annex to the Panel Request". EC Opening
Statement, para. 21.
583 Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of
Cigarettes ("Dominican Republic – Import and Sale of Cigarettes "), WT/DS302/R, adopted 19 May 2005, as
modified by Appellate Body Report, WT/DS302/AB/R, DSR 2005:XV, 7425, paras. 7.11-7-21, cited in EC
First Written Submission, footnote 57.

administrative reviews in the original dispute. 585 The European Communities relies on the panel
report in US – Upland Cotton (Article 21.5 – Brazil) and the Appellate Body Report in US – Softwood
Lumber IV (Article 21.5 – Canada) for the proposition that measures with a sufficiently close nexus to
the measures taken to comply or with the DSB r ecommendations and rulings fall within the scope of
Article 21.5 proceedings. The European Communities argues that the nature of the subsequent
reviews is, in essence, the same as the measures (o riginal investigations and administrative reviews)
in the original dispute ( i.e., collect anti-dumping duties and establish cash deposits based on zeroing)
and that the violation originally challenged (the use of zeroing when calculating dumping margins)
still remains in the subsequent review proceedings. Further, the subsequent review proceedings relate
to the same products, the same countries and the same exporting companies; they are a continuation of
the 15 original investigations and 16 administrative reviews at issue in the original dispute, whose
effects based on zeroing still remain in place after the end of the reasonabl e period of time. The
European Communities submits that the United States itself admits this close relationship when it
argues that the subsequent reviews (and/or the revo cation of the original orders) relieves it of any
obligation to act in order to comply with th e DSB's recommendations and rulings. But for these
reviews, the United States would have been requi red to revise the challenged measures. As to timing,
the close relationship between the subsequent review proceedings remains, regardless of when they
were issued; the fact that a me asure predates the adoption of the reports by the DSB cannot exclude
per se such a measure from the scope of compliance proceedings.
8.42 The European Communities responds to the US argument that it is attempting to use this
Article 21.5 proceeding to obtain the effect of an "as such" finding586 by asserting that it is not arguing
in general that the US implementation obligations with respect to the "as applied" claims extend to
distinct determinations – for example related to other products or other sub-regions of the
European Communities, or entirely new original investigations. Rather, what the European
Communities argues is that, in this particular cas e, since the subsequent reviews and assessment
instructions were part of the measures challenged in the original dispute, the US implementation
obligations with respect to the "as applied" cl aims extend to any subsequent determination and
assessment instruction in connection with the measur es in the original dispute, as well as the related
US omissions or deficiencies. In other words, the scope of the "as applied" finding covered, in the EC
view, every instance of application (and omission or deficiency) of the zeroing methodology by the
United States with respect to any amendments (whi ch in the EC view includes subsequent reviews)
and assessment instructions, relating to the 15 original investigations and 16 administrative reviews,
since those were part of the measures originally challenged "as applied". Limiting the "as applied"
finding as the United States suggests would in the EC vi ew lead to absurd results: it would imply that
an investigating authority could adopt new measures to replace th e one found to be WTO-inconsistent
but containing exactly the same violations. In addition, the European Co mmunities argues that the
distinction between "as such" and "as applied" findi ngs should not be mechanistically applied in this
case.
587 Regardless of the characterisation of the findings made by the Panel and the Appellate Body
in the original dispute, the DSB's recommendati ons and rulings clearly stated that the zeroing
methodology applied by the United States in the 15 or iginal investigations and the 16 administrative
reviews was inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994. When it applied the same zeroi ng methodology in the subsequent reviews listed
in the Annex to the Panel Request, the United States failed to comply with the DSB's recommendation
to bring the measures into conformity with its obligations.

585 The European Communities clarified in its Opening Statement that its arguments in this respect are
made in the alternative, should the Panel consider th at the subsequent reviews were not included in the
description of the measures in the original dispute. EC Opening Statement, para. 24.
586 EC Second Written Submission, paras. 52-58.
587 EC Opening Statement, para. 40.

8.43 With respect to sunset reviews, the Europ ean Communities makes essentially the same
arguments as it makes in relation to administrative reviews:
588 the DSB recommendations and rulings
also covered any amendments to the 15 original in vestigations and 16 administrative reviews. By
their nature, the European Commun ities argues, sunset review pro ceedings are amendments to the
original measures because they restart the application of the duty for another five years and, thus, they
were covered by the DSB's recommendations and the findings in the original dispute. The European
Communities also argues that, like the administrative reviews, the sunset reviews listed in the Annex
are "measures taken to comply" since they are clo sely connected to the original investigations and
administrative reviews in the original dispute.
8.44 The United States , in response, maintains that the EC contentions that (i) the subsequent
reviews were part of the terms of reference of the original proceeding, (ii) that they are measures
taken to comply, and (iii) that they are "omissions", are mutually contradictory. The United States
notes in addition that the European Communities argu es that measures taken to comply both exist and
do not exist, at the same time. These propositions are, the United States submits, mutually
contradictory.
589 The European Communities cannot have it both ways – if the United States failed to
comply by "omission", then any corresponding finding against the United States should be that a
measure was not taken to comply, not that subsequent dete rminations are inconsistent with the US
obligations.
8.45 The United States refutes the EC argument that the subsequent reviews were part of the
original proceedings as "amendments" to the 15 orig inal investigations and 16 administrative reviews
at issue in the original dispute. The United Stat es submits that the term "amendment" had a precise
meaning in the original dispute: it referred to co rrections to the measures identified in the original
proceeding e.g. to correct for ministerial errors 590 or amendments resulting from domestic litigation,
but not to subsequent determina tions, which involve different entr ies, different time periods, and
perhaps even different parties. This is evidenced by the EC panel requ est in the original dispute: in
that request, the European Communities referred to specific determinations as "amended",591 but listed
as separate "cases" the investigation and the administrative review relating to the same order and
listed separately multiple administrative reviews relati ng to the same order. Thus, the original EC
panel request confirms that the term "amendments" did not refer to subsequent reviews. Similarly, the
United States argues that sunset reviews are not ame ndments to the original measures; sunset reviews
do not determine anti-dumping liability, they are not me re corrections or removal of errors from an
investigation, but rather are a separate determin ation for a separate purpose based on different facts
and evidentiary standards.
8.46 In addition, the United States asserts that the original "as applied" claims of the
European Communities could not have been as br oad as it contends: most of the subsequent
determinations did not exist at the time of est ablishment of the original panel (19 March 2004). 592

588 EC Second Written Submission, paras. 47-50.
589 The US recalls that the Appellate Body has indicat ed that "[i]n principle, a measure which has been
taken to comply ... will not be the same measure as the me asure which was the subject of the original dispute..."
US Second Written Submission, footnote 11.
590 Under US law and regulations, parties to an anti-dumping investigation (or review) may, within a
specified period after publication of the final determination, identify "ministerial" errors – i.e., calculation and
other similar errors, which USDOC will consider and, if it finds the error exists, will correct in an amendment to
the final determination and anti-dumping order.
591 See US Second Written Submission, para. 19.
592 As indicated above, the United States further notes that some determinations listed in the Annex to
the EC Article 21.5 panel request were made prior to the EC original corrected panel request, meaning that the
European Communities seeks to include in this proceeding determ inations that it could have included in its
corrected panel request. US Second Written Submission, para. 27.

They could therefore not have been part of the original panel's terms of reference. 593 Likewise, the
DSB's recommendations and rulings could not have c overed any liquidation instructions that were not
issued as of 19 March 2004.594
8.47 The United States argues, in response to the EC view that the determinations are "closely
connected" to the measures at issue in the original pr oceeding, that the Appellate Body has stated that
not every measure that has "some connection with", "could have an impact on" or could "possibly
undermine" a measure taken to comply may be sc rutinized in an Article 21.5 proceeding. The
United States notes that in US – Softwood Lumber IV (Article 21.5 – Canada) , the Appellate Body
found it significant that the United States acknowle dged that the "methodology used by the USDOC
in the First Assessment Review was adopted 'in view of' the recommendations and rulings of the
DSB." This was evident from the fact that the S ection 129 determination and the determination in the
first administrative review both closely corresponde d to the expiration of the reasonable period of
time, which provided the USDOC with the ability to take account of the DSB's recommendations and
rulings in the first administrative review. The situati on in this dispute is different: in this dispute,
many of the "subsequent" determinations were made prior to the adoption of the DSB's
recommendations and rulings. The United States main tains that they could not have taken into
consideration the recommendations and rulings of the DSB, and the European Communities has failed
to provide any evidence that these subsequent dete rminations were adopted "in view" of the DSB's
recommendations and rulings.
8.48 The United States notes that two of the subsequent determinations identified by the
European Communities were in changed circumstan ces reviews, and were made before the adoption
of the DSB's recommendations and rulings; moreov er, both determinations addressed whether one
company was successor in interest to another company, and was therefore entitled to that company's
cash deposit rate – the USDOC did not recalculate any margins of dumping in these two changed
circumstances reviews. The remaining 36 determin ations were administrative reviews; the USDOC
made its determinations in 26 of these reviews before the adoption of the DSB's recommendations and
rulings. Of the 10 remaining determinations, 4 ga ve no indication that the USDOC's treatment of
non-dumped sales was an issue in the review; a nother four were made before the end of the
reasonable period of time, and in those, the USDOC made clear that the determinations were not
being issued in view of the recommendations and ru lings. The United States further indicates that in
one of the two remaining determin ations, the 2005-2006 administrative review in Stainless Steel Bar
from the United Kingdom, no party specifically raised the issue of non-dumped sales (although one
party raised the issue of the recalculation of the all others rate from the Section 129 determination). In
the last administrative review, the 2004-2005 admi nistrative review in Hot Rolled Steel from the
Netherlands, the Section 129 determ ination resulted in the revocation of the AD order. The
United States considers that it therefore had no furthe r obligation with respect to the Appellate Body's
specific "as applied" finding, which was made only w ith respect to the original investigation in that
determination. Moreover, that administrative review determination cannot be said to have been made

593 The United States submits that under WTO jurisprude nce, measures that are not yet in existence at
the time of panel establishment are not within a panel's terms of reference under the DSU; it cites in this regard
the Appellate Body Report, European Communities – Customs Cla ssification of Frozen B oneless Chicken Cuts
("EC – Chicken Cuts "), WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR
2005:XIX, 9157, para. 156; Panel Report, United States – Subsidies on Upland Cotton ("US – Upland Cotton"),
WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report,
WT/DS267/AB/R, DSR 2005:II, 299, para. 7.158; Panel Report, Indonesia – Certain Measures Affecting the
Automobile Industry (" Indonesia – Autos "), WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1
and 2, adopted 23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201, para. 14.3.
594 The United States argues that the Panel should lik ewise find that it has no authority to review the
sunset review determinations in cases 2, 3, 4 and 5 (Stainless Steel Bar from Fran ce, Germany, Italy and the
United Kingdom) as the determination to revoke these antidumping duty orders occurred after the establishment
of not only the original panel, but also of this Panel. US Second Written Submission, footnote 27.

"in view of" the DSB's recommendations and rulings since the USDOC clearly stated that it did not
consider that the DSB's recommendations and rulings required it to take any action with respect to the
treatment of non-dumped sales in that review, in particular because it considered that the challenged
reviews were no longer in effect as each of the re views at issue in the original dispute had been
superseded by a subsequent administrative review.
595
8.49 The United States also notes that the original EC "as applied" claims did not include any
challenges to determinations in sunset reviews. Consequently, neither the original panel, nor the
Appellate Body, made any findings in this dispute with respect to sunset reviews.596
8.50 Further, the United States recalls that an "as a pplied" challenge concerns the "application of a
general rule to a specific set of facts"; by contr ast, an "as such" claim challenges instruments of a
Member that have general effect, and seeks to prevent a Member from engaging in certain conduct ex
ante. The European Communities complains of th e "continued" use of the allegedly "same
methodology" that was the subject of DSB reco mmendations and ruling "when carrying out dumping
determinations in the subsequent review proceedi ngs"; that is, the European Communities complains
of the general and prospective application of the so-called zeroing methodology, and is attempting to
gain the benefit of an "as such" finding when the Appellate Body declined to make one.
8.51 Finally, the United States submits that the legal and factual distinctions between the two types
of proceedings with respect to the issue of zeroi ng are more relevant here than was the case in
Softwood Lumber, in which the issue was the pass-through of subsidies, and the legal basis for the
panel's consideration did not differ as between the i nvestigation and the administrative review. With
respect to the issue of zeroing, however, there is a distinction between "model zeroing" in
investigations and "simple zeroing" in reviews. Th is distinction flows through to the legal bases for
the findings against zeroing – which rely significantly on the text of Article 2.4.2 and, in particular,
the phrase "all comparable export transactions" in the context of investigations. In the context of
reviews, however, that textual basis is absent and the Appellate Body has, instead, relied on the term
"product" and the non-textual phrase "product as a whol e" to find that a margin of dumping cannot be
calculated in a proceeding using zeroing. Given the di stinctions in the factual and legal basis for the
findings on investigations as compared to reviews, it would be inappropriate for the Panel to find that
there is a sufficiently close nexus to address the subsequent reviews in an Article 21.5 proceeding.
(b) Arguments of the third parties
8.52 Norway considers that all the measures referred to in the EC First Written Submission fall
within the scope of the Panel's jurisdiction. It recalls that both positive acts taken to comply and
omissions are covered by Article 21. 5, and considers that that any subsequent administrative reviews,
sunset reviews, assessment instructions and li quidations based on zeroing must be viewed as
evidencing "omissions" on the part of the United States. 597 Like the European Communities, Norway

595 US Opening Statement at the substantive meeting of the Pa nel (hereinafter "US Opening
Statement"), paras. 17 ff.
596 In its Opening Statement, the United States noted, in addition, that in 11 of the sunset reviews
challenged by the European Communities, the USDOC is sued its determination regarding the likelihood of a
continuation or recurrence of zeroing before the adoption of the reports by the DSB, and that four resulted in the
revocation of the AD order. In the one remaining sunset review determination, the interested parties did not
raise, and the USDOC made no mention of the issue of non-dumped sales and thus, the determination could not
have been made "in view of" the DSB's recommendations and rulings. See US Opening Statement, para. 16 ff.
597 Like the European Communities, Norway considers that the United States should, after the
reasonable period of time, have stopped collecting anti-dumping duties calculated with the use of zeroing in
connection with any of the measures th at were part of the original dispute, as well as in connection with any
administrative review in these cases and that the US wa s under an obligation to recal culate without the use of

also relies on US – Upland Cotton (Article 21.5 – Brazil) . It recalls that, in that case, the Appellate
Body set out three elements – nature, effect and timing – as additional criteria when assessing whether
a measure which is not declared by the respondent to be a "measure taken to comply" nevertheless
may be characterized as such. In Norway's opini on, a consideration of these three elements with
regard to the current case leads to the conclusion th at the subsequent reviews have a sufficiently close
relationship with the recommendations and rulings of the DSB to be included in the scope of this
proceeding. With regard to the timing element, Norway points out that in US – Softwood Lumber IV
(Article 21.5 – Canada) , the Appellate Body assessed a measure resulting from a review that was
initiated before the adoption of the report. The timi ng of a review is not the determining factor when
it comes to whether it is a measure taken to comply; the important point is rather whether the review
was completed and/or continued to have effects after the end of the reasonable period of time.
Finally, Norway submits that following the line of argument set out by the United States would lead
to the need to start a new panel for each admini strative review, and when another administrative
review superseded the first, another panel would have to be started. This would run counter to the
aim of Article 21.5 of the DSU.
8.53 Japan agrees with the European Communities that the "subsequent" periodic and sunset
reviews are covered by this proceeding. Japan recalls that Article 21.5 proceedings may involve
either acts and omissions (or a combination of both) and that, contrary to what is argued by the
United States, the Appellate Body has indicated that not only measures that formed the basis of DSB
recommendations and rulings or measures that have b een taken in the direction of compliance or with
the objective of achieving compliance fall under the scope of Article 21.5. Rather, Article 21.5
proceedings may include closely connected measures that are "separate and distinct" from the original
measures. Japan recalls that, in US – Softwood Lumber IV (Article 21.5 – Canada) , the Appellate
Body examined the connection between the measur es challenged under Article 21.5 and the original
measures under what it describes as a "nexus-based test " that paid attention to (i) the nature or
subject-matter of the measures; and (ii) the "effects" of the challenged measures on United States
compliance with the DSB's recommendations and ruli ngs. Applying these criteria, Japan asserts that
the links between the original and subsequent measur es in this dispute are virtually the same as those
that led the Appellate Body, in US – Softwood Lumber IV (Article 21.5 – Canada) , to conclude that a
subsequent periodic review was subject to the Article 21.5 proceedings.598
8.54 Japan considers that, contrary to the US ar gument, the DSB's recommendations and rulings
are not converted into rulings on an "as such" measu re as a result of the position taken by the
European Communities and Japan. Only a very small subset of all US periodic reviews is challenged
by the European Communities in these proceedings – those subsequent reviews that are closely
connected to the DSB's recommendations and rulings (same product, same exporters, same order or
"proceeding", same "specific component": zeroing). Japan also considers that the United States itself
admits that the various measures are closely connected when it argues that each of the reviews at issue
in the original dispute has been "superseded" by subsequent administ rative review determinations (an
argument of the United States with which Japan does not agree). Accepting the US position would

zeroing the previous dumping margins, in order to rely on these margins in sunset reviews. Norway's Third
Party Submission, para. 14.
598 In particular, Japan notes that, in the present Article 21.5 dispute, (i) the original measures and the
subsequent periodic reviews all resulted from anti-dumping proceedings conducted by the USDOC; (ii) these
measures all involved that authority's determination of the dumping margin; (iii) in any given group of measures
(identified in the annex to the EC panel request by numbered rows), the subject product is always identical ;
(iv) in any given group of measures, the exporter is always identical (identified in the annex to the EC panel
request in the fifth column); (v) any given group of measures is adopted pursuant to the same anti-dumping
order; and, (vi) for any given order, the measures provide succeeding bases for the continued imposition of anti-
dumping duties on the subject product, with each new meas ure replacing the cash deposit rate of the previous
measure, and determining the definitive duty rate for entries initially subjected to the cash deposit rate of the
previous measure. Japan's Third Party Submission, para. 46.

mean that the WTO dispute settlement system cannot effectively resolve disputes regarding the
application of calculation methodologies in AD proceedings.
8.55 With respect to the US arguments on timing, Japan argues that the United States incorrectly
assumes that the timing of a measure's adoption is decisive under Article 21.5 because a measure can
only be "taken" with the intent "to comply" after the date of adoption of the DSB's recommendations
and rulings. Yet, it is well-established that a measur e may be "taken to comply" even if the Members
intent in taking the measure was not "to comply". Were Article 21.5 not to apply to measures adopted
prior to adoption by the DSB of the relevant report(s), it would be straightforward for the
implementing Member to force the complainant to begin new dispute settlement proceedings by
adopting closely connected measures, prior to adop tion by the DSB of the relevant report(s), that
undermine or prevent compliance. The case-law under Article 6.2 of the DSU also suggests that the
United States is incorrect in arguing that closel y connected measures adopted during a WTO dispute,
but prior to adoption, must be split into separate WTO proceedings. Past panels and the Appellate
Body
599 have, in assessing the scope of a panel's jurisdiction, focused on the substantive connection,
with respect to the disputed component, between an original measure and a replacement or
amendment measure adopted at any stage after th e consultations request. The Appellate Body's
approach in US – Softwood Lumber IV (Article 21.5 – Canada) is very similar. In sum, the case-law
shows that a series of closely linked measures adopted over time – starting with the original measures,
continuing with measures adopted during consu ltations, the original proceedings, and into
implementation – may all relate to "fundamentally th e same 'dispute'", and all be subject to the DSB's
recommendations and rulings in that dispute, provided they are substantively the same.
(c) Evaluation by the Panel
(i) Introduction
8.56 The US request for preliminary rulings rai ses the issue of the scope of Article 21.5
proceedings, and more specifically, the issue of wh ich measures may be examined by an Article 21.5
panel to assess the responding Member's implementation of DSB recommendations and rulings.
8.57 Article 21.5 of the DSU provides, in relevant part, that:
"Where there is disagreement as to the existence or consistency with a covered
agreement of measures taken to comply with the recommendations and rulings such
dispute shall be decided through recourse to these dispute settlement procedures,
including wherever possible resort to the original panel."
8.58 The parties fundamentally disagree as to whet her the "subsequent reviews" – administrative
reviews, changed circumstances reviews, and s unset reviews listed in the Annex to the EC
Article 21.5 request for the establishment of a panel, as well as related "assessment instructions" fall
within the scope of this proceeding. The follo wing table lists, in the right hand column, the
subsequent reviews included in the Annex to the EC panel request, and in the left hand column, the
measure at issue in the original dispute with which each is associated (numbers 1-15 are the original

599 Japan refers to Panel Report, Brazil – Export Financing Programme for Aircraft (" Brazil –
Aircraft"), WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report, WT/DS46/AB/R,
DSR 1999:III, 1221, para. 7.11 and Appellate Body Report, Brazil – Export Financing Programme for Aircraft
("Brazil – Aircraft "), WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161, para. 132; Appellate
Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products
("Chile – Price Band System"), WT/DS207/AB/R, adopted 23 October 2002, DSR 2002:VIII, 3045, and Corr.1,
para. 139; Panel Report, Dominican Republic – Cigarettes , paras. 7.15 and 7.21; Appellate Body Report, EC –
Chicken Cuts, para. 157.

determinations challenged in the original dis pute, numbers 16-31 are the administrative reviews
challenged in the original dispute):
Measures at issue in the original
dispute
Subsequent reviews

Administrative reviews:
3 May 2001 – 31 October 2002 (69FR 43801,
22 July 2004) 4.8%
1 November 2002 – 31 October 2003 (70FR 18366,
11 April 2005) 4.42%
1. Certain Hot-Rolled Carbon Steel
from the Netherlands
1 November 2004 – 31 October 2005 (72FR 34441,
22 June 2007) 2.26%
Administrative reviews:
1 March 2003 – 29 February 2004 (70 FR 46482,
10 August 2005) Ugitech 14.98%
1 March 2004 – 28 February 2005 (71 FR 30873,
31 May 2006)
Ugitech 9.68%
2. Stainless Steel Bar from France
Sunset Review: DOC Final Determination (72 FR 30772,
4 June 2007)
Administrative reviews:
2 August 2001–28 February 2003 (69 FR 32982,
14 June 2004) BGH 0.52%
1 March 2004–28 February 2005 (71 FR 52063,
1 September 2006) BGH 0.73%
3. Stainless Steel Bar from
Germany
Sunset Review: DOC Preliminary Determination (72 FR
29970, 30 May 2007)
Administrative reviews:
2 August 2001– 28 February 2003 (69 FR 32984,
14 June 2004)
Foroni 4.03%
Ugine 33%
4. Stainless Steel Bar from Italy
Sunset Review: DOC Final Determination (72 FR 30772,
4 June 2007)
Administrative review:
1 March 2005 – 28 February 2006 (72 FR 15106,
30 March 2007) Enpar Special Alloys 33.87%
5. Stainless Steel Bar from the
United Kingdom Sunset Review: DOC Final Determination (72 FR 30772,
4 June 2007)
Administrative reviews:
1 September 2004 – 31 August 2005 (72 FR 26337,
9 May 2007) Fagersta 19.36%
6. Stainless Steel Wire Rod from
Sweden Sunset Review: Continuation order, (69 FR 50167,
13 August 2004)
Administrative review:
5 March 1998 – 31 August 1999 (66 FR 10988,
21 February 2001) Roldan SA 0.8%
7. Stainless Steel Wire Rod from
Spain Sunset Review: Continuation order, (69 FR 50167,
13 August 2004)

Measures at issue in the original
dispute
Subsequent reviews

8. Stainless Steel Wire Rod from
Italy
Sunset Review: Continuation Order (69 FR 50167,
13 August 2004)
9. Certain Stainless Steel Plate in
Coils from Belgium
See case 18 below
10. Stainless Steel Sheet and Strip
in Coils from France
See cases 25 & 26 below

Measure revoked July 2004 (70 FR 44894,
4 August 2005)
11. Stainless Steel Sheet and Strip
in Coils from Italy
See cases 21 & 22 below
12. Stainless Steel Sheet and Strip
in Coils from the United Kingdom
Measure revoked: July 2004 (70 FR 44894,
4 August 2005)
13. Certain Cut-to-Length Carbon-
Quality Steel Plate from France
Measure revoked: February 2005 (70 FR 72787,
7 December 2005)
14. Certain Cut-to-Length Carbon-
Quality Steel Plate
from Italy
Sunset review: Continuation Order (70FR 72607,
6 December 2005).
15. Certain Pasta from Italy See cases 19 & 20 below
16. Industrial Nitrocellulose from
France
Two subsequent administrative reviews were rescinded,
covering the periods:
1 August 2000 – 31 July 2001
1 August 2002 – 31 July 2003

Measure revoked: (69 FR 52231, 25 August 2004)
Two subsequent administrative reviews were rescinded,
covering the periods:
1 July 2001 – 30 June 2002
1 July 2002 – 30 June 2003
Changed circumstance re view (December 2003)
confirmed the rate of 3.06% to apply to Troon
Investments, successor to ICI
17. Industrial Nitrocellulose from
the United Kingdom
Measure revoked: (69 FR 52231, 25 August 2004)
Two subsequent reviews resulting in change to rate:

1 May 2002 – 30 April 2003
(70FR 2999, 19 January 2005)
2.71%
1 May 2003 – 30 April 2004
(70FR 72789, 7 December 2005)
2.96%
18. Stainless Steel Plate in Coils
from Belgium
Sunset Review: Continuation Order (70 FR 41202,
18 July 2005)

Measures at issue in the original
dispute
Subsequent reviews

Ferrara: Order revoked in Fe bruary 2005 following third
consecutive review where the company had de minimis
rate (70 FR6832, 9 February 2005)
Pallante: Order revoked in November 2005 following
third consecutive review where the company had
de minimis rate (70 FR71464, 29 November 2005)
PAM: Two subsequent reviews resulting in change to
rate:
1 July 2001 – 30 June 2002
(69 FR 6255, 10 February 2004)
45.49%
1 July 2002 – 30 June 2003
(70 FR 6832, 9 February 2005)
4.78%
19. Certain Pasta from Italy
Sunset review: DOC Final Determination (72 FR 5266
5 February 2007)
20. Certain Pasta from Italy Pastifi Garofalo:
One subsequent review resulting in change to rate:

1 July 2001 – 30 June 2002
(69 FR 22761, 27 April 2004)
2.57%

One review rescinded covering period:
1 July 2002 – 30 June 2003
21. Stainless Steel Sheet Strip
Coils from Italy
See case 22
Two subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(68 FR 69382, 12 December 2003)
1.62%
1 July 2002 – 30 June 2003
(70FR 13009, 17 March 2005)
3.73%
22. Stainless Steel Sheet Strip
Coils from Italy
Sunset review: Continuation Order (70 FR 44886,
4 August 2005)
23. Granular
Polytetrafluorethylene from Italy
See case 24
24. Granular
Polytetrafluorethylene from Italy
Two subsequent administrative reviews were rescinded,
covering the periods:
1 August 2002 – 31 July 2003
1 August 2003 – 31 July 2004

Changed circumstance review (May, 2003) confirmed the
rate of 12.08% to apply to Solvay Solexis, successor to
Ausimont

Measures at issue in the original
dispute
Subsequent reviews

1 subsequent review resulting in change to rate:

1 August 2004 – 31 July 2005
(72FR 1980, 17 January 2007)
39.13%

Sunset review: Continuation Order (70 FR 76026,
22 December 2005)
25. Stainless Steel Sheet Strip
Coils from France
See case 26
3 subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(68 FR 69379, 12 December 2003)
2.93%
1 July 2002 – 30 June 2003
(70 FR 7240, 11 February 2005)
9.65%
1 July 2003 – 30 June 2004
(71 FR 6269, 7 February 2006)
12.31%
26. Stainless Steel Sheet Strip
Coils from France
Measure revoked: (70 FR 44894, 4 August 2005)
27. Stainless Steel Sheet Strip
Coils from Germany
See case 28
4 subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(69FR 6262, 10 February 2004) 3.72%
1 July 2002 – 30 June 2003
(69 FR 75930, 20 December 2004) 7.03%
1 July 2003 – 30 June 2004
(70 FR 73729, 13 December 2005) 9.5%
1 July 2004 – 30 June 2005
(71 FR 74897, 13 December 2006) 2.45%
28. Stainless Steel Sheet Strip
Coils from Germany
Sunset review: Continuation Order (70 FR 44886,
4 August 2005)
SKF: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
(68 FR 43712, 24 July 2003)
6.70%
29. Ball Bearings from France
1 May 2002 – 30 April 2003
(69 FR 55574, 15 September 2004)
5.25%

Measures at issue in the original
dispute
Subsequent reviews

1 May 2003 – 30 April 2004
(70 FR 54711, 16 September 2005)
8.41%
1 May 2004 – 30 April 2005
(71 FR 40064, 14 July 2006)
12.57%

Sunset Reviews: Continuation Order (71 FR 54469,
15 September 2006)
FAG: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
(68 FR 35623, 16 June 2003)
2.87%
1 May 2002 – 30 April 2003
(69 FR 55574, 15 September 2004)
4.79%
1 May 2003 – 30 April 2004
(70 FR 54711, 16 September 2005)
5.88%
1 May 2004 – 30 April 2005
(71 FR 40064, 14 July 2006)
2.52%
SKF: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
(68 FR 35623, 16 June 2003)
5.08%
1 May 2002 – 30 April 2003
(69 FR 55574, 15 September 2004)
1.38%
1 May 2003 – 30 April 2004
(70 FR 54711, 16 September 2005)
2.59%
1 May 2004 – 30 April 2005
(71 FR 40064, 14 July 2006)
7.65%
30. Ball Bearings from Italy
Sunset Reviews: Continuation Order (71 FR 54469,
15 September 2006)
31. Ball Bearings from the United
Kingdom
NSK Bearings: No subsequent administrative reviews

Measures at issue in the original
dispute
Subsequent reviews

Barden: 1 subsequent administrative review rescinded for
period: 1 May 2001 – 30 April 2002

2 subsequent reviews resulting in change to rate:

1 May 2002 – 30 April 2003
(69 FR 55574, 15 September 2004)
4.10%
1 May 2003 – 30 April 2004
(70 FR 54711, 16 September 2005)
2.78%

Sunset Reviews: Continuation Order (71 FR 54469,
15 September 2006)

8.59 The European Communities argues that the sub sequent reviews fall within our terms of
reference for three reasons:
(a) The subsequent reviews are covered by the DSB's recommendations and rulings as
"amendments" to the original investigations and administrative reviews at issue in the
original dispute since the measures at issu e in the original dispute included "any
amendments" and "any assessment instructions " to the 15 original investigations and
16 administrative reviews challenged by the European Communities in that
proceeding;
(b) The subsequent reviews fall within th e terms of reference as "omissions" or
"deficiencies" in the US implementation of the DSB recommendations and rulings;
and, in the alternative:

(c) The subsequent reviews are "measur es taken to comply" because of the close nexus
that exists between these reviews a nd the measures at issue and the DSB's
recommendations and rulings in the original dispute.
8.60 We examine each of the EC arguments in turn.
(ii) Whether the subsequent reviews are "amendments" to the measures at issue in the original
dispute
8.61 The European Communities' first line of argumenta tion is that the original dispute "covered"
not only the 15 original investigations and 16 ad ministrative reviews specifi cally identified in the
context of the original dispute, but also any am endments thereto and any "assessment instructions",
and that the subsequent reviews are such "amendme nts". The United States rejects the EC arguments
in this respect, and submits that the use of the term "amendments" in the original proceeding – in
particular in the EC request for the establishment of the original panel – referred to amendments in the
form of corrections for ministerial errors or corrections adopted following litigation in US courts.600

600 See, inter alia, US Second Written Submission, para. 21, US Opening Statement, para. 13.

8.62 We must, to resolve this question, first examin e the findings of the panel and of the Appellate
Body in the original dispute.
8.63 In the descriptive part of its report, at paragra ph 2.6 of its report, the original panel identified
the measures challenged by the European Communities in the context of its "as applied" claims as
follows:
"the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including
any amendments, and including all the Issues and Decision Memoranda to which they
refer, and all the Final Margin Program Logs and Outputs to which they in turn refer,
for all the firms investigated; each of the 15 Anti-dumping Duty Orders; each of the
assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders;
and each of the USITC final injury determinations. 21 ... the 16 Notices of Final
Results of Antidumping Duty Administrative Reviews, including any amendments ,
and including all the Issues and Decision Memo randa to which they refer, and all the
Final Margin Program Logs and Outputs to wh ich they in turn refer, for all the firms
investigated; and each of the assessment instru ctions issued pursuant to any of the 16
Notices of Final Results." 22
EC-Rebuttal Submission, para. 55.
22 Exhibits EC-16 to EC-31; EC-First Written Submission, paras. 57-61, 148 and
211.; EC-Rebuttal Submission, para. 91."601 (underline added)
8.64 Exhibits EC-1 to EC-15 include documents and information of the type referred to in this
paragraph with respect to the 15 original inves tigation proceedings challe nged by the European
Communities in the original case; Exhibits EC -16 to EC-31 contain similar documents and
information with respect to the 16 administrative re views at issue in the original dispute. The
documents contained in the Exhibits correspond to the various measures or aspects thereof602 listed by
the European Communities in its re quest for establishment in the original dispute. The EC panel
request in the original dispute 603 contained two Annexes: Annex I listed original investigation
"cases", with different columns for (1) the DOC Fi nal Determination in the case, (2) the Final USITC
Determination, and (3) the Final AD Order. Furthe r specifics were provided: rates for each exporter
and what the rate without zeroing would allegedly be . Similarly, Annex II listed the administrative
review "cases", with columns iden tifying (1) the reference to the publication of the Final Results, (2)
the exporter(s) concerned and the relevant dumping ma rgin found, and (3), the period covered by the
review. Later, still in the descriptive part of its report, the original panel described the findings sought
by the European Communities with respect to its " as applied" claims by referring to the "original
investigations" "identified" and "periodic reviews" "listed" in the relevant EC Exhibits.604
8.65 In describing again the EC requests for findings w ith respect to its "as applied" claims in the
"Findings" section of its report, the original panel us ed a slightly different formulation and referred to
the "cases and measures" "listed" in the EC exhibits. 605 In the same "Findings" section of its report,

601 Panel Report, US – Zeroing (EC), para. 2.6. (underline added)
602 See infra, para. 8.78.
603 WT/DS294/7Rev.1. The European Communities made a request for the establishment of the panel
on 5 February 2004, (WT/DS294/7), which it revised on 16 February 2004. Unless otherwise indicated, we
refer here to the revised EC request for the establishment of a panel in the original dispute.
604 Panel Report, US – Zeroing (EC), para. 3.1.
605 Panel Report, US – Zeroing (EC), para. 7.1.

when addressing the EC claims with respect to the identified original investigations, the original panel
indicated that the European Communities claimed that:
"the United States has acted inconsistently with its WTO obligations in 15 anti-
dumping investigations listed in Exhibits EC-1 to EC-15
119..."
Footnote 119 identifies the 15 original investigations and notes:

"The measures at issue also include the anti-dumping duty order and any
amendments, including the assessment in structions, and the USITC injury
determination. EC-First Written Submission, para. 63."
606
8.66 In its findings, and in its conclusions, the orig inal panel refers back to footnote 119 when
describing the measures at issue, and uses the terms "the anti-dumping investigations at issue". For
instance, the panel concludes in para. 7.32 that:
"In light of the foregoing considerations, the Panel finds that the United States has
acted in breach of Article 2.4.2 of the AD Agreement when in the anti-dumping
investigations at issue132 ..."
In the final section of its report ("Conclusions a nd recommendations"), the panel refers once again to
the original investigations listed in Exhibits EC-1 to EC-15 by reference to paragraph 7.32 (which,
again, refers to footnote 119):

"In light of our findings above, we conclude that:
The United States acted inconsistently with Article 2.4.2 of the AD Agreement when
in the anti-dumping investigations listed in Exhibits EC-1 to EC-15
USDOC did not
include in the numerator used to calcula te weighted average dumping margins any
amounts by which average export prices in individual averaging groups exceeded the
average normal value for such groups.382
Footnote 202 identifies the 16 administrative review proceedings and notes:

606 Panel Report, US – Zeroing (EC), para. 7.9 and footnote 119.
607 Panel Report, US – Zeroing (EC) , para. 7.32. See also paras. 7.24 and footnote 125 and para. 7.28
and footnote 128, which use similar language and references to footnote 119.
608 Panel Report, US – Zeroing (EC), para. 8.1(a) (underline added).

"The European Communities indicates that in addition to the Final Results of the
administrative review, the measures at issu e include the amendments to these Final
Results and that the Final Results of the administrative review refers to the
accompanying Issues and Decision Memorandum , which in turn refers to the Margin
Calculations, i.e., the Final Margin Program Log and Outputs for the firms
investigated, and to the assessment instructions . EC-First Written Submission,
para. 148."609
Later, when referring to the measures challenged by the European Communities in its findings with
respect to the EC claims concerning administrative re view, the original panel again refers either to
this footnote610 or to Exhibits EC-16 to EC-31.611

8.68 The Appellate Body, in the introductory section of its report, describes the measures at issue
with respect to the EC "as applied" claims con cerning administrative reviews, by referring to the
description of the measures in the report of the panel and to Exhibits EC-16 to EC-31:
"The administrative reviews challenged by the European Communities are listed in
Exhibits EC-16 through EC-31 submitted by the European Communities to the Panel.
Further details may be found in para. 2.6 and footnote 202 to para. 7.110 of the Panel
Report."612
8.69 In its analysis of the EC appeal with respect to the findings of the original panel concerning
the EC "as applied" claims with respect to admini strative reviews, the Appellate Body refers to the
"administrative reviews of anti-dumping duty orders listed in Exhibits EC-16 through EC-31", 613 or to
"the administrative reviews at issue".614
8.70 This description of the measures at issue by th e original panel and the Appellate Body is
consistent with the Annexes to the EC request for the establishment of the panel, in which it lists 15
original investigation proceeding "cases" or "mea sures" and 16 administrative review proceeding
"cases" or "measures" and lists a number of aspects of each such case.
8.71 The EC arguments before us focus on the fact th at both the original panel and the Appellate
Body described the measures at issue as including "a mendments" to the 15 original investigations and
16 administrative review "cases". While we ag ree with the European Communities as to the
description of the measures at issue, we cannot agree with the European Communities that these
references to "amendments" encompass any subsequent determinations in the same "case", in the form
of subsequent administrative reviews or sunset revi ews. A close examination of the EC panel request

609 Panel Report, US – Zeroing (EC), para. 7.110 and footnote 202. (underline added)
610 Panel Report, US – Zeroing (EC) , para. 7.142 and footnote 235; para. 7.223 and footnote 305;
footnote 375; para. 7.288 ("the administrative reviews at issue", without any reference to footnote 202, this time,
although such a reference is made at the beginning of the section).
611 Panel Report, US – Zeroing (EC) , para. 7.223 (referring to "the administrative reviews listed in
Exhibits EC-16 to EC-31", but containing a footnote reference to footnote 202) and paras. 8.1(d), (e), and (f)
("Conclusions and Recommendations"). The latter include footnote references to, respectively, paragraphs
7.223, 7.284 and 7.288, and thus, in turn, also eventually refer back to footnote 202.
612 Appellate Body Report, US – Zeroing (EC) , footnote 11. We limit ourselves to the Appellate
Body's identification of the administrative reviews at issue; the Appellate Body did not disturb the Panel's
findings on the EC "as applied" claims with respect to original investigations.
613 Appellate Body Report, US – Zeroing (EC), para. 108.
614 See, notably, Appellate Body Report, US – Zeroing (EC), paras. 133, 134, 135 (the latter containing
the Appellate Body's finding of inconsistency with Article 2.4.2), and 263(a) (overall "Findings and
Conclusions").

in the original dispute and of the reports of the original panel and of the Appellate Body shows that
what the European Communities challenged in its "as applied" claims in that case, and therefore what
the panel and the Appellate Body actually ruled on , was the use of zeroing in calculating margins of
dumping in the context of specific "determinations", either original investigations or administrative
reviews, which the European Communities had explicitly identified.
8.72 While, in the abstract, the term "amendment" mi ght be understood to include any subsequent
measure that bears some relationship to or somehow modifies the measures that were specifically
identified in the original dispute as the measures at issue, we are of the view that, in the circumstances
of this dispute, the term "amendment" must be read as referring to amendments of the nature
identified by the United States – amendments to corr ect the original investigation and administrative
review determinations specifically identified by th e European Communities to correct for ministerial
or similar errors
615 or, in some cases, to amend the determination following US court rulings.616
8.73 The EC argument that the term "amendment" exte nds to the subsequent reviews finds, in our
view, no support in the manner in which the measures at issue were described in the original dispute.
Put simply, even assuming that it could have done so, the European Communities did not frame its
claims, in the original dispute, as a challenge of (i ) specific original investigations (or administrative
reviews), including various "aspects" of these determ inations and (ii) any s ubsequent determinations
that might be adopted by the USDOC in the context of the same AD order. It limited itself to the
former, and did not raise the latter.
8.74 We find, in this respect, the EC request for the establishment of the panel in the original
dispute, to be of particular assistance. We recall that the terms of reference of a dispute are dependent
on a party's request for the establishment of a panel – measures not "identified" in that request are not
before the panel, and therefore are not the subject of any DSB recommendations and rulings. The EC
request for the establishment of a panel in the orig inal dispute sheds light, we believe, on the meaning
of the term "amendment" in the context of the original dispute. Paragraph 3.2 of that request reads:
"In the specific anti-dumping proceedings annexed
 to the present request, the
United States applied the methodologies a nd the laws, regulations, administrative
procedures and measures described under point 2 above. [ i.e., pertaining to
"zeroing"]. In consequence, the Eu ropean Communities considers that the
determinations of dumping by DOC, the determinations of injury by the United States
International Trade Commission, the impositi on of definitive duties in the original
investigations and the outcome of the admi nistrative review investigations as detailed
in the annexes are inconsistent with the AD Agreement. ..." (underline added).

615 See EC Article 21.5 request for the establishment of a panel, WT/DS294/25, Annex A-1: amended
USDOC final determination in case 1 (66 FR 55637, 2 November 2001), amended USDOC final determination
in case 3 (67 FR 10382, 7 March 2002), amended USDOC final determination in case 4 (67 FR 8228,
22 February 2002), amended AD order in case 9 (68 FR 20114, 24 April 2003) (in this case, a first amendment,
not listed in the Annex, amended the AD order to implement a USITC decision on remand, amending the scope
of the order; a second amendment, this one listed by the European Communities, corrects a clerical error in the
listing of HTS numbers in the amended AD order), amended final results of administrative review in case 19 (67
FR 5088, 4 February 2002), amended final results of administrative review in case 25 (67 FR 12522,
19 March 2002), amended final results of administrative review in case 26 (68 FR 4171, 28 January 2003),
amended final results of administrative review in case 28 (68 FR 14193, 24 March 2003).
616 See EC Article 21.5 request for the establishment of a panel, WT/DS294/25, Annex A-1: amended
USDOC final determination in case 15 (66 FR 65889, 21 December 2001); amended final results of
administrative review in case 27 (67 FR 15178, 29 March 2002); see also the discussion of the amendment to
case 9 in the previous footnote.

8.75 As indicated above, Annex I to the EC original panel request listed original investigation
"cases", with different columns for (1) the DOC Fi nal Determination in the case, (2) the Final USITC
Determination, and (3) the Final AD Order. Simila rly, Annex II provided a list of the administrative
review "cases", with columns iden tifying (1) the reference to the publication of the Final Results, (2)
the exporters concerned and the relevant dumping ma rgin found, and (3), the period covered by the
review. The European Communities treated subse quent administrative reviews under the same AD
order as separate "cases". There are five inst ances where the European Communities listed two
successive administrative reviews as separate "cases" ; equally, Annex II includes some administrative
reviews adopted pursuant to an original investigation included in Annex I ( e.g., cases 21 and 22 of
Annex II are two successive administrative reviews pe rtaining to the original investigation reported in
Annex I as case 11).617
8.76 There is no indication that the subsequent administrative reviews were included by the
European Communities as "amendments" – they are clearly identified as distinct measures. The two
Annexes also include specific references to "amendments". In each case, the "amendment" referred to
in the Annex is an amendment of the specific measure listed to correct for ministerial errors and/or as
a result of litigation in US courts.618
8.77 In our view, there is no doubt the EC panel request in the original dispute did not ascribe to
the term "amendment" the broad meaning that the European Communities now ascribes to it.
8.78 The European Communities argued, in its Open ing Statement, that the United States had
tried, without success, to change the description of the measures when the panel in the original dispute
issued its descriptive part, but that the original panel declined to do so, considering that the
description of the measures was clear and r espected the EC description of the measures. 619 T h e
European Communities referred us to paragraphs 6.12- 6.13 of the report of the original panel, which
read as follows:
"The United States requests the Panel to replace paragraph 2.6 of the Report with
paragraph 2.4 of the original draft descriptiv e part of the Report. The United States
objects in particular to the inclusion in this paragraph of references to three kinds of
'measures': (1) the Issues and Decision Memoranda; the (2) Final Margin Program
Logs and Outputs; and (3) assessment inst ructions. The United States considers that
these three measures are not part of the re quest for establishment of a panel. The
European Communities objects to the amendments suggested by the United States.
When read in light of the relevant paragr aphs of the First Written Submission of the
European Communities, as referred to in f ootnotes 21 and 22 of the Report, it is clear
to us that paragraph 2.6 of the Report does not treat the Issues and Decision
Memoranda, the Final Margin Program Logs and Outputs, and the assessment
instructions as three separate categories of measures but as aspects of the measures at
issue. Thus, paragraph 2.6 of our Report does not imply that we are presented with a

617 The European Communities submits that it decided to separate the original investigations and
administrative reviews as "cases" "even though they a ll referred to the same anti-dumping measures being in
place against specific products from particular countries" in order to allow for a separate examination of the
measures and due to the structure of its claims (as such vs. as applied clai ms with respect to, one the one hand,
original investigations, on the other hand, administrative reviews). See EC Answer to Panel Question 1. We are
not convinced by this explanation, which does not explain why the European Communities listed subsequent
reviews as different measures, and, in any case, do no t consider that the reasons for the manner in which the
European Communities decided to formulate its claims are decisive.
619 EC Opening Statement, para. 13, referring to Exhibit EC-32 and Panel Report, US – Zeroing (EC) ,
paras. 6.12-613. See also EC Answer to Panel Question 1.

request for separate findings on the I ssues and Decision Memoranda, the Final
Margin Program Logs and Outputs and the assessment instructions. While it is
certainly true that there is no express men tion of these 'measures' in the request for
the establishment of a panel, they clearly form part of the measures mentioned in that
document. Therefore, we have not made the change requested by the United States."
(footnotes omitted, underline added)
8.79 The European Communities contends that the original panel's decision in this regard
demonstrates that the term "amendments" incl udes subsequent reviews. We do not believe
paragraphs 6.12-6.13 can be read this broadly. At the most, the original panel's decision may suggest
that the original panel considered that these "aspect s" of each of the measures at issue were covered
by the reference to "amendments".
620 It does not in any way suggest that subsequent determinations in
the form of original investigations or administ rative reviews are "amendments". In fact, the
discussion in paras. 6.12-6.13 of the report of the original panel reinforces our view that the
"amendments" at issue in the original dispute did not include any subsequent administrative review or
sunset review: in the second paragraph, the orig inal panel indicates that it considered that the
"measures" before it were each of the 15 original investigations and 16 administrative reviews at
issue, and that it viewed each of the Issues and Decision Memoranda, the Final Margin Program Logs
and Outputs, or assessment instructions not as "measures" but as "as aspects of the measures at issue".
8.80 In sum, we reject the EC view that the term "amendments" covers any subsequent review
adopted under the same AD order as either an orig inal investigation or administrative review
specifically challenged in the original proceeding.
621 The conclusion suggested by the

620 The European Communities argues that the reference to "any amendments" in the description of the
measure by the Panel and the Appellate Body in the original dispute referred to something more than what the
European Communities had already provided in the annex to its original panel request (EC Answer to Panel
Question 1). The underpinnings of the EC argument are not clear, but seem to be linked to the EC indication,
earlier in the same Reply, that:
"[I]n the request for establishment of the Panel in the original dispute ('original Panel
Request'), the European Communities identified (i ) with respect to original investigations,
USDOC's determinations, amended results of those determinations, original orders and
amendments to those original orders; and (ii) with respect to administrative reviews, USDOC's
duty assessment determinations and amended results of those determinations.

In this respect, the European Communities provided the most r ecent information available to
identify the original investigations and admi nistrative reviews in a precise manner, in
accordance with the requirements of Article 6.2 of the DSU. Any documents which could be
found at that time showing the origin of the measures at issue as well as their most recent
amendments were mentioned in the annex to the original Panel Request and provided to the
Panel in the original dispute. These included the original order and also various amendments,
which did not only refer to correction of ministerial e rrors. For instance, in case 9 of the
original request the European Communities identified the original order (dated 21 May 1999)
and an amendment (dated 24 Ap ril 2003) which modified the product scope of the order ."
(italics original)
The EC Answer to Panel Question 1 seems to indicate th at it considers that the reference to "amendments",
covered any amendment (to the measures, original inve stigations and administrative reviews listed in the
Annex) that the European Communities had or had not (for whatever reason), identified in its panel request. We
recall that the nature of the amendments identified in the EC panel request was limited to amendments to correct
for ministerial errors or as a result of litigation in US courts (the amendment to the product scope of the order in
case 9 referred to in the citation above was a combination of both). See supra, footnotes 615 and 616. In any
case, even accepting as true that the term "amendments" included additional amendments to the measures at
issue that the EC had, for whatever reason, not included in the panel request, does not lead to the result that
subsequent measures, which is what the subsequent reviews are, were also covered by that reference.
621 To accept the EC view that the term "amendment" covered the subsequent reviews would imply that
the original panel (and the Appellate Body) made findings with respect to measures which did not exist at the

European Communities simply cannot be re conciled with the manner in which the
European Communities itself framed the measures at issue in the original dispute.622
8.81 We note that the European Communities refers us to the Appellate Body report in Chile –
Price Band in which, it argues, the Appellate Body "inter preted the reference to 'amendments' or 'any
amendments' as part of the measures at issue in panel requests in broad terms". 623 The European
Communities notes that in its report in that case, the Appellate Body stated:
"If the terms of reference in a dispute are broad enough to include amendments to a
measure—as they are in this case—and if it is necessary to consider an amendment in
order to secure a positive solution to the di spute—as it is here—then it is appropriate
to consider the measure as amended in coming to a decision in a dispute".624
8.82 The European Communities also argues that, following the same approach, the panel in US –
Shrimp (Thailand) concluded that the inclusion of the language "any amendments or extensions to the
[measure at issue]" in Thailand's panel request wa s "broad enough" to allow for the inclusion of a
modification of the original measure.625
8.83 Both of the reports referred to by the Eur opean Communities concern the question of whether
amendments to the measures at issue in an origin al dispute, which are adopted during the course of
panel proceedings, may fall within that panel's terms of reference. The Appellate Body in Chile –
Price Band found that the amendment at issue in that dispute should be considered as part of the
measure at issue for two reasons. First, the "ame ndment" at issue clarified the legislation that
established the measure at issue and did not change the original measure into something different
from what was in force before the amendment. 626 Second, as noted by the European Communities,
the panel request in that case was broad enough to cover "amendments" to the measure at issue. 627
The US – Shrimp (Thailand) panel reached a similar conclusion on similar grounds. It found that the
amendment at issue in that case "seeks to clarify the legislation that established the measure at issue
and does not change the essence of the original me asure into something different than what was in
force before its issuance".628
8.84 Besides the fact that we are not, in this case, dealing with an amendment to a measure in the
course of an original proceeding, but rather, to disp uted allegations that certain subsequent measures
are "amendments" to a measure found to be WTO- inconsistent in an original proceeding, one
additional notable difference exists between the situation in the presen t dispute and those relied on by
the European Communities. For the parallel dr awn by the European Communities between these
cases and the situation at hand to be apt, the subse quent reviews – administrative reviews and sunset
reviews – allegedly before us would have had to merely clarify the terms of the original investigations
or (and , in certain cases) administrative reviews that we re at issue in the original dispute, without

time they made these findings. It is not clear to us that the DSU allows a panel or the Appellate Body to make
findings with respect to measures that are not yet in existence. Even assuming the DSU allowed such a
possibility, we would be reluctant to read the findings of the original panel and of the Appellate Body so broadly
in this case without an express indication by the original panel and the Appellate Body that this was their intent.
622 To be clear, we do not consider that reliance on any dictionary definition of the term "amendment"
would be of assistance in resolving this issue.
623 EC Opening Statement, para. 15.
624 Appellate Body Report, Chile – Price Band, para. 144 (emphasis added by the EC).
625 EC Opening Statement, para. 16, citing Panel Report, United States – Measures Relating to Shrimp
from Thailand ("US – Shrimp (Thailand) "), WT/DS343/R, adopted 1 August 2008, as modified by Appellate
Body Report, WT/DS343/AB/R, WT/DS345/AB/R, para. 7.48.
626 Appellate Body Report, Chile – Price Band, para. 137.
627 Appellate Body Report, Chile – Price Band, para. 144.
628 Panel Report, US – Shrimp (Thailand), para. 7.48.

modifying the essence or the effects of these me asures. We do not understand the European
Communities to advocate such an extreme position, nor, in our view, would such a position be
tenable. Thus, the analogy drawn by the European Communities is, in our view, inapposite.
(iii) Whether the subsequent reviews fall within our terms of reference as "omissions" or
"deficiencies" in the US implementation of the DSB's recommendations and rulings
8.85 The European Communities also argues that the s ubsequent reviews listed in the Annex to its
Article 21.5 panel request fall within our terms of reference as "omissions" or "deficiencies" in the US
implementation of the DSB's recommendations and rulings.
629
8.86 We understand this argument to be primarily dependent on the EC argument that the
subsequent reviews are "amendments" to the measures at issue in the original dispute, an argument we
have rejected. Even if the European Communities intends this argument to be self-standing, and it is
far from clear from the EC arguments that this is th e case, we do not consider that we need to address
it separately in the context of determining whether the subsequent reviews fall within our terms of
reference. We examine in the next section of our report whether the subsequent reviews are measures
taken to comply because they are cl osely connected with the measures at issue in the original dispute
and/or the DSB's recommendations and rulings. We c onduct this analysis in view of the fact that our
authority extends not only to those acts which the United States has taken to comply, including
allegedly the subsequent reviews adopted after the ex piry of the reasonable period of time, but also to
those acts which the United States allegedly should have taken to bring itself into compliance . As a
result, any "omission" or "deficiency" of the United States in the form of a subsequent review would
be captured in the analysis below and we do not consid er that the characterization of the EC claims as
challenging omissions and deficiencies in the US implementation can broaden the scope of this
proceeding to measures which we otherwise determine not to fa ll within our terms of reference. We
recall in this respect that we are, at this stag e, addressing the procedural question of whether the
subsequent reviews fall within the scope of this proceeding as measures that should be regarded as
"measures taken to comply", and not the substa ntive question of whethe r the United States has
omitted to comply with the DSB's recommendations and rulings, a question which we address below,
in section E of our findings.

629 See EC Answer to Panel Question 8, in whic h the European Communities indicates that it
"considers that the subsequent reviews listed in the Anne x to the Panel Request constitute evidence of the US
omissions and deficiencies in light of the DSB's recommendations and rulings in the original dispute." See also
EC Opening Statement, paras. 21-22:
"In this proceeding, the European Communities ch allenges, in addition to certain Section 129
Determinations, the omissions and deficiencies by the United States to take the necessary
measures to comply with the adop ted DSB's recommendations and rulings, i.e., (i) that the
United States should, on 9 April 2007, have stopped taking any positive acts providing for the
final payment of duties or retention of cash deposits based on zeroing with respect to those
entries not finally liquidated before the end of the reasonable period, in connection with any of
the measures described in the original dispute and, thus, with respect to the measures
contained in the Annex to the Panel Request; and (ii) that the United States should have
recalculated, without zeroing, the previous dumping margins based on zeroing, in order to rely
on them for the assessment of likelihood of recurrence of dumping in sunset review
proceedings with respect to the measures in the original dispute."

(iv) Whether the subsequent reviews are measu res taken to comply because they have a
sufficiently close nexus with the measures at issue in the original dispute and the DSB
recommendations and rulings
Relevant legal principles
8.87 We now turn to the EC argument that the "subsequent reviews" and any associated
assessment instructions are "measures taken to co mply" because they bear a sufficiently close nexus
with, or are closely connected to, the DSB's reco mmendations and rulings, and with the measures at
issue in the original proceeding. In making th is argument, the European Communities relies in
particular on the reports of the panel in US – Upland Cotton and of the Appellate Body in US –
Softwood Lumber IV (Article 21.5 – Canada).
8.88 The terms of Article 21.5 DSU themselves "delimit a particular category of measures that fall
within the scope of proceedings conducted pursuant to that provision";630 Article 21.5 proceedings "do
not concern just any measures of a Member of the WTO, rather, Article 21.5 proceedings are limited
to 'those measures taken to comply with the recommendations and rulings' of the DSB." 631 Further,
Article 21.5 proceedings concern a disagreement as to either the existence or the consistency with a
covered agreement of such measures taken to comply – "or a combination of both, in situations where
the measures taken to comply, through omissi ons or otherwise, may achieve only partial
compliance."632 One of the preliminary steps in an Artic le 21.5 proceeding is therefore to decide
whether the measures challenged by the claimant are "measures taken to comply" with the DSB's
recommendations and ruling and therefore fall within the terms of reference of the compliance panel.
8.89 Further, not only measures taken "in the direc tion of", or "for the purpose of achieving"
compliance may fall within the competence of an Article 21.5 panel. In US – Softwood Lumber IV
(Article 21.5 – Canada), the Appellate Body noted that "[o]n its face ... the phrase 'measures taken to
comply' seems to refer to measures taken in the direction of , or for the purpose of achieving ,
compliance".633 But crucially, the Appellate Body added that :
"The fact that Article 21.5 mandates a pane l to assess 'existence' and 'consistency'
tends to weigh against an interpretation of Article 21.5 that would confine the scope
of a panel's jurisdiction to measures that move in the direction of , or have the
objective of achieving, compliance. These words also suggest that an examination of

630 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 65.
631 Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by
Brazil to Article 21.5 of the DSU ("Canada – Aircraft (Article 21.5 – Brazil) "), WT/DS70/AB/RW, adopted
4 August 2000, DSR 2000:IX, 4299, para. 36 (emphasis original), cited with approval in, inter alia, Appellate
Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 65. We note that the Appellate Body
has also indicated that, normally, th e measure challenged in an Article 21 .5 proceeding will not be the same
measure that was the subject of the origin al dispute. See Appellate Body Report, Canada – Aircraft
(Article 21.5 – Brazil), para. 36:
"In principle, a measure which has been 'tak en to comply with the recommendations and
rulings' of the DSB will not be the same measure as the meas ure which was the subject of the
original dispute, so that, in principle, there would be two separate and distinct measures: the
original measure which gave rise to the recommendations and rulings of the DSB, and the
'measures taken to comply' which ar e – or should be – adopted to implement those
recommendations and rulings." (emphasis original)
632 Appellate Body Report, US – FSC (Article 21.5 – EC II), para. 60. (emphasis original)
633 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 66 (emphasis
original).

the effects of a measure may also be relevant to the determination of whether it
constitutes, or forms part of, a 'measure[] taken to comply'".
634
8.90 WTO panels and the Appellate Body have made it clear that it is for the Article 21.5 panel to
determine whether a given measure is a "measure taken to comply": while an implementing
Member's characterization of a measure as being one "taken to comply" should be taken into
consideration by the panel, it is not determinative. 635 Equally, the compliance panel is not bound by
the complainant's characterization of a measure as being one "taken to comply".636
8.91 As noted by the parties and third parties to this dispute, a number of prior WTO panels and
the Appellate Body have found that measures not characterized by the implementing Member as
being taken to comply nonetheless were within thei r terms of reference, on the basis of the close
connection of those measures with either the "decl ared" measures taken to comply, the measures at
issue in the original dispute, and/or the DSB's recommendations and rulings.
8.92 In Australia – Salmon (Article 21.5 – Canada) ,637 the compliance panel determined that an
import ban on salmonids enacted by the Australia n State of Tasmania during the course of its
proceedings, and therefore not explicitly identified in Canada's Article 21.5 panel request, fell within
its terms of reference. The pane l reasoned that if a compliance panel were to leave it to the full
discretion of the implementing Member to decide whet her or not a measure is one "taken to comply",

634 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 67 (footnote
omitted, italics original). We read the Appellate Body's statement as indicating that the proposition that only
measures taken "in the direction of", or "for the purpose of achieving" compliance fall within the terms of
reference of an Article 21.5 is at odds with the fact that that provision requires a compliance panel to also
examine a Member's omissions in achieving implementati on. For a similar reading of the Appellate Body's
statement, see Panel Report, European Communities – Regime for the Importation, Sale and Distribution of
Bananas – Recourse to Article 21.5 of the DSU by the United States ("EC – Bananas III (Article 21.5 – US) "),
WT/DS27/RW/USA and Corr.1, circulated to WTO Members 19 May 2008 [adoption pending], paras. 7.304-
7.306. In any case, we subscribe to the following observations made by the Australia – Salmon (Article 21.5 –
Canada) panel:
"The question of whether a measure is one in the direction of WTO conformity or, on the
contrary, maintains the original violation or aggravates it, can, in our view, not determine
whether a measure is one 'taken to comply'. If this were so, one would be faced with an
absurd situation: if the implementing Member in troduces a 'better' measure -- in the direction
of WTO conformity -- it would be subject to an expedited Article 21.5 procedure; if it
introduces a 'worse' measure -- maintaining or aggravating the violation -- it would have a
right to a completely new WTO procedure."
Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the
DSU by Canada (" Australia – Salmon (Article 21.5 – Canada) "), WT/DS18/RW, adopted 20 March 2000,
DSR 2000:IV, 2031, para. 7.10, subpara. 23.
635 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , paras. 73-74; Appellate
Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India
– Recourse to Article 21.5 of the DSU by India ("EC – Bed Linen (Article 21.5 – India) "), WT/DS141/AB/RW,
adopted 24 April 2003, DSR 2003:III, 965, para. 78; Panel Report, Australia – Subsidies Provided to Producers
and Exporters of Automotive Leather – Recourse to Article 21.5 of the DSU by the United States ("Australia –
Automotive Leather II (Article 21.5 – US) "), WT/DS126/RW and Corr.1, adopted 11 February 2000,
subparas. 22-23. The Appellate Body cautioned that "cha racterising an act by a Member as a measure taken to
comply when that Member maintains otherwise is not something that should be done lightly by a panel."
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 74.
636 Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen
from India – Recourse to Article 21.5 of the DSU by India (" EC — Bed Linen (Article 21.5 – India) "),
WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body Report, WT/DS141/AB/RW,
DSR 2003:IV, 1269, para. 6.15.
637 Panel Report, Australia – Salmon (Article 21.5 – Canada), paras. 7.11-7.22.

that implementing Member could avoid any scrutiny of certain measures "even where such measures
would be so clearly connected to the panel and Appellate Body reports concerned, both in time and in
respect of the subject-matter , that any impartial observer would c onsider them to be measures 'taken
to comply'".638
8.93 The panel in Australia – Leather II (Article 21.5 – US) applied a similar approach to find that
it could examine a measure that it found to be "inextricably linked" to the steps taken by the
implementing Member to comply with the DSB's recommendations and rulings, in view of both its
timing and its nature.
639 This dispute concerned the impl ementation, by Australia, of a DSB
recommendation to "withdraw the subsidy", a grant, in that case, under Article 4.7 of the SCM
Agreement. In addition to challenging the measure that Australia declared it had taken to comply (a
partial repayment of the grant), the United States also included in its claims a new loan granted to the
grant beneficiary's parent company. Australia argued that the loan was not "part of the
implementation of the DSB rulings and recommendati ons" and was not part of the measures that had
been notified to the DSB. The panel rejected Australia's objections:
"The 1999 loan is inextricably linked
 to the steps taken by Australia in response to
the DSB's ruling in this dispute, in view of both its timing and its nature. In our view,
the 1999 loan cannot be excluded from our consideration without severely limiting
our ability to judge, on the basis of the Un ited States' request, whether Australia has
taken measures to comply with the DSB's ruling."640
8.94 The Appellate Body upheld a similar conclusion by the panel in US – Softwood Lumber IV
(Article 21.5 – Canada) .641 In the original proceeding in that case, the panel and the Appellate Body
had found that the calculation of the amount of the subsidy in the final CVD determination on
softwood lumber from Canada was inconsistent with the SCM Agreement due to the USDOC's failure
to conduct a "pass-through" analysis in respect of cer tain sales. A few days before the expiration of
the reasonable of time, the USDOC published a S ection 129 determination to implement the DSB
recommendations and rulings, in which it performed a pass-through analysis; the rate of subsidization
established in the determination became the new cash deposit rate. Four days later, the USDOC
published the final results of the first administrativ e review in the same case, which established a new
cash deposit rate. In the review, the USDOC applie d the same pass-through analysis that it had used
in the Section 129 determination, stating that it did so in view of the findings made in the original
dispute. The compliance panel held that the USDOC's treatment of pass-through in the first
administrative review, but not the administrative revi ew determination in its entirety, fell within its
terms of reference because (i) it was clearly c onnected to the panel a nd Appellate Body reports
concerning the Final CVD Determination, and (ii) it was inextricably linked to the treatment of pass-
through in the Section 129 determination. On appeal, the Appellate Body endorsed the "nexus-based"

638 Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.10, subpara. 22 (emphasis
added). The panel considered that, in the context of the dispute before it, at least any quarantine measure on
imports of salmonids from Canada introduced by Australia subsequent to the adoption of the DSB
recommendations and rulings and within a more or less limited period of time thereafter was a "measure taken
to comply" and found, on that basis, that the Tasmanian ban fell within its terms of reference.
639 Panel Report, Australia – Automotive Leather II (Article 21.5 – US), paras. 6.1-6.7.
640 Panel Report, Australia – Automotive Leather II (Article 21.5 – US) , para. 6.5. (underline added)
The new loan had been granted concurrently with the repayment of the original grant.
641 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , paras. 61 ff, Panel
Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber
from Canada – Recourse by Canada to Article 21.5 ("US – Softwood Lumber IV (Article 21.5 – Canada) "),
WT/DS257/RW, adopted 20 December 2005, upheld by Appellate Body Report, WT/DS257/AB/RW, DSR
2005:XXIII, 11401, paras. 4.36-4.50.

test used by the panel and upheld its application in the particular circumstances of the dispute.
642 The
United States had argued on appeal that the determin ation in the First Assessment Review was not a
measure taken to comply. In explaining that a pa nel's mandate under Article 21.5 is not necessarily
limited to examining those measures declared to be "taken to comply" by the responding party, the
Appellate Body indicated that:
"[S]ome measures with a particularly clo se relationship to the declared 'measure
taken to comply', and to the recommendations and rulings of the DSB, may also be
susceptible to review by a panel acting under Article 21.5. Determining whether this
is the case requires a panel to scrutinize these relationships, which may, depending on
the particular facts, call for an examination of the timing , nature, and effects of the
various measures. This also requires an Article 21.5 panel to examine the factual and
legal background against which a declared 'm easure taken to comply' is adopted.
Only then is a panel in a position to take a view as to whether there are sufficiently
close links for it to characterize such an ot her measure as one 'taken to comply' and,
consequently, to assess its consistency with the covered agreements in an Article 21.5
proceeding."
643
8.95 More recently, the panel in US – Upland Cotton (Article 21.5 – Brazil) considered that:
"[A] claim relating to a measure that has a sufficiently close nexus with the measure
taken to comply or with the DSB recommendations and rulings in the original
proceeding can be within the scope of Artic le 21.5 even where that measure itself has
not been the subject of DSB recommenda tions and rulings in the original
proceeding."
644
8.96 In that case, the panel considered that a claim re jected by the original panel in a finding that
was reversed by the Appellate Body, but with resp ect to which the Appellate Body found itself unable
to complete the analysis in the original proceeding, was within its terms of reference. The panel
found that the measures in question were measures with a "particularly close relationship to the
declared measure taken to comply and to the r ecommendations and rulings of the DSB"; in making
this finding, it relied on the Appellate Body's findings in US – Softwood Lumber IV (Article 21.5 –
Canada). The Appellate Body upheld th e panel's conclusion that the measures at issue fell within the
panel's terms of reference, based on a different r easoning. The Appellate Body considered that its
reasoning in US – Softwood Lumber (Article 21.5 – Canada) was not applicable in the instant case:
the dispute in Lumber concerned the identification of closely connected measures so as to avoid
circumvention, whereas in Cotton the issue was whether a single programme may be permissibly
atomized for the purposes of Article 21.5 review.645 646

642 In addition, the Appellate Body cited Australia – Automotive Leather II (Article 21.5 – US) and
Australia – Salmon (Article 21.5 – Canada) as "useful illustrations" of when a panel may properly decide to
characterize a Member's act as a "measure taken to comply" when that Members maintains otherwise. Appellate
Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 76.
643 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , para. 77 (emphasis
added).
644 Panel Report, US – Upland Cotton (Article 21.5 – Brazil), para. 9.26.
645 In the original dispute, expor t credit guarantees gr anted with respect to exports of certain
commodities were found to be WTO-inconsistent. The original panel rejected claims with respect to other
commodities, e.g. poultry meat and pig meat. The original panel' s finding in this respect was reversed by the
Appellate Body, but the Appellate Body found itself unable to complete the analysis. There were therefore no
DSB recommendations or rulings with respect to subsidies granted to pig meat and poultry meat. To implement
the DSB's recommendations and rulings, the United States implemented programme-wide changes to its export
credit guarantee programme, which applied to exports of all commodities. The question before the panel and

8.97 We consider that a nexus-based analysis, as articulated in Australia – Leather II (Article 21.5
– US) , Australia – Salmon (Article 21.5 – Canada) and US – Softwood Lumber (Article 21.5 –
Canada) is useful in examining which measures challe nged by a complainant properly fall within the
scope of an Article 21.5 proceeding. A number of c onsiderations are at play in such an analysis.
First, because of the necessary link with the origin al dispute and given that adopted panels and
Appellate Body reports constitute a final r esolution of the dispute between the parties 647, there are
inherent limits on the claims that may be submitted to an Article 21.5 panel.648 Yet, it is equally clear
that "these limits should not allow circumvention by Members by allowing them to comply through
one measure, while, at the same time , negating compliance through another". 649 We also recall that
Article 21.5 proceedings cover not only a Member's actions to implement DSB recommendations and
rulings, but also its omissions – i.e., its failure to take actions to do so. Finally, Article 3.3 of the DSU
provides that one of the objectives of the WTO di spute settlement process is the "prompt settlement"
of disputes. 650 These considerations, in our view, favour the resolution of claims before an

the Appellate Body was whether export credit guarantees granted to exports of pig meat and poultry meat were
"measures taken to comply". The panel considered that the subsidies granted to each commodity were separate
measures and considered that the subsidies granted to e xports of pig meat and poultry meat fell within its terms
of reference because of their "close relationship" to th e declared measure taken to comply. The Appellate Body
adopted a different approach and concluded that the amended export credit guarantee programme was a single
measure. Further, the US – Upland Cotton (Article 21.5 – Brazil) panel also determined that certain payments
made under programmes challenged in the original disput e, but made in a subsequent period, fell within the
scope of its review. The panel found support for its fi nding in this respect in pr ior panel and Appellate Body
reports where it was found that measures taken to comply include "measures that have a particularly close
relationship to the declared measures taken to comply and to the recommendations and rulings of the DSB".
Panel Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 9.80, citing Appellate Body Report, US –
Softwood Lumber IV (Article 21.5 – Canada) . The Appellate Body upheld the panel's conclusion, but again for
different reasons. See Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), paras. 233-249.
646 The Report of the Appellate Body in US – Upland Cotton (Article 21.5 – Brazil) was circulated after
the main submissions from the parties had been received, and before the i ssuance of our Interim Report. We
note however that the parties made submissions to the Panel after the issuance of the Appellate Body Report in
that case, in the form of comments on each other's Comments on Answers to Panel Questions and further
comments on these comments. In the context of such comments, the United States submitted its view that:
"In the recent Appellate Body Report in US – Upland Cotton 21.5 , the Appellate Body
reversed the panel's reasoning that was based on the very approach advocated by the EC in
this proceeding. That Appellate Body report makes clear that there is no 'closely related' test.
Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse by Brazil to
Article 21.5 of the DSU, WT/DS267/AB/RW, circulated 2 June 2008, para. 205."
US letter to the Panel of 11 June 2008, footnote 1. We disagree with the US assertion in this respect.
In US – Upland Cotton (Article 21.5 – Brazil) , the Appellate Body distinguishe d between the case at hand in
Cotton and a situation in which it considered the " Lumber" jurisprudence would apply; it did not suggest that
"there is no 'closely related' test".
647 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products
– Recourse to Article 21.5 of the DSU by Malaysia (" US – Shrimp (Article 21.5 – Malaysia) "),
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481, para. 97; Appellate Body Report, EC –
648 See Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada) , footnote 110,
Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 210.
649 Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 71.
650 See inter alia Panel Report, US – Softwood Lumber IV (Article 21.5 – Canada) para. 4.48. That
panel indicated that given the overlap in effect of th e Final Determination, Section 129 determination and the
First Assessment Review, it was
"very conscious that if we exclude the pass-th rough analysis in the First Assessment Review
from these proceedings, Canada and the United States will still dispute the same issue, i.e.,
pass-through of subsidy benefit, in respect of the same import entries, as they did in the
original proceedings concerning the Final Determination. In our view, this would be wholly

Article 21.5 panel where the contested measures are closely connected with the measures at issue in
the original dispute or with the steps taken by the Member to implement the DSB's recommendations
and ruling.
651
Application of a nexus-based test in the context of trade remedy disputes
8.98 The facts and issues in US – Softwood Lumber IV (Article 21.5 – Canada) and in the dispute
before us present a number of similarities; for th is reason, we have carefully considered the panel's
application and the Appellate Body 's evaluation of that applicati on of a nexus-based test in that
dispute. That said, as the Appellate Body recognized in US – Softwood Lumber IV (Article 21.5 –
Canada), the application of such a test will necessa rily be case-specific and depend on the factual
circumstances of each dispute. Thus, although th e parties and some of the third parties have
extensively argued how, in their view, the fact s before us resemble or differ from those in US –
Softwood Lumber IV (Article 21.5 – Canada), and although we refer to the reasoning of the panel and
the Appellate Body in that dispute on occasion, we do not regard that decision as setting forth a
precise set of generally-applicable ru les establishing when certain measures, e.g., administrative
reviews, are sufficiently "closely connected" with original investigations to fall with the purview of an
Article 21.5 panel. Nor do we consider that th e approach we adopt below would be necessarily
applicable in different contexts and under other factual circumstances.
8.99 We now examine, whether, in light of the fact s before us, the subsequent reviews challenged
by the European Communities are so closely connected to the measures at issue in the original dispute
and to the DSB's recommendations and rulings as to wa rrant that we take them into consideration in
assessing the US implementation of the DSB's reco mmendations and rulings. To do so, we first

inconsistent with the object and purpose of the DSU which, as noted above, is to ensure the
prompt settlement of disputes".
See also Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 –
Argentina), para. 151:
"Furthermore, we recall that the aim of Articl e 21.5 of the DSU is to promote the prompt
compliance with DSB recommendations and rulings and the consistency of 'measures taken to
comply' with the covered agreements by making it unnecessary for a complainant to begin
new proceedings and by making efficient use of the original panelists and their relevant
experience."
See also Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 212, where after
citing this paragraph from US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , the
Appellate Body added that, in the case on appeal:
"having an Article 21.5 panel examine Braz il's claims against export credit guarantees
provided under the revised GSM 102 programme to upland cotton and certain other products,
while a new panel examines Brazil's claims against export credit guarantees provided under
the same programme to pig meat and poultry m eat, would not be the most efficient use of
WTO dispute settlement procedures."
651 The Appellate Body expressed similar views in US – Softwood Lumber IV (Article 21.5 – Canada)
when it indicated that Article 21.5 strikes a balance between competing considerations:
"On the one hand, it seeks to promote the prompt resolution of disputes, to avoid a
complaining Member having to initiate dispute settlement proceedings afresh when an original
measure found to be inconsistent has not been brought into conformity with the
recommendations and rulings of the DSB, and to make efficient use of the original panel and
its relevant experience. On the other hand, the applicable time-limits are shorter than those in
original proceedings, and there are limitations on the types of claims that may be raised in
Article 21.5 proceedings. This confirms that the scope of Artic le 21.5 proceedings logically
must be narrower than the scope of original dispute settlement proceedings. This balance
should be borne in mind in interpreting Article 21.5 and, in particular, in determining the
measures that may be evaluated in proceedings pursuant to that provision."
Appellate Body Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 72.

examine the links, in terms of their nature and of their effects, that exist in general between, on the
one hand, the subsequent reviews challenged by the European Communities and, on the other hand,
the measures at issue in the original dispute and the recommendations and rulings of the DSB. Next,
we consider the links, in terms of the timing of the determinations at issue, to the US implementation
of the DSB's recommendations and rulings. Fi nally, we apply these principles to each of the
subsequent reviews challenged by the European Co mmunities to determine whether each review falls
within our terms of reference.
8.100 We note at the outset that the European Co mmunities asks that we "not mechanistically"
apply the distinction between "as such" and "as applied" findings. 652 By this, we understand the
European Communities to mean that we should disr egard the fact that only "as applied" findings
resulted from the original dispute w ith respect to administrative review s; in other words, that all the
subsequent administrative reviews are before us because they involve the use of zeroing. 653
Conversely, the United States submits that accepting the EC argument that the subsequent reviews fall
within our terms of reference would convert the ruling of the Appellate Body with respect to
administrative reviews into an "as such" finding. We observe in this respect that the findings of the
Appellate Body regarding the administrative reviews at issue in the original dispute were "as applied"
findings, that the European Communities itself had ma de a distinction, in the original dispute,
between its "as applied" and its "as such" claims, and that in any case, the US obligation to implement
with respect to administrative reviews flows from these findings of the Appellate Body, and these
findings only. There is indeed, as the United States notes, a risk that by the application of a nexus-
based analysis, a compliance panel would in effect broaden the scope of the DSB's recommendations
and rulings adopting the findings made in the origin al dispute. We have, in conducting our analysis,
paid particular attention to the fact that the findi ngs with respect to zeroing in the original dispute
concerned the use of zeroing in the specific original investigations and administrative reviews at issue
in that case, and not the US zeroing methodology "as such".
654 Proceeding in this manner does not

652 EC Opening Statement, para. 40. The European Communities seeks support in a statement by the
US – Upland Cotton (Article 21.5 – Brazil) panel (para. 9.51). We do not consider that, read in context, the
statement of the US – Upland Cotton (Article 21.5 – Brazil) panel relied on by the European Communities
supports its call for a relaxation of the distinction betwee n "as such" and "as applied" findings with respect to
administrative reviews. We understand the statement cited by the European Communities as standing for the
proposition that in the specific context of "as applied" adverse effect claims under Article 5 of the SCM
Agreement, the analysis of payments granted under a programme logically implies at least some examination of
the programme under which the payments are made. See also the Appellate Body's obiter dictum in its report in
the same case, para. 234: "We have some difficulty accepting the notion that a subsidy programme and the
payments provided under that programme can be assessed se parately." In other words, we do not consider that
the European Communities' argument is supported by the statement of the US – Upland Cotton (Article 21.5 –
Brazil) panel on which it relies.
653 See EC Answer to Panel Question 3:
"In our present case, we have a similar situation [as in US – Upland Cotton (Article 21.5 –
Brazil)]. Even if the Appellate Body in the or iginal dispute was unable to complete the
analysis on the methodology 'as such', there were a whole series of findings of instances of
application of that methodology. Thus, the analysis made by the Panel and the Appellate
Body in the original dispute of the 15 original investigations and the 16 administrative reviews
'as applied' also took into consideration the essence of the problem in question: the zeroing
methodology, i.e., a computer code, whether in the methodology or in cases of its application
to a particular set of transactions. This is the same methodology that the United States has
repeatedly applied in the subsequent reviews listed in the Annex to the Panel Request."
(emphasis original).
654 We note that the EC claims are, in any case, more limited than suggested by the United States. The
European Communities makes claims with respect to determinations adopted under the same AD order as the
measures at issue in the original dispute ( i.e., with respect to the same product from the same country), and not
with respect to all administrative reviews conducted by the United States.

amount to applying the "as such" vs. "as applied" distinction mechanistically, it only reflects the
nature of the findings made in the original dispute.
Nature and effects
8.101 We note that administrative reviews, sunset reviews and other types of reviews such as new
shipper reviews or changed circumstances reviews are conducted in the ordinary course of the
application of antidumping and countervailing duty laws by Members operating retrospective duty
assessment systems. Similarly, Members opera ting prospective duty assessment systems routinely
conduct sunset and other types of reviews, as we ll as refund proceedings. For an administrative
review or sunset review to be considered to have a "close connection" with the DSB's
recommendations concerning a measure at issue in th e original proceeding, the mere fact that the
Member made a determination in a review involving the same products and countries as the AD
measure that was found to be WTO-inconsistent in th e original dispute cannot be sufficient. It is
obvious that not every determination made in the context of a given AD proceeding – which can span
several years, if not decades – is subject to review by an Article 21.5 panel for the mere reason that
another, previous, determination made in the same proceeding was found to be WTO-inconsistent in
an original WTO dispute at an earlier point in ti me. It is only where a specific aspect of the
"subsequent" determination is closely related to the violation found in the original dispute, and affects
the Member's implementation of the DSB's recommendati ons and rulings in respect of that violation,
that that specific aspect of the subsequent determin ation may, under certain circumstances, be subject
to review in the context of a compliance proceeding. Here, our analysis is limited to the question of
whether the use of zeroing in the calculation of marg ins of dumping in the subsequent reviews bears a
sufficiently close nexus or close connection to the findings of the panel and Appellate Body in the
original dispute so as to warrant our consideration of that precise aspect of the subsequent reviews.
No other aspect of the subsequent reviews is before us.
8.102 We recall that in US – Softwood Lumber IV (Article 21.5 – Canada) , the panel and the
Appellate Body found that close links existed, in terms of the nature and effects, between the three
measures at issue – the original determination f ound to be WTO-inconsistent in the original
proceeding, the Section 129 determination made by the United States to implement the DSB's
recommendations and rulings, and the results of the first administrative review. All three were CVD
proceedings conducted by the USDOC, concerning th e same product, from the same country, and all
three involved the calculation of the rate of subs idization; further the same, new "pass-through"
methodology applied by the USDOC to implement the DSB's recommendations in the Section 129
determination was also used in the first administrative review. The panel and the Appellate Body also
took account of the effects of the publication of th e results of the first administrative review, in
particular, the fact that the cash deposit rate established in the Section 129 determination was replaced
by that calculated in the first administrative review.
655
8.103 In general terms, the successive determinations of different types are made in the context of a
single trade remedy proceeding, involving the imposition and assessment of anti-dumping duties on
imports of a particular subject product, from the same country. They all concern the imposition and
collection of anti-dumping duties under a particular anti-dumping order. In this sense, these
determinations form part of a c ontinuum of events and measures th at are all inextricably linked;
indeed, this continuum is largely determined by the provisions of the Anti-Dumping Agreement.

655 The Appellate Body also observed that imports of softwood lumber from Canada entered during the
period 22 May 2002 to 31 March 2003 were, first subject to the cash deposit rate determined in the original
determination, and subsequently, to the final duty liab ility determined in the first administrative review.
Appellate Body Report, US – Softwood Lumber (Article 21.5 – Canada), para. 83.

8.104 As in US – Softwood Lumber, in the case before us there also exists a close nexus between the
subsequent reviews and the measures at issue in the original dispute and the DSB's recommendations
and rulings in respect thereof in terms of their nature and effects.656 First, the measures at issue either
provide a legal basis for the application of anti-dum ping duties and calculate future cash deposit rates
for individual exporters (original investigations), establish the amount of AD liability for individual
importers and the future cash deposit rates for indi vidual exporters (administrative reviews), or
establish a new legal basis for the imposition of anti-dumping duties (sunset reviews). In each
context, the issue of "zeroing" arises either in the calculation of dumping margins, the amount of duty
liability, or the reliance on dumping margins in the cont ext of sunset reviews. This is the only aspect
of the subsequent reviews that is challenged by the European Communities; it is also the precise issue
that was challenged in the original dispute, a nd which was the subject of the DSB rulings and
recommendations.
8.105 The United States submits, in this respect, that the legal bases for the findings of the panel and
Appellate Body regarding original investigations and administrative reviews in the original dispute
differed. The original panel found that the use of "model zeroing" in the original investigations at
issue, and the US "zeroing methodology" as it relates to original investigations, were inconsistent with
Article 2.4.2 of the Anti-Dumping Agreement, while the Appellate Body found that the use of "simple
zeroing" in the administrative reviews at issu e was inconsistent with Articles 9.3 of the Anti-Dumping
Agreement and VI:2 of the GATT 1994. The United States notes that, by contrast, in US – Softwood
Lumber (Article 21.5 – Canada) , the legal basis for the obliga tion to conduct a "pass-through"
analysis in a countervailing duty proceeding did not vary depending on whether the issue arose in an
investigation or an assessment review.
657 While the United States is correct in this respect, it
overlooks a fundamental aspect of the findings of the original panel and of the Appellate Body.
8.106 The original panel relied on the Appellate Body's conclusion, in EC – Bed Linen and US –
Softwood Lumber V , that when a margin of dumping is cal culated on the basis of multiple averaging
by model type, the margin of dumping for the product in question must reflect the results of all such
comparisons, including weighted-average export pri ces that are above the normal value for individual
models.658 The Appellate Body, in EC – Bed Linen , had found that Article 2.4.2 requires that

656 We recall that the present exerci se is one in which the Panel assesses whether measures which are
different from the measures at issue in the original disput e should fall within the sc ope of this proceeding.
Perfect identity of the measures is therefore not required, nor even expected. Of more relevance, in our view,
are the effects of a measure (in terms of their im pact on the Member's implementation of the DSB's
recommendations and rulings). We note that, in Australia – Leather II (Article 21.5 – US), the measures did not
have the same legal form (loan vs. grant), and that in Australia – Salmon (Article 21.5 – Canada), they were not
adopted by the same decision-maker or even the same level of government. US – Softwood Lumber
(Article 21.5 – Canada) also stands for the proposition that the different nature of original investigations and
administrative reviews does not preven t finding that the latter may fall within the scope of an Article 21.5
proceeding in respect of an original dispute that concerned the former. In Lumber, the Appellate Body rejected
US arguments with respect to the different nature of original investigations and administrative reviews by
noting, first, that municipal law cl assifications are not determinative in WTO dispute settle ment proceedings
(the United States had pointed to the different legal base s in United States law for original investigations and
assessment review); and, second, that the SCM Agreement's recognition that original CVD investigations are
proceedings distinct from duty assessment reviews did not answer the question of whether the Panel was entitled
to examine the USDOC's pass-through analysis in the first administrative review. Appellate Body Report, US –
Softwood Lumber IV (Article 21.5 – Canada), para. 82.
657 In either case, the obligation arose from Articles 10 and 32.1 of the SCM Agreement , and
Article VI:3 of the GATT 1994. See US Answer to Panel Question 13.
658 Panel Report, US – Zeroing (EC) , paras. 7.27 (referring to Appellate Body Report, European
Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India ("EC – Bed Linen "),
WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049, paras. 46-66, and Appellate Body Report,
United States – Final Dumping Determination on Softwood Lumber from Canada ("US – Softwood Lumber V "),
WT/DS264/AB/R, adopted 31 August 2004, DSR 2004:V, 1875, paras. 76-117) and 7.31.

"margins of dumping" be established with respect to the product under investigation as a whole, on
the basis of a comparison including all comparable export transactions. The Appellate Body similarly
concluded in US – Softwood Lumber V that "dumping" and "margins of dumping" can only be
established for the product under inv estigation as a whole. It reached that conclusion on the basis of,
inter alia, Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement (noting
that both provisions refer to the dumping of "produc t(s)"). The Appellate Body thus reasoned that the
result of all comparisons at the sub-group level mu st be included in calculating a margin of dumping
for the product as a whole. The panel and the Appe llate Body, in the original dispute in the present
case, recognized the same basic obligation deriving fr om the definition of "d umping" and "margin of
dumping" under Article 2 of the Anti-Dumping Agreement – namely, that the margin of dumping,
under that provision, must be calculated for the "product as a whole", and consequently, that "if the
margin of dumping is calculated on the basis of multiple comparisons made at an intermediate stage,
it is only on the basis of aggregating all these intermed iate results that an investigating authority can
establish the margins of dumping for the product as a whole".
659 Thus, while the panel and the
Appellate Body's findings of inc onsistency were made under differe nt legal provisions, they were
premised on the same fundamental obligation under the Anti-Dumping Agreement, following from the
definition of the term "margin of dumping" under the Agreement.
8.107 The original dispute concerned 15 original i nvestigation determinations and 16 administrative
review determinations, whereas the subsequent revi ews are of two types – administrative reviews and
sunset reviews.660 There are four different relationships betw een the measures at issue in the original
dispute and the subsequent reviews at issue:
(a) In some cases, the measure at issue in the original dispute was an original
investigation and the subsequent review challenged is an administrative review;
(b) In others, the measure at issue in the orig inal dispute was an original investigation
and the subsequent review challenged is a sunset review;
(c) In yet other cases, both the measure at issue in the original dispute and the subsequent
review challenged are administrative reviews;
(d) Finally, in some cases, the measure at issue in the original dispute is an administrative
review and the subsequent review challenged is a sunset review.
Administrative reviews subsequent to original determinations or earlier administrative
reviews (a and c)

8.108 We first examine the situations in which an original investigation was found to be WTO-
inconsistent in the original dispute. Original inv estigations have two functions. First, they serve to

659 Appellate Body Report, US – Zeroing (EC), para. 132; see also Panel Report, US – Zeroing (EC),
para. 7.27 ff. To be more precise, the Appellate Body considered that under Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994, the amount of the assessed anti-dumping duties may not exceed
the margin of dumping as established "for the product as a whole" and found that the USDOC's use of zeroing in
administrative reviews had resulted in the collection of duties in an amount greater than the margin of dumping
established "for the product as a whole".
660 Two of the subsequent reviews are changed circumstances reviews (May 2003 changed
circumstances review in case 24, December 2003 changed circumstances review in case 17). For the reasons
discussed in para. 8.119 below, with respect to the "temporal" link between these measures and the DSB's
recommendations and rulings, the Panel concludes that th ese measures do no fall within the scope of this
proceeding. In any case, because the sole effect of these reviews is to change the company whose exports are
subject to the anti-dumping duties, they would be of limited relevance to our assessment of the US
implementation of the DSB's recommendations and rulings.

determine the existence of dumping, leading to issu ance of an anti-dumping order providing the legal
basis for the imposition of anti-dumping duties. 661 Second, they establish the cash deposit rate for
future entries of the subject product from each expor ter. Of these two functions, the establishment of
a cash deposit rate is more closely connected with administrative reviews. This is because cash
deposits at the rate established in the original inv estigation serve as security for the collection of anti-
dumping duties; the amount of the final anti-dumping liability is established in the administrative
review.662 The administrative review also establishes a new cash deposit rate for each exporter, which
supersedes the previous cash deposit rate. 663 Thus, the use by the USDOC of zeroing in the
calculation of margins of dumping in the context of a "subsequent" administrative review potentially
negates action taken by the United States in the form of a Section 129 determination recalculating the
margin of dumping from the original investigation in order to implement the DSB's recommendations
in respect of that original investigation, as it (i ) allows for the assessment of anti-dumping duties at a
rate that is based on zeroing, inconsistent with the provisions of the Anti-Dumping Agreement, despite
alleged implementing action to eliminate such zeroing, and (ii) replaces the rate established in the
original investigation (and any new rate establis hed as a result of the implementation of the DSB
recommendations and rulings) with a new cash deposit rate calculated with zeroing.
664
8.109 Likewise, successive administrative reviews in the same anti-dumping proceeding bear a
close relationship with each other as each new revi ew performs a final assessment of duties secured
by cash deposits at the rate established in the previ ous review and replaces that cash deposit rate with
a newly-calculated one. The fact that a subsequent administrative review may not relate to the same
period and the same export transactions as the administra tive review at issue in the original dispute or
the fact that the exporters concerned may, in some cases, vary does not, in our view, preclude a
conclusion that the two measures are closely related. 665 I n US – Softwood Lumber (Article 21.5 –
Canada), the subsequent administrative review had the effect of undermining the US implementing
action (the Section 129 determina tion); no such implementing action exists in the case before us.
Rather, the United States asserts that it did not have to take any action to implement the DSB's
recommendations and rulings because the administra tive reviews that were the subject of these
recommendations and rulings were no longer in effect as they had been superseded by subsequent
administrative reviews. 666 We find this US assertion significant. It tends to confirm the close

661 Of course, an anti-dumping order can only be issued if the necessary elements of injury and causal
link are also established, but we are not here concerned with those issues.
662 Where no administrative review is requested, the cash deposit rate established in the original
investigation becomes the assessment rate.
663 The European Communities and some of the third parties have indicated, in response to a question
from the Panel, that they considered both "functions" performed by administrative reviews to bear the same
"close nexus" to an original investigation" See EC Answer to Panel Question 13 and Japan's, Korea's, and
Norway's Answer to Panel Question 5 to the third parties.
664 We note that the US – Softwood Lumber IV (Article 21.5 – Canada) panel found that:
"even though the period of investigation of the Final Determination and Section 129
Determination may differ from the period of review of the First Assessment Review, and even
though the latter was initiated before the DSB adopted any rulings or recommendations
regarding this matter, there is in fact consid erable overlap in the e ffect of these various
measures. Since the pass-through analysis in the First Assessment Revi ew could, therefore,
have an impact on, and possibly undermine, any implementation of the DSB rulings and
recommendations regarding pass-through by the Section 129 Determination, we consider that
the pass-through analysis in the First Assessment Review should also fall within the scope of
these DSU Article 21.5 proceedings."
Panel Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 4.41.
665 Nor does it affect our conclusion with respect to the close relationship between the measures where
the original measure is an original investigation and the subsequent review is an administrative review.
666 See inter alia, US First Written Submission, paras. 91-102 and Exhibit US-17 (containing a list of
administrative review determinations which the United St ates considers superseded the measures challenged in
the original dispute).

relationship that exists between subsequent admi nistrative reviews, and supports our view that
subsequent administrative reviews may affect the overall US implementation of the DSB's
recommendations and rulings in respect of prior administrative reviews.
667 As a result, we consider
that the use of zeroing in a "subsequent" administra tive review affects the US implementation of the
DSB's recommendations with respect to the use of zeroing in the administrative reviews at issue in the
original dispute or circumvents the US obligation to implement these recommendations.
Sunset reviews subsequent to original determinations and earlier administrative reviews
(b and d)

8.110 The other function of original investigations, as mentioned above, is that they establish the
legal basis for the imposition of antidumping duties. Here, there is a close relationship with
subsequent sunset reviews. Sunset review determinations provide a new legal basis for the imposition
of anti-dumping duties, based on a different determination, i.e., likelihood of continuation or
recurrence – rather than existence of – dumping (and injury). Without an affirmative sunset review
determination, an anti-dumping measure lapses at th e end of five years. The European Communities
argues that the USDOC improperly relied on margins of dumping calculated with the use of zeroing
(in prior original investigations or administrative re views) in the context of subsequent sunset reviews
conducted in the same proceeding as measures found to be WTO-inconsistent in the original dispute.
Assuming that we were to agree with th e EC substantive claims in this respect 668, it would follow that
those "subsequent" sunset reviews which relie d on "zeroed" dumping margins affect the US
implementation of the DSB recommendations with respect to the original investigations and
administrative reviews at issue in the original dispute by prolonging the original anti-dumping order
or the results of the administrative reviews challenge d in the original dispute and, thus, the imposition
and collection of duties based on zeroing.
Temporal relationship
8.111 Finally, we turn to the last element of our analysis, the consideration of the temporal
relationship between these measures and the DSB' s recommendations and rulings and the actions
taken by the United States to comply with these recommendations and rulings, if any. We also
address, in this section of our analysis, the US argum ents with respect to the fact that subsequent
reviews were not adopted "in view" of the DSB's recommendations and rulings.
8.112 The United States notes that in US – Softwood Lumber (Article 21.5 – Canada) on which the
European Communities relies, the Appellate Body f ound significant both the timing of the measure,
which was taken after the adoption of the DSB's r ecommendations and rulings and very close in time
to the "official" measure taken to comply, as well as the fact that the responding Member
acknowledged that the determination had been made "in view of" the recommendations and rulings of
the DSB. The United States argues that, even ac cepting that determinations made "in view of"
recommendations and rulings can be brought within the terms of reference of an Article 21.5

667 See also the Panel Report in US – Softwood Lumber IV (Article 21.5 – Canada) , para. 4.41, where
the panel took into consideration the fact that "the prospective effect of the Section 129 Determination was
superseded by the prospective effect of the First Assessment Review, once the latter took effect"; and Appellate
Body Report, US – Softwood Lumber (Article 21.5 – Canada) , para. 85, where the Appellate Body noted that
the First Assessment Review directly affected the Section 129 determin ation because the cash deposit rate
resulting from that Determination was "updated", or "superseded", by the cash deposit rate resulting from the
First Assessment Review.
668 The European Communities claims that the sunset review determinations are inconsistent with, inter
alia, Article 11.3 of the Anti-Dumping Agreement. We consider that only where the determination in a sunset
review effectively relied on the dumping margins calculate d with zeroing does there exist a sufficiently close
relationship to the original measures to warrant its consid eration by this Panel. As this issue is intrinsically
related to the substance of the European Communities' claims, it is examined below.

proceeding does not mean that the subsequent reviews in this case fall within our terms of reference.
First, some of the "subsequent" reviews were decided prior to the adoption of the DSB's
recommendations and rulings. Second, the USDOC's de terminations in those reviews that were made
after the adoption of the DSB's recommendations a nd rulings were not made "in view" of them.
Further, the United States also asks the Panel to distinguish the findings of the panels in Australia
Salmon (Article 21.5 – Canada) and Australia Leather II (Article 21.5 – US) . The United States
argues that in these two cases, the additional "measure taken to comply" was the result of a deliberate
choice on the part of the authorities. In contr ast, the United States submits that assessment reviews
are required by the Anti-Dumping Agreement, when requested and that administrative reviews occur
on a schedule that is established without regard to dispute settlement proceedings. Thus, the
subsequent reviews were not actions taken by the United States to avoid any scrutiny of the measures
found to be inconsistent with the DSB recommendations and rulings.669
8.113 The European Communities, and some of the thir d parties, Japan, Korea and Norway, argue
that the "timing" is not dispositive of the questi on of whether the subsequent reviews are "closely
connected with" the measures at i ssue in the original proceeding. 670 The European Communities also
argues that the USDOC had time to take account of the DSB's recommendation and rulings in
subsequent anti-dumping proceedings but instead cho se to take actions directly contrary to its
obligations arising therefrom ( i.e., the United States continued taking positive acts providing for the
final payment of duties or retention of cash deposits based on zeroing).671
8.114 The subsequent reviews brought before us can be divided into two broad categories: the
determinations that were made before the date of the adoption of the DSB's recommendations and
rulings, and those made after that date.
8.115 One would expect, as a matter of logic, that a measure taken before the adoption of the DSB's
recommendations and rulings could rarely, if ever, be found to be a measure taken "to comply" with
such recommendations and rulings. 672 As a result, it would normally follow that only those
subsequent reviews that were decided after such a doption could be taken into consideration as part of
a compliance panel's examination of the implem entation of DSB recommendations and rulings. 673

669 US Answer to Panel Question 10.
670 See e.g., EC Answer to Panel Question 20, and Japan's, Korea's and Norway's Answers to Panel
Question 3 to the third parties.
671 EC Answer to Panel Question 9.
672 We recall the Appellate Body's indication that "[a]s a whole, Article 21 deals with events
subsequent to the DSB's adoption of recommendations and rulings in a particular dispute." Appellate Body
Report, US – Softwood Lumber IV (Article 21.5 – Canada), para. 70.
673 The European Communities and Japan, in particular, have sought to justify the inclusion of
measures pre-dating the adoption of the DSB's recommendations and rulings, and going as far back as the initial
consultations in some cases. (See EC Answer to Panel Question 20, in which the European Communities argues
that "it should not matter whether the measure subject to the compliance proceeding was taken before or after
the adopted DSB report, or at least, this criterion should not be definitive to exclude certain measures from the
scope of Article 21.5 DSU pro ceedings.") The European Communities also argu es that under WTO
jurisprudence, a measure that essentially replaces an earlier measure remains within the terms of reference of an
original panel. (EC First Written Submission, para. 61, citing to Panel Report, Dominican Republic – Import
and Sales of Cigarettes , paras. 7.11-7.21). Japan makes similar arguments, and relies on prior WTO panel and
Appellate Body decisions under Article 6.2 of the DSU, in which panels and Appellate Body have considered
that measures adopted after consultations or during the course of an origin al proceeding were within the panel's
jurisdiction because they were, in substance, the same measures as those included in the consultations or panel
request. (Japan's Third Party Submission, paras. 65 ff.) We do not understand Japan to argue that the prior
panel and Appellate Body reports it refers to are directly applicable in this case, but only that they should inform
the Panel's application of the nexus based test applied in, inter alia, US – Softwood Lumber IV (Article 21.5 –
Canada). We simply note that the cases relied upon by the European Communities and Japan all concern
original proceedings, and that, in many of the cases re ferred to, the panel and/or the Appellate Body explicitly

The European Communities has not c onvinced us that a different conclusion is warranted in the
present dispute.
8.116 Conversely, measures adopted following the adoption of the DSB's recommendations may
have a close link with the DSB's recommendations and rulings and with the steps, if any, taken by the
implementing Member to achieve compliance with the recommendations and rulings, and therefore
warrant inclusion in the scope of an Article 21.5 proceeding.
674 In our view, the application of a
nexus-based test should primarily aim at bringing within the scope of the compliance dispute
measures that potentially circumvent implementa tion or undermine measures officially taken to
comply.
Application to the facts of this case
8.117 We now proceed to apply the general principl es articulated above in order to determine
whether the subsequent reviews challenged by th e European Communities pr operly fall within our
terms of reference.
8.118 With respect to the nature and effects of th e subsequent reviews, we consider that the
subsequent administrative reviews involving the calcu lation of a margin of dumping based on zeroing
and subsequent sunset reviews in which the USDOC relies on margins of dumping calculated with the
use of zeroing potentially fall within the scope of this compliance proceeding. We reach this
preliminary conclusion on the basis of :
(a) the close nexus that exists in terms of th eir nature between the subsequent reviews
and the measures at issue in the original measure;
(b) the fact that the subsequent reviews potentially affect or undermine the steps
otherwise taken – or the steps that should have been taken – by the United States to
comply with the recommendations and rulings of the DSB, notably in the form of
Section 129 determinations.
8.119 With respect to the temporal element of our analysis
675, we consider, for the reasons stated
above, and even though they may have the sufficient nexus in terms of nature and effects, that none of

indicated that they reached their find ing in view of the fact that the amending measure did not affect the
substance of the original measure. In any case, we consider the panel and Appellate Body decisions cited by the
parties (Chile – Price Band, Dominican Republic – Cigarettes, EC – Chicken Cuts, Brazil – Aircraft , Appellate
Body Report, Argentina – Safeguard Measures on Imports of Footwear ("Argentina – Footwear (EC) "),
WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 51 5), to be of little relevance in deciding the degree
of the temporal relationship between the subsequent measures challenged by the European Communities and the
DSB's recommendations and rulings.
674 Provided, of course, that they otherwise bear the sufficient nexus with the measures at issue in the
original dispute and/or the DSB's recommendations and rulings.
675 We recall the timeline of the original dispute:
 Original panel request: 5 February 2004
 Revised panel request: 19 February 2004
 Establishment of the Panel: 19 March 2004
 Issuance of Panel Report (to parties): 28 September 2005
 Circulation of Panel Report (to Members): 31 October 2005
 Issuance of AB Report: 18 April 2006
 Adoption by the DSB: 9 May 2006

the subsequent reviews challenged by the Europ ean Communities that were decided before the
adoption of the DSB's recommendations and rulings676 fall within our terms of reference.
8.120 We note in this respect that the European Communities includes in its Annex subsequent
reviews that were decided prior to the establishment of the original panel. Including such reviews in
the scope of this compliance proceeding would mean that the European Communities could, in the
context of the Article 21.5 proceeding, revise the scope of the measures challenged in the original
dispute; that would in our view be an overly ex tensive understanding of the flexibilities afforded by
Article 21.5 of the DSU. The European Communi ties has asserted that some of these measures (in
particular the 2001-2002 administrative review in ca se 19 (Pasta from Italy, for exporter PAM), and
the 2001-2002 administrative review in case 28 (Stain less steel sheet strip coils from Germany)) were
adopted "just before" its revised re quest for the establishment of a panel in the original dispute (the
results in both of these administrative re views were published on 10 February 2004, i.e., after the
initial but before the revised EC panel request in th e original dispute. Yet, as the United States points
out, other determinations were take n many months, or even years before the EC panel request. The
European Communities could have sought to furthe r amend its original request for the establishment
of a panel, or could have brought these measures to the attention of the original panel; it did not do so.
In our view, that decision of the European Communities has consequences on the scope of the
findings made in the original dispute, and preclud es our consideration of those measures in this
proceeding.
8.121 We consider that each of the subsequent administrative review adopted following the
adoption of the DSB's recommendations and rulings bears a sufficiently close nexus with the DSB's
recommendations and rulings in the original dispute to warrant its inclusion in the scope of this
proceeding.

676 The following "subsequent reviews" fall into this category: 2001-2002 administrative review
(adopted 22 July 2004) and 2002-2003 administrative review (adopted 11 April 2005) in case 1 (Hot Rolled
Steel from the Netherlands); 2003-2004 administrative revi ew (10 August 2005) in case 2 (Stainless Steel Bar
from France); 2001-2003 administrative review (14 June 2004) in case 3 (Stainless Steel Bar from Germany);
2001-2003 administrative review (14 June 2004) in case 4 (Stainless Steel Bar from Italy); sunset review
(continuation order) (13 August 2004) in case 6 (Stainless Steel Wire Rod from Sweden); 1998-1999
administrative review (21 February 2001), sunset review (continuation order) (August 13, 2004) in case 7
(Stainless Steel Wire Rod from Spain); sunset review (continuation order) (13 August 2004) in case 8 (Stainless
Steel Wire Rod from Italy); sunset review (continuation order) (6 December 2005) in case 14 (Certain Cut-to-
Length Carbon-Quality Steel Plate from Italy); 2002-2 003 administrative review (19 January 2005), 2003-2004
administrative review (7 December 2005) and sunset review (continuation order) (18 July 2005) in case 18
(Stainless Steel Plate in Coils from Belgium); 2001-2002 administrative review in case 19 (Pasta from Italy, for
exporter PAM) (10 February 2004, i.e., after the initial but before the corrected EC panel request in the original
dispute); 2001-2002 administrative review (27 April 2004) in case 20 (Certain Pasta from Italy, for exporter
Pastifi Garofalo); 2001-2002 administrative review (12 December 2003), 2002-2003 administrative review (17
March 2005) and sunset review (continuation order) (4 August 2005) in case 22 (Stainless Steel Strip Coils from
Italy); sunset review (continuation order) (22 December 2005) in case 24 (Granular Polytetrafluorethylene from
Italy); 2001-2002 administrative review (12 December 2003), 2002-2003 administrative review
(11 February 2005) and 2003-2004 administrative review (7 February 2006) in case 26 (Stainless Sheet Strip
Coils from France); 2001-2002 administrative review (10 February 2004) ( i.e., after the initial but before the
revised EC panel request in the original dispute), 2 002-2003 administrative review (20 December 2004), 2003-
2004 administrative review (13 December 2005) and sunset review continuation order (4 August 2005) in case
28 (Stainless Steel Sheet Strip Coils from Germany); 2001-2002 administrative review (24 July 2003), 2002-
2003 administrative review (15 September 2004) and 2003-2004 administrative review (16 September 2005) in
case 29 (Ball Bearings from France); 2001-2002 administrative review (16 June 2003), 2002-2003
administrative review (15 September 2004), 2003-2004 administrative review (16 September 2005) in case 30
(Ball Bearings from Italy, exporters SKF and FAG); 2002-2003 administrative review (15 September 2004) and
2003-2004 administrative review (16 September 2005) in case 31 (Ball Bearings from the United Kingdom,
with respect to The Barden Corporation UK).

8.122 We note that in certain cases, the United Stat es argues that the determination was not made
"in view" of the DSB's recommendati ons and rulings. In some instance, the United States notes that
the determination makes no reference to the issu e of zeroing: 2004-2005 administrative review in
case 2 (Stainless Steel Bar from France);
677 2004-2005 administrative review in case 3 (Stainless Steel
Bar from Germany); 678 2004-2005 administrative review in case 24 (Granular Polytetrafluorethylene
from Italy)679, 2004-2005 administrative review in case 6 (Stainless Steel Wire Rod from Sweden); 680
2005-2006 administrative review in case 5 (Stainle ss Steel Bar from the United Kingdom) (in this
case because no party specifically raised the issue). 681 In other cases, the issue of zeroing is
addressed, but the USDOC declines to follow the respondents' invitation to discontinue the use of
zeroing because "the United States has not yet gone through the statutorily mandated process of
determining how to implement the report [in the orig inal dispute]": 2004-2005 administrative review
in cases 29 and 30 (Ball bearings from France, Italy – respondents FAG and SKF) 682 and 2004-2005
administrative review in case 28 (Stainless Steel Sheet Strip Coils from Germany) 683 or in addressing
the issue of zeroing in that review, the USDOC stat ed that the administrative reviews at issue in the
original dispute had been superseded and we re therefore no longer in effect: 2004-2005
administrative review in case 1 (Hot-Rolled Steel from the Netherlands).684
8.123 Accepting the general argument of the United States that the USDOC is not making certain
determinations "in view" of the DSB's recommendations where the USDOC declines to implement the
DSB's recommendations with respect to administrative reviews could lead to the incongruous result
that a measure would evade scrutiny in Article 21.5 proceedings because the implementing Member's
authorities specifically indicated their refusal to take into consideration the DSB's recommendations
and rulings. In fact, the USDOC's statements in our view supports inclusion of these measures in the
scope of this proceeding. With respect to the other situation (where the USDOC makes no reference
to zeroing in the determination or the Issues and Decision Memoranda or indicates that the
United States has not yet begun the implementation process), we consider that insofar as zeroing was
used in the determination, whether or not the issu e was specifically raised by an interested party
should not prevent us from considering it.
8.124 Turning to the sunset reviews that the Europ ean Communities challenges, we consider that
the sunset reviews in cases 2, 4 and 5 (Stainless Steel Bar from France, Italy and the
United Kingdom)
685 in case 3 (Stainless Steel Bar from Germany) 686, and in case 19 687 all fall within
our terms of reference because they bear the required nexus with the DSB's recommendations and

677 71 FR 30873, 31 May 2006.
678 71 FR 52063, 1 September 2006.
679 72 FR 1980, 17 January 2007.
680 72 FR 26337, 9 May 2007, Exhibit EC-16 (amended results of administrative review, the original
final results were published on 10 April 2007). We note that, as a result of the Section 129 determination, the
order was revoked effective 23 April 2007.
681 72 FR 15106, 30 March 2007.
682 71 FR 54469, 14 July 2006.
683 71 FR 74897, 13 December 2006.
684 72 FR 3441, 22 June 2007 (amended final results; final results issued on 22 May 2007). Exhibits
EC-11 and EC-12.
685 72 FR 30772, 4 June 2007.
686 72 FR 29970, 30 May 2007.
687 72 FR 5266, 5 February 2007. With respect to case 19, the United States argues that interested
parties did not raise, and the USDOC made no mention of, the issue of zeroing and that therefore, the
determination could not have been made "in view of " the DSB's recommendations and rulings. US Opening
Statement, para. 16, US Answer to Panel Question 14. For the reasons set out in para. 8.123, we find this
argument unpersuasive. With respect to cases 2, 3, 4 and 5, the Panel understands the United States to consider
that the measures cannot be before us because the determinations resulted in the revocation of the order. We
address this argument as part of our substantive analys is of the EC claims in respect of these reviews. Infra,
paras. 8.245 to 8.264.

rulings to warrant their inclusion in the scope of this proceeding. In each of these reviews, the
USDOC's likelihood-of-dumping determination w as made after the adoption of the DSB's
recommendations and rulings. In our view, it is the date of that determination that is the most
appropriate point in time to focus upon in the context of sunset reviews. After all, that is the time at
which the USDOC determines whether dumping is likely to continue or recur, allegedly on the basis
of dumping margins calculated with zeroing. By contrast, the sunset reviews in cases 29, 30 and 31
(Ball bearings from France, Italy, and the United Kingdom) 688 do not, in our view, bear the required
"temporal" nexus with the DSB's recommendations and rulings to warrant their inclusion in the scope
of this proceeding. In these case s, while the continuation order was issued after the adoption of the
reports by the DSB, the USDOC's likelihood-of-d umping determination was issued prior to the
adoption of the DSB's recommendations and rulings.
8.125 In addition, the European Communities has refe rred, in its submissions, to an additional
"subsequent review", the 2005-2006 administ rative review in case 23/24 (Granular
Polytetrafluorethylene from Italy). 689 We note that this administrative review determination was not
included in the EC Article 21.5 panel request. We do not consider that the EC Article 21.5 panel
request is broad enough to include any subsequent review other than those specifically listed by the
European Communities in the Annex thereto. As a consequence, neither the 2005-2006
administrative review in cases 23/24 690 nor any other subsequent review not specifically listed are
before us.691
(v) Conclusion
8.126 We therefore find that the following subsequent reviews fall within our terms of reference:
(a) Subsequent administrative reviews:
(i) 2004-2005 administrative review (22 June 2007) in case 1 (Hot-Rolled Steel
from the Netherlands);
(ii) 2004-2005 administrative review (31 Ma y 2006) in case 2 (Stainless Steel
Bar from France);
(iii) 2004-2005 administrative review (1 September 2006) in case 3 (Stainless
Steel Bar from Germany);
(iv) 2005-2006 administrative review (preli minary results) (30 March 2007) in
case 5 (Stainless Steel Bar from the United Kingdom);
(v) 2004-2005 administrative review (9 May 2007) in case 6 (Stainless Steel
Wire Rod from Sweden).

688 71 FR 54469, 15 September 2006 (Notice of continuation of AD order). See Exhibits EC-37 and
EC-59 for the Notice and the Issues and Decision Memorandum of the USDOC likelihood-of-dumping
determination issued 5 October 2005.
689 EC First Written Submission, para. 81, Exhibit EC-17.
690 We note that the determination in this review was issued after the establishment of this compliance
panel.
691 The European Communities requests that we make findings with respect to US actions in relation to
"measures challenged in the original dispute (including the measures listed in the Annex to the Panel Request
and any other subsequent review )". EC First Written Submission, para. 155; supra, para. 4.1(c) (emphasis
added).

(vi) 2004-2005 administrative review (17 January 2007) in case 24 (Granular
Polytetrafluorethylene from Italy);
(vii) 2004-2005 administrative review (13 December 2006) in case 28 (Stainless
Steel Sheet Strip Coils from Germany);
(viii) 2004-2005 administrative review in (14 July 2006) case 29 (Ball Bearings
from France);
(ix) 2004-2005 administrative review (14 July 2006) in case 30 (Ball Bearings
from Italy, with respect to respondents FAG and SKF);
(b) Subsequent sunset reviews:
(i) USDOC final likelihood-of-dumping determination in cases 2, 4 and 5
(4 June 2007);
(ii) USDOC preliminary likelihood-of-dumping determination in case 3
(30 May 2007);
(iii) USDOC final likelihood-of-dumping determination in case 19
(5 February 2007).
8.127 We note however that our conclusion that only these subsequent reviews fall within our terms
of reference does not mean that we may not take into consideration omissions to implement on the
part of the United States as part of our substantive an alysis of the EC claims below. In particular, we
are of the view that alleged omissions in the form of the continued imposition of cash deposit
requirements at rates calculated with zeroing, after the end of the reasonable period of time, should be
considered in order to make findings with respect to whether the United States has complied with the
recommendations and rulings of the DSB. To conclude otherwise would allow the United States to
circumvent its obligation to implement those recomme ndations and rulings by virtue of the fact that
the cash deposit rate originally at issue and found to be inconsistent with US obligations is replaced
by a new, potentially similarly-inconsistent, rate calculated in another review. In this sense, and
insofar as they continued to apply, we make no distinction between cash deposits requirements
established in subsequent administrative reviews d ecided before and after the adoption of the DSB's
recommendations and rulings.
E.
EC GENERAL CLAIMS THAT TH E UNITED STATES FAILED TO FULLY IMPLEMENT THE DSB 'S
RECOMMENDATIONS AND RULINGS
1. Introduction
8.128 In this section of our report, we address the general EC claims 692 to the effect that the
United States failed to implement the DSB's recomme ndations and rulings in the original dispute.
The European Communities makes specific claims:693
(a) with respect to "subsequent" sunset reviews;

692 The European Communities has referred to these cl aims as pertaining to "violations with respect to
all measures covered in this proceeding". See e.g., EC First Written Submission, heading II.B.
693 We address below the EC claims that certain of the US measur es taken to comply (Section 129
determinations) are inconsistent with the United Stat es' obligations under the covered agreements. See infra,
section VIII.G.

(b) with respect to actions taken by the Unit ed States to collect anti-dumping duties with
respect to the measures at issue in the original dispute (including pursuant to
subsequent administrative reviews)694 after the end of the reasonable period of time;
(c) with respect to the fact that no US measu res taken to comply existed in the period
between the end of the reasonable period of time and the effective date of the Section
129 determinations (23 April and 31 August 2007).
8.129 We consider each of these groups of claims in turn.
2. EC claims with respect to subsequent sunset reviews
(a) Main arguments of the parties
8.130 The European Communities submits 695 that the United States has extended the measures
challenged in the original dispute pursuant to sun set review proceedings c oncluded before and after
9 April 2007, and which relied on dumping margin s calculated with zeroing. In particular, the
USDOC decided to extend the measures challenged in the original dispute because, based on the
previous levels of dumping found in original inves tigations or administrativ e review determinations
and calculated using zeroing, it considered that it was likely that dumping would recur. The European
Communities submits that, by relying, in the sub sequent sunset review proceedings listed in the
Annex to its Article 21.5 panel request, on margins ca lculated in prior proceedings using zeroing, the
United States did not comply with its obligations pursuant to Articles 2.1, 2.4 and 2.4.2 because these
margins were not based on a fair comparison and not calculated for the product as a whole and that, as
a result, the United States acted in breach of Article 11.3 of the Anti-Dumping Agreement.696
8.131 The European Communities relies on the Appellate Body Report in US – Corrosion-Resistant
Steel Sunset Review , in which the Appellate Body found th at if a likelihood determination under
Article 11.3 is based on a dumping margin cal culated using a methodolog y inconsistent with
Article 2.4 of the Anti-Dumping Agreement, then this defect also taints the likelihood determination
and, thus, the USDOC's likelihoo d determination could not constitute a proper foundation for the
continuation of anti-dumping duties under Article 11.3. Moreover, the Appellate Body has ruled on
the inconsistency of the use of zeroing in sunset review proceedings in US – Zeroing (Japan), where it
also noted that the USDOC relied on past margins th at were calculated during administrative reviews
on the basis of "simple zeroing". Having previously concluded that zeroing in administrative review
investigations is inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement, the Appellate
Body found that the determinations in the sunset reviews at issue were inconsistent with Article 11.3.
8.132 The United States argues that the sunset reviews identified in the EC Article 21.5 panel
request are not within the terms of reference of this Panel. 697 Further, the United States submits that

694 The European Communities regards subsequent administrative reviews as amendments to the
measures at issue in the original dispute. See supra, paras. 8.38 and 8.61-8.84, infra para. 8.146 and e.g. EC
Opening Statement, para. 46.
695 EC First Written Submission, paras. 69-75, EC Second Written Submission, paras. 63-65, EC
Opening Statement, paras. 44-45. See also Annex B to the EC Answer to Panel Question 6, providing the
margin of dumping relied upon in the sunset review, included in the EC Article 21.5 panel request, and
providing references to various EC exhibits supporting its claims with respect to sunset reviews.
696 Further, in its argument that the 16 administrative review investigations challenged in the original
dispute have not been superseded, th e European Communities submits that the US failure to recalculate the
dumping margins without zeroing in all the administrative reviews covered in the original dispute affects the
extension of the original orders pursuant to sunset review investigations. EC First Written Submission, para. 97.
697 US First Written Submission, paras. 51-53, US Second Written Submission, paras. 23-24. See
supra, sections VIII.D.1(c) and VIII.D.2(c) where the Panel addresses the US arguments that the subsequent

the European Communities has failed to establish that the United States acted inconsistently with its
WTO obligations in making those s unset review determinations. The United States considers that the
European Communities has failed to present any ev idence that the USDOC or the USITC in any way
relied upon "the margin likely to prevail" in maki ng their respective likeli hood determinations; and
that the European Communities h as also failed to demonstrate whether the USDOC relied on margins
calculated in the 31 determinations at issue in the original dispute in making its likelihood-of-
dumping determination. Under US law, the USDOC's determinations in sunset reviews serve two
purposes. First, the USDOC determines whether the revocation of the an tidumping duty order would
likely lead to the continuation or recurrence of dum ping. The USDOC then reports to the USITC the
margin of dumping that is likely to prevail if the order is revoked. The USITC, in turn, determines
whether the revocation of the antidumping duty order would likely lead to a continuation or
recurrence of material injury. The USDOC doe s not, as the European Communities suggests,
calculate any new margins of dumping in a sunset review determination. Further, as the panel in US –
Anti-Dumping Measures on Oil Country Tubular Goods recognized, the USDOC does not rely on the
margin reported to the USITC as the margin likely to prevail in making its determination of likelihood
of continuation or recurrence of dumping. The Appellate Body did not disturb these findings, and
noted that Mexico had provided no evidence that the USITC had relied on or otherwise factored in the
margin of dumping likely to prevail that was reported to it by the USDOC.
698
(b) Main arguments of the third parties
8.133 Korea submits that, in conducting a sunset review, the margins and results of the original
investigations and administrative reviews are regarded by the USDOC as key factors in reaching a
likelihood determination. If applicable margins or re sults are inflated as a result of the application of
zeroing and if the inflated data are then taken into account in a sunset review, such a sunset review
also constitutes violation of relevant provisions of the Anti-Dumping Agreement, such as Articles 2.1,
2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement . In Korea's view, the sunset reviews of the
USDOC cannot be separated from previous anti-dumping proceedings.699
8.134 Norway submits that the Appellate Body has held that all dumping margins in sunset reviews
conducted in accordance with Article 11.3, must c onform to the disciplines of Article 2.4. If the
margins are calculated using a methodology that is inc onsistent with Article 2.4, then this could give
rise to an inconsistency not only with Article 2.4, but also with Article 11.3. The Appellate Body has
confirmed that this also applies where the inves tigating authority relies on margins calculated (with
the use of zeroing) during periodic reviews. Based on the above, Norway considers that the
United States has violated Article 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement by relying
on past dumping margins calculated with zeroing, in determining the likelihood of dumping in the
sunset review proceedings related to measures challenged in the original dispute.700
(c) Evaluation by the Panel
8.135 With respect to subsequent sunset review determinations, the European Communities requests
that we make the following finding:

sunset reviews challenged by the EC are not within our terms of reference and are not "identified" in the EC
panel request, as required by Article 6.2 of the DSU.
698 US Comments on EC Answer to Panel Question 6, referring to Panel Report, United States – Anti-
Dumping Measures on Oil Country Tu bular Goods (OCTG) from Mexico ("US – Anti-Dumping Measures on
Oil Country Tubular Goods "), WT/DS282/R, adopted 28 November 2005, as modified by Appellate Body
Report, WT/DS282/AB/R, DSR 2005:XXI, 10225, para. 7.83, and Appellate Body Report, United States – Anti-
Dumping Measures on Oil Country Tu bular Goods (OCTG) from Mexico , ("US – Anti-Dumping Measures on
Oil Country Tubular Goods") WT/DS282/AB/R, adopted 28 November 2005, DSR 2005:XX, 10127, para. 180.
699 Korea's Third Party Submission, paras. 21-22.
700 Norway's Third Party Submission, paras. 23-27.

"the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping
Agreement when extending the measures contained in the original dispute pursuant to
sunset review proceedings relying on margin of duties calculated with zeroing."
8.136 We recall that we have determined that the fo llowing sunset review determinations fall within
our terms of reference because they potentially affect the US implementation of the DSB's
recommendations and rulings:
(a) USDOC final likelihood-of-dumping determination in cases 2, 4 and 5 (4 June 2007);
(b) USDOC preliminary likelihood-of-dumping determination in case 3 (30 May 2007);
(c) USDOC final likelihood-of-dumping determination in case 19 (5 February 2007).
8.137 In the first instance, we note that there is a certain degree of inconsistency in the EC
arguments in support of its claims with respect to subsequent sunset review determinations. In its
First Written Submission, the European Communities argued that in all the sunset reviews that it
challenges, the USDOC relied on past dumping marg ins in making the determination of likelihood of
dumping and that those dumping margins had been calculated in original investigations or
administrative reviews using zeroing. 701 In its Answer to Panel Question 6, however, the European
Communities submits that "the dumping margins used in all sunset reviews liste d in the Annex to the
Panel Request were those of the original orders". 702 The European Communities seems, in this later
submission, to refer to the margins reported by the USDOC to the USITC as margins of dumping
likely to prevail in case the orders were continue d. Yet, the Appellate Body reports on which the
European Communities relies address the USDOC's reliance on the continued existence of dumping
after the issuance of the AD order, i.e. basing its decision regarding likelihood-of-dumping on
margins calculated in administrative reviews.703
8.138 With respect to cases 2, 4 and 5, the Eur opean Communities specifically refers to the
statement of the USDOC that "[g]iven that dumping has continued at above de minimis levels, the
Department determines that dumping is likely to continue or recur if the order were revoked". 704 The
Issues and Decision Memorandum in these cases indicat es clearly that the USDOC relied on both the
fact that imports had decreased following issuan ce of the order, and on the fact that dumping
continued after the issuance of the order, with r espect to imports from France, Italy, and the United

701 The European Communities submits that the USDOC has explicitly rejected arguments of exporters
that it should take into consideration what the margins would have been had the Department not applied zeroing
in calculating them, noting in this respect that it had not modified its calculation methodology in respect of the
use of zeroing in administrative reviews. EC First Written Submission, para. 69, referring to Issues and
Decision Memorandum for the Sunset Review of the Antidumping Duty Order on Stainless Steel Bar from
Germany; Final Results, USDOC (1 October 2007), p. 5 (Exhibit EC-10).
702 Annex B of EC Answer to Panel Question 6.
703 See, inter alia, Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on
Corrosion-Resistant Carbon Steel Flat Products from Japan ("US – Corrosion-Resistant Steel Sunset Review"),
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3, para. 130 and Panel Report, United States – Sunset
Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (" US –
Corrosion-Resistant Steel Sunset Review "), WT/DS244/R, adopted 9 January 2004, as modified by Appellate
Body Report, WTDS244/AB/R, DSR 2004:I, 85, paras. 7.150-7.155; Panel Report, United States – Measures
Relating to Zeroing and Sunset Reviews ("US – Zeroing (Japan) "), WT/DS322/R, adopted 23 January 2007, as
modified by Appellate Body Report, WT/DS322/AB/R, paras. 7.255-256 and the panel's comments, reflecting
our own, at para. 7.243 and footnote 849.
704 EC First Written Submission, para. 69, referrin g to Issues and Decision Memorandum for the
Expedited Sunset Reviews of the Antidumping Duty Orders on Stainless Steel Bar from France, Italy, South
Korea, and the United Kingdom; Final Results, USDOC (25 May 2007), p. 6 (Exhibit EC-9).

Kingdom.
705 With respect to the USDOC's likelihood-of-dumping determination in case 3, the
European Communities included in the Annex to its Panel Request the Preliminary USDOC
Determination. As part of its First Written Su bmission, the European Communities subsequently
provided the Panel with the Issues and Decision Memorandum to the USDOC's Final likelihood-of-
dumping determination. That Memorandum indicates that the USDOC relied on the fact that imports
decreased after the issuance of the order and that dumping occurred at more than a de minimis level
after the issuance of the order, on the basis of the margins of dumping calculated using zeroing in
subsequent administrative reviews.
706 With respect to the USDOC likelihood-of-dumping
determination in case 19, the European Commun ities has not referred us to any specific USDOC
language in support of its claims, limiting itself to asserting that the margin of dumping used by the
USDOC was that calculated in the original inv estigation. The Issues and Decision Memorandum
submitted to the Panel by the United States however indicates that the USDOC found that dumping
was likely to continue or recur if the orders were revoked based on its finding that dumping had
continued at above de minimis levels since the issuance of the order. 707 It seems clear to us from the
Issues and Decision Memoranda in th ese cases that the findings that dumping had continued at above
de minimis levels since the issuance of the relevant AD order refer to dumping margins that had been
calculated in administrative reviews, using zeroing.
8.139 Even assuming that the Europ ean Communities has made a prima facie case that the USDOC
relied on dumping margins calculated with zeroing in these sunset reviews, however, we cannot make
the finding requested by the European Comm unities. The European Communities has not
demonstrated that the USDOC determinations it challenges resulted in the continuation of the
underlying AD order as of the time this Panel was established. 708 In fact, in cases 2, 3, 4, and 5, the
sunset review proceedings had not been concluded as of that date, and eventually resulted in the
revocation of the orders, following a negative likelihood-of-injury determination by the USITC. 709
With respect to case 19, the proceedings had not b een concluded, and thus, there was no continuation
of the underlying order as of this Panel's establishment.
8.140 Thus, any failures by the United States in these sunset reviews had not yet materialized as at
the date of the establishment of this Panel, and thus had no effect on the US implementation of the
DSB's recommendations and rulings. As a conseque nce, we cannot find that the United States has
"violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the
measures contained in the original dispute pursuant to sunset review proceedings relying on margin of
duties calculated with zeroing" (emphasis added) . We therefore do not consider that the
European Communities has demonstrated that the United States failed to comply with the
recommendations and rulings of the DSB in the sunset reviews at issue.
8.141 As a result, we do not make any findings in respect of the EC claims of violation under
Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement in subsequent sunset review
determinations. Nor do we need to make findings w ith respect to the EC claim that the United States
failed to comply with the DSB's recommendations and rulings because the United States relied on

705 Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty
Orders on Stainless Steel Bar from France, Italy, South Korea, and the United Kingdom; Final Results, USDOC
(25 May 2007), p. 6 (Exhibit EC-9).
706 Exhibit EC-10, p. 5.
707 Exhibit US-25, p. 5.
708 Issues and Decision Memorandum from Notice of Final Results of Expedited Sunset Review of the
Anti-dumping Orders: Certain Pasta from Italy and Turkey (5 February 2007). As discussed further below,
para. 8.226, we consider that we must make our findings with respect to the situation existing on the date of our
establishment.
709 Exhibit US-13, Revocation of Antidumping Duty Orders on Stainless Steel Bar from France,
Germany, Italy, South Korea, and the United Kingdom and the Countervailing Duty Order on Stainless Steel
Bar from Italy (73 FR 7258), 7 February 2008.

margins of dumping calculated in subsequent administ rative reviews in the context of sunset review
determinations.710
3. EC claims with respect to subsequent admini strative reviews and with respect to US
actions to collect AD duties calculated with zeroing
(a) Main arguments of the parties
8.142 The European Communities submits that the United States has not fully implemented the
recommendations made by the DSB in the original di spute. The European Communities claims that,
with respect to the original investigations and admi nistrative reviews at issue in the original dispute,
the United States continues, after the end of the reasonable period of time, to take positive acts,
including new administrative review investigations , assessment instructions and final liquidations,
based on zeroing.711 The European Communities submits that the United States still seeks to liquidate
entries concerning measures which were covered by the original di spute, applying the same zeroing
methodology which was found inconsistent with the Anti-Dumping Agreement and the GATT 1994 by
the rulings and recommendations of the DSB. In particular, the European Communities considers that
any determination of dumping based on zeroing made after the end of the reasonable period of time in
connection with the measures challenged in the orig inal dispute is inconsistent with the DSB's
recommendations. Further, the European Commun ities maintains that any collection or final
liquidation of duties based on zeroing with respect to the measures at issue in the original dispute,
including the subsequent reviews listed in the Annex to its Panel request taking place after
9 April 2007, is also inconsistent with those recommendations and rulings. 712 The European
Communities considers that, with respect to the or iginal investigations a nd administrative reviews
challenged in the original dispute, the United Stat es still continues to collect anti-dumping duties and
establish cash deposit rates inflated by zeroing after the end of the reasonable period of time. Indeed,
after the end of the reasonable period of time, the United States (i) has issued assessment instructions
to collect anti-dumping duties based on zeroing; (ii) has established new cash deposit rates based on
zeroing, and (iii) continues proceedings for final liquidation of duties calcu lated with zeroing with
respect to measures which were covered by the original dispute. 713 Since the United States still
collects anti-dumping duties calculated with zeroing with respect to measures challenged in the
original dispute, the European Communities requests that the Panel find that the measures listed in the
Annex to the Panel request are inconsiste nt with Articles 2.4.2 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 and that the United States remains in violation of these
provisions.714 The claims of the European Communities c oncern both the original investigations and
the administrative reviews covered by the original proceeding.
8.143 With respect to the original investigations at issue in the original dispute, the European
Communities asserts that:
(a) the United States has issued assessment instru ctions to collect duties in subsequent
administrative reviews in which simple zeroing was used in calculating the amount of
duty to be paid, and the results were obtained after 9 April 2007. 715 In addition, the

710 See below para. 8.198 for the EC claims in this respect; see also the discussion at para. 8.222.
714 EC First Written Submission, para. 88. The European Communities considers that the issue of the
conformity of the use of zeroing with the Anti-Dumping Agreement is res judicata and that this Panel should
therefore not address it. EC First Written Submission, para. 87.
715 European Communities First Written Submission, para. 78. The European Communities gives the
example of case 1 (Hot-Rolled Steel Fl at Products from the Netherlands), in which the USDOC instructed the

European Communities claims that the Un ited States has also issued assessment
instructions to collect duties after 9 April 2007 in cases where the results were
obtained before 9 April 2007, after legal proceedi ngs brought by importers against
the final assessments made by the USDOC were concluded;
716
(b) in cases where administrative reviews were not requested, the United States has, after
9 April 2007, issued assessment instructions to collect duties at the rate established in
the original investigations covered by the original dispute, in which model zeroing
was used;717
(c) the United States, after 9 April 2007, h as established new cash deposit rates,
calculated using simple zeroing in subse quent administrative reviews in connection
with the original investigations challenged in the original dispute.718
8.144 With respect to the admini strative review proceedings covered in the original dispute, the
European Communities asserts that the United States has issued assessment instructions to collect
anti-dumping duties, and has established new cash depos it rates calculated using simple zeroing, in
subsequent administrative reviews where results were obtained after 9 April 2007.719
8.145 With respect to both the original inves tigations and the administrative reviews covered by the
original proceedings, the European Communities asserts that the Un ited States, after 9 April 2007,
still actively seeks to collect AD duties as a result of modifications of the original measures pursuant
to subsequent administrative reviews for which assess ment instructions were sent before 9 April 2007
and where "simple zeroing" was used. The US aut horities continue proceedings to obtain the final
payment of the duties, even where importers have brought legal proceedings against the assessment
instructions issued to collect duties calculated with zeroing or have protested the liquidations made by
the US authorities. Thus, the European Co mmunities argues that, after 9 April 2007, the
United States continues to take positive acts to obt ain final payment of duties due or retain cash
deposits made which were calculated based on zeroing with respect to those entries that were not
finally liquidated before the end of the reasonable period to implement.720
8.146 With respect to the above, the European Communities argues that the DSB recommended that
the United States bring the measures at issue in the original dispute into c onformity, including "any
amendments" and "each assessment instructions issu ed pursuant" to the original orders and/or
administrative reviews. The European Communiti es adds that the modifications made by the
United States have not changed the "essence" of the contested measure in the original dispute (use of

USCBP to collect duties at 2.26 per cent on 22 June 2007, even though the Section 129 determination revoked
the original order on 23 April 2007 since, without zeroing, no dumping was found.
716 See EC First Written Submission, footnote 67.
717 EC First Written Submission, para. 79. The European Communities gives again the example of
case 1 (Hot-Rolled Steel Flat Products from the Netherlands), in which the fifth administrative review, covering
imports from 1 November 2005 to 31 October 2006, was rescinded, and the duty resulting from the original
investigation was therefore applied. The assessment inst ructions in that case were issued on 16 April 2007 and
the USCBP subsequently instructed the ports to liquidate those entries on 23 April 2007.
718 EC First Written Submission, para. 80. The European Communities submits that, for instance, in
case 6, on 9 May 2007, the USDOC inst ructed USCBP to collect AD duties at 19.36 per cent, even though the
Section 129 determination revoked the original order on 23 April 2007, and in addition, the USDOC notified the
USCBP of the revised cash deposit rate for the exporter concerned.
719 The European Communities gives, as example, that of case 23, in which it alleges that the USDOC
imposed duties at a rate of 35.35 per cent on Solvay Solexis, successor of Ausimont SpA, using "simple
zeroing" and established the new amount as the new cash deposit rate. EC First Written Submission, para. 73.
720 EC First Written Submission, para. 82. The European Communities again gives as example that of
case 1. See EC First Written Submission, footnote 75.

zeroing in original investigations and administra tive reviews), and the products from the countries
concerned in the original dispute are still subject to anti-dumping duties imposed pursuant to the use
of a WTO-inconsistent methodology.721
8.147 The European Communities also submits the United States has failed to revoke the original
AD orders entirely, as it should have done as a result of the DSB recommendations and rulings, in
cases where the original orders were revoked in fu ll or in part. The European Communities alleges
that in such cases, there is no longer, as from the date of revocation, any legal basis allowing the
United States to collect duties on past entries or s ubmit future entries to a cash deposit rate based on
zeroing and that, in such cases, the status of an y subsequent administrative review and methodology
used to determine dumping margins is irrelevant. As a result, the European Communities considers
that any future liquidation of entries subject to a revoked order (including those revoked for reasons
other than zeroing), or with respect to an expor ter excluded from the scope of the relevant order,
would be illegal, since this would amount to taking a positive act, already found to be WTO
inconsistent, after the expiry of the implementation period, and since the original measure is void.
8.148 The European Communities further argues that the 16 administrative reviews challenged in
the original dispute have not yet been "superseded" by subsequent administrative reviews, since the
effects of the originally-challenged administ rative reviews still continue today. The
European Communities argues that for the 16 admi nistrative reviews to be "superseded", the
United States should have stopped them (by not co llecting duties calculated with "simple zeroing")
and replaced them (by collecting the duties and establishing new cash deposits based on a
methodology without zeroing). The United States do es neither as (i) it still collects duties established
in the administrative reviews contested in the original dispute;
722 and (ii) it has failed to recalculate the
dumping margins without zeroing in all the administrative reviews covered in the original dispute and,
as a result, still collects the duties and establishes new cash deposit rates based on zeroing.723
8.149 The European Communities considers that for th e United States to comply with the DSB's
recommendations and rulings immediately after th e end of the reasonable period of time, the
United States should have refrained from taking positive acts providing for the final payment of duties
or retention of cash deposits based on zeroing with r espect to entries not finally liquidated before the
end of the reasonable period, regardless of when those imports where made. The
European Communities focuses on the fact that lia bility to pay AD duties, which the European
Communities considers to be the determination of th e final amount to be collected and, thus, the
obligation to pay duties in that amount, is decided at a later stage than the time of importation under
the US system. While the potential liability for anti-dumping duties estimated as a result of the
original anti-dumping order is created at the time of importation, the specific amount of duties to be
collected, and thus, the final anti-dumping liability (if any) is only established at a later stage, pursuant
to administrative review proceedings.
724 The European Communities cannot understand why the

721 EC First Written Submission, paras. 84-85.
722 The European Communities gives the ex ample of case 31 (Ball Bearings from the
United Kingdom), in which the United States still issues assessment instructions and establishes cash deposits
based on the last completed administrative review for NSK Bearing Europe ( i.e., the one challenged and found
WTO-inconsistent in the original proceedings). EC First Written Submission, paras. 92-98.
723 The European Communities also su bmits that the fact that the US has not recalculated the dumping
margins in the administrative reviews co ncerned also affects the extension of the original orders through sunset
reviews (the US has relied on the dumping margins found in the administrative reviews covered by the original
dispute, and therefore calculated on the basis of zeroing, in order to extend the original AD orders).
724 EC Second Written Submission, paras. 69-74, EC Opening Statement, paras. 50-51. Referring to
the Panel Report in US – Shrimp (Thailand) , para. 7.106, the European Communities argues that the
United States has admitted this feature of its duty assessment system. The European Communities explains that
even if products are, at the time of importation, po tentially liable for AD duties, the US system of duty
assessment implies that such a respon sibility only materialises when the am ount of duties due for a particular

United States would not, in a simple accounting exerci se, adjust its calculations so as to properly ( i.e.,
without zeroing) reflect the degree of dumping that occurred, if any, having a full opportunity to do so
in subsequent reviews of the measures concerned or in the appeals and protests filed by importers
against them, and at least with effect from the end of the reasonable period of time.
725
8.150 The European Communities considers that the approach it advocates does not imply
retrospective relief.726 It argues that it is possible for the Un ited States to take positive steps after the
end of the reasonable period of time to comply with the DSB's recommendations and rulings in
respect of entries which were made before then, w ithout this involving any retrospective relief. The
European Communities argues in th is respect that the United St ates has itself re cognized that
Section 129 (c)(1) permits the USDOC to apply new, WTO-consistent methodologies to entries made
before the date of implementation of a Section 129 determination.
727
8.151 The European Communities rejects the US th eory that implementation obligations only
extend to imports made after the end of the reasona ble period of time. It considers that the US
description of AD measures as "border measures" is irrelevant since the US system of duty
assessment operates on a retrospective basis – when the product is imported no duty is collected at the
border and, thus, AD proceedings do not hinder customs clearance 728, and the final amount of duties
to be collected in connection to the importation s ubject to the anti-dumping order is established when
the product has been already introduced into the US market. 729 The European Communities argues
that the US theory on compliance is insufficient because it allows the United States to keep its WTO-
inconsistent measures effectively in place even afte r the end of the reasonable period of time. The
measures challenged in the original dispute are s till in place since, until the United States stops taking
positive acts to enforce them, their effects persist even after the end of the reasonable period of time.
The European Communities also notes that the US – Shrimp (Thailand) Panel already rejected the US
argument that, if final liability only arises after the completion of an administrative review, there

period is determined pursuant to ad ministrative review proceedings. Bu t, the European Communities notes,
even the amount established by the administrative review proceeding is not final and conclusive: interested
parties may challenge the results of administrative reviews in court. Such an appeal may involve the suspension
of the issuance of assessment instructions until there is a final ruling on the matter. Once there is a final ruling
from the courts, the USDOC sends assessment instructions to the USCBP, which sends liquidation instructions
to the ports authorities. However, importers may file a protest against those liquidations with the USCBP. Only
when there is a decision from the USCBP on such a protest does the liquidation becomes final and conclusive
(i.e., according to the EC, only at that time is the final liability of the importer to pay AD duties established).
726 The European Communities does not argue that the WTO dispute settlement system provides for
retrospective relief. EC Second Written Submission, para. 77.
727 The European Communities cites to the arguments made by the United States to this effect in the
context of the US – Section 129 dispute. The European Communities also notes that the panel in that case found
that "Section 129(c)(1) does not have the effect of precluding the application of methodologies developed in a
Section 129 determination in administrative reviews of 'prior unliquidated entries'". See EC Second Written
Submission, para. 80, referring to Panel Report, US – Section 129 , citing para. 6.72. The
European Communities argues that it follows a similar approach in Council Regulation No 1515/2001 on
measures which may be taken following an adopted DSB report on AD matters; that Regulation provides that
"any measure taken under this Regulation will take ef fect from the date of their entry into force, unless
otherwise specified, and therefore, do not provide any basis for the reimbursement of the duties collected prior
to that date". (emphasis added by the European Communities). See EC Second Written Submission, para. 81.
728 The European Communities cites to on Article 5.9 of the Anti-Dumping Agreement . EC Second
Written Submission, para. 83.
729 The European Communities also notes that in the anti-dumping context under US municipal law, the
general rules for distinguishing prospective effect from retrospective effect turns on the date of liquidation, not
the date of entry. The European Co mmunities refers the Panel to the decision of the US Court of Appeals for
the Federal Circuit in Parkdale International v. United States , 475 F.3d 1375, 1379 (Fed. Cir. 2007)
(9 February 2007). EC Answer to Panel Question 33.

would not be "final action" in the sense of Ar ticle 17.4 and thus, no WT O challenge would be
possible until the completion of an administrative review. 730 The European Communities also
disagrees with the US assertion that taking the date of entry as the reference for compliance is in line
with the prospective implementation of DSB recomme ndations and rulings, and is also the only relief
available under prospective anti-dumping systems. The European Communities maintains that in both
prospective and retrospective systems, after the e nd of the reasonable period of time, no new measure
(or omission) can be taken that is inconsistent with the adopted DSB report, regardless of the date of
entry covered by that measure. The European Co mmunities asserts that it is not itself prevented from
applying a WTO-consistent methodology to previous en tries pursuant to an act or decision taken after
the end of the reasonable period of time, and indeed would do so, thereby complying with the DSB's
recommendations and rulings in a prospective manner.731
8.152 The European Communities submits that the application of the US theory as regards
implementation would lead to absurd results, contra ry to Article 21 of the DSU, as the United States
could continue collecting duties based on zeroing after the end of the reasonable period of time even if
the original antidumping order has been revoked. Moreover, the European Communities argues, the
US interpretation would render its system of duty assessment untouchable, as a moving target that
escapes AD disciplines, contrary to the purpose and objective of Article 21 of the DSU. Each US
administrative review would have to be the subject of a new panel request, and by the time the panel,
Appellate Body and implementation procedure were completed, another administrative review would
have superseded its results, meaning that a new panel would have to be started against this subsequent
review. Finally, the European Communities submit s that even if complia nce is assessed under the
United States' own theory, the United States has not complied with the DSB recommendations and
rulings. The United States continues to subject im ports made after 9 April 2007 in case 6 (Stainless
Steel Wire Rod from Sweden) to the original AD duties based on model zeroing and continues to
collect AD duties and to impose cash deposits on imports in case 31 (Ball Bearings from the
United Kingdom) made by one company (NSK) at the rate based on simple zeroing in the
administrative review challenged in the original dispute.
732
8.153 The United States considers that it has taken the necessary measures to comply with the
recommendations and rulings of the DSB. The Un ited States asserts that it has complied with the
DSB's recommendations and rulings in two ways. Fi rst, with respect to some of the anti-dumping
measures challenged in the original dispute, it revoked the anti-dumping duty orders, thereby
removing the anti-dumping duty liability for entries o ccurring on or after the date of revocation.
Second, the United States removed the border measur e, the cash deposit rate, with respect to entries
occurring on or after the date of implementation.733
8.154 With respect to the original investigations at issue in the original dispute, the United States
has recalculated the margins of dumping in these dete rminations and has, in some cases, revoked the
anti-dumping order or excluded certain exporters. Ot her orders were revoked for reasons other than
zeroing before the adoption by the DSB of its r ecommendations and rulings, and still other orders
were revoked subsequently as a result of sunset review s. Thus, with respect to the 15 determinations
made in investigations that were at issue in the original dispute, 9 concern anti-dumping orders that

730 EC Opening Statement, para. 52 and footnote 28, referring to Panel Report, US – Shrimp
(Thailand), para. 7.121.
731 The European Communities argues that in the European Communities' system, the date of entry is
not the only parameter as regards prospective compliance, and the new WTO consistent measure may well apply
to prospective entries. Th e European Communities refers to the recent ruling of the European Court of Justice
in Ikea Wholesale. See European Communities Opening Statement, para. 56

are now revoked. For all of these, no anti-dumping duties will be assessed on entries made after the
effective date of the revocation.
8.155 With respect to the 16 administrative reviews
 at issue in the original dispute:
(a) In some instances, the United States has revoked the AD order giving rise to the
determinations challenged by the European Communities . Under US law, the
United States no longer has the authority to collect cash deposits, or assess anti-
dumping duties, on products subject to a revoked anti-dumping order which are
imported on or after the date of revocation. This is the situation with respect to 4 of
the 16 determinations challenged by th e European Communities in which the AD
orders have been revoked in whole or with respect to certain companies. 734 T h e
United States considers that the elimina tion of these orders has brought it into
compliance with the recommendations and rulings related to those orders.
(b) With respect to the remaining reviews, the United States considers that it has
implemented the recommendations and rulings because each of those reviews has
been superseded by subsequent administrative reviews. The cash deposit rate
established in the challenged determinati on, which is the only aspect of the
administrative review that could, absent US compliance, have continued beyond the
expiration of the reasonable period of time, is no longer in effect; to the extent that a
cash deposit rate is currently in effect with respect to the same product from the same
EU Member State, it is the result of a separate determination of dumping made in a
separate administrative review examining distinct facts and different transactions
during a subsequent period of time.
735 The United States considers that since the
originally challenged reviews were supersed ed by the date of the EC Article 21.5
panel request (and before the expiry of the reasonable period of time), no further
entries are subject to cash deposit rates established in the administrative reviews
challenged in the original dispute.
736
8.156 The United States considers that for the pur poses of assessing compliance with rulings and
recommendations of the DSB relating to duties, one has to examine the treatment accorded to goods
entered on or after the expiration of the reasonable period of time. The United States considers that,
as a result, it has no implementation obligation with respect to entries made before 9 April 2007. The
United States argues that the European Co mmunities has long held the same position
737, and that this
follows logically from the fact that the WTO dispute settlement provides prospective, not

734 US First Written Submission, paras. 93-95, referring to case 16 (Industrial Nitrocellulose from
France, revocation effective 1 Augu st 2003); case 17 (Industrial Nitrocellulose from the United Kingdom,
revocation effective 1 July 2003); case 19 (Pasta from Italy, revoked for Ferrara effective 9 February 2005, and
for Pallante effective 29 November 2005); and cases 25/26 (Stainless Steel Sheet and Strip in Coils from France,
revocation effective 27 July 2004).
735 See the chart in Exhibit US-17 for a list of the subsequent reviews that the United States submits
superseded each of the administrativ e reviews challenged in the original dispute. See US First Written
Submission, footnote 100. The United States, however, admits that the cash deposit rate established in the
administrative review of Ball Bearings from the United Kingdom (case 31), which was found to be WTO-
inconsistent in the original dispute, still remains in place.
736 US First Written Submission, paras. 96-97.
737 The United States notes that the European Communities argued along these lines in the Section 129
dispute (siding with the United States and opposing Canada's arguments) and that the European Communities
has taken the same position in the preamble to its Regulation on the Measures that May be Taken by the
Community Following a Report Adopted by the WTO Dispute Settlement Body Concerning Anti-Dumping and
Anti-Subsidy Matters, and took a similar view when it implemented the DSB recommendations and rulings in
EC – Chicken Cuts. US First Written Submission, paras. 98-99, Exhibits US-18 and US-19.

retrospective relief. The United States also cont ends, in this respect, that in a WTO dispute
challenging an AD or CVD measure, the me asure in question is a "border measure". 738 Accordingly,
eliminating a WTO-inconsistent anti-dumping or CVD measure prospectively at the border, including
where an administrative review is superseded by a subsequent one, constitutes "withdrawal" of the
measure within the meaning of Article 3.7 DSU.
8.157 The United States submits that relief in the WTO dispute settlement system is prospective in
nature, with the result that in the context of an ti-dumping duties, the recommendations and rulings of
the DSB do not serve as the basis for the reimburse ment of duties – even EC law recognizes this
principle.739 The United States argues that the texts of the GATT 1994 and the Anti-Dumping
Agreement confirm that it is the legal regime in exis tence at the time of importation that determines
whether the import is liable for the payment of AD duties, and that determining whether relief is
"prospective" or "retroactive" can only be dete rmined by reference to the date of entry. 740 In this
regard, the US system is no different from a pr ospective duty system and would not be made
"untouchable" or a "moving target" under the US inte rpretation. The United States asserts that the
result it advocates is consistent with the effect that a finding of inconsistency would have on an anti-
dumping measure in a prospective anti-dumping system : if an anti-dumping measure is found to be
inconsistent with the Anti-Dumping Agreement , the Member's obligation is merely to modify the
measure as it applies at the border to imports occu rring on or after the date of implementation. The
Member changes the amount of anti-dumping duti es to be collected on importations occurring after
the end of the reasonable period of time, but need not remedy the effects of the measure on imports
that occurred prior to the date of implementation. This is the system to which the WTO Members
agreed, and it applies to all Members equally. Th e EC theory of implementation would discriminate
against Members like the United States for having a retrospective duty assessment system. If liability
is the relevant point for assessing whether relief must be provided, then Members with prospective
systems will have no implementation obligations in resp ect of entries made prior to the expiry of the
reasonable period of time, but Members with retrosp ective systems will have such obligations in the
event that the final liability is calculated after the expiry of the reasonable period of time. 741 T h e
United States also submits that th e European Communities seems to have changed its theory during
the course of the proceeding, first arguing that the determination of the final liability after importation
is particular to retrospective systems, and later im plying that it is equally applicable to prospective
systems. The United States posits that perhap s the new theory defended by the European
Communities reflects its acknowledgement of the fact th at, otherwise, using final liability as the basis
for establishing implementation would put retrospec tive systems at a disadvantage. However the
European Communities' sudden change of position is not supported by the text of Articles 9.3.1 and
9.3.2, the report of the original panel, or the European Communities' own prior submissions.742

738 See US First Written Submission paras. 101-10 2, footnote 107. See also US Second Written
Submission, para. 38; the United States concludes that liability for antidumping and countervailing duties
attaches at the time of entry.
739 US Answer to Panel Question 4, US First Written Submission, paras. 99-101, US Closing
Statement, para. 4.
740 US Second Written Submission, paras. 38 ff.
741 US Closing Statement, para. 2.
742 US Closing Statement, para. 3. In addition, the United States submits that the Ikea case does not
stand for the proposition that the European Communities provides retrospective relief (refund of duties) in
connection with its implementation of DSB recommendations and rulings; in that case, the European Court of
Justice expressly rejected th e notion of refunding the duties on that basis. Instead, the Court found that that
zeroing was inconsistent with the European Commun ities' Basic anti-dumping Regulation and was a "manifest
error of assessment with regard to Community law"; it is on that basis (inconsistency with Community law), not
inconsistency with the Anti-Dumping Agreement, that the Court ordered the repayment of duties. Thus, while
the European Communities may in some circumstances prov ide refunds under its municipal law, that does not
mean that there is any WTO obligation to do so. US Closing Statement, para. 4.

8.158 Finally, the United States submits that the EC arguments raise a fundamental problem. If it
were true that, as alleged by the European Co mmunities, liability for AD duties only arose after the
completion of an administrative review, this w ould mean that whenever the USDOC issued a
determination in an AD investigation, there would be no "final action" as required by Article 17.4 of
Anti-Dumping Agreement to challenge. As a consequence, US determinations could only be
challenged after an administrative review was completed.
(b) Main arguments of the third parties
8.159 India disagrees with the argument of the Un ited States that it has implemented the
recommendations and rulings because each of those reviews has been superseded by determinations in
subsequent administrative reviews. It submits th at even if the original measures may have been
reviewed on different occasions, these are continuati ons of original measures, the results of the
previous review still affect interested parties and subsequent, equally critical procedures.
743
8.160 Japan disagrees with the US argument that no fu rther action is required with respect to
administrative reviews because the reviews at issue in the original dispute have been superseded by
subsequent reviews. Japan notes that, with respect to both of the purposes of a review (establishing a
cash deposit rate for future entries and an importe r-specific assessment rate to determine duties on
past entries), a review continues to operate, and produce legal effects, for some uncertain period of
time after the completion of the review.744 In Japan's view, the decisive issue in deciding whether the
United States must modify the WTO-inconsistent periodic reviews is whether these reviews continue
to produce legal effects after the end of the reasonable period of time. If a review continues to operate
after that date, it must be modified to ensure that it is applied in the future in a WTO-consistent
fashion.745 Bringing a measure into conformity with WTO law under Articles 19.1 and 21.3 of the
DSU requires an implementing Member to take action to withdraw, modify or replace the WTO-
inconsistent measures before the end of the reasonable period of time.746 In this dispute, the importer-
specific assessment rates in the c ontested periodic reviews have not expired, been revoked, modified
or replaced in a manner that makes them WTO-consiste nt and the rates continue to be inflated as a
result of the application of simple zeroing. Thus, the amount of duties yet to be collected on the basis
of these rates continues to exceed the properly de termined margin of dumping, in violation of
Article 9.3 Anti-Dumping Agreement and Article VI:2 GATT 1994. Jap an agrees with the European
Communities that where the United States takes act ion, through USDOC instructions to the USCBP
or USCBP payment notices, to collect duties after the end of the reasonable period of time pursuant to
the assessment rate of a WTO-inconsistent review, it must bring the measure into conformity before
proceeding to duty collection as in that event, the re view continues to be operational after the end of
the reasonable period of time because it provides the United States with a legal basis for the actions
taken by the USDOC and USCBP after that date to collect duties.
747 Japan considers that there is

744 Japan notes that, in the case of the cash deposit rate, it continues to operate until a further periodic
review occurs, which can be at least 12 months and, in some circumstances, much longer. In the case of the
importer-specific assessment rate, it continues to be legally operational until definitive duties are collected on
the basis of that rate, which can be a period of several years after the review is completed. See Japan's Third
Party Submission, paras. 78-82.
746 Japan's Third Party Submission, paras. 84-93. In Japan view, inaction by a Member to bring its
measure into conformity is justified only where the measure at issue is no longer legally operational after the
end of the implementation period.
747 Japan's Third Party Submission, paras. 94-100; Japan's Opening Statement, paras. 38-42. Japan also
notes a contrast between the action taken by the USDOC in cases where the final results of a periodic review are
contrary to US law, on the one hand, and to WTO law, on the other hand: if the final results of a periodic
review are found to be inconsistent with US law, they must be revised before the USDOC and USCBP takes any

nothing retrospective about the interpretation that it, or the European Communities, advances. The
key date for judging the prospective character of a remedy is the end of the reasonable period of time
and any actions taken by the implementing Member after that date pursuant to the measure at issue are
prospective in character when viewed from the pe rspective of the end of the reasonable period of
time; this applies to USDOC instructions or US CBP payment notices issued after the end of the
reasonable period of time. The date of importa tion is not pertinent in judging the prospective
character of the US actions after the end of the reasonable period of time. 748 Japan submits in this
respect that the covered agreements impose obligations on a Member's conduct and that, at the time of
entry, the United States does not take action to collect definitive duties; that action is taken
subsequently pursuant to a periodic review.
749 If the date of entry, and not the end of the reasonable
period of time, were decisive, WTO remedies could never discipline any US actions to collect
definitive anti-dumping duties, even actions occurri ng long after the end of the reasonable period of
time pursuant to a WTO-inconsistent review. The US argument that its implementation obligations
apply solely to new entries that occur on or af ter the end of the RPT produces absurd consequences
that nullify the disciplines in Article 9.3 of the Anti-Dumping Agreement .750 The United States has
omitted to take any action to bring the periodic revi ews into conformity with WTO law, and ensure
that the importer-specific assessment rate provides a WTO-consistent basis for duty collection after
the end of the reasonable period of time.751
8.161 Japan also disagrees with the US argument under Article 17.4 of the Anti-Dumping
Agreement. The fact that final liability is determined in a periodic review does not mean that the
measures resulting from other types of anti-dumpi ng proceedings – investigations, new shipper
reviews, changed circumstances reviews and sunset reviews – are not "final action" for purposes of
Article 17.4. The panel in US – 1916 Act (Japan) explained that this provision addresses challenges
to "actions taken by anti-dumping authorities", as opposed to laws, regulations and administrative
procedures covered by Article 18.4 of the Agreemen t, which may also be challenged even though not
expressly referenced in Article 17.4. Further, the US – Shrimp (Thailand) panel found that
Article 17.4 does not require that definitive anti- dumping duties must have been levied before
consultations may be requested. Thus, the words "f inal action" do not limit the measures that may be
challenged to those collecting the definitive amount of anti-dumping duties determined to be due in a
periodic review; instead, the panel found that "final action" refers to measures whose purpose is "to
levy definitive anti-dumping duties".752
8.162 Korea considers that, regarding the 16 administrative reviews challenged in the original
dispute, the United States has effectively ignored the recommendations of the Appellate Body. In
Korea's view, the US argument that each administrative review is superseded by a subsequent review,
and that it is not required to do anything to impl ement since the administrative reviews challenged in
the original dispute do not exist anymore, comple tely misconstrues the operating mechanism of an
administrative review and seriously threatens to undermine the basic purpose of a WTO dispute

further action to collect duties on the basis of the periodic review. Japan refers to 19 U.S.C. § 1516a(c)(3). See
Japan's Third Party Submission, paras. 99-100.
748 Japan also submits that in the US – Section 129 dispute, the United States admitted that under US
law, a mechanism exists for the USDOC to assess in WT O-consistent fashion, on the basis of adverse DSU
recommendations and rulings, the amount of definitive duties due on entries that occurred prior to the expiry of
the reasonable period of time that were not liquidated by that date. See Japan's Third Party Submission, note 77.
749 In response to the US arguments, Japan argues that the "legal regime that applies to an import at the
time of importation is merely provisional, as at that time, the importing Member does not definitively establish
any right to collect a specific amount of anti-dumping duties; instead, when a periodic review occurs, that right
is established much later in the procedure under Article 9.3." Japan's Opening Statement, paras. 22-25.
750 Japan's Third Party Submission, paras. 101-111, Japan's Opening Statement, paras. 33-37.
751 Japan's Third Party Submission, para. 111.
752 Japan's Answer to Panel Question 21 to the third parties.

settlement procedure.
753 In Korea's view, the completion of a new administrative review does not
mean that the previous review was terminated: unlike other instances where a measure is terminated,
an administrative review does not simply disappear when a new, subsequent review is under way or
completed. The results of the previous review s till affect interested parties and subsequent, equally
critical, procedures. An administrative review found to be WTO-inconsistent thus requires adequate
implementation irrespective of the existence or completion of a subsequent review or reviews. Korea
considers that, in fact, as a measure, an admini strative review can only be terminated when the
underlying order is terminated, either through a sun set review, a changed circumstances review or for
some other reason. 754 Furthermore, the US position would have as a consequence that no Member
could successfully challenge an administrative revi ew or, even if the complaining Member were
successful, it could not hope for an effective remedy. With respect to the US argument that the effects
of the Section 129 determinations apply only to en tries made on or after April 9, 2007, Korea submits
that what was challenged and found to be WTO-inc onsistent in the original dispute was a measure
called "zeroing." In Koreas' view, the entry date of the product should not matter; what matters is
whether a challenged measure which was found to be WTO-inconsistent is still maintained after the
reasonable period of time has lapsed. In this case, the USDOC continues to apply the zeroing
methodology for certain original investigations and ad ministrative reviews even after that date. This
should be dispositive and the Panel should find for the European Communities on this issue. 755
Furthermore, what the European Communities seeks in this proceeding is a prospective remedy. All
the European Communities points out is that the United States continues to fail to eliminate the
zeroing practice at issue after the end of the reasonable period of time. This constitutes a request for a
prospective remedy.756
8.163 Norway considers that the US argument that unde r the EC theory of implementation, there
would be no "final action" to ch allenge under Article 17.4 of the Anti-Dumping Agreement until an
administrative review is concluded is based on a mis understanding of Article 17.4. "Final action" in
that Article is used to distinguish provisional me asures under Article 7. Thus, the argument of the
United States is irrelevant.757
(c) Evaluation by the Panel
(i) Temporal aspect of the obligation to impl ement DSB recommendations and rulings with
respect to AD measures in the case of a Memb er operating a retrospective duty assessment
system
8.164 We first turn our attention to the question of the temporal aspect of a Member's obligation to
implement DSB recommendations and rulings conc erning anti-dumping measures where the Member
concerned operates a retrospective anti-dumping duty assessment system.758

753 Korea's Third Party Submission, paras. 5-6, Korea's Opening Statement, para. 4.
754 Korea's Third Party Submission, para. 7-10, Korea's Opening Statement, paras. 5-6.
755 Korea's Third Party Submission, para. 14-20, Korea's Opening Statement, paras. 7-11.
757 Norway's Answers to Panel Questions 20 and 21 to the third parties.
758 No WTO panel has addressed this precise question before, although the issue arose in US – Section
129(c)(1) URAA . In that dispute, Canada challenged the WTO-consistency of Section 129(c)(1) of the US
Uruguay Round Agreements Act, arguing that it had the effect of requiring the USDOC to apply Section 129
determinations only with respect to imports entered on or after the date of effectiveness of a Section 129
determination, and not to prior unliquidated entries. Th e panel in that dispute, however, considered that it
needed not decide that precise question, as it found that Canada had failed to establish that Section 129(c)(1)
actually required the United States to act in the manner alleged by Canada. See Panel Report, United States –
Section 129(c)(1) of the Uruguay Round Agreements Act (" US – Section 129(c)(1) URAA "), WT/DS221/R,
adopted 30 August 2002, DSR 2002:VII, 2581, para. 6.77. The United States notes that the EC arguments

8.165 The disagreement between the parties concerns the relevant date as of which a Member's
obligation to implement DSB recommendations and rulings attaches to particular decisions and
actions of that Member. The United States consid ers that its implementation obligation in an anti-
dumping dispute is dependent on the date of importation ("entry") of products subject to the AD duty,
and only extends to imports made after the e xpiry of the reasonable period of time. The
European Communities, as well as Korea and Japan, cons ider the relevant date to be that of the action
taken by the responding Member. For these Members, as of the expiry of the reasonable period of
time, the implementing Member cannot take any positive act, be it a dumping determination, e.g. in an
administrative review or some other action, e.g., an instruction to collect anti-dumping duties, to
provide for the final payment of duties or retention of cash deposits calculated inconsistently with the
Anti-Dumping Agreement with respect to entries not finally liquidated as of the expiry of the
reasonable period of time.
759 In practical terms, the disagreement between the parties revolves around
two questions: (i) whether administrative review determinations made after the expiry of the
reasonable period of time, but concerning imports made before that date, must be consistent with the
DSB recommendations and rulings, and (ii) whether actions after the end of the reasonable period of
time to liquidate entries and definitively collect dutie s with respect to imports made before that date
must be consistent with the DSB's recommendations and rulings, even though the calculation of the
amount of duties owing, in an administrative revi ew, may have been made before the end of the
reasonable period of time.
8.166 Thus, the disagreement between the parties rela tes only to the "assessment" and collection of
anti-dumping duties. We do not understand the parties to be in disagreement that a cash deposit rate
established in an administrative review successfully challenged in the original dispute and which
continues to be in effect after the end of the reasonable period of time is subject to the Member's
obligation to implement, i.e., that any such cash deposit rate must be consistent with the Member's
obligations under the Agreement, that is, it cannot derive from a margin of dumping calculation in
which zeroing was used.
8.167 Neither party argues that the obligation to implement DSB recommendations and rulings
should have retrospective effects. Both parties c onsider that the position they advocate is consistent
with the principle that the DSU only provides for pr ospective remedies. Rather, the parties disagree
on what a prospective implementation of DSB r ecommendations and rulings in an anti-dumping
dispute entails in the context of a Member ope rating a retrospective duty assessment system. The
United States in particular considers that the position advocated by the European Communities would
amount to the imposition of a retrospective remedy, contrary to the dispositions of the DSU.
8.168 We do not consider that, to resolve the questi on before us, we need to address whether the
DSU provides only for prospective, as opposed to retrospective, remedies, as the parties do not
disagree on this question. We simply note that th ere is support in previous panel and Appellate Body
decisions for the proposition that the DS U only provides for prospective remedies
760 and, take that

before us are at odds with the position it defended as a third party before the US – Section 129(c)(1) URAA
panel. See US First Written Submission, para. 98 and Exhibit US-18.
759 As explained in the summary of its arguments, the European Communities considers that where
liquidation is delayed by litigation in the US courts, any ac tion to collect or liquidate duties after the expiry of
the reasonable period of time is likewise subject to the US obligation to act in conformity with the Anti-
Dumping Agreement and the DSB's recommendations and rulings.
760 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil) , footnote 494; Panel Report,
United States – Countervailing Measures Concerning Certain Products from the European Communities ("US –
Countervailing Measures on Certain EC Products "), WT/DS212/R, adopted 8 January 2003, as modified by
Appellate Body Report, WT/DS212/AB/R, DSR 2003:I, 73, para. 6.106; Panel Report, European Communities
– Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by
Ecuador ("EC – Bananas III (Article 21.5 – Ecuador)" ), WT/DS27/RW/ECU, adopted 6 May 1999, DSR
1999:II, 803, para. 6.105.

proposition as the starting point of our analysis. An d while we need not definitively decide what is
understood by a "prospective remedy" under the DSU ( a fortiori since the concept is not reflected
expressis verbis in the text of the DSU),
761 we consider that the concept of non-retroactivity in
international law recognized in Article 28 of the Vienna Convention on the Law of Treaties sheds
some light on the application of such a principle of "non-retroactivity". Article 28 of the Vienna
Convention provides as follows:
"Article 28: Non-retroactivity of treaties
Unless a different intention appears from the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the da te of the entry into force of the treaty
with respect to that party."
762
8.169 By analogy, this would suggest that a retrospective remedy would consist in the application of
the obligation to bring measures into conformity wh ere those measures relate to an act or a fact
"which took place" or a "situation which ceased to exis t" before the date of expiry of the reasonable
period of time. The same concept would be captured in the idea of not requiring a Member to "undo"
past acts. 763 Of course, if the act (or measure) continu es to produce effects, it may have to be
amended.
Whether the US obligation to implement exte nds to administrative reviews covering imports
made before the end of the reasonable period of time
8.170 As a starting point to our analysis, we re call that the covered agreements, and the Anti-
Dumping Agreement in particular, discipline measures adopted by a Member or actions taken by such
Member. In the case of a dispute under the Anti-Dumping Agreement , those actions and measures

761 That said, we do consider that the principle finds expression in, e.g., Article 3.7 of the DSU ("… the
first objective of the dispute settlement is usually to s ecure the withdrawal of the measures concerned if these
are found to be inconsistent with the provisions of any of the covered agreements") and 19 of the DSU ("Where
a panel or the Appellate Body concludes that a measur e is inconsistent with a covered agreement, it shall
recommend that the Member concerned bring the measure into conformity with that agreement.")
762 We note that the United States does not consider Ar ticle 28 to be relevant to the question of what a
"prospective remedy" means. See US Answer to Panel Question 32. Japan and Norway are of a similar view.
Japan's Answers to Panel Questions 15, 17 and 18 to th e third parties. Norway's Answer to Panel Question 18
to the third parties. The European Communities indicates that:
"although [Article 28] may provide some guidance in respect of the meaning of the concept of
retroactivity in public international law, it addresses the temporal application of treaties, not of
DSB's recommendations... In any event, any contextual support that might be gleaned from
Article 28 of the VCLT would support the European Communities, insofar as that provisions
makes it clear that any acts or omission post-da ting the entry into fo rce of the new treaty
would be governed by the terms of that treaty".
 European Communities Answer to Panel Question 32. Korea considers that the end of the reasonable
period of time could be considered to be similar to the entry into force of a treaty. Korea's Answer to Panel
Question 18 to the third parties. Like the Brazil – Aircraft (Article 21.5 – Canada) panel, we consider that
"[a]lthough Article 28 addresses the temporal applica tion of treaties, and not of DSB recommendations, it
nevertheless provides some guidance in respect of the meaning of the concept of retroactivity in public
international law". Panel Report, Brazil – Export Financing Programme for Aircraft – Recourse by Canada to
Article 21.5 of the DSU ("Brazil – Aircraft (Article 21.5 – Canada) ") WT/DS46/RW, adopted 4 August 2000,
as modified by Appellate Body Report, WT/DS46/AB/RW, DSR 2000:IX, 4093, footnote 22. In any case, our
findings do not depend on the precise interpretation of the concept of non-retroactive remedies.
763 See also Panel Report, US – Upland Cotton (Article 21.5 – Brazil) para 14.38 (indicating that
requiring a Member to take action with respect to acts which took place before the end of the reasonable period
of time would constitute a retroactive remedy).

necessarily concern the imposition of anti-dump ing measures against imports from another
Member.764 Thus, one would normally assume that a Me mber is required to bring its actions into
conformity with the Anti-Dumping Agreement by the end of the reasonable period of time, at the
latest, which would suggest that any determination, e.g. in an assessment review, made after the end
of the reasonable period of time must be consistent with the Anti-Dumping Agreement.
8.171 The United States submits that anti-dumping du ties (and countervailing duties) are different
in this respect because they are border measures, i.e., they are applied at the national border to
counteract the dumping or subsidization of goods. 765 For the United States, eliminating a WTO-
inconsistent anti-dumping or counte rvailing duty measure prospectivel y at the border, including by
superseding one measure with another, constitutes "withdrawal" of the measure within the meaning of
Article 3.7 of the DSU. From this fact (and from various provisions of the Anti-Dumping Agreement
which we discuss below), the United States draws the inference that, for anti-dumping duties, the
relevant legal regime is that which applies to the products and is in existence at the time of
importation, and that it is this legal regime that determines whether an import is "liable" for anti-
dumping duties. We understand the United States to ar gue that since the legal regime applicable to
the subject imports was determined at the time of their importation, a Member is not required to
change that legal regime as a result of its oblig ation to implement the DSB's recommendations and
rulings and that requiring it to do so would amount to a retrospective remedy.
8.172 The United States also invokes a number of provisions of the Anti-Dumping Agreement and
of the GATT 1994 in support of its argument that th e relevant time to dete rmine implementation is
that of the importation. First, the United States brings to our attention the use of the term "levy" in
Article VI:2 of the GATT 1994; it also submits that Article VI:6(a) GATT 1994 "reflects the fact that
the levying of a duty generally takes place in conne ction with 'the importati on of any product", but
notes that the Ad Note to paragraphs 2 and 3 of Article VI clarifies that notwithstanding that duties are
generally levied at the time of importation, Members may instead require a cash deposit or other
security, in lieu of the duty pend ing final determination of the re levant information. Thus, the
United States argues, the cash deposits serve as a plac e-holder for the liability which is incurred at the
time of entry. Second, the United States su bmits that a number of provisions of the Anti-Dumping
Agreement demonstrate that whether relief is "prospectiv e" or "retrospective" can only be determined
by reference to the date of importation. Th e United States refers to Article 10.1 of the Anti-Dumping
Agreement, which states that provisional measures and anti-dumping duties sha ll only be applied to
"products which enter for consumption after the ti me" when the provisional or final determination
enters into force, subject to certain exceptions, a nd notes that this limitation applies even though the
dumping activity that forms the basis for the dumpi ng and injury findings necessarily occurs prior to
the time that the determination enters into force. Similarly, the United States submits, Article 8.6 of
the Anti-Dumping Agreement states that if an exporter violates an undertaking, duties may be assessed
on products "entered for consumption not more than 90 days before the application of ... provisional
measures, except that any such retroactive assessmen t shall not apply to imports entered before the
violation of the undertaking." Finally, the United States notes that Article 10.6 states that when
certain criteria are met, "[a] definitive anti- dumping duty may be levied on products which were
entered for consumption not more than 90 days pr ior to the date of application of provisional
measures" and that under Article 10.8, "[n]o duti es shall be levied retroactively pursuant to
paragraph 6 on products en tered for consumption prior to the date of initiation of the investigation."
The United States reads these provision s as indicating that, whenever the Anti-Dumping Agreement

764 Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding Portland Cement from
Mexico ("Guatemala – Cement I"), WT/DS60/AB/R, adopted 25 November 1998, DSR 1998:IX, 3767, para. 79.

specifies an applicable date for an action of for anti-dumping duty liability, the scope of applicability
is based on entries occurring on or after that date.
766
8.173 In our view, the US arguments disregard the f undamental fact that, in a retrospective duty
assessment system, the duties appli cable to specific imports of a product are not determined at the
time of entry, but rather, are determined at a later date. In a retrospective system, the actual amount of
any anti-dumping duty liability is only determined at a later point in time, when an assessment review
is conducted, or when it has been determined that such a review will not be conducted, and therefore,
that the duties will be assessed at the cash depos it rate that applied at the time of importation. 767
Article 9.3.1 indicates that, in a retrospective duty assessment system, the " determination of the final
[anti-dumping] liability" is made in the context of an assessment review, retrospectively.768
Article 9.3 and paragraph 1 thereof thus make it cl ear that, in a retrospective assessment system, the
final anti-dumping duty liability determination is only made at the time of the duty assessment
proceeding provided for under Article 9.3.1.
8.174 In our view, it follows that the relevant da te for implementation of DSB recommendations
and rulings concerning anti-dumping duties by a Member operating a retrospective duty assessment
system is the date of the final determination of liability for anti-dumping duties, i.e., the date of the
final determination in the administrative review pr oceeding or the date on which the right to request
such a review has lapsed. 769 As a result, any definitive duty determination made after the end of the
reasonable period of time must be cons istent with the provisions of the Anti-Dumping Agreement and
with the DSB's recommendations and rulings. To c onclude otherwise would mean that a Member is
effectively allowed, after the end of the reasonabl e period of time, to determine the amount of anti-
dumping duties with respect to certain imports in contravention of the provisions of the Anti-Dumping
Agreement. We find no support in either the Anti-Dumping Agreement or the DSU for such a
proposition.
8.175 Our conclusion does not imply the imposition of a retrospective remedy; on the contrary, the
obligation to cease performing WTO-inconsistent acts as of the end of the reasonable of time is, in our
view, eminently prospective in nature. 770 Further, we recall that in the instant case, the
recommendations and rulings of the DSB in the orig inal dispute concerned the calculation of margins
of dumping in the original investigations and ad ministrative reviews challenged. The panel and
Appellate Body found the use of zeroing in the cal culation of margins of dumping in those measures

766 US Second Written Submission, paras. 41-43.
767 In the US system, this happens when the time to request an administrative review has lapsed. The
United States does not contest this basic feature of its du ty assessment system. In fact, the United States argues
that because of this unique feature, and because the implementation obligations must be similar for Members
operating a retrospective system and a definitive system, the position defended by the European Communities
and Japan would impose greater obligations on retrospective systems than prospective systems, with no textual
justification for the disparate treatment. See US Answer to Panel Questions 28 and 40.
768 See also footnote 22 to the Anti-Dumping Agreement:
"When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in
the most recent assessment proceedi ng under subparagraph 3.1 of Article 9 that no duty is to
be levied shall not by itself require the authorities to terminate the definitive duty."
769 Where an administrative review pr oceeding is initiated but later rescinded, the relevant date is that
of the rescission of the proceeding. Further, we note that by "final determination" we do not refer to the date on
which the "Final Results" are signed by the relevant USDOC official, but rather, the effective date (normally the
date of publication in the Federal Register) of th e determination of final anti-dumping liability in the
administrative review process ( i.e., the date of publication of the final results of the administrative review or,
where applicable, the date of publication of the amended results of the administrative review).
770 Panel Report, Brazil – Aircraft (Article 21.5 – Canada) , para. 6.15; Panel Report, India – Measures
Affecting the Automotive Sector ("India – Autos "), WT/DS146/R, WT/DS175/R and Corr.1, adopted
5 April 2002, DSR 2002:V, 1827, para. 6.58.

to be inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994. Our finding has essentially the effect of requiring the United States to cease using
zeroing in the calculation of margins of dumping in th e measures that were at issue in the original
dispute and the other, subsequent , determinations which we have determined fall under our terms of
reference, where the margin of dumping, and the anti-dumping duty liability is determined after the
end of the reasonable period of time. 771 To implement the DSB's recommendations and rulings, the
United States was at least obligated, after 9 April 2007, to cease using the "zeroing" methodology in
the calculation of anti-dumping duties, not only with respect to imports entered after the end of the
reasonable period of time, but also in the context of decisions involving the calculation of dumping
margins made after the end of the reasonable period of time with respect to imports entered before
that date. The fact that the imports concerned pr e-date the expiry of the reasonable period of time
does not excuse the United St ates acting inconsistently with the provisions of the Anti-Dumping
Agreement after the end of the reasonable period of time.
8.176 As a result, we disagree with the US view that it is the legal regime in existence at the time of
importation that determines whether an import is " liable" for anti-dumping duties. The legal regime
that was in place at the time of the importation of the products at issue in that review is not dispositive
as to whether duties are due, and if so, in what am ount. The legal regime in place at the time of
importation is, at most, a provisional one as concerns the final anti-dumping duty liability incurred by
the imports. As a result, our conclusion does not im ply that the United States is required to "undo" or
modify a legal situation which occurred, or was fixed, in the past.
8.177 Our reasoning above is consistent with views e xpressed by the panels and the Appellate Body
in US – Shrimp (Thailand) and US – Customs Bond Directive . These disputes concerned the
consistency with the Anti-Dumping Agreement and the Ad Note to paragraphs 2 and 3 of Article VI of
GATT 1994
772 of additional security collected with respect to certain imports subject to an AD order
and consequent cash deposits. The panels found th at such additional security was subject to the
temporal scope of the Ad Note.773
8.178 On appeal, the Appellate Body upheld the pa nels' ultimate findings with respect to the
temporal scope of the Ad Note , finding that the Ad Note authorizes the imposition of security
requirements during the period following the imposition of a US anti-dumping order. 774 While the
Appellate Body did not share the panels' reasoning on the issue of the legal status of cash deposits as a
security775, it agreed with the panels that, under the US duty assessment system, the final

771 We recall our finding, in section VIII.D.2(c)(iv) above, that the dumping margin calculation in
subsequent administrative review determinations is closely connected with the margin of dumping calculations
in prior administrative review determinations and/or th e original investigation, and that this warrants a
consideration of the USDOC's dumping margin calculations in the subsequent review in the context of this
proceeding.
772 Para. 1 of the Ad Note provides that:
"As in many other cases in customs administration, a contracting party may require reasonable
security (bond or cash deposit) for the paym ent of anti-dumping or countervailing duty
pending final determination of the facts in any case of suspected dumping or subsidization."
773 See Panel Report, US – Shrimp (Thailand) , para. 7.99 and Panel Report, United States – Customs
Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties ("US – Customs Bond
Directive"), WT/DS345/R, adopted 1 August 2008, as modified by Appellate Body Report, WT/DS343/AB/R,
WT/DS345/AB/R, para. 7.78.
774 Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States
– Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties ("US – Shrimp
(Thailand) / US – Customs Bond Directive "), WT/DS343/AB/R, WT/DS345/AB/R, adopted 1 August 2008,
para. 243.
775 See Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 226. The
Appellate Body considered that it was not necessary for the panels to decide on the legal characterization of US

determination of the amount of anti-dumping duties due is made at the time of the assessment review
or, where no assessment review is requested, at the time where it is determined that duties will be
assessed on the basis of the cash deposits collected at the cash deposit rate:
"In the retrospective duty assessment system followed by the United States , the
factual determination of the amounts of anti-dumping duties payable by the importers
is not complete until an assessm ent review has been conducted . A factual
determination of the amount of anti-dumping duties payable occurs even if an
assessment review does not take place. If no interested party requests an assessment
review, the USDOC will instruct United States Customs to assess anti-dumping
duties and liquidate the import entries at the cash deposit rate required upon import
entry. This cash deposit rate is determin ed for each exporter or producer individually
investigated, and is established on the basis of its transactions over the period covered
by the original investigation or the la test assessment review, as the case may be.
Thus, even in the event that no asses sment review has been requested , the final
determination of the facts includes a determination regarding amounts of anti-
dumping duties finally payable , as the USDOC has to instru ct United States Customs
to liquidate the import entries on the basis of the cash deposit rates."
776
"Under the United States' retrospective duty assessment system, the magnitude of
dumping, or, in other words, the amount of final liability for payment of anti-
dumping duties, is determined only in an assessment review."
 777
8.179 Further, the Appellate Body went on to note:
"where no assessment review is requested , the USDOC instructs the United States
Customs to liquidate the import entries on the basis of the cash deposit rate of the
original anti-dumping duty order or the cash deposit rate assessed for the exporter in
the most recent assessment review. Whet her or not an assessment review will be
requested (and whether the final liability w ill be assessed at the previous cash deposit
rate or according to the current data) is not known ex ante. Thus, even in the event
that no assessment review is requested, until liq uidation of the import entries, there is
some uncertainty regarding the magnitude of dumping."
778
8.180 Whether cash deposits are "duties" or a form of security, a question which is not before us,
and which we therefore do not address, the fact remains that in a retrospective duty assessment
system, the final determination of the amount of duty due, based on a calculation of the margin of
dumping for the imports subject to an administrativ e review, only occurs at the time of the final
determination in that review. As a consequence, in our view, where the DSB makes
recommendations and rulings concerning the cal culation of the margin of dumping, the
determinations in subsequent assessment reviews decided after the end of the reasonable period of
time, and involving the same products from the sa me countries, must be consistent with those
recommendations and rulings, regardless of whether the imports in question were made before or after
the end of the reasonable period of time.

cash deposits as duties governed by Article 9 in order to interpret the Ad Note and decide the dispute before
them. As a result, the Appellate Body declared of no legal effect the interpretation developed by the panels that
US cash deposits are not anti-dumping duties governed by Article 9. See Appellate Body Report, US – Shrimp
(Thailand) / US – Customs Bond Directive, paras. 235, 240-242.
776 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive , para. 222.
(emphasis added)
777 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, para. 226.
778 Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive, footnote 268.

8.181 The United States argues that the EC argument that the AD duty liability only materializes
when the amount of duties due for a particular pe riod is determined pursuant to an administrative
review proceeding leads to the absurd result that there would be no "final action" in the sense of
Article 17.4 of the Anti-Dumping Agreement, and therefore, no measure for an aggrieved Member to
challenge, until an assessment review is conducted. 779 It does not, in our view follow from the EC
argument or from our conclusion above that there is no "final action ... to levy definitive anti-dumping
duties". As the European Communities notes 780, a similar argument by Thailand was considered and
rejected by the US – Shrimp (Thailand) panel. The panel noted that Article 17.4 refers to "final action
... by the administering authorities ... to levy defi nitive anti-dumping duties". Thus, the panel found,
Article 17.4 does not state that definitive anti-dumping duties must have been levied; rather, it merely
requires that final action to levy definitive anti- dumping duties must have been taken. The panel
considered that, in this context, the word "to" sh ould be interpreted adverb ially, to express purpose.
Accordingly, the panel considered that the impos ition of an anti-dumping order by the United States
constitutes "final action ... to levy of definitive anti-dumping duties", in the sense that the order puts in
place a mechanism providing for the levying of definitive anti-dumping duties, even though the
amount of those duties – if any – is not calcula ted until some time in the future. In the US – Shrimp
(Thailand) panel's view, if the drafters of Article 17.4 had meant that Members must wait until
definitive anti-dumping duties were actually levied before initiating dispute settlement proceedings,
the relevant phrase in Article 17.4 would have re ad "if definitive anti-dumping duties have been
levied, or price undertakings accepted". 781 We agree with the US – Shrimp (Thailand) panel's
interpretation of Article 17.4. In our view, the use of the term "final action …to levy definitive anti-
dumping duties" in that Article is to be contrasted with the concept of the final determination of the
anti-dumping liability, on which the EC arguments rely.782
8.182 Finally, the parties make a number of argumen ts with respect to the effect the finding
advocated by the European Communities would have in terms of the equality of treatment afforded to
Members operating a retrospective duty assessment system and those operating a prospective
assessment system or a prospective normal value system . In particular, the United States argues that
the position advocated by the European Communitie s would mean that a DSB recommendation with
respect to anti-dumping duties has a different im pact for the Member concerned, depending on
whether it operates a retrospective or a prospec tive duty assessment system. A Member operating a
prospective duty assessment system would not have to reimburse duties collected in excess of a rate
consistent with the Anti-Dumping Agreement, on imports made before the expiration of the reasonable
period of time, but a Member ope rating a retrospective duty assessment system would have to forgo
the collection of such duties since the duties are only "collected" at a later point in time. 783 T h e

779 US Second Written Submission, para. 47 and US Answer to Panel Question 41.
780 EC Answer to Panel Question 36.
781 Panel Report, US – Shrimp (Thailand), para. 7.121.
782 EC Answer to Panel Question 41, Japan's Answers to Panel Questions 20 and 21 to the third parties.
783 See, inter alia, US Comments on EC Answer to Panel Questions 37 and 38. The US notes that even
if it is assumed, as the European Communities argues, that a Member operating a prospective duty assessment
system would be obligated to act consistently w ith the DSB's recommendations and rulings in a refund
proceeding concerning imports before the end of the reasonable period of time, a discrepancy would still persist
as the Member operating the prospective system would be under no obligation to provide a refund in the
absence of a request to that effect whereas a Member operating a retrospective duty assessment system would be
obligated to release cash deposits if a recalculation to implement resulted in a determination of liability less than
the amount of the original cash deposit. The US also notes that in a retrospective system, an importer or
exporter may request a review by right, while in a prospe ctive system, no such right exists. A review may only
be requested by importers, and that request must be "duly supported by evidence". The United States also
argues that notwithstanding the European Communities' argument to the contrary, EC law provides that a
change in the anti-dumping dumping margin based on implementation of a WTO dispute report does not
provide a basis for requesting a refund on duties predating the end of the reasonable period of time. US
Comment on EC Answer to Panel Questions 37 and 38.

United States submits that a proper interpretation of a Member's implementa tion obligations requires
that all systems of duty assessment be treated equally unless the Agreement expressly provides
otherwise, and that nothing in Article 9.3 sugg ests that the existence of a mechanism for final
assessment in a retrospective system imposes increas ed implementation obligations for Members with
such systems as compared to Members operating a prospective duty assessment system.
784
8.183 The European Communities considers that the ex tent of the "level playing field" between
Members operating different duty assessment systems is that in no system can the amount of duty
finally collected exceed the margin of dumping calcula ted in conformity with Article 2. Indeed, the
European Communities argues that a Member operati ng a prospective duty assessment system would,
after the end of the reasonable period of tim e, be under the obligation to conduct any refund
proceeding under Article 9.3.2 in conformity w ith the recommendations and rulings of the DSB,
irrespective of the date of importation.785
8.184 We note the statement of the Appellate Body, in US – Zeroing (Japan), that:
"The Anti-Dumping Agreement is neutral as between different systems for levy and
collection of anti-dumping duties. The Agreement lays down the 'margin of dumping'
as the ceiling for collection of duties rega rdless of the duty assessment system
adopted by a WTO Member, and provides for a refund if the ceiling is exceeded. It is
therefore incorrect to say that the Anti-Dumping Agreement favours one system, or
places another system at a disadvantage."
786 (emphasis added)
8.185 The recognition of the existence of different systems under the Anti-Dumping Agreement
necessarily implies that, in interpreting the Agreement, the treaty interpreter must take into
consideration the existence of such different systems. It also means that a proper interpretation of the
Agreement cannot negate the existence of one of the permissible systems of duty assessment or render
its operation impossible. Yet, while we think that the interpreter should be mindful of the Appellate
Body's indication that the Anti-Dumping Agreement does not disadvantage Members operating either
duty collection system, it may simply be unavoidable that the same legal provisions of the Anti-
Dumping Agreement or – as is the case in this dispute – of the DSU, have different consequences as a
result of the different characteristics of each system . In other words, it should not come as a surprise
that the application of the same legal principles to different legal situations can result in different

784 See, e.g. US Answers to Panel Questions 28, 30, 34, US Comments on EC Answer to Panel
Question 24.
785 EC Answer to Panel Questions 28 and 30, EC Comments on US Answer to Panel Questions 32, 34
and 40. The Panel understands Korea to agree with th e European Communities. See Korea's Answer to Panel
Question 16(a) to the third parties. See also Norway's Answer to Panel Question 16 to the third parties, where it
indicates that it considers that, due to the specific requirement regarding refunds in Article 9.3, an importer has
the right to request a refund based on the corrected calculations under the domestic legal system of the Member
imposing the measure. Japan also considers that the am ount of anti-dumping duties collected at the time of
importation is not final for purposes of WTO under a prospective system and that the same principles would
apply in case a refund procedure under Article 9.3.2 were found to be WTO-inconsistent, as long as the entries
covered have not been liquidated by the end of the reasonable period of time. Japan's Answers to Panel
Questions 11, 14 and 16 to the third parties; Japan's Opening Statement, para. 42.
786 Appellate Body Report, US – Zeroing (Japan) , para. 163; cited with approval in Appellate Body
Report, United States – Final Anti-Dumping Meas ures on Stainless Steel from Mexico ("US – Stainless Steel
(Mexico)"), WT/DS344/AB/R, adopted 20 May 2008, para. 121. See also, the comment of the Appellate Body
in US – Shrimp (Thailand) / US – Customs Bond Directive that "In our view, this finding is neutral as between
prospective and retrospectiv e duty assessment systems, because the de termination of the final liability for
payment of duty takes place in a retrospective system in assessment reviews subsequent to the imposition of the
anti-dumping duty order." Appellate Body Report, US – Shrimp (Thailand) / US – Customs Bond Directive ,
para. 227.

implications.787 In the instant case, any different impact in terms of a Member's obligation to
implement DSB recommendations and rulings could merely be a result of the characteristics of the
system under consideration, i.e., that the duty liability is only de termined when duties are "assessed"
in the context of an assessment re view. That one or the other of the duty assessment systems gives
rise to certain advantages and disadvantages does not, in our view, mean that the recognition of these
systems in the Anti-Dumping Agreement is brought into question, or that the Anti-Dumping
Agreement favours one system, or places another system at a disadvantage.
788 Given the reality that
prospective and retrospective duty assessment system s use different approaches in determining anti-
dumping liability under the Anti-Dumping Agreement, it would not be surprising that the mechanisms
for implementation would differ between a Member operating a retrospective duty assessment system
and a Member operating a prospective duty assessment system.789
Whether the US obligation to implement extends to the liquidation of duties
8.186 As indicated above, the EC claims are not li mited to subsequent administrative reviews
concluded after the end of the reasonable period of time. The European Communities argues that any
action of the United States to collect duties after the end of the reasonable period of time must be
consistent with the DSB's recommendations and ruli ngs, even when the final collection of duties is
delayed, for instance by judicial proceedings. In other words, the European Communities fixes the
outer limit to the US obligation to implement as applying to any entries that were not liquidated as of
the end of the reasonable period of time. In the EC view, any liquidation before the end of the
reasonable period of time need not be consistent with the DSB's recommendations and rulings
whereas any liquidation after the end of the reasonable period of time must be consistent with the US
obligations under the Anti-Dumping Agreement and the DSB's recommendations and rulings. Thus,
the European Communities also challenges US actions to collect anti-dumping duties based on
zeroing after the end of the reasonable period of time, but where the administrative review was
concluded before the end of the reasonable period of time.
8.187 The European Communities argues that the amount established in a US administrative review
is not final and conclusive. Following an admini strative review determination, the USDOC issues
assessment instructions to the USCBP, which then issues liquidation instructions to local customs
authorities ("port authorities") to liquidate the import entries at the rate established by the USDOC.
Local authorities then proceed to the actual liquidatio n of the entries, by issuing payment notices or
refunds to the importer(s) concerned. But the Euro pean Communities submits th at interested parties

787 We add, however, that the interpretation of the provisions of a covered agreement should not vary
depending on how a Member qualifies or organizes its duty collection system; it simply results from the
different characteristics of the system that the consequences of the ensuing legal obligations (i.e., the application
of the obligation to the factual circumstances at hand) may differ.
788 That said, while the question of the obligation to implement of a Member operating a prospective
duty assessment system is not before this panel, the European Communities indicated that in its view, in a case
presenting similar circumstances to those before us, any refund procedure conducted under Article 9.3.2,
decided after the end of the reasonable period of time, but with respect to imports made before that date, would
need to be consistent with the disciplines of the Anti-Dumping Agreement and recommendations and rulings of
the DSB. EC Answers to Panel Questions 28 and 30. This is consistent with our view that a determination of
the amount of final anti-dumping duty liability made afte r the end of the reasonable period of time must be
consistent with the implementing Member's obligations under the Anti-Dumping Agreement and with any
rulings of the DSB.
789 As noted above, footnote 783, the United States also argues that in a retros pective duty assessment
system, an importer or an exporter may request a revi ew by right, while in a prosp ective system, a review may
only be requested by importers in a request duly supported by evidence. We observe, however, that the
Agreement does not specify which party may request an assessment review under Article 9.3.1 – the difference
on which the United States relies is an aspect of the domestic law of Members. For this reason, we find this US
argument to be unavailing.

can challenge administrative revi ew determinations before US co urts, which challenge may involve
the suspension of the issuance of assessment instructions until a final court ruling on the matter;
further, once assessment instructions have been i ssued to the USCBP, importers may file a protest
against liquidation before the USCBP. Thus, the Eu ropean Communities submits, only where there is
a decision from the USCBP, or the period to file a protest has elapsed, do es the liquidation become
final and conclusive.
790 The European Commun ities submits that the Anti-Dumping Agreement
recognizes and takes into account judicial review pr oceedings in the imposition and collection of anti-
dumping duties, for instance in footnote 20 to Article 9.3.1. Therefore, the European Communities
considers that judicial review proceedings are part of the context in which anti-dumping measures are
adopted and maintained in place.791
8.188 The United States rejects the European Communities' position. As indicated above, the
United States considers that the relevant date to assess implementation is not that of the final
liquidation of entries, but that of the importation of the products subject to anti-dumping duties.
Further, the United States notes that the concept of "liquidation" is not universal and not found in the
Anti-Dumping Agreement, but rather is an element of the US system.
792 Nothing in the Anti-Dumping
Agreement or the DSU suggests that the status of entries as "liquidated" or "unliquidated" is germane
to a Member's implementation obligations. Furthe r, the United States considers that the same issue
does not arise under a prospective systems since th ere is no distinction between potential and final
liability in such systems.793
8.189 The United States also submits that there is no support in the Anti-Dumping Agreement for the
proposition that judicial review proceedings shou ld be taken into account in assessing a Member's
implementation of DSB recommendations and rulings, a nd that where judicial review is to be taken
into consideration in the Anti-Dumping Agreement , there are express provisions to that effect, for
instance in footnote 20, which recognizes that the observance of the time periods set out in the Anti-
Dumping Agreement may not be possible because of judicial review. 794 The United States further
submits that if the DSB's recommendations and rulings called for compliance with respect to
determinations made prior to the end of the reasona ble period of time, but subject to pending judicial
review, this would create an incentive for private par ties to make requests for judicial review for the
sole purpose of delaying finality in the hope that a favourable ruling could be obtained through WTO
dispute settlement.795
8.190 Japan essentially agrees with th e European Communities. Japan considers that in a case
where there are outstanding unliquidated entries on imports on which cash deposits were made in the
amount set out in the administrative review challe nged in the original dispute, the Member must
revise the importer-specific assessme nt rate to ensure that the definitive duties collected on
unliquidated entries are fully consistent with the Member's WTO obligations. 796 It considers that the
United States was required to bring the reviews at i ssue in the original dispute into conformity with
WTO law because it will take action pursuant to th e WTO-inconsistent importer-specific assessment

790 See, inter alia, EC First Written Submission, para. 82; EC Second Written Submission, paras. 73-
75, 79-84.
791 EC Answer to Panel Question 25.
792 US Answer to Panel Question 24 and US Comments on EC Answer to Panel Question 24; US
Answer to Panel Question 34.
793 US Answer to Panel Question 24 and US Commen ts on EC Answer to Panel Question 24. We
addressed the US arguments based on the requirement th at the different duty assessment systems receive equal
treatment under the Anti-Dumping Agreement above, at para. 8.185.
794 US Comments on EC Answer to Panel Question 25.
795 US Comments on EC Answer to Panel Question 25.
796 Japan's Answer to Panel Question 11(c) to the third parties; see also Japan's Third Party Submission,
paras. 95-101.

rates established in these reviews to collect anti-dumping duties on unliquidated entries. 797 Thus, for
Japan, what is relevant is that after the end of the reasonable period of time, the United States will
take action pursuant to a measure found to be WTO-in consistent. Japan also submits that US periodic
reviews continue to produce legal effects because, inter alia, under US law, the enforcement of the
final results of the reviews is suspended pe nding the outcome of domestic judicial review
proceedings. Yet, Japan explains, the Panel is no t asked to take into acco unt the judicial review
proceedings as a substantive element of its exam ination of the EC claims regarding the US non-
compliance; rather, the existence of these procedures is merely a background fact that explains why
the importer-specific assessment rates in the periodic reviews in question will be applied after the end
of the reasonable period of time.798 Korea also supports the EC position.799
8.191 In our view, the date that is relevant for the US implementation of the DSB's
recommendations and rulings is, as we have found above, that of the final determination of duty
liability, and not that of the actual liquidation of the duties. 800 In essence, the European Communities
asks the Panel to take into consideration delays in the actual collection of anti-dumping duties that are
the consequence of judicial proceedings challenging the final duty liability determination. Yet, we
recall that the EC claims in the original dispute, and the findings of the panel and the Appellate Body,
concerned the calculation of margins of dumping. We have already determined that, under the US
system, the final amount of duty is determined at the time of the assessment review conducted
pursuant to Article 9.3. The EC theory of implementation would lead to the undesirable result that the
implementing Member may have to recalculate fina l duty liability calculations which were concluded
before the end of the reasonable period of time, fo r the simple reason that the actual collection of
duties was suspended, even where the court proceed ings were unsuccessful in challenging the final
duty liability determination. We also note that in response to a panel question on an unrelated issue
(the US argument under Article 17.4 Anti-Dumping Agreement ), the European Communities
submitted that:
"the USDOC's duty assessments in the context of administrative review proceedings
is the final action taken by the US author ities for the purpose of determining the duty
rates applicable to entries within the period of review and, thus, levying duties in the
sense of Article 17.4 of the Anti-Dumping Agreement. Then, liquidation will be final
and conclusive depending of the actions take n by importers under US municipal law.
Thus, the final action to levy duties in the sense of Article 17.4 of the Anti-Dumping

797 Japan's Answer to Panel Question 12 to the third parties, Japan's Third Party Submission, paras. 78-
84, 95-99 and 111-112, Japan's Opening Statement, paras. 38-42.
798 Japan's Answer to Panel Question 12 to the third parties. Japan also notes that footnote 20
recognizes that, due to domestic court proceedings, Members may permissibly take action pursuant to a periodic
review long after the completion of that review.
799 See Korea's Answer to Panel Question 11 to the third parties: "Korea notes that if there are still
outstanding unliquidated entries on imports after the expiration of the RPT, the administrative review at issue is
still in operation and has not been revoked yet." See al so Korea's Answer to Panel Question 12 to the third
parties: "a pending judicial review proceeding with respect to an anti-dumping measure could indicate that the
measure has not been finally disposed yet even in the domestic jurisdiction of the Member. So, if a judicial
action has suspended the liquidation of entries, even if assessment instruction has already been issued for them,
the entries should be considered to be pending, which is then subject to the implementation obligation of the
implementing Member after the expiration of the RPT."
800 The concept of "liquidation" of duties is not one which is found in the Anti-Dumping Agreement.
We use this term here to refer to the conclusion of the administrative action of collecting duties by either
providing a refund where the assessed amount of duty is inferior to the cash deposits provided, or where an
invoice is sent where insufficient cash deposits were provided, or the information to the importer that the cash
deposits provided correspond to the amount of duties to be collected.

Agreement must be the action taken by the competent government authorities,
regardless of the actions taken by private parties."
801
8.192 It is significant, in our view, that the European Communities itself recognizes that the
administrative review proceeding is the final action undertaken by the US authorities to determine the
duty liability applicable to particular imports, an d that where liquidation is delayed after that
determination, it is due to actions on the part of private parties. We do not consider that the US
obligation to implement should de pend on the date at which the US authorities collect duties where
the amount of the duties to be collected was fina lized at the time of the administrative review
proceedings. Merely that the act of the US auth orities in collecting the duties is delayed by the
actions of private parties does not change our views in this regard. The issue that is before us
concerns the temporal aspect of the US obliga tion to implement the DSB's recommendations and
rulings, in other words, to which actions of the Un ited States this obligation to implement extends. In
our view, the US obligation to implement should not, once the determination of the amount of anti-
dumping liability has been made, depend on when the actual collection of the duty takes place.
8.193 Also, were we to agree with the European Co mmunities, it would mean that duties that are
liquidated at any point in time following the assess ment of amount of the final liability – sometimes
several years afterwards – would require the Unite d States authorities to revisit the final assessment
of duties previously performed in the context of th e administrative review, for the sole reason that
implementation of the US determination (via actual liquidation) was delayed, in some cases because
of legal challenges having nothing to do with the issue of zeroing.802
(ii) Application to the facts of this dispute
8.194 In essence, the European Communities makes three groups of claims.
8.195 First, the European Communities makes claims with respect to the collection of anti-dumping
duties after the end of the reasonable period of tim e. We understand these legal claims to correspond
to the following requests for findings presented by the European Communities:
(a) the United States has not complied with the DSB's recommendations in the original
proceeding, since it continues to collect anti-dumping duties and establish new cash
deposit rates based on zeroing with respect to the original investigations and
administrative reviews challenged in the original dispute;
(b) the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994, since it still collects anti-dumping
duties calculated with zeroing with respect to measures challenged in the original
dispute (including the measures listed in the Annex to the Panel Request and any
other subsequent measures);

801 EC Answer to Panel Question 34.
802 In addition, with respect to footnote 20, we note that this footnote indicates that observance of the
12 (in some cases 18) months time limit set out for the completion of the assessment review and the 90-day limit
for the issuance of refunds in Article 9.3.1 may be impossible because of judicial review proceedings. To the
extent that footnote 20 has any relevance to the issue before us, we would note that it does not suggest that a
"determination of the final liability for payment of anti-dumping duties" is not finalized pending judicial review;
rather, it indicates that, in certain cases, it may be impossi ble to arrive at that dete rmination in the prescribed
time limit because of judicial review proceedings or that the implementation of that determination may be
delayed for similar reasons. Thus, footnote 20 does not, in our view, bring into question the fact that final anti-
dumping duty liability determination is, under Article 9.3.1, made at the time of the assessment review.

8.196 We analyze these EC claims with respect to the collection of anti-dumping duties after the
end of the reasonable period of time by distinguishing between:
(a) US actions to collect (liquidate) anti-dum ping duties after 9 April 2007, pursuant to
the original investigations at issue in the original dispute or to subsequent
administrative reviews made before the end of the reasonable period of time;
(b) US assessment of duties and establishment of new cash deposit rates using zeroing
pursuant to determinations in subsequent administrative reviews concluded after
9 April 2007;
(c) US maintenance of cash deposit rates estab lished in the measures at issue in the
original dispute.
8.197 Second, the European Communities makes legal cl aims and requests for findings to the effect
that the United States has not complied with the DS B's recommendations in the original proceeding,
since it has failed to fully revoke the original investigation orders contested in the original dispute.
8.198 Third, the European Communities claims that the United States has not complied with the
DSB's recommendations in the original proceeding, since the 16 administrative review investigations
covered in the original dispute have not been superseded, i.e., the United States still collects duties
based on the dumping margins found in those pro ceedings with zeroing, and the United States has
also relied on those margins for the determinati on of likelihood of recurrence of dumping in sunset
review proceedings.
EC claims concerning liquidation of entries after the end of the reasonable period of time
pursuant to determinations of final liability made before that date
8.199 We recall that while we have determined that the US obligation to implement applies to
administrative review determinations made after 9 April 2007, we have found that the US obligation
to implement does not extend to US actions to coll ect (liquidate) duties pursuant to determinations
made before the end of the reasonable period of tim e. It follows that US actions to collect anti-
dumping duties after the end of the reasonable period of time pursuant to final determinations of anti-
dumping liability before the end of the reasonable period of time do not constitute a failure to comply
with the DSB's recommendations and rulings.
8.200 As a result, insofar as the EC claims concern the collection of anti-dumping duties, i.e.,
"liquidation", after the end of the reasonable pe riod of time pursuant to anti-dumping duty liability
determinations made before the end of the reasonable period of time, we reject them. 803

803 In response to a question from the panel, the European Communities provided some information to
the panel on the amount of unliquidated duties at different points in time, as well as information whether there
were ongoing judicial proceedings with respect to du ties associated with entrie s covered by each of the
subsequent review included in the Annex to the EC Article 21.5 panel request at these different points in times.
Annex A to the EC Answer to Panel Question 5. The parties subsequently provided the Panel with their views
on whether certain litigation proceedings were still ongoing, whether certain entries remained "unliquidated",
and, related to this, whether the scope of protests of USCBP decisions is limited to challenging decisions made
by USCBP, as opposed to the duty assessment perfor med by the USDOC. See European Communities letter of
11 June 2008, commenting on the US Comments on EC Answers to Panel Questions, US letter of 11 June 2008
commenting on the EC Comments on US Answers to Pa nel Questions, US letter of 13 June commenting on the
EC letter of 11 June, EC letter of 24 June 2008 commenting on the US letter of 13 June 2008. The information
contained in Annex A and the parties' comments concerned primarily the question of whether certain duties
remain "unliquidated" and the scope of current challenges . Given that we have concluded that the "liquidation"

Consequently, we find that the European Commun ities has not established that the United States has
failed to comply with the DSB's recommendations in th e original proceeding by virtue of the fact that
it has continued and continues to collect anti- dumping duties with respect to the original
investigations and administrative reviews challenged in the original dispute for that reason. We also
find that the European Communities has not established that the United States remains in violation of
Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 because of
US actions to liquidate anti-dumping duties calcu lated with zeroing pursuant to final duty assessment
determinations made before the end of the reasonable period of time, including pursuant to subsequent
reviews listed in the Annex to the EC Article 21.5 request for the establishment of a Panel.
EC claims concerning assessment instructions and cash deposit rates
8.201 We now turn to the claims and requests for findings of the European Communities concerning
the allegation that the United St ates has failed to comply with the DSB's recommendations in the
original dispute because the United States has esta blished (and establishes) new cash deposits rates
and has issued (and issues) new assessment instructi ons based on zeroing with respect to the original
investigations and administrative reviews challenged in the original dispute, and remains in violation
of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 since it
still collects anti-dumping duties calculated with zer oing with respect to measures challenged in the
original dispute, including the measures listed in the Annex to the EC request for the establishment of
a panel.
8.202 The European Communities has referred to US actions (duty assessment and cash deposit
requirement) in cases 1 and 6 as examples of specific US failure to implement the DSB's
recommendations and rulings with respect to the orig inal investigations at issue in the original
dispute, and in case 31 with respect to the administrativ e reviews at issue in the original dispute. In
the absence of specific reference to and arguments by the European Communities concerning other
instances in which the United States allegedl y acted in the manner challenged by the
European Communities, we limit our examination an d conclusions to the specific arguments made by
the European Communities, i.e. to these three cases.
804 In fact, we simply do not have before us any
substantive arguments or supporting materials in relation to any other cases which would have
allowed us to make any additional substantive findings.
Case 1 (Hot Rolled Carbon Steel from the Netherlands)

8.203 With respect to case 1, the Eur opean Communities claims that the United States has (i) issued
assessment instructions to collect anti-dumping duti es in subsequent administrative reviews in which
simple zeroing was used and the results of such reviews were obtained after 9 April 2007, and
(ii) issued assessment instructions to collect duties at the rate establis hed in the original investigation
challenged in the original dispute as no administra tive review was requested or the administrative
review was rescinded.
8.204 With respect to the first claim concerning assessme nt instructions issued after 9 April 2007 in
the context of a subsequent administrative revi ew, the European Communities submits that, on

of duties after the end of the reasonab le period of time does not constitute a failure to implement the DSB's
recommendations and rulings, we need not examine any further the parties' arguments in this respect.
804 Further, we recall that the European Communities claims that the United States issued assessment
instructions and established new cash deposit rates with respect to one of the administrative review proceedings
at issue in the original dispute; these arguments of the European Communities concern the 2005-2006
administrative review in case 23/24 (Granular Polytetrafl uorethylene from Italy) (EC First Written Submission,
para. 81 and Exhibit EC-17, Notice of Final Results of administrative review, 72 FR 65939,
26 November 2007). We have already determined that this subsequent review does not fall within our terms of
reference. See supra, para. 8.125.

22 June 2007, i.e. , after the expiry of the reasonable period of time, the USDOC issued the final
results of the 2004-2005 administrative review cove ring imports in the period 1 November 2004 to
31 October 2005 and instructed the USCBP to collect duties at 2.26 per cent. 805 The European
Communities also notes that the Section 129 determina tion with respect to case 1 revoked the original
order on 23 April 2007 since, without zeroing, no dumping was found.
8.205 With respect to the second claim, the Eu ropean Communities submits that the fifth
administrative review in that case, covering im ports from 1 November 2005 to 31 October 2006, was
rescinded and the duty rate resulting from the original investigation, in which zeroing was used, was
applied. The administrative review was resci nded on 30 March 2007 and the assessment instructions
issued on 16 April 2007; the USCBP subsequently in structed the ports of entry to liquidate the
relevant entries on 23 April 2007.806
8.206 The United States has limited itself to indicating that, in its view, it has complied with the
DSB's recommendations and rulings by recalculating, without zeroing, the margin of dumping in the
Section 129 determination and, as a result, revoked th e order, effective 23 April 2007. Moreover, the
United States indicates that as a result of a subsequent sunset review, the anti-dumping order was
actually revoked effective 29 November 2006 807 and that all cash deposits made on imports occurring
on or after that date are not subject to any final assessment of duties. Thus, the United States submits,
the EC claims concern a measure that is no longer in effect.808
8.207 The EC claims do not, as the United States subm its, concern a measure that is no longer in
effect. The European Communities challenges an ad ministrative review determination made after the
end of the reasonable period of time and a decision to assess duties at a rate based on zeroing,
following the rescission of an administrative revi ew proceeding. Neither of these measures was
revoked as a result of the revocation of the order pursuant to the Section 129 determination or the
sunset review determination mentioned by the United States.
8.208 We have already determined that the 2004-2005 ad ministrative review in case 1 falls within
our terms of reference. 809 The United States has not contested that the USDOC used zeroing in the
calculation of the margin of dumping for the sole respondent, Corus, and indeed, the Issues and
Decision Memorandum for that administrative review determination makes it clear that the USDOC
used zeroing in calculating Corus' margin of dumping. 810 For the reasons discussed by the Appellate

805 EC First Written Submission, paras. 78-79 and corresponding footnotes, EC Second Written
Submission, para. 67. The Amended Final Results of the administrative review determination were published
on 22 June 2007 at 72 FR 34441 (Exhibit EC-11), the Final Results of the administrative review were published
at 72 FR 28676, 22 May 2007; the Issues and Decision Memorandum for the final results was also submitted by
the European Communities as Exhibit EC-12. The Final Results and Amended Final Results indicate that the
AD order having been revoked in that case, effective 23 April 2007, no new cash deposit instructions were to be
provided.
806 The notice of rescission of the 2004-2005 administrative review, effective 30 March 2007,
published at 72 FR 15105 (30 March 2007), is found at Exhibit EC-13. The USDOC assessments instructions to
the USCBP were issued on 16 April 2007 and were prov ided by the European Communities as Exhibit EC-14.
The USCBP instructions to the ports, dated 23 April 2007, were submitted by the European Communities as
Exhibit EC-15.
807 Final Results of the Sunset Review of Antidumping Duty Order and Revocation of the Order,
Certain Hot–Rolled Carbon Steel Flat Products from the Netherlands, 72 FR 35220 (27 June 2007), Exhibit US-
14.
808 US First Written Submission, para. 66. See also, US Opening Statement, para 21. We also recall
that the US submits that the final assessment was the result of determinations distinct from the determination
made in the original investigation and that this subsequent determination is not within the scope of this
proceeding, an argument of the United States which we have rejected. US First Written Submission, para 68.
809 See supra, para. 8.126.
810 Exhibit EC-12, pp. 12-14.

Body in paragraphs 123-135 of its Report in the or iginal dispute, we find that the United States acted
inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in
its determinations in this administrative review a nd in issuing the consequent assessment instructions.
As a result, we also find that the United States h as failed to comply with the DSB's recommendations
and rulings to bring the original investigation in case 1 into conformity with the covered agreements.
8.209 With respect to the EC claims concerning imports in the 2005-2006 period, we note that the
USDOC issued its notice of rescission of the admi nistrative review prior to the expiry of the
reasonable period of time, on 30 March 2007. Cons istent with our findings above, we therefore
consider that the determination of final anti-dumping duty liability with respect to the imports covered
by the assessment instructions challenged by the Eu ropean Communities was made prior to the end of
the reasonable period of time, with the result that th ey do not constitute a failure on the part of the
United States to implement the recommendations of the DSB. We therefore find that the
United States has not failed to comply with the DSB's rulings and recommendations to bring the
original investigation in case 1 into conformity w ith its obligations under th e covered agreements by
virtue of these assessment instructions.
Case 6 (Stainless Steel Wire Rod from Sweden)

8.210 The European Communities provides case 6 as an example of the United States having, after
9 April 2007, established cash deposit requirements based on zeroing on imports of products from
countries at issue in the original dispute. Specifi cally, the European Communities submits that in this
case, on 9 May 2007 the USDOC instructed the US CBP to collect anti-dumping duties at 19.36 per
cent (even though the Section 129 de termination revoked the original order effective 23 April 2007),
and notified the USCBP of the revised cash deposit ra te for the exporter concerned. According to the
notice, this new cash deposit is "effective upon publica tion of these amended final results of review.
This cash deposit requirement shall remain in effect until further notice".
811
8.211 The United States submits that the EC statement of facts is in error: the USDOC did, as
alleged by the European Communities, publish the amended final results of the 2004-2005
administrative review on 9 May 2007 and, in those amended final results, stated that it would notify
USCBP of the revised cash deposit resulting from the review, that the cash deposit rate would be
effective as of the date of publication, and that "t he cash deposit requirement shall remain in effect
until further notice." However, on 10 May 2007, Commerce provided "further notice" by issuing
instructions to USCBP informing it of the revoca tion resulting from the Section 129 determination;
these instructions informed USCBP that any cash de posits paid on imports of wire rod from Sweden
made on or after 23 April 2007, were to be refunde d and all imports made on or after 23 April 2007
would not be subject to the final assessment of anti-dumping duties.
812 Thus, the United States
argues, as a result of the revocation of the an ti-dumping duty order, the USDOC did not issue new
cash deposit instructions to USCBP based on the determination made in the 2004-05 administrative
review and the EC claim concerns a measure that has been revoked.813
8.212 We have already determined that the 2004-2005 ad ministrative review in case 6 falls within
our terms of reference. 814 Given the evidence provided by the United States that no cash deposit was

811 European Communities First Written Submission, para. 80. The Amended Final Results of the
2004-2005 administrative review, covering imports from 1 September 2004 to 31 August 2005, were submitted
by the European Communities as Exhibit EC-16 (72 FR 26337, 9 May 2007). The final results were published
on 10 April 2007 (72 FR 17834).
812 US First Written Submission, para. 72. See also Exhibit US-15 Instructions to US Customs and
Border Protection, Revocation of Antidumping Duty Order on Stainless Steel, Wire Rod from Sweden Pursuant
to Final Results in Section 129 determination (10 May 2007).
813 US First Written Submission, paras. 70-73.
814 See supra, para. 8.126

imposed on imports covered by the anti-dumpi ng order in this case following the 2004-2005
administrative review, and the absence of rebuttal of this evidence by the Eu ropean Communities, we
find that the European Communities has failed to establish that the United States failed to comply
with the DSB's recommendations and rulings by virtue of having imposed new cash deposit
requirements with respect to case 6.
8.213 With respect to the assessment of duties pursuant to the 2004-2005 administrative review, the
United States has not contested that it used zeroi ng in the calculation of the margin of dumping for
Fagersta (the sole exporter concerned by the review ). We therefore find, for the reasons discussed by
the Appellate Body in paragraphs 12 3-135 of its Report in the original dispute, that the United States
acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT
1994 in this administrative review determination a nd the assessment instructions issued pursuant to
that determination. As a result, we also find that the United States has failed to comply with the DSB
rulings and recommendations to bring the original investigation in case 6 into conformity with the
covered agreements.
815
Case 31 (Ball Bearings from the UK)

8.214 The European Communities makes ar guments with respect to case 31 as part of its claim that
the administrative reviews challenged in the original dispute have not been superseded by subsequent
reviews since the effects of the administrative re views challenged in the original proceeding still
continue today, and that for the 16 administrativ e reviews to be "superseded", the United States
should have stopped them, by not collecting duties calculated using zeroing, and should have replaced
them by collecting the duties and establishing ne w cash deposits based on a methodology without
zeroing. Since this claim concerns a cash deposit rate applicable after the end of the reasonable
period of time, and which continues to apply as of the date of our establishment, and assessment
instructions issued after the end of the reasonable period of time, we examine it in this section of our
report.
8.215 With respect to cash deposits, specifically , the European Communities argues that the
United States still collects duties established in the ad ministrative reviews at issue in the original
dispute.816 The United States admits that the cash deposit rate for NSK established in the
administrative review challenged in the original dispute, which concerned covered imports entered
from 1 May 2000 through 30 April 2001, remains in effect.817

815 In addition, while the arguments of the European Communities in this respect are not clear, the
European Communities seems to make a claim in respect of the cash deposit requirements that applied after the
end of the reasonable period of time (9 April 2007) until the revocation of the measure pursuant to the
Section 129 determination in that case (23 April 20 07). See EC Second Written Submission, para. 67, and
Opening Statement, para. 48, where the European Commun ities argues that the United States "has recognized
that imports of stainless steel wire rod from Sweden (Case 6 in the Annex to the Panel Request) after
9 April 2007 are subject to the original anti-dumping duties based on model zeroing". The Panel considers that
it must assess the existence of measures taken to comply as of the date of its establishment. See infra,
para. 8.226. Consequently, to the extent that the European Communities is making a claim with respect to the
fact that cash deposits requirements applied to imports in case 6 between 9 and 23 April 2007, we decline to
make a finding on such a claim.
817 See US Answer to Panel Question 35:
Question: "US: Does the US conced e that it has not implemented the DSB's
recommendations and ruling with respect to case 31 (the administrative review determination
in respect of NSK's imports)? The Panel recalls that the EC alleges that the cash deposit rate
applicable to NSK's entries is still the one that was calculated in the administrative review
challenged in the original dispute.

8.216 Given this admission of the United States, the Pa nel finds that the United States has failed to
comply with the DSB recommendations and rulings to bring its measure into conformity with the
covered agreements, as it has continued to apply to imports of NSK the cash deposit rate established
in an administrative review determination found to be inconsistent with Article 9.3 of the Anti-
Dumping Agreement and Article VI:2 of the GATT 1994 in the original dispute.
8.217 While the European Communities argues that th e USDOC continues to assess duties at that
cash deposit rate after the end of the reasonable period of time, the European Communities has not
directed us to any specific duty assessment determination after the end of the reasonable period of
time. Given the lack of identification of a precise US action in this respect, we refrain from making a
specific finding with respect to any duty assessment with respect to imports of NSK under case 31
after the end of the reasonable period of time.
8.218 We do not understand the European Communities to seek a specific finding on the continued
application of cash deposits established on the basis of "zeroed" margins of dumping after the end of
the reasonable period of time, other than with resp ect to case 31. We note that the EC claims and
arguments in this respect have not been a model of clarity. Nonetheless, we consider it appropriate to
add that the continued imposition of cash deposit requirements at rates calculated in the administrative
reviews at issue in the original dispute or in subsequent administrative review would constitute a
failure (omission) on the part of the United St ates to implement the DSB's recommendations and
rulings, because of the use of zeroing in calculating the margin of dumping.
818 In fact, we do not
understand the United States to dispute the proposition that the application of cash deposits pursuant
to the measures at issue in the original dis pute constitutes a failure to implement the DSB's
recommendations and rulings. We understand the Unite d States to limit its arguments in this respect
to the fact that any cash deposit requirement applie d as of the end of the reasonable period of time
results from another determination, i.e., one of the subsequent reviews.819 Yet, in our view, in order to
comply with the recommendations and rulings of th e DSB, the United States had to ensure that any
cash deposit rate applied after the end of the reaso nable period of time in relation to one of the
measures at issue in the original dispute was not one that derived from a margin of dumping
calculated with zeroing, even where that cash deposit was established as a result of a subsequent
review, and not a measure at issue in the original dispute. Concluding otherwise would mean that the
United States is allowed to circumvent its obligati on to bring its measures and action into conformity
with those recommendations and rulings by the mere replacement of the cash deposits established in
the measures challenged in the original dispute by subsequent ones established in administrative
reviews in which zeroing was again used.820

Answer: "Yes. The cash deposit rate for imports of merchandise manufactured or exported
by NSK established by Commerce in its determination from the May 1, 2000 through
April 30, 2001 administrative review of Ball Bearings from the United Kingdom remains in
effect. This was one of the determinations challenged by the EC in the original dispute."
818 We have already determined that US omissions to implement, and specifically, cash deposit rates
applied after the end of the reasonable period of time may be considered as part of our analysis of the US
implementation of the DSB recommendations and rulings. See supra para. 8.127.
819 With the exception of the cash deposit requirement in respect of NSK's imports in case 31: with
respect to that case, the US admits that the cash deposit rate established as a result of the administrative review
challenged in the original dispute still applies.
820 We recall that we have indicated above th at a Member must, to implement the DSB's
recommendations and rulings, ensure that actions it undertakes after the end of the reasonable period of time are
consistent with its obligations under the DSB. The con tinuing requirement to provide cash deposits constitutes,
in our view, such an action.

EC claims that the United States has failed to comply with the DSB' s recommendations in the
original dispute because it has failed to fu lly revoke the original investigation orders
contested in the original dispute and EC claims that the administrative reviews at issue in the
original dispute have not been superseded
8.219 The European Communities claims that the Un ited States has failed to fully revoke the
original anti-dumping orders at issue in the origin al dispute. The EC claim in this respect is
essentially that, due to the revocation of some AD orders and the exclusion of some exporters from
other orders following the adoption of the Secti on 129 determinations, ther e is no longer any legal
basis allowing the United States to collect duties on p ast entries or to submit future entries to a cash
deposit rate based on zeroing. The European Comm unities considers that any future liquidation of
prior entries subject to a now-revoked order, includi ng orders revoked for reasons other than zeroing,
or with respect to an exporter now excluded from the scope of the relevant order would be illegal
since this would amount to the taking of a positive act, already found to be WTO-inconsistent, after
the end of the reasonable period of time.821
8.220 To the extent that the Europ ean Communities is claiming that the United States was, after
23 April 2007, precluded from liquidating duties collected pursuant to the margins of dumping
calculated in the measures at issue in the original di spute, this claim is, in our view, subsumed in the
EC claim concerning US actions to collect ("liquida te") duties after the end of the reasonable period
of time. We have already rejected the EC claim in this respect. 822 Further, to the extent that the
European Communities is claiming that the United States is precluded, as of the date of the revocation
of the orders, from making any final anti-dumpi ng duty liability determin ation in subsequent
administrative reviews, we consider that this cl aim is subsumed in the claim of the European
Communities which we have addressed above in paragr aphs 8.201-8.218. Indeed, the European
Communities has not provided any evidence of US actions other than that addressed in our
consideration of the EC claims in these paragraphs.
8.221 Insofar as the EC request for findings concerns cash deposit requirements that applied after
the end of the reasonable period of time, but prior to the revocation of the relevant order, as indicated
below, we do not consider that we need to make findings with respect to measures that were no longer
in place as of the date of the establishment of this Panel. 823 In fact, we consider that this request for a
finding by the European Communities is not a separat e "claim", but rather an additional argument in
support of the EC general claim that the Un ited States has failed to implement the DSB's
recommendations and rulings with respect to the co llection of duties calculated with zeroing after the
end of the reasonable period of time. As a result, we decline to make any findings in respect of this
argument of the European Communities.
8.222 Likewise, we consider it unnecessary to make specific findings on whether the United States
has failed to comply with the DSB's recommend ations in the original proceeding "since the
16 administrative review investigations covered in th e original dispute have not been superseded."
We understand the European Communities to challenge, as part of this request for finding, the fact

821 EC First Written Submission, para. 91. See also EC Opening Statement, para. 49:
"Second, [the US theory of implementation] is insufficient because it allows the United States
to keep its so-declared WTO inco nsistent measures effectively in place even after the end of
the reasonable period of time. Indeed, in simple terms, what the United States argues in this
case is that it can collect duties based on zeroing after the end of the reasonable period of time
even if the original anti-dumping order has been revoked precisely because, absent zeroing, no
dumping was found. ... In this respect, the measures challenged in the original dispute are still
in place since, until the United States stops taki ng positive acts to enforce them, their effects
persist even after the end of the reasonable period. ..."
822 Supra, para. 8.206.
823 See infra, para. 8.226.

that certain aspects of the measures at issue in the original dispute remain in place, unaffected by the
DSB's recommendations and rulings in the original di spute. We recall that we have found above that
with respect to the assessment of duties, any final determination of the amount due made after the end
of the reasonable period of time must be made in accordance with the DSB's recommendations and
rulings, and therefore that the use of zeroing in th e calculation of margins of dumping in assessment
reviews after the end of the reasonable period of time constitutes a failure on the part of the
United States to implement the reco mmendations and rulings of the DSB.
824 We have also addressed
the EC claims concerning the maintenance of cash de posits established in the measures at issue in the
original dispute. 825 Since we have addressed all of the EC claims that concern specific instances
where the United States has failed to implement, we do not need to make the finding requested by the
European Communities.
F. REQUEST FOR FINDINGS REGARDING THE NON -EXISTENCE OF MEASURES TAKEN TO COMPLY
BETWEEN 9 APRIL AND 23 APRIL/31 AUGUST 2007
1. Main arguments of the parties
8.223 The European Communities makes a claim in relation to the fact that the measures the
United States asserts it took to comply, the Section 129 determinations, only entered into force on
23 April and (in the case of the Section 129 determination in case 11), 31 August 2007, i.e., after the
expiration of the reasonable period of time on 9 April 2007. 826 The European Communities claims
that, by failing to put into effect the me asures taken to comply between 9 April and
23 April/31 August 2007, the United States acted incons istently with Articles 21.3 and 21.3(b) of the
DSU and requests that the Panel make an explicit finding to this effect. The European Communities
argues that while the substantive obligation to comply with particular provisions of the WTO
Agreements derives from the DSB's recommendations and rulings, Article 21.3 of the DSU brings in
a temporal element, i.e., when the losing Member has to comply at the latest. 827 The European
Communities notes that a similar finding of non-complia nce in past periods was made by the panel in
Australia – Salmon (Article 21.5 – Canada). The European Communities also distinguishes US –
Upland Cotton (Article 21.5 – Brazil), noting that in that case, the panel declined to make a finding on
the fact that the United States did not take any measu res to comply with the adverse effects ruling and
recommendations of the DSB by the end of the reasonable period of time . The
European Communities therefore considers that its request in the present case is different in nature
from the one made by Brazil in Cotton. The European Communities asserts as one reason for
requesting such a finding the possibility that it woul d have implications for interested parties under
US municipal law, arguing that since there are entries which have not yet been liquidated, a finding of
the Panel in this respect may lead the relevant US authorities to stop proceedings for the collection of
duties.828 Further, the European Communities indicates that following the US theory on compliance,
a finding that no measures taken to comply ex isted during the period between 9 April and
23 April/31 August 2007 could imply that the United States should apply the results of its Section 129
determinations, at least, to entries made on or af ter 9 April 2007 (which is not the case, since the
Section 129 determinations apply to entries ma de on or after 23 April/3 1 August 2007). The

824 Supra, paras. 8.201 to 8.213
825 Supra, paras. 8.214 to 8.218.
826 European Communities First Written Submission, para s. 99-106; EC Opening Statement, paras. 59-
63.
827 EC Second Written Submission, paras. 93-101; EC Opening Statement, paras. 59-63.
828 The European Communities submits that the US delay in compliance allows it to still collect duties
with respect to a period of time where compliance shou ld have been achieved. See EC Opening Statement,
para. 58.

European Communities adds, however, that it is not up to the Panel to enter into the analysis of the
effects of its report in the municipal law or administrative practices of WTO Members.829
8.224 The United States argues that Article 21.3 of the DSU does not impose an obligation on the
Members concerned, but rather provides that Member with the right to a reasonable period of time
should immediate compliance be impracticable, a nd that Article 21.3(b) simply identifies the
reasonable period of time. 830 Thus, the United States considers that the European Communities has
failed to provide a textual basis for its Article 21.3 claim. The United States notes that Article 21.3
does not, as the European Communities argu es, require WTO Members to comply immediately with
the recommendations of adopted DSB reports. Ra ther, Article 21.3 acknowledges that immediate
compliance may be impracticable and thus confer s a right on the responding Member to a reasonable
period of time within which to comply.
831 The United States also argues that the panel report in
Australia – Salmon (Article 21.5 – Canada) does not support the EC position since, in that case, the
panel simply concluded that the measures taken to comply did not exist at the end of the reasonable
period of time and made no finding that Aust ralia had breached Article 21.3 or any of its
subparagraphs as a result. The United States finds further support for its position in the report of the
US – Upland Cotton (Article 21.5 – Brazil) panel. This panel explained that a finding such as the one
requested by the European Communities would be of little relevance to the effective resolution of
disputes. Finally, the United States considers that the European Communities would have to
substantiate its assertions about the operation of US municipal law with evidence and that, further, as
the European Communities appears to have realized itself, it would be inappropriate for the Panel to
engage in such an inquiry in the context of this dispute.
2. Evaluation by the Panel
8.225 The EC request raises the questions of whethe r it is within our mandate and, assuming it is
within our mandate, whether it would be appropriate, for us to make findings not only with respect to
the US implementation of the DSB recommendations and rulings as of the date of the establishment
of this Panel, but also during the period of time that preceded the en try into force of the US measures
taken to comply.
832
8.226 It is not clear to us that Article 21.3, including subparagraph (b) thereof, provides a legal basis
for the finding requested by the Eu ropean Communities. But even if it were assumed that it does, we
consider that it is neither necessary, nor appropriate , as a matter of judicial economy, for us to make
the finding requested by the European Communities. Article 21.5 does not specify with respect to
what date the assessment of the "existence or consis tency ... of measures taken to comply" is to be
conducted. Yet, several compliance panels ( US – Upland Cotton (Article 21.5 – Brazil) , EC – Bed
Linen (Article 21.5 – India)), have determined that the relevant da te is that of the establishment of the
compliance panel. 833 We agree with this approach, even though we recognize that one panel

829 The European Communities submits that the US delay in compliance allows it to still collect duties
with respect to a period of time where compliance should have been achieved. See EC Opening Statement,
para. 58.
830 US First Written Submission, paras. 103-107.
831 US Second Written Submission, paras. 70-71.
832 The European Communities specifies that it is not seeking a finding that no US measure taken to
comply existed at the end of the reasonable period of time; rather the European Communities seeks a finding on
the absence of any US measure taken to comply during a period of time from 9 April (the date on which the
reasonable period of time ended) to 23 April/31 August 2007 (the dates on which the US Section 129
determinations came into effect).
833 US – Upland Cotton (Article 21.5 – Brazil), paras. 9.64-9.71, EC – Bed Linen (Article 21.5 – India),
para. 6.28; see also Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products –
Recourse to Article 21.5 of the DSU by Malaysia ("US – Shrimp (Article 21.5 – Malaysia) "), WT/DS58/RW,
adopted 21 November 2001, upheld by Appellate Body Report, WT/DS58/AB/RW, DSR 2001:XIII, 6529,

(Australia – Salmon (Article 21.5 – Canada)) considered it appropriate to also make findings with
respect to the situation that prevailed until the entry into force of the measures taken to comply.
834
8.227 In any case, it is not in dispute that the factua l situation, non-existence of the US measures
taken to comply, and more specifically, of the Secti on 129 determinations, that forms the basis of the
EC claim had ceased to exist at the time of the estab lishment of this Panel. As a result, like the US -
Upland Cotton (Article 21.5 – Brazil) panel, we consider that making the finding requested by the
European Communities would be of little relevance to the effective resolution of the dispute between
the parties, and without practical implications as to the obligations of the United States. 835 We note,
in respect of the latter, that th e European Communities seek s to justify its request by indicating that
the finding it seeks may have implications under US law. The mandate of this Panel flows from its
establishment under the provisions of the DSU, which concern the resolution of disputes concerning
the consistency of Members' measures with the covered agreements. We do not consider that it would
be appropriate for us to make findings that are ot herwise not necessary to the resolution of the dispute
which is before us on the basis that they may have implications in the national legal system of the
responding Member. Nor do we cons ider it appropriate to take such potential effects into account in
discharging our duties under the DSU. Indeed, th e European Communities itself seems to have
realized that it would be inappropriate for a WTO pa nel to engage in an analysis of such effects. 836
We therefore decline to make the finding requested by the European Communities.
G. EC CLAIMS OF VIOLATIONS CONCERNING CERTAIN SECTION 129 DETERMINATIONS
8.228 In this section of our report, we examine the EC claims concerning certain of the measures
taken by the United States to comply – the Section 129 determinations in cases 2, 837 3,838 4,839 5840 and
11.841 The European Communities cons iders that the Section 129 determinations in these cases are
inconsistent with various provisions of the Anti-Dumping Agreement and of the GATT 1994.
1. EC claims with respect to the Section 129 determination in case 11 (Stainless Steel Sheet
and Strip in Coils from Italy)
(a) Main arguments of the parties
8.229 The European Communities submits that the United Stat es committed, and then failed to
remove, an obvious calculation error in its Section 129 determination in case 11. 842 The Section 129
determination in that case concerned one manufacturer/exporter of the subject product, ThyssenKrupp
Acciai Speciali Terni S.p.A. and ThyssenKrupp AST USA (collectively "TKAST"). 843 The European

paras. 5.12-5.13. The requests for findings examined (and rejected) by the Bed Linen and Cotton panels were
made under Article 21.5 of the DSU.
834 Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.30. In fact, while the European
Communities relies on the findings of this panel in support of its claim, we note that the Salmon panel made its
findings under Articles 21.5 and 22.6 of the DSU, not Article 21.3. See Panel Report, Australia – Salmon
(Article 21.5 – Canada), paras. 7.30 and 8.1(i).
835 Panel Report, US – Upland Cotton (Article 21.5 – Brazil), para. 9.67.
836 EC Answer to Panel Question 42.
837 Stainless Steel Bar from France.
838 Stainless Steel Bar from Germany.
839 Stainless Steel Bar from Italy.
840 Stainless Steel Bar from the United Kingdom.
841 Stainless Steel Sheet and Strip in Coils from Italy.
842 EC First Written Submission, paras. 112-123.
843 See Exhibits EC-6, EC-7 and EC-8 for, respectively, the Notice of Section 129 determination of
26 September 2007, the general Issues and Decision Memoranda for the various Section 129 determinations of
9 April 2007 (postponing the USDOC's decision with respect to case 11), and the Issues and Decision

Communities submits that in the original investiga tion, the USDOC incorrectly calculated the average
unit value of 84 TKAST US sales, to which the USDOC applied a "facts available" rate. The
European Communities submits that the USDOC, in it s calculation, erroneously inverted the fraction:
it divided the total volume of the sales by their total value, instead of dividing the total value by the
total volume. This error artificially inflated the unit value, and therefore, the amount of dumping
found. The European Communities argues that despite realising this obvious error, the USDOC failed
to correct it in the Section 129 determination, but rather considered that any alleged clerical or
computational error unrelated to the implementation of the USTR instructions was outside the scope
of the Section 129 proceeding. The European Comm unities notes that, without zeroing, the original
duty imposed by the USDOC was reduced from 11.23 per cent to 2.11 per cent. Had the USDOC
eliminated the calculation error, the European Communities alleges th at the margin would have been
negative, and thus, the United States would have had to revoke the measure.844
8.230 The European Communities claims that the erro r renders the Section 129 determination in
case 11 inconsistent with Article 2 of the Anti-Dumping Agreement , as it affected the overall
determination of the dumping margin, and with Article 6.8 and Annex II of the Anti-Dumping
Agreement because the United States, by making the e rror, failed to correctly apply the facts
available. Further, the European Communities cl aims that the failure to revoke the measure is
inconsistent with Article 5.8 of the Anti-Dumping Agreement and that the United States violated
Articles 11.1 and 11.2 of the Anti-Dumping Agreement by keeping the duties in force, and Articles 9.3
of the Anti-Dumping Agreement and VI:2 of the GATT 1994 since, because of the error, the amount
of anti-dumping duty exceeds the margin of dumping.
8.231 The European Communities considers that the ca lculation error can be challenged in this
proceeding because it was actually committed in the Section 129 proceeding, as in that proceeding,
the United States repeated exactly the calculation error that had been made in the original
determination.
845 Further, the European Communities consider s that it is not possible to separate one
of the elements of the calculation of the dumping margin from the rest of the calculation of the
dumping margin in the Section 129 determination. In contrast to EC – Bed Linen (Article 21.5 –
India), both the error and the zeroing methodology aff ect the calculation of the dumping margin,
which the United States had to "bring in to conformity with its obligations". 846 E v e n i f i t w e r e
assumed that the error is not part of the "measu re taken to comply", the European Communities
submits that it would fall under the scope of the proceeding as having a "particularly close

Memorandum in the Section 129 determination in case 11, published on 20 August 2007. TKAST's case brief
in the Section 129 proceedings befo re the USDOC is found in Exhib it EC-22, and the Notice of Final
Determination and Notice of Amended Final Determination in the original investigations are, respectively,
found in Exhibits US-23 and US-24.
844 The European Communities adds that since the measure remains in force, it is subject to further
amendments through new administrative reviews where th e duty rates will be increased automatically if the
United States continues applying simple zeroing in future administrative reviews.
845 EC Second Written Submission, paras. 104-122; see also EC Opening Statement, paras. 65-76. The
European Communities recalls that Article 21.5 panels are to review the totality of claims relating to the
consistency of "measures taken to comply" with the covere d agreements, with the exception of claims that were
raised in the original proceeding and rejected by the panel and/or the Appellate Body ( res judicata). See also
EC Opening Statement, para. 69, where the European Communities argues that the fact that the USDOC
decided, at the last moment, to disregard the claim on the clerical error and stated so in its decision shows that
the error (and particularly the decision to fail to correct it) was part of the measure taken to comply.
846 EC Opening Statement, paras. 71-73. See also EC Answer to Panel Question 46, in which the
European Communities argues that, in the present case, the use of the wrong set of data by the USDOC has an
impact on the re-determination of dumping. In that Reply, the European Communities also notes a statement
made by the US – Countervailing Measures on Certain EC Products (Article 21.5 – EC ) panel and argues that,
in the present case, the data sets for the purpose of carrying out a new dumping margin determination in the
Section 129 determinations concerned are part of the measure taken to comply.

relationship to the declared 'measure taken to co mply'" or having a suffici ently close nexus to the
measure taken to comply because it was part of th e calculation exercise to determine the new amount
of dumping in the Section 129 determination, and th at it artificially inflated the unit value, and
therefore the dumping margin.
8.232 The European Communities clarifies that it is not arguing that all allegations of errors in
original determinations need to be revisited in a S ection 129 proceeding, but that the error at issue is a
blatant, simple arithmetical one, and therefor e should have been addressed. The European
Communities considers that the USDOC could not re main passive and refuse to correct its mistake.
847
The USDOC should, in this particular case, haven taken into account all claims of errors, and had
enough time to do so: the Section 129 determinati on was delayed for four months because the
USDOC was examining the claims brought by the di fferent interested parties (TKAST, as well as US
producers); the USDOC decided to do so even if the scope of the Section 129 determination was,
allegedly limited to recalculating the margins of dumping by applying a methodology without
zeroing. Thus, the European Communities argues, th e examination of the claims concerning errors
made by the USDOC in the calculation of the new margin of dumping was part of the Section 129
determination. It also notes that the United States has taken into account and corrected errors in other
Section 129 proceedings and therefore could have corrected the error but refused to do so in this case.
8.233 The United States
848 argues that the EC claim falls outside the Panel's terms of reference
because the European Communities could have made th at claim in the original proceeding but failed
to do so and that, as a result, the DSB made no find ings with respect to the alleged error and only
made findings with respect to zeroing. The United States considers that the calculation error issue is
entirely separate from the zeroing issue. The United States clarifies that the USDOC did not actually
commit the error in the Section 129 proceeding, it onl y reran its computer programme so that zeroing
was not applied.849 The USDOC made no other change to th e data or the programme in recalculating
the margins of dumping. The United States consid ers that the error alleged by the European
Communities is "separable" from the rest of the Sec tion 129 determination. Relying on the Appellate
Body report in EC – Bed Linen (Article 21.5 – India) , the United States recalls that an unchanged
aspect of the original measure is not part of th e measure taken to comply; the mere fact that a
particular analysis is incorporated into a redete rmination does not render that analysis part of the
measure taken to comply. 850 In this case, the alleged error had nothing to do with the
recommendations and rulings in this dispute, which were limited to the use of zeroing. 851 T h e
United States also considers that the EC alterna tive argument alleging a close connection or nexus, is
inapposite as there is not, in this case, a third measure, such as there was in US – Softwood Lumber IV
(Article 21.5 – Canada).
8.234 The United States also argues that the Eu ropean Communities has failed to present a prima
facie case of violation in respect of its claim. Esse ntially, the United States ar gues that the European
Communities limits itself to identifying and citing the provision it relies upon, and states that the
calculation error breaches the provision, without making any legal arguments. Further, the

847 The European Communities relies on the Appellate Body Report, United States – Transitional
Safeguard Measure on Combed Cotton Yarn from Pakistan ("US – Cotton Yarn "), WT/DS192/AB/R, adopted
5 November 2001, DSR 2001:XII, 6027, para. 73 and Panel Report, United States – Countervailing Duties on
Certain Corrosion-Resistant Carbon Steel Flat Products from Germany ("US – Carbon Steel "), WT/DS213/R
and Corr.1, adopted 19 December 2002, as modified by Appellate Body Report, WT/DS213/AB/R,
DSR 2002:IX, 3833, para. 8.118 for the proposition that investigating authorities cannot remain passive in the
face of shortcomings in evidence submitted to them . See EC First Written Submission, para. 116 and EC
Second Written Submission, para. 120
848 US First Written Submission, paras. 74 ff.
849 US Second Written Submission, paras. 53-63.
850 See US Answer to Panel Question 46.
851 US First Written Submission, para. 77; US Answer to Panel Question 46.

United States argues that the European Communities h as not demonstrated that if all claims of error
(including those made by the petitioners in the S ection 129 proceeding) were taken into account, the
margin would have been negative or less than de minimis. Indeed, the United States considers that,
depending on which errors would have been corrected in the Section 129 determination, it is possible
that the resulting margin would have been higher than the 2.11 per cent margin calculated in the
Section 129 determination.
8.235 The United States submits 852 that US – Carbon Steel, on which the European Communities
relies, concerned the question of whether an investig ating authority is required to consider relevant
factual evidence already on the reco rd before it. The issue in the present dispute is different, and
concerns whether a compliance proceeding is the a ppropriate venue to advance a claim that could
have been brought in the original proceeding. The United States argues that the need for finality of
proceedings and for equitable treatment of all par ties formed the basis for the USDOC's decision not
to correct any of the errors alleged in relation to the original investigation and that the Appellate Body
has recognized the need for investigating authoriti es to establish procedures "in the interest of the
orderly administration" of the proceedings, including setting and enforcing deadlines. 853 T h e
United States notes that during the Section 129 proceeding, both TKAST and the US producers
(petitioners) argued that the USDOC should correct a lleged errors. The USDOC rejected all requests
– by both exporters or petitioners – to correct cler ical errors and therefore consistently and even-
handedly confined its Section 1 29 proceedings to complying with the DSB recommendations and
rulings. Finally, the United States considers that the test proposed by th e European communities –
that "obvious mistakes" should be treated differently from other allegations of error in a Section 129
determinations – is not found in the Anti-Dumping Agreement or the DSU, and would create more
problems that is solves. And it is irrelevant whether the USDOC may, in other Section 129
proceedings, have corrected errors.
(b) Main arguments of the third parties
8.236 Korea considers that there clearly seems to be a clerical error in the Section 129
determination in case 11. Further, Korea submits that although an instruction from the USTR may not
have included a reference to the effect that the USDOC should ensure that there does not exist any
clerical error in the course of the new calculation, it should be axiomatic that such a reference is
always implied in all such instructions.854
(c) Evaluation by the Panel
8.237 The first question we must resolve is whethe r the EC claim with respect to the alleged
calculation error in the Section 129 determination in case 11 falls within our terms of reference.
8.238 We note in this respect that there is no di spute between the parties that the European
Communities did not make any claims with respect to the alleged calculation error in the context of
the original dispute. 855 The European Communities indicates that it did not make any such claim in

853 The United States refers to the Appellate Body Report in United States – Anti-Dumping Measures
on Certain Hot-Rolled Steel Products from Japan ("US – Hot Rolled Steel "), WT/DS184/AB/R, adopted 23
August 2001, DSR 2001:X, 4697, para. 73, and the Appellate Body Report in US – Oil Country Tubular Goods
Sunset Reviews, para. 241.
854 Korea's Answer to Panel Question 22 to the third parties.
855 The parties agree that TKAST raised the issue of the calculation error in the context of the Section
129 proceeding before the USDOC, but disagree to some extent as to whether and when the alleged error was
raised in the context of proceedings before the US authorities. The European Communities submits that TKAST
raised the calculation issue in the context of the original investigation, in the course of requesting amendments
to the original investigation determination to correct for ministerial errors. See EC Answer to Panel

the original proceeding because according to its own calculations, the margin of dumping for TKAST
would be reduced to zero once it was recalculated without zeroing.
8.239 We consider that the EC claim with respect to the alleged calculation error constitutes a new
claim with respect to an unchanged aspect of the original measure, the determination in the original
investigation, which the European Communities could have made , but did not make , in the original
dispute. For this reason, we conclude that the Eu ropean Communities is precluded from raising this
claim in this Article 21.5 proceeding.
8.240 Our reasoning finds support in previous panel a nd Appellate Body decisions, in particular the
panel report in US – Countervailing Measures on Certai n EC Products (Article 21.5 – EC) . The
panel in US – Countervailing Measures on Certai n EC Products (Article 21.5 – EC) considered a
claim by the European Communities that the United States should have re-conducted its likelihood-of-
injury determination in the context of a sunset review re-determination in which the USDOC made a
new likelihood-of-dumping determination. The pane l concluded that this claim concerned an aspect
of the measure that was not a measure taken to comply.
856 But, of relevance to our analysis, the panel
added that even if it were to consider that the aspect of the measure in question were an aspect of the
measures taken to comply, it would nevertheless still have concluded that the EC claim was not within
its mandate.857 The panel noted that the EC claim concerned aspects of the original measure that were
unchanged and were not cha llenged in the original proceedings. It reasoned that the purpose of an
Article 21.5 proceeding is to provide an expeditio us procedure to establish whether a Member has
properly implemented the DSB recommendations and rulings and that admitting such a new claim
would mean providing the European Communities with a second chance to raise a claim that it had
failed to raise in the original proceeding.858 It added that:
"Moreover, the Panel is concerned that allowing a new claim on the likelihood-of-
injury in the current proceedings may jeopardize the principles of fundamental
fairness and due process. In our view, it w ould be unfair to expose the United States
to the possibility of a finding of violation on an aspect of the original measure that the
United States was entitled to assume was c onsistent with its obligations under the
relevant agreement given the absence of a finding of violation in the original report.

Question 45. The United States considers that the Eu ropean Communities fails to identify where the USDOC
"refused to correct the error" in th e amended original investigation determination. The United States also
questions whether the error challenged in the context of the original investigation "w as connected" to the error
alleged by the European Communities in the present proceeding. Finally, the United States adds that TKAST
challenged the alleged error before th e United States Court of International Trade ("CIT"), and that the CIT
rejected TKAST's claim. See US Co mments on EC Answer to Panel Question 45. We also note that, as
indicated in the summary of the parties' arguments, in the context of the prolonged proceeding for case 11 in the
Section 129 proceeding, TKAST also raised a handful of other alleged er rors, and the domestic producers also
raised errors or other issues which they considered the USDOC should take into account if it were to entertain
TKAST's request for revision. The USDOC declined to cons ider any of these allegations of error. See Exhibit
EC-8, p. 4. We do not consider, however, that whether the alleged error was raised by TKAST in the course of
proceedings before the USDOC or the CIT is relevant to our conclusion in this case.
856 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) ,
paras. 7.31 and 7.72.
857 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) ,
para. 7.73.
858 Panel Report, US – Countervailing Measures on Certain EC Product (Article 21.5 – EC), para. 7.74.
We note that the panel seemed to dr aw an analogy with Appellate Body d ecisions to the effect that a party
cannot cure the failure to include a claim in the panel request by raising the claim in subsequent submissions or
statements. We consider the requiremen t to include a claim in the panel request, contained in Article 6.2 of the
DSU, to be distinct from the issue of the constraints or limits on the claims that can be raised under Article 21.5
of the DSU; as a result, we do not consider prior panel and Appellate Body decisions on Article 6.2 of the DSU
to be particularly relevant to the question before us.

In sum, permitting the European Communiti es to introduce a new claim on an aspect
of the original measure that was never challenged and remained unchanged raises
serious issues regarding the United States' due process rights. On balance, the utility
of an Article 21.5 proceeding should not override the basic due process rights of the
parties to a dispute."859
8.241 The US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) panel
reached this conclusion after review ing prior Appellate Body decisions with respect to the scope of
measures that can be challenged and the claims that can be made in an Article 21.5 proceeding. The
panel explained that while prior A ppellate Body jurisprudence seemed to indicate that a party is not
precluded from raising claims that it did not raise in the original proceedings, provided that these
claims concern the measures taken to comp ly and are included in the Panel request 860, the Appellate
Body's reasoning for the inclusion of new claims in the scope of Article 21.5 proceedings in these past
decisions was that "the 'measure taken to comply' may be inconsistent with WTO obligations in ways
different from the original measure". By contrast, the question before that panel – and the question
before us – is whether this conclusion should also apply to new claims where the measure taken to
comply is unchanged from the original measure and thus, allegedly inconsistent with WTO
obligations in ways identical to (not different from) the original measure.861

859 Panel Report, US – Countervailing Measures on Certain EC Products , (Article 21.5 – EC)
paras. 7.75-7.76.
860 The panel reviewed the Appellate Body decisions in Canada – Aircraft (Article 21.5 – Brazil), US –
FSC (Article 21.5 – EC) (Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations" – Recourse to Article 21.5 of the DSU by the European Communities , WT/DS108/AB/RW,
adopted 29 January 2002, DSR 2002:I, 55) and EC – Bed Linen (Article 21.5 – India) . This analysis led the
panel to conclude that an Article 21.5 panel can consider a new claim on an aspect of the measure taken to
comply that constitutes a new or revised element of the original measure, which claim could not have been
raised in the original pro ceedings (this was the case in Canada – Aircraft (Article 21.5 – Brazil) and US – FSC
(Article 21.5 – EC)). On the other hand, the panel noted, an Article 21.5 panel cannot consider the same claim
on an aspect of the measure taken to comply that is an unchanged element of th e original measure and was
already challenged in the original proceeding and dism issed in an adopted report ( EC – Bed Linen (Article 21.5
– India) and US Shrimp (Article 21.5 – Malaysia) ). The panel noted, however, that none of these reports
explicitly address a situation in which new claims are rais ed which refer to aspects of the original measure that
were not changed by the responding Member during the implementation, although, allegedly, they should have
been changed. Panel Report, US – Countervailing Measures on Certain EC Products , (Article 21.5 – EC),
paras. 7.64-7.65.
861 Panel Report, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC)
paras. 7.55-7.56. This same panel considered that another "new" claim of the European Communities was
properly before it. The claim con cerned the evidence considered by th e USDOC in its revised likelihood-of-
subsidization analysis: in its Section 129 determination, the USDOC changed the basis for its affirmative
likelihood-of-subsidization finding, and the panel found that even though the USDOC's treatment of evidence in
the Section 129 determination might appear to be unchanged compared to the original sunset reviews, the
USDOC had modified the basis for its determination and that, as a result, the relative importance of the evidence
in question had changed. The panel thus considered that this second "new" claim concerned an aspect of the
measure taken to comply that had changed vis-à-vis the original measure and co ncluded that the European
Communities could not have meaningfully raised the treatment of evidence in the original proceeding. The
panel also noted that Article 21.5 proceedings aim to ensure the effective resolution of disputes by providing the
complaining Member with an expeditious procedure to challenge the implementation of the DSB
recommendations and rulings and that it could therefore consider new claims "arising from the implementation."
Further, the panel considered that permitting the new claim did not unduly deprive the United States of its due
process rights as the United States ha d itself introduced the issue of treatme nt of evidence by revising the entire
likelihood-of-subsidization determination and by changing th e legal basis of its determination. As a result, the
United States could have anticipated a claim on th e USDOC's treatment of evidence. Panel Report, US –
Countervailing Measures on Certain EC Products (Article 21.5 – EC), paras. 7.69-7.70.

8.242 We agree with the US – Countervailing Measures on Certain EC Products (Article 21.5 –
EC) panel that the scope of Article 21.5 of the DSU is not so broad as to allow a complaining party to
make claims that it could have made, but did not make, in the original proceeding, with respect to
aspects of the original measure at issue that we re incorporated, but remained unchanged, in the
measure taken to comply. We find further support for this proposition in the following statement of
the Appellate Body in US – Upland Cotton (Article 21.5 – Brazil) : "A complaining Member
ordinarily would not be allowed to raise claims in an Article 21.5 proceeding that it could have
pursued in the original proceedings, but did not."
862
8.243 Of course, the calculation of TKAST's margin of dumping in the Section 129 determination,
and the use of zeroing in this calculation, is closel y linked to the issue of the set of data used to
calculate the dumping margin. Yet, we consider th at the calculation error alleged by the European
Communities concerns an aspect of the Section 129 determination in case 11 that is unchanged from
the original determination.863 Further, the alleged error is distin ct from any of the claims made by the
European Communities in the original dispute, which related only to the issue of the use of zeroing by
the USDOC in calculating the margin of dumping; the error is not a consequence of the use of zeroing
in the original dispute, and the recalculation of th e margin of dumping without zeroing did not lead to
or affect the alleged error, or even affect its significance in the overall WTO-consistency of the
calculation of the margin of dumping. In this sense, we consider that the claims of the
European Communities relate to a part of the S ection 129 determination that has remained unchanged
from the original measure, and that that part can be "separated" from the remainder of the Section 129
determination for the purpose of this proceeding.
864
8.244 Thus, we find that the European Communities c ould have raised the a lleged calculation error
in the original dispute and that, having failed to do so, the United States was not obligated to amend
its original measure in this respect. We therefore find that the EC claim with respect to the alleged
error in the calculation of TKAST's dumping margin is not one which the European Communities
could properly make in the context of this Article 21.5 proceeding.
865 As a result, we find that the EC
claims in respect of the Section 129 determina tion in case 11 are not prope rly before us, and we
therefore make no findings on the substance of the EC claims in this respect.

862 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 211.
863 The European Communities relies on the fact that the USDOC repeated the error in the Section 129
determination; also, while its arguments in this respect are not very clear, the European Communities seems to
argue that the error became part of the Section 129 dete rmination because the USDOC postponed its
determination in case 11 because of the allegations of error by TKAST. We are not convinced by this argument
of the European Communities – however it is presented, the alleged calculation error was committed in the
original determination, and the same alleged error was simply reproduced in the Section 129 determination as a
result of the USDOC having simply re-run the data thr ough a modified computer pr ogramme that eliminated
zeroing but was otherwise unchanged.
864 As a consequence of our analysis that the alleged error concerns an unchanged aspect of the original
measure, we do not consider that we need to examine further the parties' argument as to whether the calculation
error is part of the measure taken to comply; we also need not decide whether the alleged calculation error
should be found to be part of that measure on the basis of the close nexus argument put forward by the
European Communities.
865 We might well have reached a different conclusi on had the European Communities brought a claim
against the alleged calculation error in the original dispute and had the original panel or the Appellate Body
decided to exercise judicial economy with respect to such a claim. But that is not the case before us. It is clear
to us that the European Communities made a conscious choice not to raise the alleged error in the original
dispute and, in our view, that choice has consequences in this compliance proceeding.

2. EC claims with respect to the Section 129 determinations in cases 2, 3, 4 and 5 (Stainless
Steel Bar from France, Germany, Italy and the United Kingdom)
(a) Introduction and authority of the Panel to address claims with respect to revoked measures
8.245 The European Communities makes two groups of claims with respect to the Section 129
determinations in cases 2, 3, 4 and 5. The first gr oup of claims concerns the issue of whether, as a
result of the recalculation of the margins of dum ping in these Section 129 determinations, and the
resulting exclusion of certain exporters, the Un ited States should have revisited the injury
determination in the original determination in these cases. The second group of claims by the
European Communities concerns the new "all others" rates established as a result of the Section 129
determinations in cases 2, 4 and 5.
8.246 The United States argues that both groups of cl aims concern measures that have been revoked
and that the Panel should therefore decline to rule on them. 866 The United States indicates that the
anti-dumping orders covering Stainless Steel Bar from France, Italy, Germany and the
United Kingdom were revoked, effec tive 7 March 2007, as a result of sunset reviews later adopted in
these cases and that, therefore, it no longer maintains anti-dumping duties on products subject to these
orders.
867
8.247 The European Communities868 asks us to make findings on its claims notwithstanding the fact
that the AD orders at issue have been revoked. The European Communitie s submits that several
panels have in the past considered that the fact that a challenged measure is no longer in effect does
not necessarily prevent a Panel from assessing its conformity with the covered agreements.869
8.248 The European Communities had initially argued that the revocation of the anti-dumping
orders could not be regarded as definitive as a successf ul legal challenge to the sunset review at issue
could result in a reinstatement of the orders. The United States subsequently informed the Panel that
an appeal of the determination that lead to the revocation had been dismissed, meaning that revocation
of the orders is now final. 870 The European Communities has submitted that the United States may

866 US First Written Submission, paras. 54, 62-64 and Exhibit US-13, Revocation of Antidumping Duty
Orders on Stainless Steel Bar From France, Germany, Italy, South Korea, and the United Kingdom and the
Countervailing Duty Order on Stainless Steel Bar From Italy (73 FR 7258, 7 February 2008).
867 The United States indicates that cash deposits on any imports on or after 7 March 2007 will be
refunded.
868 EC Second Written Submission, paras. 125-127, 132-134.
869 See footnote 97 of the EC Second Written Submission, in which it refers to Panel Report, United
States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India (" US – Wool Shirts and
Blouses") WT/DS33/R, adopted 23 May 1997, upheld by Appellate Body Report, WT/DS33/AB/R, DSR
1997:I, 343, para. 6.2; Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain
Agricultural Products ("Chile – Price Band System "), WT/DS207/R, adopted 23 October 2002, as modified by
Appellate Body Report, WT/DS207AB/R, DSR 2002:VIII, 3127, para. 7.112; Panel Report, Indonesia – Autos,
para. 14.9; Panel Report, India – Autos , para. 7.26 and Appellate Body Report, Argentina – Textiles and
Apparel, para. 64; and EC Answer to Panel Question 47 in which, in addition, it refers to Panel Report,
Dominican Republic – Cigarettes , para. 7.343, Panel Report, Argentina – Measures Affecting Imports of
Footwear, Textiles, Apparel and Other Items ("Argentina – Textiles and Apparel "), WT/DS56/R, adopted
22 April 1998, as modified by Appellate Body Report, WT/DS56/AB/R, DSR 1998:III, 1033, paras 6.14-6.15,
Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper ("Japan – Film "),
WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179, para 10.58, and Panel Report, United States –
Standards for Reformulated and Conventional Gasoline ("US – Gasoline"), WT/DS2/R, adopted 20 May 1996,
as modified by Appellate Body Report, WT/DS2/AB/R, DSR 1996:I, 29, para 6.19. While the findings of these
panels were made in the context of original disputes , the European Communities considers that they equally
apply in the context of an Article 21.5 dispute (EC Answer to Panel Question 47).
870 US Opening Statement, para. 27, referring to Exhibit US-33.

take similar measures in the future , which would lead to the need fo r an aggrieved Member to bring a
new legal challenge.
871
8.249 In this case, the Section 129 determinations at issue were still in effect on the date of the
establishment of this Panel . Only later (in February 2008) were they revoked, with retroactive effect
to March 2007. As the measures were in existence on the date of our establishm ent, we consider that
they fall within our terms of reference and that we have the authority to make findings on the WTO-
consistency of these US measures taken to comply. 872 Of course, any finding of inconsistency with
respect to a measure that is no longer in effect will not affect any remaining US obligation to
implement the DSB's recommendations and rulings.
8.250 We do not agree with the European Communities that a potential repetition of the alleged
inconsistencies with the provisions cited by the European Communities is a relevant consideration
that warrants us making findings on the US measures at issue. It is not disputed that the anti-dumping
orders have now been definitively revoked. Any future similar in consistency on the part of the
United States with the provisions cited by th e European Communities would therefore necessarily
arise in the context of another dispute. 873 That said, we consider it appropriate to make findings on
the EC claims with respect to the revoked measu res challenged by the European Communities. As
indicated above, the measures were revoked several m onths after the establishment of this Panel. We
have elsewhere indicated that we would examine th e existence and WTO-consistency of US measures
taken to comply as of that date. Making the fi ndings requested by the European Communities is
consistent with our overall approach in this dispute and, in our view, fulfils the mandate assigned to us
by the DSB.
8.251 We now proceed to examine the two groups of EC claims in respect of the Section 129
determinations in cases 2, 3, 4 and 5.
(b) EC claims with respect to "injury" – Section 129 determinations in cases 2, 3, 4 and 5
(i) Main arguments of the parties
8.252 The European Communities claims that the United States failed to reassess its findings of
injury in light of the new volume of non-dump ed imports resulting from the conclusion in the
Section 129 determinations in cases 2 to 5 that a number of exporters found to be dumping in the
original investigation were not dumping or had de minimis margins.874 In particular, the European

871 The European Communities argues that "it is likel y that, unless this Panel issues a ruling on these
matters, the United States would repeat the same actions ". EC Answers to Panel Question 47; see also EC
Answer to Panel Question 52 ("unless this Panel issues a finding with respect to the measures at issue in this
case ... the dispute between the parties will continue and would have to be repeated in the context of other
dispute settlement proceedings"). See also EC Opening Statement, para. 79.
872 The US – Stainless Steel (Mexico) panel noted that:
"There is no specific provision in the DSU that addresses whether a WTO panel may or may
not make findings and recommendations on a measure which, while within the panel's terms
of reference at the outset of the panel proceedings, subsequently expires. We note, however,
that this is not a novel issue in WTO dispute settlement proceedings. This specific issue has
arisen in a number of cases, and panels, taking into consideration the particularities of the
disputes before them, have used their discretion in deciding whether making findings on an
expired measure would be appropriate in each case."

Panel Report, United States – Final Anti-Dumping Me asures on Stainless Steel from Mexico ("US –
Stainless Steel (Mexico) "), WT/DS344/R, adopted 20 May 2008, as modified by Appellate Body Report,
WT/DS344/AB/R Panel Report, para. 7.48. (footnote omitted)
873 We recall that the findings of the original panel were that the challenged measures were inconsistent
"as applied".
874 EC First Written Submission, paras. 144-153, EC Opening Statement, para. 82.

Communities argues that the United States disregarded the fact that, after the recalculation of margins
without zeroing, on average around 75 per cent of the volume of imports which had been considered
to be dumped could no longer be considered as such. The European Communities submits that this is
inconsistent with Articles 3.1, 3.2, 3.5, 5.8 of the Anti-Dumping Agreement and Article VI:1 of the
GATT 1994, arguing that in these cases, the United States, through the Section 129 determinations,
maintained anti-dumping duties without establishing (i) whether the remaining amount of dumped
imports was causing injury to the domestic injury; and (ii) whether this volume of dumped imports
was not negligible. The European Communities s ubmits that a number of WTO panels have found
that the term "dumped imports" in Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement does not
include imports by producers or exporters for which no dumping was found or for which de minimis
margins were calculated.875
8.253 The United States submits that the European Communities is precluded from pursuing its
claims before this Panel as the European Comm unities asserted these claims in the original panel
proceeding, and the original panel declined to c onsider them, which resulted in the DSB making no
recommendations and rulings with respect to these clai ms. The United States therefore considers that
it was under no obligation to take a measure to comply in respect of the original injury
determinations.876 Further, the original panel did not exercise judicial economy with respect to these
claims, but rather found the EC claims unavailing, and that no ch ange to the original injury
determination was necessary to effect implementa tion, stating that it "perceive[d] no need to
pronounce on the dependent claims raised by the European Communities" under, inter alia , these
provisions. Had the original panel believed that the United States was oblig ated to conduct a new
injury analysis in light of revised volumes attributable to non-zeroed margins of dumping, then it
would have been necessary for th e panel to decide those claims in order to provide additional
guidance as to the steps the United States had to u ndertake. And the United States would then have
been on notice that the original panel considered reconsideration of aspects of the injury analysis to be
the necessary result of any change in the volume of dumped imports. The United States considers
that, like the original panel, this Panel should not rule on these claims since deciding such dependent
claims would provide no additional guidance as to the steps the United States would have to take in
order to implement the recommendation regard ing the violation on which it is dependent. 877 While
the European Communities argues that the claims concerns new measures, its claims are not "new";
rather, the European Communities is trying to resuscitate failed claims from the original dispute. The
Appellate Body has clarified that adopted reports must been accepted by the parties to a compliance
dispute and that compliance panels should decline to revisit original panel and Appellate Body reports
that have been adopted and accepted by the parties.878
8.254 In any case, the United States submits that irr espective of how one characterizes the findings
of the original panel, it disagrees that in US – Oil Country Tubular Goods Sunset Reviews
(Article 21.5 – Argentina) , the Appellate Body indicated that a Member may, before an Article 21.5
panel, repeat a claim with respect to which the or iginal panel exercised judicial economy. In that
compliance dispute, the Appellate Body simply obser ved that the "participants have characterized the
original panel's approach as an exercise of judicial economy" and did not itself express a view as to

875 The European Communities refers to Panel Report, Argentina – Definitive Anti-Dumping Duties on
Poultry from Brazil ("Argentina – Poultry Anti-Dumping Duties "), WT/DS241/R, adopted 19 May 2003,
DSR 2003:V, 1727, para.7.303, which itself referred to the findings of the panels in European Communities –
Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (" EC – Bed Linen "), WT/DS141/R,
adopted 12 March 2001, as modified by Appellate Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077) and
EC – Bed Linen (Article 21.5 – India). See EC First Written Submission, para. 147.
877 The United States also notes that the Appellate Body did not disturb the original panel's treatment of
these claims.
878 US Second Written Submission, paras. 65-69.

whether such a characterization of the original panel's approach was correct.
879 Finally, the
United States considers that the European Communiti es has failed to substantiate its assertions. The
EC arguments on injury assume that an "incorrect" volume of dumped imports automatically
constitutes a breach of Articles 3.1, 3.2, 3.5, and Article VI:1 of the GATT 1994. Nothing in the text
of those provisions suggests that the mere exis tence of differences in the volume of the dumped
imports suffices to prove that the entire injury determination is flawed.
880
8.255 The European Communities responds that its claims with respect to the Section 129
determinations at issue are not "dependent clai ms" as the United States has characterized them.
Rather, they relate to new measures (the Section 129 determinations), against which new claims can
be made, and with respect to which the Europ ean Communities is asking for a finding from this
Panel.881 Further, the European Communities consider s that the United States mischaracterizes the
treatment of the EC claims on injury by the original panel. The panel in the original dispute did not
reject the EC claims. Rather, the panel exerci sed judicial economy since the EC claims were
consequential of the violation in calculating the dumping margin. This was explicitly acknowledged
by the Appellate Body. The fact that the panel in the original dispute consid ered that resolving these
claims would not provide guidance in terms of implementation does not mean that the United States
was under no obligation to conduct its injury analysis anew. Panels are not obliged to address all the
aspects of a measure. Nor can panels foresee how the Member concerned is going to implement the
ruling and recommendation and, thus, cannot foresee a ll possible new violations which might arise in
connection with measures taken to comply. To th e contrary, the obligation to bring the measure
found WTO-inconsistent into conformity relates to the Member concerned, which is obliged to do
everything which is necessary for the measure taken to comply to be consistent with the covered
agreements as a whole.
882 The Appellate Body, in US – Oil Country Tubular Goods Sunset Reviews
(Article 21.5 – Argentina) , held that a claim relating to an asp ect of a measure on which the panel in
the original proceeding had exercised judicial econom y was properly within the scope of Article 21.5
of the DSU.883 Therefore, the European Communities argu es that the claim in the present case is also
properly before this Panel.884
(ii) Evaluation by the Panel
Whether the EC claims are properly before us
8.256 The United States asks that we decline to examine the EC claims because the
European Communities "raised these claims in the original proceeding, and the original panel
affirmatively declined to make findings on them" a nd the Appellate Body noted the panel's action and
did not disturb it. 885 The US arguments rely on the principle, recognized by the Appellate Body in,
inter alia, EC – Bed Linen (Article 21.5 – India) that the findings of an original panel rejecting certain
claims, including because the claimant failed to make a prima facie case, and that are not reversed on
appeal are res judicata.886 However, contrary to the US arguments, this principle does not apply in

879 US Answers to Panel Questions 51-52, US Comments on EC Answer to Panel Question 51.
880 US Answer to Panel Question 52.
882 EC Comments on US Answer to Panel Question 51.
883 The European Communities adds that the US – Upland Cotton (Article 21.5 – Brazil) panel agreed
with its reading of the Appellate Body findings in US – Oil Country Tubular Goods Sunset Reviews
(Article 21.5 – Argentina) (Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures
on Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina ("US – Oil
Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) "), WT/DS268/AB/RW, adopted
11 May 2007). EC Answer to Panel Question 51.
884 EC Opening Statement, paras. 84-85, EC Answer to Panel Question 51.
885 US Opening Statement, para. 26.
886 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 93.

the present case. The original panel declined to make findings with respect to the EC "injury" claims
in the following terms:
"The Panel also perceives no need to prono unce on the dependent claims raised by
the European Communities under Articles 1; 3.1, 3.2 and 3.5; 5.8; 9.3; and 18.4 of the
Anti-Dumping Agreement , Articles VI:1 and VI:2 of the GATT 1994 and
Article XVI: 4 of the WTO Agreement. Deciding such dependent claims would
provide no additional guidance as to the step s to be undertaken by the United States
in order to implement our recommendation regarding the violation on which it is
dependent."
887
In the footnote to this paragraph, the panel added:

"Our decision not to make findings on depe ndent claims is consistent with the
approach followed in recent panel reports, including, for example, Panel Report, US –
Softwood Lumber V , para. 7.378; Panel Report, Argentina – Poultry Anti-Dumping
8.257 There is no doubt in our mind that the original panel exercised judicial economy with respect
to the EC claims concerning "injury". This is al so how the Appellate Body interpreted the original
panel's treatment of the EC claims.889 In fact, the original panel's tr eatment of the EC claims seems to
be a straightforward instance of a panel exercising judicial economy, that is, declining to address
certain claims because the measure at issue has already been found to be inconsistent with other
provisions of the covered agreemen ts. Here, as we understand it, the original panel considered that
the measures at issue (specific original investig ation determinations) were inconsistent with the
covered agreements as a result of inconsistency with Article 2.4.2 and that any additional violation of,
inter alia , paras. 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement would be a result of the

887 Panel Report, US – Zeroing (EC) , para. 7.34. The United States identified para. 7.109 as the
paragraph in which the original panel (according to the United States) made a finding with respect to the EC
"injury" claims. In our view, the more relevant paragraph is 7.34, since it is in this paragraph that the panel
addressed the EC "as applied" claims with respect to th e original investigations at issue in that dispute;
paragraph 7.109 relates to the panel's examination of the EC "as such" claims with respect to original
investigations. In any case, with the exception of the fo otnote attached to paragraph 7.34, which is not repeated
in paragraph 7.109, both paragraphs are identical. See also para. 8.2 of the report of the original panel:
"We have also concluded that it is not necessary for us to make findings on the claim of the
European Communities that the application of the model zeroing method in the investigations
listed in Exhibits EC-1 to EC -15 was inconsistent with Articles 1, 2.4, 3.1,3.2,3.5,5.8,9.3 and
18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the
WTO Agreement, and on the claim of the Euro pean Communities that the Standard Zeroing
Procedures used by USDOC in original investigations are inconsistent as such with Articles 1,
2.4 3.1, 3.2, 3.5, 5.8, 9.3 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT
1994 and Article XVI:4 of the WTO Agreement."(footnotes omitted).
888 Panel Report, US – Zeroing (EC), footnote 134.
889 Appellate Body Report, US – Zeroing (EC), footnote 12:
"Panel Report, para. 8.1. The Panel decided to exercise judicial economy and did not rule on
the European Communities' claim that the application of model zeroing in the investigations
listed in Exhibits EC-1through EC-15 was inconsiste nt with Articles 1, 2.4, 3.1, 3.2, 3.5, 5.8,
9.3, and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement. The Panel also exerci sed judicial economy on the
European Communities' claim that the Standard Zeroing Procedures used by the USDOC in
original investigations are inconsistent, as such, with Articles 1, 2.4, 3.1, 3.2, 3.5, 5.8, 9.3, and
18.4 of the Anti-Dumping Agreement, Artic les VI:1 and VI:2 of the GATT 1994, and
Article XVI:4 of the WTO Agreement. (Ibid., para. 8.2)" (emphasis added).

Article 2.4.2 violation, and that making findings with respect to these additional claims would
contribute little to the resolution of the dispute since the measures had already been found to be
inconsistent with the covered agreements. In any case, the panel neither made a finding of
inconsistency nor a finding of c onsistency with the provisions cited by the European Communities.
As a result, we fail to see how the issue could be res judicata. We therefore reject the US argument
that the original panel's conclusion that to ru le on the claims would have provided no additional
guidance as to the steps to be undertaken by the Un ited States to implement transformed the panel's
exercise of judicial economy into a negative ruling on the EC claims.
8.258 The parties disagree whether the findings of the Appellate Body in US – Oil Country Tubular
Goods Sunset Reviews (Article 21.5 – Argentina) stand for the proposition that Article 21.5 allows the
reassertion, in a compliance dispute, of a claim w ith respect to which an original panel exercised
judicial economy. The Appellate Body has observed in this regard:
"EC – Bed Linen (Article 21.5 – India) concerned a claim for which the complainant
was found not to have made out a prima facie case in the original proceedings. This
is not what occurred in the original proceedi ngs in the present case. The participants
have characterized the original panel's approach as an exercise of judicial economy.
320
We do not express a view on whether this is a proper characterization of the approach
taken by the original panel. In any event, even if the original panel's approach should
properly be characterized as judicial economy, it would still mean that the central
rationale of the Appellate Body in EC – Bed Linen (Article 21.5 – India) would not
be applicable .321 The Appellate Body explained that the issue raised in that case
differed 'from a situation where a panel, on its own initiative, exercises 'judicial
economy' by not ruling on the substance of a claim.322
Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) is more properly regarded as an
obiter dictum, or as an additional reason as why the claims at issue in that case were properly before
the compliance panel. In any case, it is beyond doubt that the Appellate Body's findings in US – Oil
Country Tubular Goods Sunset Revi ews (Article 21.5 – Argentina) indicate that the conclusion in the
EC – Bed Linen (Article 21.5 – India) dispute regarding res judicata does not apply in cases where the
original panel exercised judicial economy with respect to the claims at issue, and the Appellate Body

890 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 –
Argentina), para. 148 and corresponding footnotes (italics original, underline added).

did not make any findings with respect to the claims either. The US – Upland Cotton (Article 21.5 –
Brazil) panel understood the Appellate Body's findings in the same manner. 891
8.260 Further, in our view, one of the considerati ons underlying the principle that a Member may
not make before a compliance panel a claim whic h it did not make, but could have made, in the
original dispute, and may not, in a compliance pr oceeding, repeat a claim which it made in the
original dispute but which was rejected by the or iginal panel, is that due process entails that a
complainant should not be afforded a "second ch ance" to make its case. Such due process
considerations do not arise in a case where the origin al panel exercised judicial economy with respect
to certain claims made and argued before it.892
8.261 The United States argues that it could not be under an obligation to comply with respect to the
EC claims on "injury" and that had the panel made such findings, it would have been "on notice" that
the original panel considered the reconsideration of aspects of the injury anal ysis to be the necessary
result of the change in dumped imports. In our view, these arguments are devoid of merit. In our
view, the United States could not "assume" that the injury determination was consistent with the
covered agreements; the United States was put on notice, by the EC claims in the original dispute, that
the European Communities consid ered the injury determinati ons to be flawed because of, inter alia,
the same inconsistencies with the Anti-Dumping Agreement that the European Communities now
raises again. Thus, in our view, the United States was aware that the injury determination could be
challenged in a compliance dispute.893

891 Panel Report, US – Upland Cotton (Article 21.5 – Brazil) , para. 9.26 ("the Appellate Body recently
held that a claim relating to an aspect of a measure on which the panel in the original proceeding had exercised
judicial economy was properly within the scope of Article 21.5 of the DSU") .
892 See also, by analogy, Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 210,
where the Appellate Body distinguishes the situation in that case (the Appellate Body reversed the original
panel's findings but was unable to complete the analysis) from the situation addressed in EC – Bed Linen
(Article 21.5 – India), and notes that because Brazil's claims had not been resolved on the merits in the original
proceedings, allowing Braz il's claims in the compliance dispute would not raise the concern that Brazil get a
"second chance" to make a case it had failed to make out in the original proceedings such that the finality of the
DSB's recommendations and rulings would be compromised.
893 We also note, in this respect, certain statements made by the Appellate Body in US – Oil Country
Tubular Goods Sunset Reviews (Article 21.5 – Argentina) , in response to arguments of the United States that
because the original panel did not make a finding of inco nsistency as to its volume analysis, it was placed in a
position of having to guess that the panel "might have thought" that there were WTO-inconsistencies with
respect to that aspect of the measure, and that a respon dent whose measure is found to be WTO-inconsistent for
the first time by a compliance panel is not given a "reasonable period of time" to bring itself into conformity:
"On the basis of the original panel's conclusions, the USDOC could not assume that its
findings regarding the alleged decline in the volume of imports were WTO-consistent. The
United States was given a 'reasonable period of time' to bring the USDOC's likelihood-of-
dumping determination into compliance following the adoption by the DSB of the panel and
the Appellate Body reports in the original proceedings. Moreover, Argentina's arguments
relating to the finding on import volumes were not raised for the first time in these
Article 21.5 proceedings. Inst ead, the parties have offered ar guments and counter-arguments
on the issue twice, first in the original proceedings, and then in these Article 21.5 proceedings.
Additionally, we do not believe that Argentina is unfairly getting a 'second chance', as would
be the case where a panel or the Appellate Body had found the measure to be WTO-consistent
in the original proceedings, or that the complainant failed to make out a prima facie case.

Furthermore, we recall that the aim of Article 21.5 of the DSU is to promote the prompt
compliance with DSB recommendations and rulings and the consistency of "measures taken to
comply" with the covered agreements by maki ng it unnecessary for a complainant to begin
new proceedings and by making efficient use of the original panelists and their relevant

8.262 Second, it would, in our view, be a denial of the complainant's right to seek the resolution of a
dispute under the DSU to prevent it from raising, in a compliance dispute, a claim on which the
original panel declined to rule as a matter of judicial economy. The Appellate Body, in EC – Bed
Linen (Article 21.5 – India) , stated that "in a situation where a pa nel, in declining to rule on a certain
claim, has provided only a partial resolution of the matter at issue, a complainant should not be held
responsible for the panel's false exercise of judici al economy, such that a complainant would not be
prevented from raising the claim in a subsequent proceeding."
894 We agree.895
8.263 Thus, insofar as the EC claims relate to an asp ect of the measure that was challenged in the
original dispute, but with respect to which the original panel exercised judicial economy and did not
rule, the European Communities is not prevented from repeating them befo re this panel. Even if we
were to consider that the EC claims concern a new measure (a new original investigation in the form
of the Section 129 determination), we would come to the same conclusion, that is, that the EC
"injury" claims are properly before us. In fact, we note that the arguments ma de by the United States
in the original dispute suggest that this "new" claim could not properly have been made in the original
dispute.
896 While before the original panel, the effect of the violation found on the injury
determination, if any, could not have been eval uated, the situation is different now that the
United States has recalculated the dumping margins, and the resulting volume of dumped imports can
be determined.897
8.264 The EC claims raise the issue of the extent of an implementing Member's obligation to take
further action where the changes effected as a r esult of "implementation" allegedly affect other
aspects of the original measure which were not the subject of any of any findings in the original
dispute. In this case, the original panel's findings addressed an inconsistency in the calculation of the
margin of dumping, whereas the EC claims before us relate to the injury analysis – a different aspect
of the original measure, which was not revisited in the Section 129 determinations. Yet, the DSB
recommended that the United States bring its measures ( i.e. the anti-dumping measures based on the
determinations in the original investigations at i ssue) into conformity with its obligations under the

experience. These considerations support the Panel's finding that the volume analysis was
properly before it."
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) ,
paras. 150-151. (footnotes omitted).
894 Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , footnote 115, cited by the Appellate
Body in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), footnote 322.
895 In our view, it does not matter wh ether the original panel's exercise of judicial economy was "false"
– what matters is that the complaining Member did not obta in a finding with respect to its claim as a result of
exercise of judicial economy.
896 See paras. 4.119-4.120 of the report of the original panel:
"The European Communities cannot establish that USDOC nece ssarily would have calculated
zero or de minimis dumping margins in the cite d cases, or that the USITC treated certain non-
dumped imports as dumped. In the absence of such showings, the United States contends that
the European Communities has failed to meet its burden to demonstrate that any of the cited
determinations by the USITC is inconsistent with Articles 3.1, 3.2, and 3.5.

The United States notes that the European Communities, in response to the Panel's
Question 32, does not deny that its claims as to such measures are merely speculative, given
that the European Communities cannot presume the results of an alternative margin
calculation methodology permitted by the AD Agreement. According to the United States, the
European Communities instead adopts the new position that the use of so called zeroing
somehow renders the injury determinations necessarily "unsound". The
European Communities does not explain, however, how the use of zeroing necessarily caused
the volume of dumped imports to be inflated, or how zeroing otherwise gives rise to an
Article 3 claim."
897 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 86.

Anti-Dumping Agreement and the GATT 1994. In this sense, the EC claims now before us relate to
an omission on the part of the United States to bring its measures into conformity with its obligations
under the Anti-Dumping Agreement and the GATT 1994. 898 Further, we note that past panel and
Appellate Body decisions indicate that the effect of the findings of inconsistency and of the actions
taken by the implementing Member is relevant to determining the scope of the measure taken to
comply.899 The European Communities alleges that th e United States could not, in implementing the
DSB's recommendations and rulings, limit itself to modifying the dumping margin calculations,
without also revisiting its injury determination. In this sense, the European Communities seeks to
challenge an aspect of the original measure whic h has not changed, but which should have been
changed in order to comply with the DSB recommenda tions and rulings to bring the measure at issue
in the original dispute, the original anti-dumping meas ure, based on the determinations in the original
investigation, into consistency with US obligations under the Anti-Dumping Agreement and the GATT
1994. In light of the relevance of the volume of dum ped imports to the injury determination, there is
no question in our minds that the EC claims fall within our term s of reference as relating to a
"measure taken to comply".
900
Substance of the EC claim
8.265 The substance of the EC claim is that the United States, having recalculated (without zeroing)
the margins of dumping in cases 2, 3, 4 and 5, and having found that so me exporters were not
dumping or had de minimis dumping margins, maintained the anti-dumping duties without
establishing (i) whether the resulting volume of dum ped imports was causing injury to the domestic
industry, and (ii) whether this volume of dumpe d imports was not negligible. The European
Communities alleges that this is inconsistent with Articles 3.1, 3.2, 3.5, and 5.8 of the Anti-Dumping
Agreement and Article VI:1 of the GATT 1994. The Eu ropean Communities notes in particular that
the United States disregarded the fact that, after the recalculation of dumping margins without
zeroing, approximately 75 per cent (on average) of the volume of imports which had originally been
considered as dumped could no longer be considered as dumped.
8.266 Article 3.1 of the Anti-Dumping Agreement provides:
"A determination of injury for purposes of Article VI of GATT 1994 shall be based
on positive evidence and involve an objective examination of both (a) the volume of
the dumped imports and the effect of the dumped imports on prices in the domestic

898 In other words, the EC claims concerns the no n-existence of a measure taken to comply. See
Appellate Body report, Canada – Aircraft (Article 21.5 – Brazil) , para. 36 ("In our view, the phrase 'measures
taken to comply' refers to measures which have been, or which should be, adopted by a Member to bring about
compliance with the recommendations and rulings of the DSB." (emphasis added)) and Appellate Body Report,
EC – Bed Linen (Article 21.5 – India) , para. 79 ("the mandate of Article 21.5 panels is to examine either the
'existence' of 'measures taken to comply' or, more frequently, the ' consistency with a covered agreement ' of
implementing measures" (emphasis original)). Even though the Section 129 determinations only concern the
dumping margin calculations and do not explicitly address the injury determination, in our view they can be
regarded as resulting in a revised basis for the imposition the anti-dumping measure that comprises both the
revised dumping determination and the original injury dete rmination. The fact that th ese are, in the US system,
determinations that are made by separate agencies has, in our view, no relevance to how they should be
considered by a compliance panel examining the existence or WTO-consistency of measures taken to comply
899 See, inter alia, US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) , paras.
7.28-7.29, Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 85-86; see also Appellate Body
Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), para. 148.
900 See also Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 86:
"The amount of dumped imports will, of course, have an impact on the assessment of the effects of
the "dumped imports" for the purposes of determining injury."

market for like products, and (b) the consequent impact of these imports on domestic
producers of such products."(emphasis added)
8.267 Thus, Article 3.1 requires that a determination of injury be based on positive evidence and an
objective examination of the volume of dumped imports and of the effects on price of dumped
imports, and of the consequent impact of these dumped imports on the domestic industry. Article 3.2
sets out more specific guidance for the consideration of the volume and price effects of dumped
imports while Article 3.5 provides further guida nce in determining the causal link between the
dumped imports and any injury to the domestic i ndustry. Finally, Article 5.8 requires that the
investigating authorities terminate an investigation as soon as, inter alia, the authorities are satisfied
that there is not sufficient evidence of either dumping or of injury to justify proceeding with the case.
8.268 Several panels have expressed the view that the term "dumped imports" in Article 3 refers to
all imports attributable to producers or exporte rs for which a margin of dumping greater than de
minimis has been calculated and excludes imports from producers and exporters found in the course of
the investigation not to have dumped.
901 The Appellate Body, in addressing the question whether
imports from all unexamined producers could be treated as "dumped imports" for the purposes of
injury analysis in EC – Bed Linen (Article 21.5 – India) observed that "[n]one of the provisions of
[Articles 3.1, 3.2, 3.5] of the Anti-Dumping Agreement can be construed to suggest that Members may
include in the volume of dumped imports the imports from producers that are not found to be
dumping".902 Further, the Appellate Body noted that:
"[I]f a producer or exporter is found to be dumping, all imports from that producer or
exporter may be included in the volume of dumped imports, but, if a producer or
exporter is found not to be dumping, all imports from that producer or exporter must
be excluded from the volume of dumped imports."903
8.269 More recently, the EC – Salmon (Norway) panel found that the European Communities had
acted inconsistently with Articles 3.1 and 3.2 by treating as "dumped" imports attributable to an
exporter for which it had calculated a de minimis dumping margin:
"We can conceive of no rational basis on which the imports which are not legally
cognizable as 'dumped' because a de minimis margin has been calculated for the
producer/exporter in question could be in cluded in the volume of dumped imports
taken into account in assessing the question of injury. In our view, the consequences
from a determination that there is no lega lly cognizable dumping must be taken into
account in the injury analysis. ...
We consider that an interpretation of 'dumped imports' in Article 3 which would
allow an investigating authority to include in the volume of dumped imports for
purposes of injury analysis imports attri butable to a producer/exporter for which a de
minimis margin has been calculated is impermissible. ... A consistent interpretation of
the term 'dumped' requires that such impo rts be excluded from the "dumped imports"
considered in the analysis of injury (and causation, of course)."
904

901 See Panel Report, Argentina – Poultry Anti-Dumping Duties , para. 7.303; Panel Report, EC – Bed
Linen, para. 6.138; Panel Report, EC – Bed Linen (Article 21.5 – India) , para. 6.131; Panel Report, European
Communities – Anti-Dumping Measure on Farmed Salmon from Norway ("EC – Salmon (Norway) ")
WT/DS337/R, adopted 15 January 2008, discussed, infra, para. 8.269.
902 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 112.
903 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 115.
904 Panel Report, EC – Salmon (Norway), paras. 7.627-7.628.

8.270 In this case, the European Comm unities asserts that, once the Unit ed States had concluded, in
the Section 129 determinations, that some of the imports previously found to be dumped were not
dumped, after margins of dumping were re-calculated without zeroing, it did not reconsider its injury
determination and therefore failed to base its in jury determination on positive evidence and an
objective examination of the correct volume of dum ped imports, as required by Article 3.1 of the
Anti-Dumping Agreement. Further, the European Communities asserts that by failing to reconsider its
injury determination, the United States also failed to comply with Article 3.2, with respect to the
determination of the volume of dumped imports, any increase (in absolute or relative terms) in
dumped imports, and the effect of dumped imports on prices, and acted inconsistently with the
Article 3.5 of the Anti-Dumping Agreement with respect to the determination that dumped imports
were through the effects of dumping causing injury , and the examination of other known factors,
including the new volume of non-dumped imports.
8.271 We consider that the Euro pean Communities has made a prima facie case that the volume of
dumped imports had changed, and that as a conseque nce, the injury determination was not based on
consideration of "dumped" imports with in the meaning of Articles 3.1 and 3.2.
905 The volume of
imports considered as dumped in the original injury determinations in the cases at issue necessarily
included imports which could not properly be treated as dumped following the Section 129
determinations. Thus, we are of the view that th e United States was obliged to reconsider the injury
determination in cases 2, 3, 4 and 5 in light of volumes of dumped imports determined based on the
Section 129 determinations in those cases. Having failed to do so, the injury determinations are
necessarily inconsistent with Articles 3.1, 3.2, and 3.5 of the Anti-Dumping Agreement.
8.272 In light of the above findings, we do not cons ider it necessary to address the EC claims under
Articles 5.8 of the Anti-Dumping Agreement and VI:1 of the GATT 1994, and make no findings with
respect to those claims.
(c) EC claims with respect to the "all others" rate established in the Section 129 determinations in
cases 2, 4 and 5
(i) Main arguments of the parties
8.273 The European Communities submits that in the Section 129 determinations in cases 2, 4 and
5, the United States unjustifiably increased the "all others " rates. The EC claim relates to the fact that
the Section 129 determination in each case led to th e revocation of the order with respect to some
exporters and created a situation where all the comp any-specific dumping margins were either zero or
de minimis or based on adverse facts available. In each case, the USDOC established a new "all
others" rate based on a simple weighted average of the zero/ de minimis and facts available rates. As a
result, the all others rate increased from 3.9 per cent to 35.92 per cent in case 2 (Stainless Steel Bar
from France), from 3.81 per cent to 6.6 per cent in case 4 (Stainless Steel Bar from Italy), and from
4.48 per cent to 83.95 per cent in case 5 (S tainless Steel Bar from the United Kingdom).
906 T h e

905 The European Communities has referred us to its submission before the USITC in the context of
sunset review proceedings, where it also submitted that 75 per cent of the volume of imports considered to be
dumped in the original investigation was from exporters for which zero or de minimis margins were calculated
in the Section 129 determinations. European Communities' Brief Pre-Hearing on Stainless Steel Bar from
France, Germany, Italy and the Un ited Kingdom, 22 October 2007, Exhibit EC-27. While the European
Communities has not provided documentary evidence supporting this 75 per cent figure, the United States has
not commented on the figure. Nevertheless, we consider that the European Communities has made a prima
facie case that the volume of dumped imports decreased as a result of the Section 129 determinations, and the
United States does not dispute that the original injury determination was not reconsidered in the context of
implementation of the DSB's recommendations and rulings.
906 EC First Written Submission, paras. 124-140. The European Communities refers to the Issues and
Decision Memorandum for the Final Results of the Section 129 determinations, 9 April 2007, pp. 23-24 (Exhibit

European Communities claims that these increases in the "all others" rates are unreasonable and
inconsistent with Articles 9.4 and 6.8 and with Annex II of the Anti-Dumping Agreement. First, the
European Communities submits that Article 9.4 e xplicitly prohibits the inclusion of zero and/or de
minimis margins, and of margins based on facts available, in the calculation of "all others" rates. In
the three cases concerned, the USDOC relied on all three, calculating a weighted average including all
three types of margins. The European Commun ities recognizes that the situation faced by the
USDOC, in which all margins were either zero, de minimis or based on facts available, poses a
problem, but considers that US law advocates a sen sible approach to this problem, based on the
concept of reasonableness. Section 735(c)(5)(B) of the Tariff Act of 1930 provides that, in such a
situation, the USDOC may use "any reasonable met hod" to establish the all others rate, "including
averaging the estimated weighted average dump ing margins determined for the exporters and
producers individually investigated". The Europ ean Communities argues that the method employed
by the USDOC in the three cases is not "reasonable" , since in some cases, the all others rate was
multiplied by up to 19 times without there being any evidence that the underlying behaviour of the
affected exporters had changed at all. An exam ple of a reasonable solution would have been, as the
European Communities advocated befo re the US authorities, to maintain the original "all others"
rates. In any case, the European Communities cons iders that even if Article 9.4 does not indicate
what to do in a situation such as the one faced by the USDOC in the Section 129 determinations, it
clearly states what not
 to do, i.e., use zero, de minimis or facts available margins.907 While Article 9.4
establishes a ceiling on the dumping margin applicab le to imports from exporters or producers not
included in the sample, the last part of that pr ovision establishes a condition which always applies
(that any zero, de minimis, or facts available rate be disregarded) when calculating those margins of
dumping within the ceiling.908 Thus the European Communities considers that there is no need for the
Panel to resolve the interpretation i ssue raised by the existence of a lacuna in Article 9.4 given that
there is no lacuna as to what the provision requires Members not to do.909
8.274 Alternatively, the European Communities c onsiders that, absent information on dumping
margins other than zero, de minimis margins and margins based on adverse facts available, the "all
others" rate should be zero. The European Commun ities notes in this respect that the situation arose
because the duties for the major exporters in thes e cases were revoked after zeroing was eliminated
from the calculation of their individual dumping margins. The European Communities asserts that,
had the United States disregarded these companies in th e original investigation, it could have selected
other sources of information in order to calculate the "all others" rate.
8.275 In addition, the European Communities argues that basing the "all others" rate on adverse
facts available also violates Article 6.8 and Annex II of the Anti-Dumping Agreement because the
method used by the USDOC in the Section 129 determination in fact moves from a situation where
the "all others" rate is based on "facts available" ( i.e., highest rate for a cooperating exporter) to one
where it is largely based on "adverse inferences" ( i.e., rate for an exporter which has failed to "act in
the best of its ability to comply with a request for information"). By doing so, the European
Communities argues, the USDOC effectively determined that exporters subject to the "all others" rate

EC-7). The European Communities also indicates that the USDOC had originally based the "all others" rates on
the highest dumping margin for a non-cooperating exporter, thus excluding zero, de minimis and facts available
margins. Once the impact of zeroing was removed in the Section 129 determination, all cooperating exporters
had either zero or de minimis rates.
908 EC Answer to Panel Question 48. The Panel asked the parties "What significance must be given, in
the resolution of the matter before the panel, to the fact that the prohibition contained in Article 9.4 is expressed
in terms of a ceiling for the anti-dumping margin that may be applied to imports from exporters or producers not
individually examined".
909 EC Answer to Panel Question 49.

were guilty of behaviour that would warrant th e application of adverse inferences, without
demonstrating that such treatment was appropriate.910
8.276 The United States argues that the European Commun ities has failed to point to any
obligation under the Anti-Dumping Agreement with which the United States has acted inconsistently,
and that Article 9.4 does not address the situation with which the USDOC was faced in the
Section 129 determinations, in which all indivi dually calculated rates were either zero, de minimis, or
based on adverse facts available. The United St ates also underlines what it considers to be the
inconsistency of the European Communities' own suggestion that the USDOC should have used the
original "all others" rates – following the European Communities' logic in the original dispute, the
original "all others" rates were tainted by the USDOC's use of zeroing, such that USDOC could not, in
implementing the DSB recommendations and ruli ngs, simply use those "all others" rates. 911 T h e
United States further submits that Article 9.4 provides a "ceiling" for the "all others" rate. In order to
determine this ceiling, certain results from the investigated companies have to be excluded. However,
when the only margins from inv estigated companies are zero, de minimis or facts available margins,
this simply means that a ceiling cannot be determin ed pursuant to Article 9.4. Yet, a Member may
still apply an anti-dumping duty to non-investigated companies, and under the general principles of
Article 9.4, that amount may be based on the results of other companies. 912 Finally, the United States
argues that where a lacuna exists in the covered agreements, the Members have not agreed to be
bound by any specific obligation; accordingly, th e Panel should not find an obligation where none
exists. The Panel should be guide d by those provisions of the covered agreements that address the
establishment of the "all others" rate in general: the Ad Note 1 to paragraphs 2 and 3 of Article VI of
the GATT 1994, for example, provides that "a co ntracting party may require reasonable security
(bond or cash deposit) for the payment of an y case of suspected dumping or subsidization".
Moreover, Article 9.4 establishes that the "all others" rate cannot be arbitrary; rather, it provides that
the "all others" rate is to be based upon the ma rgins of dumping for those producers who have been
investigated.913
(ii) Arguments of the third parties
8.277 Korea submits that the absence of cooperating, above de minimis respondents does not allow
an investigating authority to deviate from the clear obligation in Article 9.4. 914 Korea adds that it
would have been impossible for the drafters of the ag reements to set out all the details in resolving a
particular dispute and a fair amount of discretion has been given to a panel, within the confinement of
the explicit terms of the relevant provisions, to apply a reasonable interpretation and render a
reasonable decision to fill the "loopholes" in the text. 915 Therefore, Korea considers it appropriate for
a WTO panel to assess the reasonableness of an alle gedly WTO-inconsistent measure in resolving a
dispute involving a provision of a WTO Agreement containing a lacuna.
(iii) Evaluation by the Panel
8.278 The EC claims raise the question of what – if any – disciplines apply to the calculation of the
"all others" rate under Article 9.4 of the Anti-Dumping Agreement in a case where the only margins of
dumping that are calculated by the investigating auth ority, and which could therefore serve as a basis
to establish an "all others" rate, are zero or de minimis margins, or margins based on facts available.
Article 9.4 provides, in relevant part:

910 EC First Written Submission, paras. 141-143
911 US Second Written Submission, paras. 48-52.
912 US Answer to Panel Question 49.
913 US Answer to Panel Question 50.
914 Korea's Answer to Panel Question 23 to the third parties.
915 Korea's Answer to Panel Question 24 to the third parties.

"When the authorities have limited their examination in accordance with the second
sentence of paragraph 10 of Article 6, an y anti-dumping duty applied to imports from
exporters or producers not included in the examination shall not exceed:
(i) the weighted average margin of du mping established with respect to the
selected exporters or producers ...
provided that the authorities shall disregard for the purpose of this paragraph any zero
and de minimis margins and margins established under the circumstances referred to
in paragraph 8 of Article 6..."
 916
8.279 The specific problem we face in the present dispute arises from the fact that Article 9.4
specifies that the "all others rate" for non-investig ated exporters shall not exceed a certain value,
equivalent to the weighed average margin of dumpi ng for selected exporters, and that in establishing
that value, the authorities shall disregard any zero or de minimis margins of dumping or margins based
on facts available ("margins estab lished under the circumstances re ferred to in paragraph 8 of
Article 6"). Article 9.4 does not, however, give any guidance as to how that value is to be established
in a situation where all margins are either zero, de minimis, or based on facts available. The Appellate
Body, in US – Hot Rolled Steel from Japan, referred to this as a lacuna in Article 9.4:
"This lacuna arises because, while Article 9.4 prohibits the use of certain margins in
the calculation of the ceiling for the 'all others' rate, it does not expressly address the
issue of how that ceiling should be calculated in the event that all margins are to be
 excluded from the calculation, under the prohibitions."
917
8.280 The European Communities submits that while Article 9.4 may not specifically provide how
the "all others" rate is to be determined in such a case, Article 9.4 nonetheless makes it clear that zero
or de minimis margins or margins based on facts available shall not be used in the establishment of the
"all others" rate.
8.281 The EC argument is predicated on Article 9.4 setting forth disciplines concerning the
calculation of an "all others" rate to be applied to exporters and producers who were not included in
the investigated sample. However, in our view, Article 9.4 sets forth no such rule. What that
provision does is establish a methodology for the calcu lation of a "ceiling" which the "all others" rate
may not exceed. What Article 9.4 prohi bits is an "all others" rate that exceeds the "weighted average
margin of dumping established with respect to th e selected exporters or producers", not including
margins of zero, de minimis, or "facts available" margins. Article 9.4 does not specify a method for or
impose disciplines on the calculation of the "all others" rate itself. It is correct, as the
European Communities points out, that the closing portion of Article 9.4 indicates that the authorities

916 Article 9.4 applies only "[w]hen the authorities have limited their examination in accordance with
the second sentence of paragraph 10 of Article 6". The s econd sentence of Article 6. 10 provides that in cases
where the number of exporters is so large as to make the determination of an individual margin of dumping for
each known exporter, the investigating authorities may limit their examination either to a reasonable number of
interested parties or products by using samples which are statistically valid or to the largest percentage of the
volume of the exports from the country in question which can reasonably be investigated. Thus, the provisions
of Article 9.4 only apply to the calculation of an "all others" rate applicable to cooperating exporters who have
made themselves known to the investigating authorities and not to exporters that have not yet exported or
exporters that have not come forward to the investigating authorities. See Panel Report, EC – Salmon (Norway),
917 Appellate Body Report, US – Hot Rolled Steel, para. 126 (footnote omitted). See also Panel Report,
EC – Salmon (Norway), paras. 7.350-7.351 where the panel also refers to the lacuna in Article 9.4. Neither the
Appellate Body in US – Hot Rolled Steel nor the panel in EC – Salmon (Norway) were called upon to resolve
the lacuna.

shall disregard "for the purpose of this paragraph" any zero and de minimis margins and margins
based on facts available. However, as we have not ed, Article 9.4 nowhere contains any discipline or
reference to the calculation of the "all others" rate itsel f. It follows that the prohibition set forth in the
closing portion of Article 9.4 only applies to the discipline established in that paragraph, i.e., that
which concerns the calculation of the ceiling applicable to that "all others" rate. Indeed, were the
European Communities correct that Article 9.4 prohib its the use of the three types of margins (zero,
de minimis , facts available), Article 9.4 would, in situ ations such as the one in the case before us,
result not only in a lacuna, but in an internal inconsistency: the EC interpretation could lead to a
situation where the investigating authorities are barr ed from taking into consideration any and all of
the margins of dumping calculated in the cour se of the investigation (and not only, as the
European Communities suggests, tho se based on facts available), and therefore are left with no basis
on which to establish the "all others" rate. Indeed, this case poses that very situation.
8.282 Our reading of Article 9.4 as only establishi ng disciplines with respect to the "ceiling"
applicable to the "all others" rate is consiste nt with the findings of the Appellate Body in US – Hot
Rolled Steel .918 We refer in this respect to the statem ent of the Appellate Body quoted above in
respect of the lacuna, and to the following description of the prohibition contained in Article 9.4 by
the Appellate Body:
"Article 9.4 does not prescribe any method that WTO Members must use to establish
the 'all others' rate that is actually applie d to exporters or producers that are not
investigated. Rather, Article 9.4 simply identifies a maximum limit, or ceiling, which
investigating authorities ' shall not exceed ' in establishing an 'all others' rate. Sub-
paragraph (i) of Article 9.4 states the genera l rule that the relevant ceiling is to be
established by calculating a 'weighted averag e margin of dumping established' with
respect to those exporters or producers who were investigated. However, the clause
beginning with 'provided that', which fo llows this sub-paragraph, qualifies this
general rule. This qualify ing language mandates that, 'for the purpose of this
paragraph', investigating authorities ' shall disregard ', first, zero and de minimis
margins and, second, "margins establishe d under the circumstances referred to in
paragraph 8 of Article 6.' Thus, in dete rmining the amount of the ceiling for the "all
others" rate, Article 9.4 establishes two prohibitions. The first prevents investigating
authorities from calculating the 'all others' ceiling using zero or de minimis margins;
while the second precludes investigating authorities from calculating that ceiling
using 'margins established under the circumstances referred to' in Article 6.8."
919

918 In Hot Rolled Steel , the Appellate Body found that Section 735(c)(5)(A) of the US Tariff Act of
1930 was inconsistent with Article 9.4 because th at provision allowed the use of margins of dumping partly
calculated on the basis of facts available to be used in the calculation of the "all others" rate. Appellate Body
Report, US – Hot Rolled Steel from Japan, paras. 110 ff.
919 Appellate Body Report, US – Hot Rolled Steel from Japan, para. 116. We note in particular that the
Appellate Body makes no reference to any prohibition with respect to the actual "all others" rate and only refers
to the ceiling that applies to that rate. Further, the Appellate Body found, in that case, that the US provision
challenged was inconsistent with Ar ticle 9.4 not because it allowed the ta king into consider ation of margins
based on facts available in the cal culation of the "all others" rate, bu t because "in cases where margins
established in part on the basis of facts available are used to calculate the "all others" rate, the "all others" rate ...
may well exceed the maximum allowable "all others" rate under Article 9.4 of the Anti-Dumping Agreement";
accordingly, the Appellate Body affirmed the panel's conclusion that Secti on 735(c)(5)(A) of the US Tariff Act
of 1930 was inconsistent with Article 9.4 "to the extent that [the fact that the Section requires the inclusion of
margins established in part on the basis of facts available in the calculation of the 'all others' rate] results in an
"all others" rate in excess of the maximum allowable rate under Article 9.4". Appellate Body Report, US – Hot
Rolled Steel from Japan, paras. 128-129. See also the reference, by the Appellate Body, to Article 9.4 defining

8.283 In a situation such as the one that arose in th e Section 129 determinations in cases 2, 4, and 5,
where all the margins of dumping determined for sel ected exporters and producer fall within one of
these categories, there are simply no margins of dumping from which the investigating authority or a
panel may calculate the maximum allowable "all others" rate. Thus, in such a case, Article 9.4 simply
imposes no prohibition, as no ceiling can be calculated.
920 It follows that there would be no legal
basis for a panel to conclude that the "all others " rate actually established is inconsistent with
Article 9.4. We therefore find that the United States has not acted inconsistently with Article 9.4 of
the Anti-Dumping Agreement in establishing new "all others" rates in the Section 129 determinations
in cases 2, 4 and 5.
8.284 The European Communities also raises claims under Article 6.8 and Annex II of the Anti-
Dumping Agreement. The European Communities argues that calculating the "all others" rate on the
basis of adverse facts available violates these pr ovisions because the method used by the USDOC in
the Section 129 determination in fact moves from a situation where the all others rate is based on
"facts available" to one where it is largely based on "adverse inferences" ( i.e., the treatment provided
for an exporter which has failed to "act in the best of its ability to comply with a request for
information"). The European Communities submits that the USDOC effectively determined that
exporters subject to the "all others" rate were guilty of behaviour that would warrant the application of
adverse inferences, without demonstrating that su ch treatment was appropriate. We regard these
claims of the European Communities as dependent on its claims of violation of Article 9.4 and do not
consider that Article 6.8 and Annex II of the Anti-Dumping Agreement provide an independent basis
for a finding of inconsistency where the all "other s rate" at issue is not inconsistent with the
provisions of Article 9.4. Having concluded that the United States has not acted in violation of the
provisions of Article 9.4, we therefore make no findings with respect to the EC claims under
Article 6.8 and Annex II.
IX. CONCLUSIONS AND RECOMMENDATION
9.1 In accordance with our mandate under Article 21.5 of the DSU, we have examined the
existence or consistency with a c overed agreement of measures taken by the United States to comply
with the recommendations and rulings adopted by the DSB in the original proceeding. On the basis of
the findings above, we conclude that:
(a) We have no authority to make findings with respect to the EC claim that the Panel
was improperly constituted under Articles 8. 3 and 21.5 of the DSU and therefore
refrain from doing so.
(b) With respect to the EC general claims of failure, by the United States, to fully
implement the recommendations and rulings of the DSB in the original dispute:
(i) The United States has failed to comply with the recommendations and rulings
of the DSB in the original dispute and has acted inconsistently with
Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT
1994 by determining, after the end of the reasonable period of time, the
amount of anti-dumping duty to be assessed based on zeroing in the 2004-
2005 administrative review in case 1 ( Hot Rolled Steel from the Netherlands )
and issuing assessment instructions purs uant to that determination and by
determining, after the end of the r easonable period of time, the amount of

"the maximum anti-dumping duty" that may be applied to exports from producers not individually examined in
Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 122.
920 In the absence of any guidance in the text, we do not consider that it would be appropriate for us to
fill that gap.

anti-dumping duty to be assessed based on zeroing in the 2004-2005
administrative review in case 6 ( Stainless Steel Wire Rod from Sweden ) and
issuing assessment instructions pursuant to that determination.
(ii) The United States has failed to comply with the recommendations and rulings
of the DSB in the original dispute by continuing to apply to imports of NSK
cash deposit rates established in the 2000-2001 administrative review in case
31 (Ball Bearings from the United Kingdom ), a measure which was found to
be inconsistent with Articles 9.3 of the Anti-Dumping Agreement and VI:2 of
the GATT 1994 in the original dispute.
(iii) The United States has not failed to comply with the recommendations and
rulings of the DSB in the original dispute by taking actions to liquidate anti-
dumping duties calculated with zeroing pursuant to final duty assessment
determinations made before the e nd of the reasonable period of time
(including pursuant to subsequent administrative reviews listed in the Annex
to the EC Article 21.5 panel request).
(iv) The United States has not failed to comply with the recommendations and
rulings of the DSB in the original dispute by determining, prior to the end of
the reasonable period of time, the amount of anti-dumping duty to be
assessed based on zeroing in the 2005-2006 administrative review
determination in case 1 (Hot Rolled Steel from the Netherlands).
(v) The United States has not failed to comply with the recommendations and
rulings of the DSB in the original dispute and has not acted inconsistently
with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994 by establishing a ne w cash deposit rate based on zeroing
in the 2004-2005 administrative review determination in case 6 ( Stainless
Steel Wire Rod from Sweden) because due to the revocation of the measure in
question, no cash deposit requirement was actually imposed.
(vi) Having found that none of the sunset reviews with respect to which the
European Communities makes claims and which are within our terms of
reference had, by the time of the establishment of the Panel, resulted in the
continuation of the concerned anti-dumpi ng orders, we make no findings in
respect of the claims of the Europ ean Communities that the United States
violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement as a
result of having relied on margins of dumping calculated with zeroing in the
context of sunset reviews involving measures challenged in the original
dispute.
(vii) We make no findings with respect to th e EC claim that the United States
violated Articles 21.3 and 21.3(b) of the DSU by failing to take any measure
to comply between 9 April and 23 April/31 August 2007.
(c) With respect to the EC claims that cer tain US measures taken to comply are
inconsistent with the US obligations under the covered agreements:
(i) Having found that the claim of the European Communities with respect to the
Section 129 determination in case 11 ( Stainless Steel Sheet and Strip in Coils
from Italy ) concerning the calculation error is not properly before us, we
make no findings on the cons istency of that determination with Articles 2,

5.8, 6.8, 9.3, 11.1 and 11.3 of the Anti-Dumping Agreement and Article VI:2
of the GATT 1994.
(ii) With respect to cases 2, 3, 4 and 5 ( Stainless Steel Bar from France,
Germany, Italy and the United Kingdom ), the United States acted
inconsistently with Articles 3.1, 3.2 and 3.5 of the Anti-Dumping Agreement
by maintaining the anti-dumping duty orders in those cases without having
made a determination of injury based on positive evidence of the volume of
dumped imports following the recalculation of dumping margins in the
Section 129 determinations in these ca ses and consequent changes in the
volume of dumped imports. We make no findings regarding the EC claims
under Article 5.8 of the Anti-Dumping Agreement and Article VI:I of the
GATT 1994 in respect of the same measures.
(iii) With respect to cases 2, 4 and 5 (Stainless Steel Bar from France, Italy and
the United Kingdom ), the United States did not act inconsistently with
Article 9.4 of the Anti-Dumping Agreement in the establishment of "all
others" rates in the Section 129 determ inations in these cases. We make no
findings regarding the EC claims unde r Article 6.8 and Annex II of the Anti-
Dumping Agreement in respect of these same measures.
9.2 To the extent that the measures taken by the United States to comply with the
recommendations and rulings adopted by the DSB in th e original proceeding are inconsistent with the
obligations of the United States under the covered agre ements, and to the extent that the United States
has otherwise failed to implement the recommenda tions and rulings of the DSB in the original
dispute, these recommendations and rulings of the DSB remain operative. We therefore make no new
recommendation.
9.3 The European Communities requests that th e Panel make suggestions as to how the
United States should bring its measures into conf ormity with its obligations under the covered
agreements.
921 We note that Article 19.1 of the DSU states that WTO panels may suggest ways
through which the Member concerned could implement their recommendations. 922 Having in this
Report provided our views with respect to US actions taken, or not taken, to implement the rulings
and recommendations in the original dispute, as well as on the scope of the US obligation to
implement, we see no reason to make any suggesti on to the United States and therefore decline the
EC request.

ANNEX A

REQUEST FOR THE ESTABLISHMENT OF A PANEL

Contents Page
Annex A-1 Request for the Establishment of a Panel by the European
Communities A-2

ANNEX A-1

REQUEST FOR THE ESTABLISHMENT OF A PANEL
BY THE EUROPEAN COMMUNITIES

14 September 2007

 (07-3919)
 Original: English

Recourse to Article 21.5 of the DSU by the European Communities

Request for the Establishment of a Panel

 The following communication, dated 13 Sept ember 2007, from the delegation of the
European Communities to the Chairman of the Dis pute Settlement Body, is circulated pursuant to
Article 21.5 of the DSU.

 On 9 May 2006, the Dispute Settlement Body (the "DSB") adopted the Appellate Body
Report and the Panel Report, as modified by the Appellate Body, in the case WT/DS294 " ". The
resulting DSB rulings found that the United States' administrative practice (the zeroing methodology
in original investigations in which the weighted -average-to-weighted-average comparison method is
used) and other measures (15 original investigations
1 and 16 "administrative reviews" 2 in which
zeroing was used), including each of the assessment in structions issued pursuant to any of one of
these measures, were inconsistent with Article VI of the General Agreement on Tariff and Trade 1994
("GATT 1994") and the Agreement on implementa tion of Article VI of the GATT 1994 (the
"AD Agreement"). The DSB recommended that the United States brings those measures into
conformity with its obligations under those Agreements.

1 Listed in WT/DS294/7/Rev.1, cases 1 to 15 on pages 5-6.
2 Listed in WT/DS294/7/Rev.1, cases 16 to 31 on pages 14-15. The term "administrative review" is a
term of US municipal law that is not used in the AD Agreement . A US "administrative review" involves an
investigation into and a re-calculation of the existence and degree of an exporter's margin of dumping during the
review investigation period, contemporaneous with the imports for which final liability is being assessed. An
"administrative review" investigation also results in th e fixing of a new "cash deposit" rate to be applied
prospectively to future imports, pending the next "administrative review".

 On 30 May 2006, the United States informed the DSB that it intended to implement the
recommendations and rulings of the DSB in a ma nner consistent with its WTO obligations, but
needed a reasonable period of time to do so. Th e parties agreed under Article 21.3(b) of the
Understanding on rules and proce dures governing the settlement of disputes ("DSU") that the United
States would have until 9 April 2007 to implemen t the recommendations and rulings of the DSB
(WT/DS294/19).

 On 27 December 2006, the United States publishe d a notice whereby it announced that it was
abandoning "zeroing" in average-to-average comparis ons in anti-dumping original investigations (see
Antidumping Proceedings: Calculation of th e Weighted–Average Dumping Margin during an
Antidumping Investigation; Final Modification published in 71 FR 77722). The final modification
became effective on 22 February 2007 (see Antidumping Proceedings: Calculation of the Weighted–
Average Dumping Margin in Antidumping Investigations; Change in Effective Date of Final
Modification, published in 72 FR 3783, 26 January 2007).

 Subsequently, the US began a recalculation of the margins of dumping in 12 of the 15 original
investigations (the anti-dumping measures having been previously revoked in three of the 15 original
investigations for reasons other than zeroing
3). The United States issued its final findings in 11 of the
original investigations on 9 Apr il 2007 ("Section 129 determinations") 4 which entered into effect on
23 April 2007 (published in 72 FR 25261, 4 Ma y 2007) and on 20 August 2007 issued its final
findings in the one outstanding case 5. At the DSB meeting of 24 April 2007, and at subsequent DSB
meetings, the United States stated that it had im plemented the DSB recommendations and rulings in
this dispute. The EC did not agree.

 On 4 May 2007, the parties concluded an agreement on the procedures under Articles 21 and
22 of the DSU ("sequencing agreement")
6 with a view to facilitating the procedures for a resolution of
the dispute.

On 9 July 2007, the European Communities in itiated the procedures under Article 21.5 of the
DSU by requesting the United States to enter into consultations. The request was circulated in
document WT/DS294/22 of 12 July 2007. Consultati ons were held on 30 July 2007. Consultations
have allowed a better understanding of respective positions but have failed to settle the dispute.

 Accordingly, " there is a disagreement as to the existence or consistency with a covered
agreement of measures taken to comply with the recommendations and rulings" of the DSB. Pursuant
to Article 6 and Article 21.5 of the DSU, Article 17 of the AD Agreement, Article XXIII of
GATT 1994 and Paragraph 1 of the sequencing agreem ent, the EC hereby requests the establishment
of a panel.

 In particular, the European Communities claims the following:

1. The Section 129 determinations entered into force on 23 April 2007, not on the date of
9 April 2007 as agreed by the parties under Article 21.3(b) of the DSU. This is inconsistent

3 Cases Number 10, 12 and 13 in the Annex to this Panel Request.
4 The term "Section 129 determination" is a term of US municipal law that is not used in the AD
Agreement. It is used in this Panel Request without pr ejudice to the correct categor isation of the measures at
issue under one or more provisions of the AD Agreement.
5 Case Number 11 in the Annex to this Panel Request. Certain Stainless Steel Sheet and Strip from Italy
(A-475-824) Published on US Commerce Department Web Site on 29 August 2007
http://ia.ita.doc.gov/download/section129/Italy-SSSS-in-Coils-129-Final-Decision-Memo-08-20-07.pdf
6 "Understanding between the United States and the European Communities Regarding Procedures
under Articles 21 and 22 of the DSU" (WT/DS294/21, 9 May 2007).

with Article 17(14) and Article 21, including 21.3 and 21.3(b) of the DSU and with the
agreement between the parties concerning the reasonable period of time. In particular:

• Article 17(14) DSU because the United States, by its actions, has not unconditionally
accepted the Appellate Body Report.

• Article 21, including Article 21.3 and 21.3( b) DSU and the agreement between the
parties concerning the reasonable period of time because the United States has failed
to comply immediately and/or within the reasonable period of time agreed by the
parties.

2. The US failed to properly implement the DS B recommendations and rulings with respect to
the 16 administrative reviews found to be incons istent with the US' WTO obligations since
"zeroing" was not eliminated in any of the a bove-mentioned measures. Th is is inconsistent
with Article 2, including 2.1, 2.4 and 2.4.2, Article 9.3 and Article 11, including Article 11.1
and 11.2 of the AD Agreement and Article VI:2 of the GATT 1994. In particular:

• Article 2, including Article 2.1 of the AD Agreement and Article VI:2 of the
GATT 1994 because the US has not re-calculated margins of dumping for the product
as whole.

• Article 2.4 of the AD Agreement because the United States has not made a fair
comparison between normal value and export price.

• Article 2.4.2 of the AD Agreement because the United States has used an
asymmetrical method of comparison, and zeroed, without determining and
demonstrating that the conditions provided for in that provision are met.

• Article 9.3 of the AD Agreement and Article VI:2 of the GATT 1994 because the
United States has not re-calculated margins of dumping for the product as a whole,
and has failed to ensure that the amount of duty does not exceed the dumping margin,
as calculated in conformity with Article 2.

• Article 11, including Article 11.1 and 11.2, because the re-calculation of the cash
deposit rate is also subject to the obligati ons set out in those provisions, and must be
calculated in accordance with the rules in Article 2, as set out above, but has not been
so calculated.

3. With respect to Case No. 11 – Stainless Steel Sheet and Strip in Coils from Italy (A-475-824),
in its Issues and Decision Memorandum of 20 August 2007 ( Final Results for the Section 129
Determination: Certain Stainless Steel Sheet and Strip in Coils from Italy ), the United States
committed (or failed to remove) an obvious calcu lation error. When calculating an average
unit value for a small number of US sales of th e exporter in question, to which it applied a
"facts available" percentage rate for the purpose of its dumping calculation, the United States
erroneously inverted the fraction: instead of di viding total value by total volume, the United
States has divided total volume by total value. This error artificially inflated the unit value
and therefore the amount of dumping. If, in addition to eliminating zeroing, the United States
would correct this obvious calculation error, the dumping margin would fall below de
minimis, and the measure would be revoked. In resp ect of this measure there have been a
number of subsequent review investigations as we ll as future review investigations involving
zeroing. As regards the obvious calculation erro r, the European Communities claims that the
measure is inconsistent with Articles 2.1 and 2.2 of the AD Agreement because there is an

obvious calculation error in the determinati on of normal value (and thus in the dumping
margin); and Article 6.8 and Annex II of the AD Agreement because the United States has
failed to correctly apply facts available. As regards zeroing and failure to revoke the measure,
the US failed to properly implement the DS B recommendations and rulings since duties
calculated with zeroing continue to be imposed, collected or liquidated. For the reasons set
out above, this is inconsistent with Article 2, including 2.1, 2.4 and 2.4.2, Article 5.8 (since
the dumping margin is de minimis the measure should have been terminated), Article 9.3 and
Article 11, including 11.1 and 11.2 of the AD Agreement and Article VI:2 of the GATT 1994.

4. With respect to all measures (original inves tigations and administrative reviews) that were
found inconsistent with the US' WTO obligations , the US continues to impose, collect or
liquidate anti-dumping duties at a rate inflated by "zeroing" beyond 9 April 2007. With regard
to those measures which were revoke d by the Section 129 determinations
7, the US continues
to impose, collect or liquidate anti-dumping duties after 9 April 2007. For the reasons set out
above, this is inconsistent with the provisions cited in paragr aph 1 of this Panel Request, as
well as with Article 2, including 2.1, 2.4 and 2.4.2, Article 5.8 (since the United States did not
immediately terminate the measures on evidence that there was no dumping or dumping
below de minimis level), Article 9.3 and Article 11, including 11.1 and 11.2 of the
AD Agreement and Articles VI:1 (since the United States imposes, collects or liquidates anti-
dumping duties in cases where the imported pr oduct is not dumped) and VI:2 of the
GATT 1994.

5. In three cases (Case No. 2: Stainless Steel Bar from France (A-427-820), Case No. 4:
Stainless Steel Bar from Italy (A-475-829) and Case No. 5: Stainless Steel Bar from the
United Kingdom (A-412-822) ) in the Section 129 determinati ons, which concerned original
investigations, the US re-determinations led to an unjustified increase in the "all others rate".
The United States has imposed an "all others" rate based on rates calculated using a weighted
average of exporters with zero or de minimis rates and "adverse facts available" rates. This is
inconsistent with Article 2 (because there is no relation between the rate imposed and any
margin of dumping calculated in accordance with Article 2), Article 6.8 and Annex II
(because with respect to the "o thers" the United States has not correctly applied facts
available and has, in particular, applied a rate partly based on "adverse facts available" to
exporters which did not seek to impede the investigation and whose behaviour did not warrant
the drawing of adverse inferences), Article 9, including 9.2 (because the United States has not
imposed rates at an appropriate level nor ta ken steps to ensure non-discrimination), 9.3
(because the United States has taken no steps to ensure that the amount of duty does not
exceed a lawfully calculated margin of dum ping) and 9.4 (because the United States has
included facts available margins in the calculati on of an all others rate), and Article 18.1
(because the United States has taken a specifi c action against dumping other than in
accordance with the provisions of the AD Agreement) of the AD Agreement.

6. With respect to original investigations in which the recalculation of dumping margins led to
the conclusion that some exporters were not dumping or had de minimis dumping margins
8,
the US maintained the Anti-Dumping order without establishing whether the remaining
amount of dumped imports was causing injury to the domestic industry and whether this
volume of dumped imports was not negligible. This is inconsistent with Articles 3.1, 3.2, 3.5,
5.8 of the AD Agreement and Article VI:1 of the GATT 1994. In particular:

7 Cases Number 1, 2 (for Ugitech), 3 (for Einsal), 4 (for Acciaiera Valbruna S.p.A, Acciaiera Foroni
S.p.A and Rodacciai S.p.A), 5 (for Corus Engineering Steels Ltd) and 6 in the Annex to this Panel Request.
8 Cases Number 2, 3, 4 and 5 in the Annex to this Panel Request.

• Article 3.1 because it has failed to base its assessment on positive evidence and make
an objective examination of the volume of dumped imports, and their effects and
impact on the US industry.

• Article 3.2 because it has not correctly calculated the volume of dumped imports, or
any increase, in absolute or relative terms, or their effects in the context of price
undercutting.

• Article 3.5 because the US has not correctly demonstrated that the dumped imports
are through the effects of dumping, causing injury, and have failed to properly
examine other known factors, including non-dumped imports.

• Article 5.8 because the US has failed to pr operly examine whether or not the volume
of dumped imports is negligible.

• Article VI:1 of the GATT 1994 because the US has failed to properly establish the
existence of injurious dumping.

7. With regard to the 15 original investiga tions and 16 administrative reviews, the US has
continued zeroing in the reviews related to th e measures in question. The United States has
not eliminated zeroing in these reviews though th ey determine the cash deposit rate currently
applicable, and/or are relied upon to maintain the AD measure or to impose, collect or
liquidate anti-dumping duties at a rate inflated by zeroing after 9 April 2007. Details of the
reviews in question are set out in the annex. For the reasons set out above, this is inconsistent
with Article 2, including 2.1, 2.4 and 2.4.2, Article 9.3, and Article 11, including 11.1, 11.2
and 11.3 (since, by relying on zeroed dumping margins, the United States did not properly
determine that the expiry of the duty would be likely to lead to continuation or recurrence of
dumping and injury) of the AD Agreement and Articles VI:1 and VI:2 of the GATT 1994.

 The European Communities reserves its rights in respect of all other aspects of the United
States' purported compliance with its obligations in this case. In particular, the European
Communities reserves its right to revisit certain me asures in the light of the eventual outcome of
challenges to them in United States' courts.

 The European Communities requests that the Pane l be established with the standard terms of
reference set out in Article 7 of the DSU, and asks that this request be placed on the agenda of the
meeting of the DSB on 25 September 2007. The European Communities recalls that Article 21.5 DSU
provides that this dispute shall be decided throug h recourse to the DSU, including wherever possible
resort to the original panel.

 Pursuant to paragraph 2 of the Sequencing Agreement, the European Communities notes that
United States shall accept the establishment of th e panel at the first DSB meeting at which the
European Communities' request for the establishment of an Article 21.5 panel appears on the agenda.

ANNEX

I. Reviews of the measures imposed in the 15 original investigations condemned in DS294

Product MS
DOC Case
Number
(ITC Case
No)
DOC Final Determination ITC Determination AD Order Subsequent reviews
1. Certain hot-rolled
carbon steel
NL A-421-807
(A-903)
66 FR 50408, October 3, 2001
(amended: 66 FR 55637,
November 2, 2001)
November 2001 66 FR 59565,
November 29, 2001
Administrative Reviews
3 May 2001 – 31 Oct 2002
(69FR 43801, July 22 2004)
4.8%

1 Nov 2002 – 31 Oct 2003
(70FR 18366, April 11, 2005)
4.42%

1 Nov 2004 – 31 Oct 2005
(72FR 34441, June 22, 2007)
2.26%

2. Stainless steel bar F A-427-820
(A-913)
67 FR 3143, January 23, 2002 February 2002 67 FR 10385,
March 7, 2002
Administrative Reviews:

1 March 2003 – 29 February
2004 (70 FR 46482,
August 10, 2005)
Ugitech 14.98%

1 March 2004 – 28 February
2005 (71 FR 30873, May 31
2006)
Ugitech 9.68%

Sunset Review: DOC Final
Determination 72 FR 30772,
June 4, 2007

Page A-8 Product MS
DOC Case
Number
(ITC Case
No)
DOC Final Determination ITC Determination AD Order Subsequent reviews
3. Stainless steel bar G A-428-830
(A-914)
67 FR 3159, January 23, 2002
(amended: 67 FR 10382, March 7,
2002)
February 2002 67 FR 10382,
March 7, 2002
Administrative Reviews:

2 August 2001–28 February
2003
(69 FR 32982, June 14, 2004)
BGH 0.52%

1 March 2004–28 February
2005
(71 FR 52063, September 1,
2006)
BGH 0.73%

Sunset Review: DOC
Preliminary Determination
72 FR 29970, May 30, 2007

4. Stainless steel bar I A-475-829
(A-915)
67 FR 3155, January 23, 2002
(amended: 67 FR 8228, February
22, 2002)
February 2002 67 FR 10384,
March 7, 2002
Administrative Review:

2 August 2001–28 February
2003
(69 FR 32984, June 14, 2004)
Foroni 4.03%
Ugine 33%

Sunset Review: DOC Final
Determination 72 FR 30772,
June 4, 2007

Product MS
DOC Case
Number
(ITC Case
No)
DOC Final Determination ITC Determination AD Order Subsequent reviews
5. Stainless steel bar UK A-412-822
(A-918)
67 FR 3146, January 23, 2002 February 2002 67 FR 10381, March 7,
2002
Administrative review:

1 March 2005 – 28 February
2006(72 FR 15106, March
30, 2007) Enpar Special
Alloys 33.87%

Sunset Review:
DOC Final Determination 72
FR 30772, June 4, 2007

6. Stainless Steel Wire
Rod
SW A-401-806
(A-774)
63 FR40449, July 29,1998 September 1998 63 FR49329,
September 15, 1998
Administrative reviews:

1 Sept. 2004 – 31 August
2005 (72FR 26337, May 9,
2007)
Fagersta 19.36%

Sunset Review:
Continuation order, 69 FR
50167, August 13, 2004

7. Stainless Steel Wire
Rod
E A-469-807
(A-773)
63 FR40391, July 29,1998 September 1998 63 FR 49330,
September 15, 1998
Administrative review:

5 March 1998 – 31 August
1999 (66 FR 10988, February
21, 2001) Roldan SA 0,8%

Sunset Review:
Continuation Order
69FR 50167, August 13, 2004

8. Stainless Steel Wire
Rod
I A-475-820
(A-770)
63 FR40422, July 29,1998 September 1998 63 FR 49327,
September 15, 1998
Sunset Review:
Continuation Order
69FR 50167, August 13, 2004

Page A-10 Product MS
DOC Case
Number
(ITC Case
No)
DOC Final Determination ITC Determination AD Order Subsequent reviews
9. Certain Stainless
Steel Plate in Coils
B A-423-808
(A-788)
64 FR15476, March 31, 1999 May 1999 64 FR 27756,
May 21, 1999
(amended by 68 FR
20114 April 24, 2003)
See case 18 below

10. Stainless Steel
Sheet and Strip in
Coils
F A-427-814
(A-797)
64 FR30820, June 8, 1999 July 1999 64 FR 40562,
July 27, 1999
See Cases 25 & 26 below

Measure revoked July 2004
(70 FR 44894, August 4,
2005)

11. Stainless Steel
Sheet and Strip in
Coils
I A-475-824
(A-799)
64 FR30750, June 8, 1999 July 1999 64 FR 40567,
July 27, 1999
See cases 21 & 22 below
12. Stainless Steel
Sheet and Strip in
Coils
UK A-412-818
(A-804)
64 FR30688, June 8,1999 July 1999 64 FR 40555,
July 27,1999
Measure revoked: July 2004
(70 FR 44894, August 4,
2005)

13. Certain Cut-to-
Length Carbon-Quality
Steel Plate
F A-427-816
(A-816)
64 FR73143, December 29,1999 Fe bruary 2000 65 FR 6585,
February 10, 2000
Measure revoked : February
2005 (70 FR 72787,
December 7, 2005)

14. Certain Cut-to-
Length Carbon-Quality
Steel Plate

I A-475-826
(A-819)
64 FR73234, December 29,1999 Fe bruary 2000 65 FR 6585,
February 10, 2000
Sunset review:

Continuation Order (70FR
72607, December 6, 2005)

15. Certain Pasta I A-475-818
A-734)
61 FR30326, June 14, 1996
(amended by 66 FR65889,
December 21,2001)
July 1996 61 FR38547
July 24, 1996

See Cases 19 & 20 below

Reviews subsequent to the 16 administrative reviews condemned in DS294

Product MS No Case Final Results Company Subsequent Reviews
16. Industrial
Nitrocellulose
F A-427-009 66 FR 54213,
October 26, 2001

Bergerac NC Two subsequent Administrative reviews were
rescinded, covering the periods:
1 August 2000 – 31 July 2001
1 August 2002 – 31 July 2003

Measure revoked: (69 FR 52231, August 25, 2004)

17. Industrial
Nitrocellulose
UK A-412-803 67 FR 77747,
December 19, 2002

Imperial Chemical
Industries
Two subsequent Administrative reviews were
rescinded, covering the periods:
1 July 2001 – 30 June 2002
1 July 2002 – 30 June 2003

Changed circumstance review (Dec, 2003) confirmed
the rate of 3.06% to apply to Troon Investments,
successor to ICI

Measure revoked: (69 FR 52231, August 25, 2004)

18. Stainless steel
plate in coils
B A-423-808 67 FR 64352, October 18, 2002 ALZ NV &
TrefilARBED (affiliated
US importer) – Same
company Ugine & ALZ,
N.V. Belgium (U&A
Belgium).
Two subsequent reviews resulting in change to rate:

1 May 2002 – 30 April 2003
(70FR 2999, January 19, 2005)
2.71%

1 May 2003 – 30 April 2004
(70FR 72789, December 7, 2005)
2.96%

Sunset Review: Continuation Order 70 FR 41202,
July 18, 2005

Product MS No Case Final Results Company Subsequent Reviews
19. Certain pasta I A-475-818 67 FR 300, January 3, 2002
Amended: 67 FR 5088,
February 4, 2002
1) Ferrara

2) Pallante

3) PAM

Ferrara: Order revoked in February 2005 following
third consecutive review where the company had
de minimis rate (70FR6832, February 9, 2005)

Pallante: Order revoked in November 2005 following
third consecutive review where the company had
de minimis rate (70 FR71464, November 29, 2005)

PAM
: Two subsequent reviews resulting in change to
rate:

1 July 2001 – 30 June 2002
(69FR 6255, February 10, 2004)
45.49%

1 July 2002 – 30 June 2003
(70FR 6832, February 9, 2005)
4.78%

Sunset review: DOC Final Determination 72FR 5266
February 5, 2007

20. Certain pasta I A-475-818 68 FR 6882, February 11, 2003

Pastifi Garofalo One subsequent re view resulting in change to rate:

1 July 2001 – 30 June 2002
(69 FR 22761, April 27, 2004)
2.57%

One review rescinded covering period:
1 July 2002 – 30 June 2003

21. Stainless steel
sheet strip coils
I A-475-824 67 FR 1715, January 14, 2002

Acciai Speciali Terni
SpA

See Case 22

Product MS No Case Final Results Company Subsequent Reviews
22. Stainless steel
sheet strip coils
I A-475-824 68 FR 6719, February 10, 2003

Acciai Speciali Terni
SpA
Two subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(68FR 69382, December 12, 2003)
1.62%

1 July 2002 – 30 June 2003
(70FR 13009, March 17, 2005)
3.73%

Sunset review: Continuation Order 70 FR 44886,
August 4, 2005

23. Granular
polytetrafluoenthylene
I A-475-703 67 FR 1960, January 15, 2002

Ausimont SpA See Case 24

24. Granular
polytetrafluoenthylene
I A-475-703 68 FR 2007, January 15, 2003

Ausimont SpA Two subsequent Administrative reviews were
rescinded, covering the periods:
1 August 2002 – 31 July 2003
1 August 2003 – 31 July 2004

Changed circumstance revi ew (May,2003) confirmed
the rate of 12.08% to apply to Solvay Solexis, successor
to Ausimont

1 subsequent review resulting in change to rate:

1 August 2004 – 31 July 2005
(72FR 1980, January 17, 2007
39.13%

Sunset review: Continuation Order 70FR 76026,
Dec. 22, 2005

25. Stainless steel
sheet strip coils

F A-427-814 67 FR 6493, February 12, 2002
Amended
: 67 FR 12522, March 19,
2002

Ugine See Case 26

Product MS No Case Final Results Company Subsequent Reviews
26. Stainless steel
sheet strip coils

F A-427-814 67 FR 78773 , December 26, 2002
Amended:
68 FR 4171, January 28, 2003

Ugine 3 subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(68FR 69379, December 12, 2003)
2.93%

1 July 2002 – 30 June 2003
(70 FR 7240, February 11, 2005)
9.65%

1 July 2003 – 30 June 2004
(71 FR 6269, February 7, 2006)
12.31%

Measure revoked: 70 FR 44894, August 4, 2005
27. Stainless steel
sheet strip coils
G A-428-825 67 FR 7668, February 20, 2002
Amended: 67 FR 15178, March 29,
2002

KTN See Case 28
28. Stainless steel
sheet strip coils
G A-428-825 68 FR 6716, February 10, 2003
Amended: 68 FR 14193, March 24,
2003

TKN (successor in
interest of KTN)
4 subsequent reviews resulting in change to rate:

1 July 2001 – 30 June 2002
(69FR 6262, February 10, 2004) 3.72%

1 July 2002 – 30 June 2003
(69 FR 75930, December 20, 2004) 7.03%

1 July 2003 – 30 June 2004
(70 FR 73729 December 13, 2005) 9.5%

1 July 2004 – 30 June 2005
(71 FR 74897, December 13, 2006) 2.45%

Sunset review: Continuation Order 70 FR 44886,
August 4 2005

Product MS No Case Final Results Company Subsequent Reviews
29. Ball bearings F A-427-801 67 FR 55780, August 30, 2002

SKF France SA and
Sarma
SKF: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
68 FR 43712, July 24, 2003
6.70%

1 May 2002 – 30 April 2003
69 FR 55574, September 15, 2004
5.25%

1 May 2003 – 30 April 2004
70 FR 54711, September 16, 2005
8.41%

1 May 2004 – 30 April 2005
71 FR 40064, July 14, 2006
12.57%

Sunset Reviews: Continuation Order 71 FR 54469,
September 15, 2006

30. Ball bearings I A-475-801 67 FR 55780, August 30, 2002

FAG Italia SpA

FAG: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
68 FR 35623, June 16, 2003
2.87%

1 May 2002 – 30 April 2003
69 FR 55574, September 15, 2004
4.79%

1 May 2003 – 30 April 2004
70 FR 54711, September 16, 2005
5.88%

1 May 2004 – 30 April 2005
71 FR 40064, July 14, 2006
2.52%

Product MS No Case Final Results Company Subsequent Reviews
 SKF Industrie SpA SKF: 4 subsequent reviews resulting in change to rate:

1 May 2001 – 30 April 2002
68 FR 35623, June 16, 2003
5.08%

1 May 2002 – 30 April 2003
69 FR 55574, September 15, 2004
1.38%

1 May 2003 – 30 April 2004
70 FR 54711, September 16, 2005
2.59%

1 May 2004 – 30 April 2005
71 FR 40064, July 14, 2006
7.65%

Sunset Reviews: Continuation Order 71 FR 54469,
September 15, 2006

31. Ball bearings UK A-412-801 67 FR 55780, August 30, 2002

NSK Bearings Europe
Ltd
The Barden Corporation
UK
NSK Bearings:
No subsequent administrative reviews

Barden: 1 subsequent administrative review rescinded
for period: 1 May 2001 – 30 April 2002
2 subsequent reviews resulting in change to rate:
1 May 2002 – 30 April 2003
69 FR 55574, September 15, 2004
4.10%
1 May 2003 – 30 April 2004
70 FR 54711, September 16, 2005
2.78%
Sunset Reviews: Continuation Order 71 FR 54469,
September 15, 2006