CHINA — ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON BROILER PRODUCTS FROM THE UNITED STATES RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE UNITED STATES REPORT OF THE PANEL
Document: Addendum
Date: 18 January 2018
Document codes: WT/DS427/RW/Add.1; WT/DS427/RW.
Complainant: U.S.
Respondent: China
Third parties: EU, Japan, Norway, Thailand, Saudi Arabia, Chile, Mexico
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.2.1.1, 2.4, 6.8, 12.2.1, 12.2, 6.9, 12.7  Anti-dumpingArt. 12.7  Subsidies and Countervailing Measures (SCM)Art. VI:3  GATT 1994Art. 19.4, 22.3, 22.4, 22.5, 12.8  Subsidies and Countervailing Measures (SCM)Art. 3.1, 3.2, 3.5, 6.4  Anti-dumpingArt. 15.5, 12.3  Subsidies and Countervailing Measures (SCM)Art. 3.4  Anti-dumpingArt. 15.1, 15.2, 12.4.1  Subsidies and Countervailing Measures (SCM)Art. 6.2  Anti-dumpingArt. VI  GATT 1994Art. 1  Anti-dumpingArt. 10  Subsidies and Countervailing Measures (SCM)

CHINA — ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON
BROILER PRODUCTS FROM THE UNITED STATES
RECOURSE TO ARTICLE 21.5 OF THE DSU BY THE UNITED STATES
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to E to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL AND INTERIM REVIEW
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures of the Panel concerning Business Confidential
Information
A-6
Annex A-3 Interim Review A-8
ANNEX B
ARGUMENTS OF THE UNITED STATES
Contents Page
Annex B-1 Executive summary of the First Written Submission of the United States B-2
Annex B-2 Executive summary of the Second Written Submission of the United States B-10
Annex B-3 Executive summary of the Opening Oral Statement of the United States at the
Substantive Meeting of the Panel
B-18
ANNEX C
ARGUMENTS OF CHINA
Contents Page
Annex C-1 Executive summary of the First Written Submission of China C-2
Annex C-2 Executive summary of the Second Written Submission of China C-10
Annex C-3 Executive summary of the Oral Statements of China at the Substantive Meeting
of the Panel
C-18
ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Integrated executive summary of the arguments of the European Union D-2
Annex D-2 Integrated executive summary of the arguments of Japan D-4

ANNEX E
PRELIMINARY RULING
Contents Page
Annex E-1 Ruling by the Panel on jurisdictional issues dated 22 March 2017 E-2

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ANNEX A
WORKING PROCEDURES OF THE PANEL AND INTERIM REVIEW
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures of the Panel concerning Business Confidential
Information
A-6
Annex A-3 Interim Review A-8

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 9 November 2016
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the documents submitted to it shall be kept confid ential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by ano ther Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. The parties shall treat business confidential information in accordance with the procedures
set forth in the Additional Working Procedures of the Panel Concerning Business Confidential
Information.
4. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when i nvited by the Panel to
appear before it.
5. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delega tion and shall ensure that each member of such delegation acts in
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

6. Before the substantive meeting of the Panel with th e parties, each party shall submit to the
Panel a first written submission, and subsequently a written rebuttal, in which it presents the facts
of the case and its arguments, and counter -arguments, respectively, in accordance with the
timetable adopted by the Panel.
7. A party shall submit any request for a preliminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If the United States
requests such a ruling, China shall submit its r esponse to the request in its first written
submission. If China requests such a ruling, the United States shall submit its response to the
request prior to the substantive meeting of the Panel, at a time to be determined by the Panel in
light of the request. Exceptions to this procedure shall be granted upon a showing of good cause.
8. Each party shall submit all factual evidence to the Panel no later than during the substantive
meeting, except with respect to evidence necessary for purposes of rebuttal, answers to questions
or comments on answers provided by the other party. Exceptions to this procedure shall be
granted upon a showing of good cause. Where such exception has been granted, the Panel shall
accord the other party a period of time for comment, as appropriate, on any new factual evidence
submitted after the substantive meeting.
9. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the

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same time. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, no later than the next filing or meeting (whichever occurs earlier) following
the submission which contains the translation in question. The Panel may grant exceptions to this
procedure upon a showing of good cause, including where the issue concerning translation arises
later in the dispute. Any objection shall be accompanied by a detailed explanation of the grounds
of objection and an alternative translation.
10. To facilitate the maintenance of the record of the dispute, and maximize the clarity of
submissions, each part y and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by the United States could be numbered
US-1, US-2, etc. If the last exhibit in connection with the first submission was numbered US-5, the
first exhibit of the next submission thus would be numbered US-6.
Questions

11. The Panel may at any time pose questions to the parties and third parties, orally or in
writing, including prior to the substantive meeting.
Substantive meeting

12. Each party shall provide to the Panel the list of members of its delegation in advance of the
meeting with the Panel and no later than 5.00 p.m. on the previous working day.
13. The substantive meeting of the Panel shall be conducted as follows:
a. The Panel shall invite the United States to make an opening statement to present its
case first. Subsequently, the Panel shall invite China to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at th e
meeting with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies to the interpreters.
Each party shall make available to the Panel and the other party the final version of its
opening statement as well as its closing statement, if available, preferably at the end of
the meeting, and in any event no later than 5.00 p.m. on the first working day following
the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall then
have an opportunity to answer these questions orally. Each party shall send in writing,
within a timeframe to be determined by the Panel , any questions to the other party to
which it wishes to receive a response in writing. Each party shall be invited to respond in
writing to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the United States presenting its statement first.
Third parties

14. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the substantive meeting of the Panel with the parties, in accordance with the timetable adopted by
the Panel.
15. Each third party shall also be invited to present its views orally during a session of the
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list

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of members of its delegation in advance of thi s session and no later than 5.00 p.m. the previous
working day.
16. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order.
Third parties present at the third -party session and intending to present their views
orally at that session, shall provide the Panel, the parties and other third parties with
provisional written versions of their statements before they take the floor. Third parties
shall make available to the Panel, the parties and other third parties the final versions of
their statements, preferably at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or stat ements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing.
d. The Panel may subsequently pose questions to the third parties. Each third p arty shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

17. The description of the arguments of the parties and third parties in the descriptive part of
the Panel report shall consist of execut ive summaries provided by the parties and third parties,
which shall be annexed as addenda to the report. These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
18. Each party shall submit executive summaries of the facts and arguments as presented to the
Panel in its written submissions, other than responses to questions, and its oral statements, in
accordance with the timetable adopted by the Panel. Each executive summary of a written
submission shall be limited to no more than 10 pages. A summary submitted by a party of its
opening and/or closing statements presented at the substantive meeting shall be limited to no
more than 5 pages. The Panel will not summarize in a separate part of its report, or annex to its
report, the parties' responses to questions.
19. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordance with th e timetable adopted by the Panel. This
summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
20. The Panel reserves the right to request the parties and third parties to provide executive
summaries of facts and arguments presented by a party or a third party in any other submissions
to the Panel for which a deadline may not be specified in the timetable.
Interim review

21. Following issuance of the i nterim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercise d no
later than at the time the written request for review is submitted.
22. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review in accordance with the ti metable

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adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
23. The interim report, as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

24. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file 3 paper copies of all documents it submits to the
Panel. However, when Exhibits are provided on CD -ROMS/DVDs, 2 CD-ROMS/DVDs and
2 paper copies of those exhibits shall be filed. The DS Registrar shall stamp the
documents with th e date and time of the filing. The paper version shall constitute the
official version for the purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same t ime as the paper versions, in Microsoft Word format,
either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic copy is
provided by e -mail, it should be addressed to DSRegistry@wto.org, and cc'd to
XXXXXX@wto.org. If a CD-ROM or DVD is provided, it shall be filed with the DS Registry.
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance
of the substantive meeting w ith the Panel. Each third party shall serve any document
submitted to the Panel directly on the parties and all other third parties. Each party and
third party shall confirm, in writing, that copies have been served as required at the time
it provides each document to the Panel.
e. Each party and third party shall file its documents with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or t hird party may submit its documents
to another party or third party in electronic format only, subject to the recipient party or
third party's prior written approval and provided that the Panel Secretary is notified.
f. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
g. The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING
BUSINESS CONFIDENTIAL INFORMATION
Adopted on 22 November 2016
1. The following procedures apply to business confidential information (BCI) submitted in the
course of the present Panel proceedings.

2. For the purposes of these proceedings, BCI is defined as any information that has been
designated as such by a party or a third party submitting the information to the Panel. The
parties or third parties shall only designate as BCI information that is not available in the
public domain, the release of which would cause serious harm to the interests of the
originator(s) of the information. BCI may include (1) information that was previously treated
as confidential within the meaning of Articles 6.5 of the Anti -dumping Agreement and 12.4
of the Agreement on Subsidies and Countervailing Measures by the investigating authoritie s
of China in the anti -dumping and countervailing investigations and subsequent proceedings
at issue in this dispute, and (2) information that was previously treated as BCI in the
original proceeding in this dispute, unless the person who provided the info rmation in the
course of those investigations or proceedings agrees in writing to make the information
publicly available.

3. The first time that a party submits to the Panel BCI as defined above from an entity that
submitted that information in one of the proceedings at issue, the party shall also provide,
with a copy to the other party, an authorizing letter from the entity. Th at letter shall
authorize both the United States and China to submit in this dispute, in accordance with
these procedures, any confidential information submitted by that entity in the course of
those proceedings. An authorizing letter need not be provided in respect of BCI for which a
party already submitted an authorizing letter in the original Panel proceedings.

4. If a party or third party considers that information submitted by the other party or a third
party should have been designated as BCI and ob jects to its submission without such
designation, it shall forthwith bring this objection to the attention of the Panel, the other
party, and, where relevant, the third parties, together with the reasons for the objection.
Similarly, if a party or third pa rty considers that the other party or a third party designated
as BCI information which should not be so designated, it shall forthwith bring this objection
to the attention of the Panel, the other party, and, where relevant, the third parties,
together wi th the reasons for the objection. The Panel shall decide whether information
subject to an objection will be treated as BCI for the purposes of these proceedings on the
basis of the criteria set out in paragraph 2.

5. No person may have access to BCI exc ept a member of the Secretariat or the Panel, an
employee of a party or of a third party, or an outside advisor to a party or third party for the
purposes of this dispute. A person having access to BCI shall not disclose that information
other than to pers ons authorized to have access to it pursuant to these procedures. Any
information designated as BCI shall only be used for the purposes of this dispute. Each party
and third party is responsible for ensuring that its employees and/or outside advisors comply
with these procedures.

6. An outside advisor to a party or third party is not permitted access to BCI if that advisor is
an officer or employee of an enterprise engaged in the production, sale, export, or import of
the products that were the subject of the investigations at issue in this dispute, or an officer
or employee of an association of such enterprises.

7. Third parties' access to BCI shall be subject to the terms of these procedures. A party
objecting to a third party having access to BCI it i s submitting shall inform the Panel of its
objection and the reasons therefor prior to filing the document containing such BCI. The

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Panel may, if it finds the objection justified, request the objecting party to provide a non -
confidential version of the BCI in question to the third party.

8. Submission of BCI:

(i) The party or third party submitting BCI shall indicate the presence of such information
in any document submitted to the Panel, as follows: the first page or cover of the
document shall state "Contains Business Confidential Information on pages xxxxx ",
and each page of the document shall contain the notice "Contains Business
Confidential Information " at the top of the page. The specific business confidential
information in question shall be plac ed between double square brackets, as follows:
[[xx,xxx.xx]]. A party submitting BCI in the form of, or as part of, an Exhibit shall, in
addition to the above, so indicate by putting "BCI" next to the exhibit number
(e.g. Exhibit US-1 (BCI)).

(ii) Where BCI is submitted in electronic format, the file name shall include the terms
"Business Confidential Information" or "BCI". In addition, where applicable, the label
of the storage medium shall be clearly marked with the statement "Business
Confidential Information" or "BCI".

(iii) In the case of an oral statement containing BCI, the party or third party making such
a statement shall inform the Panel before making it that the statement will contain
BCI, and the Panel will ensure that only persons authorized to have access to BCI
pursuant to these procedures are in the room to hear that statement. The written
versions of such oral statements submitted to the Panel shall be marked as provided
for in paragraph 7(i).

9. Where a party submits a document contain ing BCI to the Panel, the other party or third
party, when referring to that BCI in its documents, including written submissions, and oral
statements, shall clearly identify all such information in those documents. All such
documents shall be marked and treated as described in paragraph 7.

10. Any person authorized to have access to BCI under the terms of these procedures shall store
all documents or other media containing BCI in such a manner as to prevent unauthorized
access to such information.

11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements
of conclusion drawn from such information. Before the Panel circulates its fi nal report to the
Members, the Panel will give each party and, where BCI was submitted by a third party, that
third party an opportunity to review the report to ensure that it does not contain any
information that the party or third party has designated as BCI.

12. Submissions, exhibits, and other documents or recordings containing BCI will be included in
the record forwarded to the Appellate Body in the event of an appeal of the report of the
Panel.

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ANNEX A-3
INTERIM REVIEW
1.1. In accordance with Article 15.3 of the DSU, this section of the Panel Report sets out our
response to the parties' requests made at the Interim Review stage. Our assessm ent of the
parties' requests and comments is informed by the following considerations:
a. The Interim Review stage is not an opportunity for parties to reargue the case or to
"introduce new legal issues and evidence or to enter into a debate with the Panel".1
b. The descriptions of the arguments of the parties in our Report are not meant to and do
not reflect the entirety of the parties' arguments. Rather, they highlight the principal
points of those arguments that we considered relevant to our resolution o f the issues in
dispute and addressed in our findings.2 Finally, we note that, the executive summaries of
the arguments of the parties, set out in Annexes B1 -B4, were prepared by the parties
themselves, and reflect, or should reflect, the judgement of each party as to its main
arguments. However, as provided for in paragraph 17 of the Panel's Working Procedures,
"These executive summaries shall not in any way serve as a substitute for the
submissions of the parties and third parties in the Panel's examination of the case."
c. A panel may develop its own reasoning in reaching its findings, provided that it does so
consistently with the requirements of due process. A panel is not required to "test" its
intended reasoning with the parties in advance.3
1.2. Where appropriate, we have modified aspects of the Report in the light of the
parties' requests and comments. Due to changes as a result of our review, the numbering of
paragraphs and footnotes in the Final Report has changed from the Interim Report. The tex t below
refers to the numbers in the Interim Report, with the numbers in the Final Report in parentheses
for ease of reference, if different.
1.3. In addition to the modifications specified below, the Panel also corrected a number of
typographical and oth er non-substantive errors throughout the Report, including some identified
by the parties.
1.1 The United States' request for review of the Interim Report
1.4. In respect of paragraph 7.39(e) (paragraph 7.39(g) in the Final Report) , the
United States asks the Panel to clarify this paragraph and proposes two modifications. 4 China
disagrees.5 The proposed US language more clearly reflects our intent; we have therefore modified
the paragraph to better reflect our intent.
1.5. In respect of paragraph 7.51 , the United States requests that the Panel revisit, in
particular, the second sentence, and either delete or reformulate it to ensure that it addresses the
specific legal matter at issue in this Article 21.5 proceeding. 6 China disagrees with the proposal to
delete the sentence.7 On reflection, we have modified this paragraph to more clearly express our
views regarding the specific legal question at issue.

1 Panel Report, India – Quantitative Restrictions, para. 4.2.
2 A panel has "the discretion to address explicitly in [its] reasoning only the arguments and evidence [it]
deem[s] necessary to resolve a particular claim and support the reasoning [it is ] required to provide." (Panel
Report, India – Agricultural Products, para. 6.7 (referring to Appellate Body Reports, EC – Poultry, para. 135;
and US – COOL, para. 414)).
3 Report of the Appellate Body, U.S. – Tuna II (Mexico), Article 21.5, para. 177.
4 United States' request for interim review, paras. 4-5.
5 China's comments on the United States' request for interim review, para. 2.
6 United States' request for interim review, paras. 6-8.
7 China's comments on the United States' request for interim review, para. 3.

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1.6. In respect of paragraph 7.52, the United States requests that the Panel's reference to its
original findings more closely track the language of those findings.8 China disagrees, asserting that
"in this Article 21.5 proceeding the Panel is addressing a particular methodology and the
paragraph reflects this fact." 9 We have modified the text and added t he appropriate reference to
better reflect the original findings to which we refer.
1.2 China's request for review of the Interim Report
1.7. In respect of paragraph 7.23(e), China asserts that footnote 86 (footnote 89 of the
Final Report) refers to a different matter than the text, and asks the Panel to distinguish the two
by adding a new footnote. 10 We agree that the reference in footnote 86 is incorrect, and have
changed it. We also made a minor consequential modification to footnote 85 (footnote 88 of the
Final Report). Having done so, we do not consider it necessary to add the additional footnote
requested by China.
1.8. In respect of paragraph 7.53(b) , China requests that the reference to "MOFCOM" be
removed from the sentence, asserting that "it is not MOFCOM's quote but is a statement attributed
to Tyson."11 The United States disagrees, contending that the text is accurate as drafted.12
1.9. This paragraph is based on the following passage in MOFCOM's redetermination:
In the original investigation, considering that meat cost was the main cost constitution
of the product concerned, and that for feeding live chickens by the Company it was
not able to distinguish which feeds were specifically used to produce which parts of
the product concerned , the Inve stigating Authority found that weight -based method
could be more objective and more reasonable than the value-based method submitted
by the Company in the questionnaire response to reflect the production cost
associated with the product concerned, therefor e, the weighted average production
cost of all product groups was regarded as the production cost of the product
concerned and the like product.13
Thus, MOFCOM found "that weight -based method could be more objective and more reasonable"
on the basis of two considerations: first, that "meat cost was the main cost constitution of the
product concerned", and second, "that for feeding live chickens by the Company it was not able to
distinguish which feeds were specifically used to produce which parts of the prod uct concerned".
We recognize that it is not entirely clear in this translation of the redetermination, submitted by
China, whether "it" in the second sentence refers to Tyson ("the Company") or to MOFCOM. As the
United States noted, there is nothing cited or referred to in the redetermination that would
attribute the statement in question to Tyson. 14 The United States translation 15 is also pertinent in
this regard:
In the original investigation, considering that chicken cost is the main composition of
cost of the subject merchandise, when the company raises live chicken, it's hard to
tell which feed is especially for production of which part of the subject merchandise .
The investigating authority believes that using the weight -based method can reflect
the cost related to production of the subject merchandise more objectively and
reasonably. Therefore, the weighted average production cost of every group is
regarded as production cost of the subject merchandise and like product thereof.16
Moreover, we recall China's argument in the original case: " After all, the different parts of the live
bird do not have different costs of production . It does not cost more to grow a kilogram of breast

8 United States' request for interim review, para. 9.
9 China's comments on the United States' request for interim review, para. 5.
10 China's request for interim review, para. 5.
11 China's request for interim review, para. 6.
12 United States' comments on China's request for interim review, para. 9.
13 Redetermination, (Exhibit CHN-1 (translated version)), p. 33. (emphasis added)
14 United States' comments on China's request for interim review, para. 10.
15 China has not challenged the accuracy of the United States' translation of the redetermination.
16 Redetermination, (Exhibit USA-9 (translated version)), p. 33. (emphasis added)

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than it costs to grow a kilogram of paws." 17 Taken as a whole, it appears to us that MOFCOM
accepted and expressly relied upon the proposition that which feeds were specifically used to
produce which parts of the product concerned could not be distinguished. We therefore consider
that the text as drafted is accurate. Accordingly we have not modified the text in this regard.
1.10. In respect of paragraph 7.54, China notes that neither the United States nor China made a
claim that "feathers, blood, and viscera are essential parts of a live broiler, and thus they are
intrinsic to the production of the subject broiler product models" and asks the Panel to "provide the
basis for this characterization." 18 The United States disagrees that any clarification of or authority
for this "incontrovertible point" is needed.19
1.11. As is clear from t he opening phrase of the sentence quoted by China, we recognized that
there was no direct evidence before the Panel on this point. At the same time, a panel is entitled,
in our view, to recognize and refer to incontrovertible facts where relevant. In this case, one such
fact is that the production of a "whole bird" requires the production of those parts of a bird without
which the bird cannot be produced. Indeed, China itself, in its submission in the original dispute,
stated that, "a significant portion of the total costs of production are incurred on a unitary basis for
the whole bird ".20 China does not dispute the fact that "feathers, blood, and viscera are essential
parts of a live broiler, and thus they are intrinsic to the production of the subject broi ler product
models", but rather asks the Panel to provide a basis for it. We consider this to be a self -evident
fact, and therefore decline China's request.
1.12. In respect of paragraph 7.58 , China argues that, "[i]n light of the Panel's finding of
inadequate explanation, it should at least refer to MOFCOM's explanation in its Redetermination"
and requests that the Panel delete the phrase "allowed for the exclusion of certain parts of a live
broiler (feather, blood and viscera)", because, according to Chi na, "MOFCOM never excluded any
parts from its cost allocation".21 The United States opposes both requests.22
1.13. In respect of the first aspect of this request, we have in fact referred to MOFCOM's
explanation earlier in this section, in paragraph 7.53. W e consider it unnecessary to do so again in
this paragraph. Accordingly we have not modified the text in this regard.
1.14. In respect of the second aspect of this request, we recall that China argued that MOFCOM
appropriately distinguished between what it termed "the product concerned" and other products,
including feathers, blood and viscera. According to China, "MOFCOM specifically noted that the
'production cost didn't include that of the non -concerned products, such as feather, blood, etc.'." 23
It was this "product cost", i.e. a product cost excluding feathers, blood, and viscera, that was
allocated to "the product concerned" on the basis of weight. We note that China has not requested
review of paragraphs 7.54 and 7.55, in which we also refer to MOFCO M's "exclusion of feathers,
blood, and viscera". In the light of the foregoing, we decline China's request that we delete the
phrase in question.
1.15. In respect of paragraphs 7.58 and 7.59, China refers to not only our findings in these two
paragraphs, but also to paragraphs 7.50 and 7.51 and the Panel's "remaining discussion",
asserting that "the Panel does not make clear … whether it views the MOFCOM redetermination to
have been at odds with the second aspect, the third aspect, or both" of the obligat ion in the
second sentence of Article 2.2.1.1. 24 China suggests that "the Panel appears to take care to avoid
suggesting anything about whether the MOFCOM approach was proper or not", and asks the Panel
to "clarify that its findings address the third aspect of the obligation – the failure to explain – and
not whether the MOFCOM allocation method was proper or not". 25 The United States opposes
China's request, contending that China has failed to make a "request for review of a precise aspect

17 United States' first written submission, para. 91 (quoting China's first written submission in the
18 China's request for interim review, para. 7.
19 United States' comments on China's request for interim review, para. 11.
20 China's first written submission in the original dispute, para. 133. (emphasis added)
21 China's request for interim review, para. 8.
22 United States' comments on China's request for interim review, para. 13.
23 China's first written submission, para. 174 (quoting Redetermination, (Exhibit CHN-1 (translated
version)), fn 30).
24 China's request for interim review, para. 9.
25 China's request for interim review, para. 9.

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of the interim rep ort" and that "It is clear that the Panel is examining the issue of MOFCOM’s
explanation as part of MOFCOM’s consideration of all available evidence related to a proper cost
allocation."26
1.16. We consider that China has failed to make a proper request for "review of precise aspects of
the interim report". The paragraphs discussed by China in its request concern different sections of
the Panel's analysis. Paragraph 7.50 deals specifically with the argument that MOFCOM was
required to use a single methodolo gy throughout the investigation and rejects that view, while
paragraph 7.51 concludes that MOFCOM's rejection of a value -based cost allocation in the
redetermination was not inherently biased or unreasonable.
1.17. Paragraphs 7.52 through 7.58 specificall y examine MOFCOM's explanations for and use of a
weight-based cost allocation, concluding that MOFCOM failed to adequately explain its decision to
use that allocation, and therefore failed to "consider all available evidence on the proper allocation
of costs", that is, failed to act consistently with the second sentence of Article 2.2.1.1. We are
unable to determine precisely what aspects of these paragraphs China considers require
modification, and what changes it considers would be appropriate. We have, n onetheless, made
minor modifications in paragraphs 7.51 and 7.52.
1.18. With respect to paragraphs 7.63 and 7.64, China argues that, as it contends with respect
to paragraphs 7.58 -7.59, " the Panel again seems to avoid making any findings about what is
proper or not " and asks the Panel to "to clarify that its findings address the third aspect of the
obligation – the failure to explain – and not whether the Tyson allocation method rejected by
MOFCOM was proper or not." 27 The United States considers that, as with r espect to
paragraphs 7.58-7.59, China's "complaint here does not constitute a request for review of a
precise aspect of the interim report".28
1.19. We consider that China has failed to make a proper request for "review of precise aspects of
the interim report". We are unable to determine precisely what aspects of these paragraphs China
considers should be modified, and what changes it considers would be appropriate. We do not
consider that our findings need further clarification as requested by China . Accordingly we have
not modified the text in this regard.
1.20. In respect of paragraphs 7.66-7.70, China asserts that the Panel failed to explain whether
its interpretation of the term "historically utilized" in the second sentence of Article 2.2.1.1 w as
consistent with that of a previous panel report on the same issue, US- Softwood Lumber V , and
contends that the Panel should "offer some reaction" to the points raised by China in this regard. 29
The United States disagrees, asserting that China has failed to make a "request for review of a
precise aspect of the interim report".30 In the United States' view:
China fails to explain (i) what conclusion or statement in these paragraphs is
inconsistent with the analysis in particular paragraphs in US – Softwood Lumber V ;
(ii) why, even if there is an inconsistency, it needs to be addressed in this Report; and
(iii) why the Panel should assess China’s characterization of the U.S. position in
another dispute.31
1.21. We consider that China has failed to make a proper request for "review of precise aspects of
the interim report". We are unable to determine precisely what aspects of these paragraphs China
considers should be modified, and what changes it considers would be appropriate. We do not
consider that our f indings need further clarification as requested by China. Accordingly we have
not modified the text in this regard.
1.22. In respect of paragraphs 7.89-7.99, China argues that the Report leaves "the impression
that MOFCOM took fewer steps to corroborate and analyse the data from the four domestic

26 United States' comments on China's request for interim review, para. 14.
27 China's request for interim review, para. 11.
28 United States' comments on China's request for interim review, para. 17.
29 China's request for interim review, para. 10.
30 United States' comments on China's request for interim review, para. 15.
31 United States' comments on China's request for interim review, para. 15. (emphasis original)

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producers".32 China describes steps MOFCOM took 33 in relation to "the analytical process by which
MOFCOM analysed th e pricing data of the four re -verified domestic producers" and states that
these details it describes "warrant further description" in the report. 34 The United States opposes
China's request, contending that China has failed to make a "request for review precise aspects of
the interim report".35 Moreover, in the United States' view, China has failed:
a. "to identify how the Panel’s analysis misstates the approach noted in the
redetermination"36; and
b. "to explain why the analysis in the interim report is deficient".37
1.23. We make two observations.
1.24. First, China does not explain precisely what aspects of these paragraphs it considers should
be modified and what changes it considers would be appropriate. Rather, it simply contends that a
more detailed ex position of the facts regarding MOFCOM's reinvestigation and analysis of
product-specific pricing data is important to its legal position in this case. This is not enough to
help us determine what precisely should be modified and how.
1.25. Second, we hav e carefully considered all of the arguments and evidence put before us;
there is, however, no requirement that we reflect in our report all the facts that each party may
consider important to its positions. Rather, we must set out in our report those facts that are
important to our resolution of the issues in the dispute before us, in the context of our analysis,
reasoning, and conclusions. We recall that our findings in the original dispute concerned the
comparability of two baskets of goods in the light o f differences in the composition of those
baskets.38 In this proceeding, China argued that MOFCOM verified the prices of individual
components of the Chinese basket for four of seventeen domestic producers. This argument does
not address the concerns we had originally, and again in this proceeding, with respect to the
comparability of the domestic and imported prices as a consequence of the composition of the
baskets of broiler products being compared. We fail to see how a more detailed exposition of the
facts concerning how MOFCOM went about verifying the prices of certain domestic producers
relates to the issue we were addressing.
1.26. We consider that China has failed to make a proper request for "review precise aspects of
the interim report". We do not consider that our findings need modification as requested by China.
Accordingly we have not modified the text in this regard.
1.27. In respect of paragraph 7.102, China asserts that:
a. "it is important for the Panel to point out that although the two ba skets may have been
of dissimilar composition, MOFCOM considered that their composition was in fact known
such that MOFCOM believed it controlled for product mix"39;
b. "[t]he current description suggests MOFCOM did not take any steps to understand the
respective compositions of the two baskets"40; and
c. with respect to the "risk that price effects were the effects of competition from product
models within the domestic basket", "for the same reason of substitutability, there may

32 China's request for interim review, para. 15.
33 China's request for interim review, para. 16.
34 China's request for interim review, para. 17.
35 United States' comments on China's request for interim review, para. 23.
36 United States' comments on China's request for interim review, para. 24.
37 United States' comments on China's request for interim review, para. 25.
38 See paragraph [7.106] above:
In the original report, we did not find, because Articles 3.2 and 15.2 do not require, that in a price
comparison, MOFCOM had to adopt the "lower of the two" price benchmarks; our findings were about
the comparability of the baskets rather than the relative value of different AUVs.
(emphasis added)
39 China's request for interim review, para. 19.
40 China's request for interim review, para. 19. (emphasis added)

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be price effects resulting f rom product models in the dumped import basket on product
models within the domestic basket that were not in the dumped import basket".41
1.28. The United States opposes any change to this paragraph, asserting that:
a. "the Panel, in paragraph 7.105 of th e interim report, expressly considered and rejected
MOFCOM’s argument that it controlled for product mix differences"42; and
b. "China is essentially asking the Panel revise and dilute its findings", in particular in a
manner that "would create ambiguity" in these findings.43
1.29. We consider that China has failed to make a proper request for "review of precise aspects of
the interim report." Rather, in our view, China is attempting to re -argue issues that the Panel has
resolved, rather than clearly indica ting what precise aspects of the report it considers should be
modified and why. We therefore decline to modify this paragraph.
1.30. In respect of footnote 205 (footnote 209 of the Final Report) , China requests that we
delete the final two sentences, as serting that the "statement that MOFCOM’s price effects
determination 'might well give rise to an appearance of selecting among domestic producers based
on their data to ensure a particular outcome' is purely speculative." 44 The United States opposes
China's request, contending that it reflects a well-supported evaluation of a "key matter before the
Panel" and noting that it had argued during the proceeding that one of the principal problems with
the selection of four firms for reverification was that "their selection appeared biased in light of the
lack of any explanation".45
1.31. The penultimate sentence of footnote 205 does not state that MOFCOM's "price effects
determination" itself may give rise to an appearance of selectivity. Rather, it makes clear th at it is
the "lack of any explanation in the redetermination for the choice" of which producers' prices were
reverified that may give rise "to an appearance of selecting among domestic producers based on
their data to ensure a particular outcome". The last sentence makes clear that the Panel did not
make any findings on this point. We consider it appropriate to raise such concerns in the course of
resolving a dispute, in order to assist parties in the course of their efforts to implement DSB
rulings and rec ommendations, and act consistently with their obligations. We therefore decline
China's request.
1.32. In respect of paragraphs 7.150 -7.162, China requests that the Panel delete the
discussion in these paragraphs, and any findings, from the report. China argues that:
a. "[T]he Panel analyses two issues under Article 3.4 of the AD Agreement and Article 15.4
of the SCM Agreement that do not reflect proper claims before the Panel. The issues of:
(1) whether MOFCOM inadequately focused on the later part of th e POI; and
(2) potential negative effect and future imports both appear to arise as rebuttal
responses by the United Sates in its Second Written Submission."46
b. "It is unclear to China how these issues rise to the level of specific claims for which the
Panel makes specific findings."47
c. Paragraph 6 of the Working Procedures "makes clear that any claim raised by the United
States for purpose of its challenge should be presented in its First Written Submission".48

41 China's request for interim review, para. 20. (emphasis added)
42 United States' comments on China's request for interim review, para. 27.
43 United States' comments on China's request for interim review, para. 28.
44 China's request for interim review, para. 21.
45 United States' comments on China's request for interim review, para. 30.
46 China's request for interim review, para. 22.
47 China's request for interim review, para. 22.
48 China's request for interim review, para. 23.

- A-14 -

d. "As such, these arguments are 'counter ar guments' as contemplated by paragraph 6 of
the Working Procedures and do not represent claims upon which the Panel should
rule."49
e. "For these reasons, the Panel should strike this discussion and any findings from the final
report."50
1.33. The United States opposes China's request, noting that:
a. there is a difference between claims and arguments51;
b. the arguments (and counterarguments) at issue were properly raised and the Panel
properly considered them52; and
c. "That the arguments China itself raised undermined its defence – rather than supported
it – does not, as China now argues, somehow implicate procedural fairness."53
1.34. We consider that China has failed to make a proper request for "review of precise aspects of
the interim report". Rather, in our view, China's request amounts to an attempt to re -argue issues
that the Panel has resolved and does not clearly indicate what precise aspects of the report it
considers should be modified and why.
1.35. In these paragraphs, the Panel is addressing v arious arguments in the context of
considering the United States' claim that MOFCOM's redetermination is inconsistent with Article 3.4
of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement. 54 This claim is properly
before us.55 Over the course of the proceedings, starting with the first written submissions, and
then in the second written submissions and at the hearing, and finally in responses to questions
and comments on those responses:
a. the United States made certain arguments in support of its claim;
b. China responded with arguments of its own; and
c. the United States replied to China's arguments.
1.36. Each party in a dispute has the right to make the arguments and submit the evidence it
wishes in defence of the positions it adopts in respect of a given claim. Having presented its
arguments and evidence and advanced its position, a party may not, however, seek the assistance
of the panel to deny to the other party the same right to present its arguments and evidence in
reply. Nothing in the Working Procedures contemplates any such departure from basic rules of
fairness in an adjudicative proceeding.
1.37. China seems to be of the view that because some of the United States' arguments in
support of its claim were first advanced in its se cond written submission, and the Panel considered
and made findings addressing those arguments, the United States has wrongly been allowed to
advance claims at a late stage of the proceedings which the Panel then resolved. This is not the
case. The Panel's conclusions are in respect of the claims of the United States under Article 3.4 of
the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement. To arrive at those
conclusions, and consistently with our obligations under Article 17.6 of the Anti -Dumping
Agreement and Article 11 of the DSU, we took into account all the arguments and the respective
replies of the parties, and as necessary made findings in respect of those arguments and replies.
We did so in accordance with our responsibility to "make an objective assessment of the matter
before [us], including an objective assessment of the facts of the case and the applicability of and
conformity with the relevant covered agreements".

49 China's request for interim review, para. 23.
50 China's request for interim review, para. 23.
51 United States' comments on China's request for interim review, para. 32.
52 United States' comments on China's request for interim review, para. 33.
53 United States' comments on China's request for interim review, para. 33.
55 Ruling by the Panel on Jurisdictional Issues dated 22 March 2017, para. 3.10.

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1.38. We therefore decline China's request to delete this entire section of the report.
1.39. In respect of paragraphs 7.332(e) and 7.335 , China requests that we modify the report
"to reflect that MOFCOM did not reject Tyson's reported data in its entirety" 56 and "did not reject
all of Tyson's data". 57 The United States disa grees because, in its view, China has not shown any
errors in these paragraphs.58
1.40. Paragraph 7.332(e) sets out the factual background to our consideration of the
United States' claims regarding use of facts available. Paragraph 7.332 as a whole sets out, in
sequence, MOFCOM's requests and Tyson's responses on the issue of meat and processing cost
information. At paragraph 7.332(e), the statement that MOFCOM rejected Tyson's reported data in
its entirety in the redetermination is immediately followed b y the explanation that "MOFCOM found
that the reported data, generated by applying the methodology developed by Tyson using the data
available in its accounting records, were not the meat and processing costs actually incurred"59,
thus making clear what reported data were rejected. Moreover, the same paragraph goes on to set
out MOFCOM's decision not "to accept the meat cost and processing cost data of each model of the
product concerned calculated by the ratio method". 60 Thus, it is clear that in referring to
MOFCOM's rejection of "Tyson's reported data in its entirety" and "all of Tyson's data", we were
referring to the rejection of all of the meat and processing cost data that Tyson had generated and
provided during the reinvestigation. In order to avoid any uncertainty in this regard, we have
modified the text to explicitly state that that data that was rejected in its entirety was Tyson's
reported meat and processing cost data.
1.41. In respect of paragraph 7.335(d) , China requests adjustments to "further reflect" that
Tyson provided "inconsistent cost data" in every response. 61 The United States disagrees,
contending that the requested changes cannot be drawn from the paragraphs of China's
first written submission cited by the Panel, and China has provided no other citation or justification
for the request.62
1.42. In its request for review China does not indicate where, in its submissions in this
proceeding, it argued that Tyson provided inconsistent cost data in eve ry questionnaire and
supplemental questionnaire response in the reinvestigations. We have, nevertheless, modified
paragraph 7.335(d) to clarify that the asserted inconsistencies were not just between data
provided in the original investigation and data provided in the reinvestigation.

- B-1 -

ANNEX B
ARGUMENTS OF THE UNITED STATES
Contents Page
Annex B-1 Executive summary of the First Written Submission of the United States B-2
Annex B-2 Executive summary of the Second Written Submission of the United States B-10
Annex B-3 Executive summary of the Opening Oral Statement of the United States at the
Substantive Meeting of the Panel
B-18

- B-2 -

ANNEX B-1
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF THE UNITED STATES
I. INTRODUCTION
Articles 7 and 11 of the Understanding on Rules and Procedures Governing the Settlement of 1.
Disputes (DSU) charge a WTO panel with making those findings that will assist the DSB in making
the recommendations provided for in the covered agreements – namely, the recommendation to
bring a measure found to be inconsistent with a covered agreement into conformity with the
Member's WTO obligations under that agreement (D SU Art. 19.1). And that is precisely what the
Panel did in this dispute, finding that China 's antidumping and countervailing duty determinations
were inconsistent with numerous basic obligations under the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (AD Agreement) and the Agreement
on Subsidies and Countervailing Measures (SCM Agreement). Unfortunately, China did not take
those findings and recommendations as an opportunity to comply and, thus, to bring abou t a
positive solution to the dispute (DSU Art. 3.7).
Both the conduct of the reinvestigation and the findings in the redetermination confirm that 2.
MOFCOM adheres – without justification – to problematic practices or reasoning – and even moves
in precisely the wrong direction: toward less transparency, less due process, and less objectivity.
II. PROCEDURAL BACKGROUND
On July 15, 2014, the United States and China informed the DSB that the two parties had 3.
concluded Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding
("Agreed Procedures"). On May 10, 2016, the United States requested consultations pursuant to
Article 21.5 of the DSU concerning China 's measures continuing to impose antidumping and
countervailing duties on broi ler products from the United States, which were held on
May 24, 2016.
On May 27, 2016, the United States filed a panel request requesting recourse to Article 21.5 4.
of the DSU. At the June 22, 2016 meeting of the DSB, the DSB agreed to refer to the origi nal
panel, if possible, the matter raised by the United States. Brazil, Ecuador, the European Union, and
Japan reserved their third party rights. On July 18, 2016, the compliance panel was composed with
the members from the original panel.
III. FACTUAL BACKGROUND
The Panel found that MOFCOM breached Article 6.9 of the AD Agreement by failing to 5.
disclose margin calculations and data used to determine the existence of dumping.
The United States contended in the original dispute that MOFCOM breached the 6.
second sentence of Article 2.2.1.1, because, inter alia, MOFCOM allocated Tyson's production costs
of non -subject merchandise – including blood, feathers, and organs – to subject merchandise,
thereby inflating normal value. The Panel considered the evidenc e presented by the United States
regarding the products produced by Tyson and China 's materials and found that the United States
had established a breach of Article 2.2.1.1. Moreover, the Panel found that one particular aspect of
MOFCOM's methodology – straight allocation of total processing costs – was inherently
unreasonable.
The Panel found that MOFCOM 's price effects analysis in its injury determination was 7.
inconsistent with China's WTO obligations because it failed to account for differences in the product
mix between subject imports and domestic products. The Panel also noted that MOFCOM 's finding
of price suppression is "at least partly dependent" on its finding of price undercutting – and that
"MOFCOM's Determinations do not separately or independ ently discuss the impact of the volume
and increased market share of subject imports on the ability of domestic producers to sell at prices
that would cover their costs of production." The Panel also asserted judicial economy on the

- B-3 -

United States' claim concerning MOFCOM's flawed impact and causation analyses – and explicitly
recognized that MOFCOM would need to revisit such analyses.
IV. SCOPE OF AN ARTICLE 21.5 PROCEEDING
Under Article 21.5 of the DSU, measures that negate or undermine compliance with the 8.
DSB's recommendations and rulings and any measures taken to comply that are inconsistent with
a covered agreement may come within the scope of an Article 21.5 proceeding.
V. STANDARD OF REVIEW
9. An Article 21.5 panel is to engage in an objective assessment to determine the existence or
consistency of a measure taken to comply. If on a specific issue the underlying evidence and the
explanations given by the investigating authority have not changed from the original
determination, then an Article 21 .5 panel would normally reach the same conclusions as the
original panel. The investigating authority is responsible for ensuring that its explanations reflect
that conflicting evidence was considered.
VI. MOFCOM'S REINVESTIGATION BREACHED THE PROCEDURAL PROTECTIONS OF THE
AD AND SCM AGREEMENTS
MOFCOM's reinvestigation breached key procedural protections contained within the AD and 10.
SCM Agreements.
A. Factual Background
Before the Reinvestigation Injury Disclosure (RID), U.S. interested parties received no notice 11.
as to which Chinese firms were being specifically investigated; why they were chosen; what
questions and information requested were posed to these firms; and what data and information
the Chinese firms provided in response. The critical qu estions of (i) what information was
specifically required by MOFCOM from these firms and (ii) what they provided remain entirely
unanswered.
B. China Breached Article 6.1 of the AD Agreement and Article 12.1 of the
SCM Agreement because MOFCOM Denied Interested Parties Notice or
Knowledge of the Information MOFCOM Required in its Reinvestigation
Here, it is clear from the RID that MOFCOM required pricing information from four domestic 12.
Chinese companies in order to revise its price effects analysis. Spec ifically, these four companies
provided MOFCOM with sales data concerning chicken feet, chilled chicken cuts with bone, chicken
wings, and gizzards, which MOFCOM then purportedly used to compare against prices for subject
imports, and ultimately reach its finding of price undercutting. It is also clear that interested
parties, such as U.S. respondents and the United States, did not have notice that MOFCOM
required this information.
C. China Breached Articles 6.1.2, 6.2, and 6.4 o f the AD Agreement and
Articles 12.1.2 and 12.3 of the SCM Agreement by Denying Interested Parties
of Evidence Presented by the Other Interested Parties Participating in the
Reinvestigation
It is undisputed that the four Chinese domestic companies that received requests for 13.
information from MOFCOM during the reinvestigation are "producers of the like product in the
Importing Member." MOFCOM was thus required to "promptly" make available to U.S. respondents
the information provided by interested parties in response to MOFCOM 's requests during the
reinvestigation. Because MOFCOM failed to make the information available at all to respondents,
China is in breach of AD Agreement Article 6.1.2 and SCM Agreement Article 12.1.2.
MOFCOM's failure to permit interested parties acces s to the information relied on by 14.
MOFCOM and to enable those parties, through review of that information, to prepare their cases is
also inconsistent with Articles 6.2 and 6.4 of the AD Agreement and SCM Agreement Article 12.3.
These provisions provide tha t interested parties have both timely opportunities (i) to see "all

- B-4 -

information" that is relevant, non -confidential, and used by competent authorities and (ii) timely
opportunities to prepare their presentations "on the basis of" that information. In the
reinvestigation, the information subject to this obligation includes: (1) the pricing information
provided by the four Chinese domestic enterprises to MOFCOM during the reinvestigation; (2) the
precise identity of those Chinese enterprises; and (3) the spec ific questionnaires and information
requests issued by MOFCOM to those Chinese companies.
First, MOFCOM failed to disclose information "relevant" to the interested parties ' 15.
presentation of their cases. The information requested by MOFCOM from the four Chinese domestic
enterprises during the reinvestigation constitutes product -specific pricing data that MOFCOM
sought and that MOFCOM considered supported its findings of purported price cutting, as part of
its price effects injury analysis. Second, as note d previously, MOFCOM has not claimed that any of
this information is confidential. Third, the information was "used" by MOFCOM in the
reinvestigation because it is the explicit basis by which MOFCOM maintains its price effects
findings.
In addition, C hina breached the obligation under A D Agreement Article 6.4 and 16.
SCM Agreement Article 12.3 "to provide timely opportunities" for interested parties "to prepare
presentations on the basis of this information" because MOFCOM did not permit interested parties
to see the information. If a party is denied access to information, then it follows that the party was
also denied an opportunity to prepare a presentation. Thus, MOFCOM 's failure also constituted a
breach of Article 6.2 of the AD Agreement.
D. China, Once Again, has Breached Article 6.9 of the AD Agreement by Failing
to Disclose the Margin Calculations and Data Used to Determine the Existence
of Dumping and to Calculate Dumping Margins
Despite the original Panel 's finding that China breached Article 6.9 of the AD Agreement by 17.
failing to disclose essential facts related to the dumping margins for Pilgrim 's Pride, Tyson, and
Keystone, MOFCOM has, once again, failed to disclose dumping margin calculations and underlying
data for two of these respondents – Pilgrim's Pride and Keystone. With respect to Pilgrim's Pride, it
was denied access to the data calculations from the original investigation even though MOFCOM
used a purported error in the data and calculations to increase the margin of Pilgrim 's Pride.
Similarly, Keystone was denied access to its data and calculations for the new antidumping rate
that was set following the reinvestigation.
VII. MOFCOM'S ANTIDUMPING DUTY F INDINGS ARE INCONSIS TENT WIT H
ARTICLES 2.2.1.1, 9.4, AND 6.8 AND ANNEX II OF THE AD AGREEMENT
A. China Breached the Second Sentence of Article 2.2.1.1 of the AD Agreement
1. MOFCOM Applied to Tyson a Biased Weight -Based Methodology that
Improperly Allocated Costs Not Associated with the Production and Sale
of the Product Under Consideration
China has breached the second sentence of Article 2.2.1.1 because MOFCOM did not 18.
"consider all available evidence on the proper allocation of costs." The essence of the problem is
the internal inconsistency of MOFCOM's logic concerning a weight-based methodology. The position
advocated by China through its prior WTO submissions and in MOFCOM 's redetermination is that
apportionment of costs by weight is reasonable because it applies costs of the chicken equally
across all products. But, und er that logic, an objective investigating authority would need to
account for all products that derive revenue and then allocate cost by weight to all of them. Thus,
products that might earn little revenue, particularly in respect to their weight, such as blood,
organs, feathers, etc., still would need to have costs distributed to them, rather than leave the
costs focused on the remaining products – which artificially inflates normal value. MOFCOM did not
do that apportionment in its first determination, and it has not done so now in its redetermination.
During the redetermination, Tyson argued that MOFCOM should accept the value -based 19.
accounting reflected in its books and records. However, Tyson also argued that "in the event that
MOFCOM incorrectly co ntinues to rely on a weight -based allocation, it must fully account for all
products that are produced from the live birds that are processed into both subject and

- B-5 -

non-subject merchandise." To that end, Tyson made a straightforward request: if MOFCOM
erroneously resorts to allocating costs by weight rather than as reflected in Tyson 's books and
records, then MOFCOM (per its own logic) would need to "divid[e] the total cost of the live birds by
their total weight " – and not simply omit products it finds inco nvenient from the calculation. A
supposed weight-based methodology that fails to actually account for the weight contributed by all
the products derived from the bird is internally incoherent and therefore cannot be a "proper
allocation of costs" consistent with Article 2.2.1.1.
The reasons proffered by MOFCOM for rejecting Tyson 's position – and the consistency of 20.
MOFCOM's own position – are not reasoned or adequate. First, MOFCOM seems to be suggesting
that it does not apportion costs across all produ cts because some chickens died en route to the
processing plant or were otherwise not processed. But that assertion does not speak to the point
at hand, which is that costs must be allocated across all products that are produced. Moreover, the
data provide d by Tyson explicitly made proper allowance for "costs of any birds that are not
processed because they die at the farm or are condemned at the plant. . . ." Second, MOFCOM
asserts that Tyson confirmed that the costs to produce subject merchandise were exc lusive. That
position cannot be reconciled with either the data submitted by Tyson referenced above, or
Tyson's explicit argument seeking for costs to reflect all products. Third, China is claiming that
Tyson's value based cost allocation methodology is perfectly reasonable when it comes to products
that are not subject to the investigation . This reason, again, does not address the point that all
costs need to be accounted for. Finally, MOFCOM cites as support that the monthly costs for live
birds changes a nd that Tyson does not specify which are used for subject merchandise and
non-subject merchandise is misplaced as well. Whether costs change from month to month does
not obviate the need to ensure costs are properly allocated.
2. MOFCOM has not Addressed t he Article 2.2.1.1 Findings with respect to
Pilgrim's Pride
Despite the Panel's findings, MOFCOM's redetermination refused to consider any alternative 21.
allocation methodologies for Pilgrim 's Pride. Instead, MOFCOM only investigated and modified the
dumping margin for Pilgrim 's Pride on the basis of the purported errors in calculation. Thus,
because China 's redetermination does not contain any additional "evidence of consideration" of
alternative methodologies, China 's redetermination remains in breac h for the same reasons as in
the original investigation.
B. China Breached Article 9.4 of the AD Agreement through the "All Others"
Rate Set by MOFCOM
MOFCOM's arbitrary selection of the highest rate found is not consistent with the disciplines 22.
of Article 9.4, which establishes that the all others ' rate shall not exceed "the weighted average
margin of dumping established with respect to the selected exporters or producers."
C. China's Resort to and Application of Facts Available to Tyson Is Inconsisten t
with Article 6.8 and Annex II of the AD Agreement
MOFCOM has not presented any evidence that Tyson refused access to, failed to provide, or 23.
other otherwise impeded MOFCOM 's ability to obtain requested information. Tyson took
appropriate steps to use the data available in its records to satisfy MOFCOM 's request for
information to the fullest extent that it could.
Over the period of investigation, Tyson recorded, as part of its accounting practice, only the 24.
aggregate actual costs incurred and the " standard costs," the latter of which reflect Tyson 's
expectation as to what was incurred at a particular segment. Tyson used the standard costs to
create allocation percentages, which it then applied to the aggregate actual cost to generate the
specific costs MOFCOM requested. Tyson did not track the data requested by MOFCOM as part of
its standard practice. MOFCOM completely disregarded what Tyson proffered and, instead used the
best information available. MOFCOM did not present any evidence or explanation that the costs
reported by Tyson were not "supplied in a timely fashion" and in the "requested medium" or
"appropriately submitted so that {they} can be used in the investigation without undue
difficulties." Moreover, the claims cited by MOFCOM for reject ing Tyson's reported costs do not

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indicate any efforts by MOFCOM to undertake an "objective process of examination" and to
attempt to verify their accuracy and reliability.
MOFCOM's assertion that Tyson 's costs reported in the reinvestigation do not t ie to those in 25.
the original investigation is contradicted by the very exhibit relied upon MOFCOM. Moreover, Tyson
in fact reported costs for each of the combinations. Further, MOFCOM erroneously asserts that
Tyson failed to report actual meat and processing costs incurred during the period of investigation.
In addition, Tyson explained that it used standard costs for the first half of 2009, rather than for
the entire period of investigation, because those were the only standard costs available during the
reinvestigation.
VIII. MOFCOM'S FINDINGS IN ITS IN JURY REDETERMINATION REMAIN INCONSISTENT
WITH THE AD AND SCM AGREEMENTS
A. China's Biased Price Effects Analysis Breached Articles 3.1 and 3.2 of the
AD Agreement and Articles 15.1 and 15.2 of the SCM Agreement
MOFCOM purported to control for the "clear differences in product mix that affected price 26.
comparability" found by the Panel by analyzing product -specific pricing data collected from only
four of the 17 domestic producers included in the domes tic industry. MOFCOM did not disclose its
methodology for selecting producers for inclusion in its sample of the domestic industry or for
collecting product-specific pricing data from these producers, however. Nor did MOFCOM disclose
the percentage of dome stic industry sales covered by the product -specific data collected.
Accordingly, MOFCOM failed to establish that the pricing data it collected was sufficiently
representative to permit an objective underselling analysis.
Absent any explanation to the c ontrary, MOFCOM was in a position to collect pricing data 27.
from all members of the domestic industry. MOFCOM thus failed to ensure that its new
underselling analysis was based on an objective examination of positive evidence. The above facts
also confirm th at MOFCOM has also breached China 's obligations under Article 6.4 of the AD and
Article 12.3 of the SCM Agreement.
MOFCOM also based its finding of price suppression on underselling in the redeterminations. 28.
Significantly, MOFCOM revised the concluding paragraph of its price section in the redetermination
to eliminate the references to subject import volume and market share found in the corresponding
paragraphs of the original determinations, clarifying its view that price suppression resulted from
subject import underselling, not subject import volume. In responding to various arguments raised
by USAPEEC, MOFCOM likewise resorted to the notion that subject import underselling necessarily
means that those imports suppressed domestic prices. Given MOFCOM 's reliance on its new
underselling analysis for its price suppression finding, the deficiencies of that underselling analysis
render MOFCOM's price suppression finding inconsistent with AD Agreement Articles 3.1 and 3.2
and SCM Agreement Articles 15.1 and 15.2. Because this deficient underselling analysis is also the
foundation for MOFCOM 's finding of price suppression, MOFCOM 's price suppression finding is
inconsistent with AD Agreement Articles 3.1 and 3.2 and SCM Agreement Articles 15.1 and 15.2.
MOFCOM's reliance on underselling to support its price suppression finding was also 29.
unsupported by the evidence because the record showed no correlation between underselling and
price suppression. MOFCOM failed to explain or investigate how subject import und erselling could
have significantly suppressed domestic prices in the first half of 2009 when the same underselling
had no "significant" price suppressive effects between 2006 and 2008. Thus, there is no evidence
to support MOFCOM 's price suppression findin g. By failing to recognize or consider that the
domestic industry's prices increased faster than its costs between 2006 and 2008, MOFCOM also
therefore failed to base its analysis of price suppression on an objective examination of positive
evidence. By ignoring evidence that factors other than subject imports drove domestic price trends
in the first half of 2009, MOFCOM failed to properly establish that price suppression was "the
effect" of subject imports. By ignoring such evidence, MOFCOM also failed to base its price analysis
on an objective examination of positive evidence.

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B. China's Impact Analysis in its Re determination Breached Articles 3.1 and 3.4
of the AD Agreement and Articles 15.1 and 15.4 of the SCM Agreement
MOFCOM's finding that subject imports had an adverse impact on the domestic industry 30.
does not satisfy the requirement for an objective evaluation of "all relevant economic factors and
indices having a bearing on the state of the industry." In addressing impact, MOFCOM ignored
evidence that the domestic industry 's performance improved according to almost every other
measure during the period. MOFCOM also ignored evidence that the domestic industry 's rate of
capacity utilization during the period was dictated by the domestic industry 's decision to increase
capacity well in excess of demand growth. It also failed to address evidence that domestic industry
end-of-period inventories were not significant relative to domestic industry production or
shipments.
MOFCOM's finding that subject import competition had an adverse impact on the domestic 31.
industry's rate of capacity utilization over the 2006 -2008 period does not reflect an "objective
examination" because it is clearly contradicted by the record evidence. Capacity utilization was
increasing at the same time subject imports were also increasing. Critically though, an objective
examination would consider this trend in conjunction with the record evidence regarding the
domestic industry 's own capacity expansion in excess of demand, which M OFCOM ignored.
Moreover, subject import competition could not have reduced domestic industry output between
2006 and 2008, and by extension domestic industry capacity utilization, because subject imports
did not increase their share of apparent consumption at the expense of the domestic industry. Had
the domestic industry not expanded its capacity in excess of apparent consumption growth, the
domestic industry's increase in share of apparent consumption would have translated into a higher
rate of capacity u tilization. Thus, MOFCOM's finding was not based on an "objective examination"
of "positive evidence" in breach of Article 3.1 of the AD Agreement and Article 15.1.
MOFCOM also found that the increase in the domestic industry 's end-of-period inventories 32.
was caused by subject imports. This finding too cannot be the result of an "objective examination".
What MOFCOM crucially neglected to consider was the significance of that increase relative to the
domestic industry 's actual performance, including, how that increase related to the domestic
industry's production and shipments.
MOFCOM's finding that subject imports had an adverse impact on the domestic industry 33.
from 2006 to 2008 rests primarily on its flawed findings regarding capacity utilization and
end-of-period inventories, which failed to reflect an objective examination of positive evidence, as
discussed above. In light of MOFCOM 's dependence on these flawed findings, MOFCOM 's analysis
that the domestic industry was adversely impacted is unsubsta ntiated. Moreover, in contrast to
MOFCOM's finding, the record evidence clearly indicates that the domestic industry 's performance
improved markedly according to almost every measure during this period, when the bulk of the
increase in subject import volume and market share took place. Therefore, MOFCOM's examination
and evaluation was not based on an "objective examination" of "positive evidence."
C. MOFCOM's Causal Link Analysis in i ts Redetermination Breached Articles 3.1,
3.5, 12.2, and 12.2.2 o f the AD Agreement and Articles 15.1, 15.5, 22.3,
and 22.5 of the SCM Agreement
MOFCOM's causation analysis in its redeterminations remains as flawed as the one it 34.
provided in its original determination because MOFCOM continues to (1) ignore record evidence
that subject import volumes did not increase at the expense of the domestic industry; (2) relies on
flawed analysis of price undercutting and suppression; and (3) fails to reconcile its analysis with
evidence that the domestic industry's performance improved as subject import volume and market
share increased.
Here, MOFCOM cited no evidence that the increase in subject import volume or subject 35.
import price competition was injurious to the domestic industry. During that same period, the
domestic industry increased its market share to an even greater degree than subject imports. With
respect to the price effects of subject imports, MOFCOM relied on its flawed price comparisons and
finding of price suppression. Further, MOFCOM disregarded evidence that subject import
competition was significantly attenuated because nearly half of subject import volume consisted of

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chicken paws, which the domestic industry could not produce in quantities sufficient to satisfy
demand.
MOFCOM's findings on import volume and market share are clearly contradicted by evidence 36.
on the r ecord. For example, MOFCOM failed to address evidence that subject imports could not
have injured the domestic industry because the small increase in subject import market share did
not come at the expense of the domestic industry, which also gained market share during the POI.
MOFCOM also failed to address USAPEEC 's argument that subject import competition was
substantially attenuated by the fact that nearly half of subject imports during the period of
investigation, and 60 percent of the increase in subje ct import volume, consisted of chicken paws.
MOFCOM did not address the issue in its final determinations or in its redetermination.
MOFCOM's causation analysis is inconsistent with the obligations of Articles 3.1 and 3.5 of 37.
the AD Agreement and Articl es 15.1 and 15.5 of the SCM Agreement because the analysis
disregarded evidence that subject import volume did not increase at the expense of the domestic
industry. In addition, MOFCOM 's causation analysis is inconsistent with Articles 3.1 and 3.5 of the
AD Agreement and Articles 15.1 and 15.5 of the SCM Agreement because it was based on
MOFCOM's flawed price and impact analyses.
MOFCOM's determination of a causal link rested on its finding that subject import volume 38.
and market share increased significa ntly and contemporaneously with certain trends exhibited by
the domestic industry. But relevant record evidence indicated that the increase in subject import
volume and market share did not negatively impact the domestic industry because the domestic
industry gained market share during the same period. MOFCOM does not examine or explain such
evidence, contrary to Article 3.5 of the AD Agreement and Article 15.5 of the SCM Agreement.
Additionally, with no evidence linking the increase in subject import and m arket share to material
injury, MOFCOM's causal link analysis also failed to demonstrate that any material injury suffered
by the domestic industry was the effect of subject import volume, as required under Article 3.5 of
the AD Agreement and Article 15.5 of the SCM Agreement.
Because MOFCOM 's deficient underselling analysis is the sole basis for its finding that 39.
subject imports suppressed domestic like product prices, and other evidence ignored by MOFCOM
contradicts the finding, MOFCOM 's price suppres sion finding, too, is WTO -inconsistent. Moreover,
given that domestic like product prices increased over the period examined, there was no evidence
of price depression. With no evidence that subject imports suppressed or depressed domestic like
product prices, MOFCOM failed to predicate its causal link analysis on an objective examination of
positive evidence, in breach of Article 3.1 of the AD Agreem ent and Article 15.1 of the
SCM Agreement for the reasons outlined above.
MOFCOM's causal link analysis was also deficient because it failed to address record 40.
evidence that the increase in subject import volume coincided with a significant improvement in
the domestic industry 's performance. MOFCOM does not explain how subject imports could have
caused any m aterial injury to the domestic industry when the domestic industry 's worst
performance of the period examined occurred in 2006, before any increase in subject import
volume and market share. An investigating authority cannot be said to have examined "the
relationship between subject imports and the state of the domestic industry" by focusing, without
reasonable explanation, solely on a discrete portion of the period of investigation. By failing to
reconcile its causation analysis with evidence that the incr ease in subject import volume and
market share coincided with strengthening domestic industry performance, MOFCOM failed to
conduct an objective evaluation of positive evidence.
MOFCOM ignored at least two compelling arguments concerning the absence of any causal 41.
link between subject imports and material injury. First, both USAPEEC and the United States
argued that there could be no link between subject imports and material injury because subject
import market share increased entirely at the expense o f non -subject imports. This issue was
clearly "material" to MOFCOM 's causal link analysis. MOFCOM necessarily had to resolve the issue
before relying on the increase in subject import volume and market share to establish a causal
link. Consequently, MOFCOM was obligated to provide "all relevant information" on its resolution of
the issue in the public notice of its final determinations. It was also obligated to provide the
reasons for its rejection of U.S. respondents' argument concerning the issue.

- B-9 -

USAPEEC also argued that subject imports could not have had an adverse impact on the 42.
domestic industry because over 40 percent of subject imports consisted of chicken paws, which
Chinese producers were incapable of supplying in adequate quantities. By failin g to provide the
reasons for its rejection of USAPEEC 's argument concerning chicken paws, MOFCOM breached
Article 12.2.2 of the AD Agreement and Article 22.5 of the SCM Agreement. MOFCOM 's misplaced
response to USAPEEC 's chicken paws argument also ignores evidence that the substantial
proportion of subject imports consisting of chicken paws could not have been injurious. MOFCOM
thus failed to base its causation analysis on an objective examination of positive evidence and an
examination of all relevant evidence.
IX. CONCLUSION
For the reasons set forth in this submission, the United States respectfully requests the 43.
Panel to find that the challenged measures are inconsistent with China 's obligations under the
AD Agreement and SCM Agreement and that China has failed to implement the recommendations
of the DSB to bring its antidumping and countervailing measures on broiler chickens from the
United States into conformity with those agreements.

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ANNEX B-2
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF THE UNITED STATES
I. INTRODUCTION
The aggressive rhetoric found in China 's rebuttal does not address – no less refute – the 1.
many flaws in MOFCOM 's reinvestigation and redeterminations explained in the U.S. First Written
Submission. Instead of addressing the legal issues in this dispute, China 's rebuttal often focuses
on irrelevant or extraneous matters. These types of arg uments do not engage with the main task
in this proceeding – namely, to determine whether China has brought its measures into
compliance with the recommendations of the Dispute Settle ment Body (DSB). In this
second submission, the United States will contin ue to focus on demonstrating – through reference
to record evidence – that MOFCOM failed to abide by China's WTO obligations.
II. CHINA CANNOT DEFEND MOFCOM'S PROCEDURAL FAILING S DURING THE
INVESTIGATION
A. China Breached Article 6.1 of the AD Agreement and Article 12.1 of the
SCM Agreement through MOFCOM's Failure to Provide Notice to All Interested
Parties of the Pricing Information It Required from Domestic Producers
The United States ' claims under Article 6.1 of the AD Agreem ent and Article 12.1 of the 2.
SCM Agreement are straightforward. MOFCOM sought and obtained pricing data from domestic
firms, which it then used to underpin its findings for its pricing analysis in its injury
redetermination. In this process, MOFCOM failed to provide known i nterested parties, such as
U.S. respondents, with any notice as to what specific data it required the domestic industry to
produce. Without notice of what MOFCOM was requiring, U.S. respondents were not in a position
to address effectively the significance of th e pricing information – and therefore were denied the
"ample opportunity to present evidence." Thus, MOFCOM breached China 's obligations under
Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement because it failed to
provide affirmatively to U.S. interested parties both (1) notice of the information it requ ired from
Chinese firms and (2) concomitantly, opportunity to present in writing all evidence that
U.S. interested parties might consider relevant.
1. Notice 88
Notice 88 is simply the notice of initiation for the reinvestigation. It does not provide any 3.
details as to the specifics of the information that the investigating authority will be requesting, nor
does it explain in detail the conduct of the investigation , including any opportunities for interested
parties to present evidence.
2. The General Verification Letter
The General Verification Letter is deficient in both form and substance as to MOFCOM 's 4.
obligations to provide notice. With respect to form, MOFCOM did not notify U.S. interested parties
of the General Verification Letter. Although it appears the letter is made out as "To Whom it May
Concern," China 's rebuttal clarifies that the letter is a ddressed to Chinese domestic producers.
Accordingly, the interested parties MOFCOM put on notice – i.e., to "alert or warn" – were Chinese
domestic producers. Substantively, China fares no better. An investigating authority's notation that
it intends to conduct "on spot verifications," without any specifics regarding the precise information
it requires from participating parties, falls far short of the requirements to provide notice to
interested parties of information required by MOFCOM.
3. Chinese Producers' Summaries
The Chinese producer summaries suffer from two significant deficiencies, each of which 5.
preclude China establishing that it provided notice consistent with AD Agreement Article 6.1 and

- B-11 -

SCM Agreement Article 12.1: (1) China did not provide interested parties notice of the summaries,
and (2) the content of the summaries themselves does not inform interested parties of the
information MOFCOM required. First, to the extent China points to Exhibit CHN -14, a webpage that
lists what China deems pu blic documents, there is no indication as to when the materials were
loaded on the webpage or that China provided any notice to interested parties that such
information could be found there. Second, the summaries cannot be construed as notice of the
information that MOFCOM required . They are summaries of what information Chinese producers
purportedly provided . Knowledge of the precise parameters that MOFCOM required for this
information is of course necessary to understanding the significance of and potenti al errors in the
responses. Further, China glosses over the fact that these May 20 documents were submitted
one day before release of the RID.
B. China Breached Articles 6.1.2 and 6.4 o f the AD Agreement and
Articles 12.1.2 and 12.3 of the SCM Agreement b y Denying U.S. Interested
Parties the Evidence Presented by the Domestic Producers Participating in
the Reinvestigation
The Chinese producer summaries do not satisfy China 's obligations as to AD Agreement 6.
Article 6.1.2 and SCM Agreement Article 12.1.2 because, once again, (1) China did not provide
U.S. interested parties notice of the summaries, and (2) the content of the summaries themselves
does not inform U.S. interested parties of the information MOFCOM required. Even assuming the
notice was not def icient, the only information it provided to interested parties consisted of
summaries of the pricing information. They do not convey the context surrounding what positions
were advocated by the domestic producers providing the information, and the correspo nding
issues that MOFCOM sought to resolve during the reinvestigation.
C. China Breached AD Agreement Articles 6.4 and 6.2 and SCM Agreement
Article 12.3 Because it Failed to Permit Access to Evidence that would have
Enabled the Interested Parties to Prepare their Cases
China acted inconsistently with AD Agreement Articles 6.4 and 6.2 and SCM Agreement 7.
Article 12.3 because it failed to permit access to information to interested parties that would have
enabled them to prepare their cases and defend their interests. MOFCOM failed, per AD Agreement
Article 6.4 and SCM Agreement Article 12.3, to provide interested parties timely opportunities to
see information that is relevant, non -confidential, and used by authorities in their investigation.
China's public release of summaries does not excuse its failure to provide the context for these
data, including the specific products for which pricing data was requested, that clearly fall within
the scope of the articles. The same deficiencies apply to China 's failur e to provide the precise
identity of the four Chinese domestic enterprises that provided information to MOFCOM. Moreover,
although an oral "hearing" took place on June 13, 2014, that "hearing" in no way provided
interested parties with an opportunity to pr epare presentations in defense of their interests. U.S.
respondents were told by MOFCOM during this meeting that the re -investigation was closed, and
that no further comments could be submitted by interested parties.
D. China's Failure to Disclose the Marg in Calculations and Data Used to
Determine the Existence of Dumping and to Calculate Dumping Margins was
Inconsistent with AD Agreement Article 6.9
China's failure to disclose "essential facts," i.e., the margin calculations and data it relied 8.
upon to d etermine the existence of dumping by U.S. respondents Pilgrim 's Pride and Keystone,
was inconsistent with AD Agreement Article 6.9. Pilgrim 's Pride was denied access to the data
calculations from the original investigation in the reinvestigation while MOFC OM used a purported
error in the data and calculations from the original investigation to increase the margin of Pilgrim 's
Pride. Without the original calculations and data, Pilgrim 's Pride had no ability to identify precisely
what had changed – which entirely denied Pilgrim 's the opportunity to defend its interests.
Similarly, MOFCOM did not abide by the obligation to ensure that a disclosure was made "in
sufficient time for … [Pilgrim 's] to defend … [its] interests." Likewise, Keystone was denied acce ss
to its data and calculations for the new antidumping rate that was set following the reinvestigation.
Although Keystone did not cooperate in the reinvestigation, and MOFCOM applied facts available to
it, Keystone was an "interested party," and its data and calculations were "essential facts"
underlying MOFCOM's decision to maintain the duties.

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III. CHINA CANNOT DEFEND MOFCOM'S ANTIDUMPING REDETERMINATION
A. China Has Not Rebutted U.S. Claims That MOFCOM Failed to Properly Allocate
Tyson's Costs Under the Second Sentence of AD Agreement Article 2.2.1.1
The substantive obligation in the second sentence of AD Agreement Article 2.2.1.1 demands 9.
that investigating authorities deliberate and evaluate the "proper" allocation of costs based on its
consideration of the evidence presented. The Panel recognized this fact. China 's suggestion to the
contrary is wholly unsupported and should be rejected.
China failed to meet the requirement in the second sentence of AD Ag reement 10.
Article 2.2.1.1 to "consider all available evidence on the proper allocation of costs" because of
MOFCOM's decision to adhere to a weight -based methodology while failing to allocate costs by
weight to all products that derive revenue from the production of the product under consideration
– including a failure to allocate costs to blood, organs, feathers, and other viscera. China itself
recognized this problem in its prior WTO submissions and its redetermination, which explicitly
noted, in support of its weight -based methodology, that appor tionment of costs by weight is
reasonable because it applies costs of the chicken equally across all products. Yet China chose to
ignore these distortions and allocate costs over a more limited range of products – resulting in
artificially inflated normal values for those products.
B. MOFCOM's Failure to Consider Any Alternative Allocation Methodologies for
Pilgrim's Pride was Inconsistent with AD Agreement Article 2.2.1.1
China's suggestion that the general findings were exclusive of Pilgrim 's Pride is not 11.
supported by the plain text of the Panel 's decision. Moreover, China 's suggestion that it did not
need to consider Pilgrim's data at all because it believed the data to be flawed is flatly inconsistent
with the original panel's finding that China fa iled to explain why its methodology led to a "proper"
allocation of costs. The only way that China could have engaged in a neutral, fact -driven
consideration of the "proper" allocation of costs, as required unde r the second sentence of
AD Agreement Article 2.2.1.1, is if it had considered data submitted by Pilgrim's Pride.
C. China Acted Inconsistently with Article 9.4 of the AD Agreement on Account
of MOFCOM's "All Others" Rate
China ignored its obligation under the general rule of Article 9.4 to calculate an all -others 12.
rate that "shall not exceed . . . the weighted average margin of dumping established with respect
to the selected exporters or producers" and, instead, arbitrarily applied the highest antidumping
duty rate found, as a result of the reinvestigation of Pilgrim Pride 's rate. MOFCOM's investigation
was limited to three companies: Tyson, Pilgrim 's Pride, and Keystone. In the present
circumstances, there were no new respondents that MOFCOM could potentially add to the
investigation – nor were there any respondents who failed to cooperate. The exporters subject to
MOFCOM's all-others rate were not asked to cooperate in MOFCOM 's reinvestigation, and to apply
the highest antidumping duty rate to them is inconsistent with Article 9.4.
D. China's Application of Facts Available to Tys on Is Inconsistent with
Article 6.8 and Annex II of the AD Agreement.
China's use of facts available instead of Tyson 's reported cos ts is inconsistent with 13.
Article 6.8 and Annex II of the AD Agreement. Contrary to China's suggestions, Tyson did not
refuse access to, fail to provide, or other otherwise impede MOFCOM 's ability to obtain requested
information – such that MOFCOM could justify the application of facts available under Article 6.8.
China's claims that Tys on made unexplained changes in its data during the redetermination
proceedings are baseless. Rather, all changes made by Tyson during the reinvestigation were
made at the specific request of MOFCOM and because MOFCOM altered its approach compared
with the original investigation. China 's argument rests on its belief that it can make an
unreasonable and unrealistic demand for data in a reinvestigation that is fundamentally at odds
with its requests during the original investigation, and that the investigating authority knows will
be impossible for a respondent to provide in light of its standard accounting and business practice.
Tyson made every effort that it could to comply with MOFCOM 's requests for information, and
cooperated to the best of its ability.

- B-13 -

IV. MOFCOM'S INJURY REDETERMINATION BREACHED THE AD AND SCM AGREEMENTS
A. MOFCOM's Analysis of Underselling and Price Suppression Remains
Inconsistent with AD Agreement Articles 3.1 and 3.2 and SCM Agreement
Articles 15.1 and 15.2
There is nothing in MO FCOM's redetermination that establishes MOFCOM actually controlled 14.
"for differences in physical characteristics affecting price comparability" – a deficiency the Panel
found in its report with respect to the original determination. In its redetermination, MOFCOM
apparently sought and collected product -specific pricing data from only four of 17 domestic
producers that in its view justified its original average unit value comparisons, without ensuring
that its sample of domestic industry sales prices was repr esentative. MOFCOM's redetermination
fails to explain why MOFCOM chose these four producers, how it ensured their data was reliable,
and how it could ensure that this limited data could be extrapolated to support MOFCOM's findings.
1. MOFCOM's Underselling Analysis Remains WTO-Inconsistent
MOFCOM based its finding that subject import underselling was significant on the very same 15.
comparisons of the average unit value of subject imports to the average unit value of domestic
industry sales that the original panel found deficient. China readily acknowledges that MOFCOM 's
AUV comparisons remain the sole basis for its finding that subject imports undersold the domestic
like product significantly, and that MOFCOM took no steps to adjust these data or otherwise control
for differences in product mix in its redetermination.
Because the average unit value of subject imports differed dramatically by product, changes 16.
in the product mix of subject imports during the period of investigation would have direc tly
influenced the average unit value of all subject imports during the period; for example, an increase
in the proportion of lower -priced products from one year to the next would have caused the
average unit value of all subject imports to decline. By fai ling to control for changes in the product
mix of subject imports, MOFCOM 's underselling analysis relied on subject import underselling
margins that reflected not only differences in product mix between subject imports and domestic
industry sales but also changes in the product mix of subject imports over time.
China argues that MOFCOM was justified in relying on its original average unit value 17.
comparisons because the product -specific pricing data it collected from four of the 17 domestic
producers com prising the domestic industry suggested that the product mix of subject imports
contained a higher proportion of high -value products than the product mix of domestic producers.
But MOFCOM 's AUV comparisons cannot be deemed objective or reliable. Specifical ly, both the
magnitude and the trend of subject import underselling margins calculated from AUV comparisons
would have reflected differences in product mix and changes in the product mix of subject imports
over time. In other words, MOFCOM cannot proceed t o compare and draw conclusions because no
controls had been applied to ensure the underlying data – which by nature was in flux – was in
fact comparable. Furthermore, MOFCOM's analysis of product-specific pricing data did not establish
that subject imports were comprised of a higher proportion of high -value products because
MOFCOM failed to ensure that its sample of domestic producers and their sales prices on specific
products was representative.
2. MOFCOM's Price Suppression Finding Remains WTO-Inconsistent
As the panel and Appellate Body found in China – GOES, "merely showing the existence of 18.
significant price depression does not suffice for the purpose of Article 3.2 of the [AD] Agreement
and Article 15.2 of the SCM Agreement . . . Thus . . . it is not sufficient for an authority to confine
its consideration to what is happening to domestic prices alone for purposes of the inquiry
stipulated in Articles 3.2 and 15.2." As the Appellate Body explained in China – GOES, the
obligation of investigating authorities to consider whether subject imports have "explanatory force"
for price depression and suppression, under AD Agreement Articl e 3.2 and SCM Agreement
Article 15.2, and "the state of the domestic industry," under A D Agreement Article 3.4 and
SCM Agreement Article 15.4, is an integral part of an authority 's consideration of causation under
AD Agreement Article 3.5 and SCM Agreement Article 15.5. Thu s, MOFCOM was required under
AD Agreement Article 3.2 and SCM Agreement Article 15.2 to establish that s ubject imports
caused the significant suppression of domestic like product prices.

- B-14 -

Because the principal basis for MOFCOM 's finding that subject imports caused price 19.
suppression in the redetermination was its deficient underselling analysis, the Panel should find
that MOFCOM's price suppression finding remains WTO -inconsistent. Although China also claims
that MOFCOM supported its price suppression finding with reference to subject import volume,
MOFCOM did not find in its redetermination that subject im port volume alone suppressed domestic
like product prices to a significant degree. On the contrary, MOFCOM emphasized in the section of
its redetermination titled "Impact of the Import Price of the Subject Merchandise to the Price of the
Domestic Like Prod ucts" that it was subject import underselling, not subject import volume, that
suppressed domestic like product prices. It was MOFCOM 's reliance on its deficient underselling
analysis in finding price suppression that led the original panel to find MOFCOM 's price suppression
finding inconsistent. MOFCOM 's continued reliance on its deficient underselling analysis in finding
price suppression in the redetermination is likewise inconsistent with those articles.
MOFCOM also failed to establish that the alle ged underselling by subject imports caused the 20.
significant suppression of domestic like product prices. Most of the alleged underselling by subject
imports, which occurred between 2006 and 2008, was not accompanied by the "prevent[ion of]
price increases, which otherwise would have occurred, to a significant degree," contrary to
MOFCOM's finding that subject imports significantly suppressed domestic like product prices.
MOFCOM not only ignored this evidence that contradicted its analysis of price suppression, but also
failed to explain how subject imports could have suppressed domestic like product prices in the
first half of 2009 when most of the increase in subject import volume and market share, and most
of the alleged subject import underselling, did not suppress domestic like product prices between
2006 and 2008.
B. MOFCOM's Impact Analysis Breached AD Agreement Articles 3.1 and 3.4 and
SCM Agreement Articles 15.1 and 15.4
MOFCOM was required under AD Agreement Article 3.4 and SCM Agreement Article 15.4 to 21.
not only examine the domestic industry 's performance during the period of investigation but to
also examine "the consequent impact" of subject imports on that performance. Furthermore, an
investigating authority cannot examine the impact of subject imports on the domestic industry
during the period of investigation without considering the relationship between subject imports and
domestic industry performance over the entire period of investigation. Doing so would not be an
"objective examination," a s required under AD Agreement Article 3.1 and SCM Agreement
Article 15.1, because it would ignore periods in which subject imports coincided with improving or
stable domestic industry performance, thereby making an affirmative determination more likely.
Such an analysis would also ignore "relevant economic factors," namely the industry 's improving
performance over most of the period of investigation. Here, it was particularly important that
MOFCOM examine the impact of subject imports on the domestic indust ry over the entire period of
investigation because most of the increase in subject import volume and market share occurred
between 2006 and 2008.
Yet, by China's own admission, MOFCOM's impact analysis focused on the first half of 2009, 22.
when the domestic industry 's performance lagged, while failing to account for the impact of
subject imports on the domestic industry between 2006 and 2008, when the domestic industry 's
performance strengthened. The record before MOFCOM established that during the t hree full years
of the period of investigation, which coincided with most of the increase in subject import volume
and most of the alleged underselling by subject imports, the domestic industry 's performance
improved substantially according to most measure s. Although the domestic industry 's end -of-
period inventories increased, they remained insignificant relative to industry production and sales
(equivalent to around 3 percent of both), as China concedes. By failing to account for the bulk of
the record evidence showing that subject imports had no adverse impact on the domestic industry
between 2006 and 2008, MOFCOM failed to conduct an evaluation of all relevant economic factors,
contrary to AD Agreement Articles 3.1 and 3.4 and SCM Agreement Articles 15.1 and 15.4.
None of the factors cited by China in its first written submission excuse these deficiencies in 23.
MOFCOM's impact analysis. MOFCOM was required to consider the impact of subject imports on
the domestic industry during the entire period of investigation, including those periods in which the
industry's performance improved. Nor was MOFCOM entitled to "focus" its impact analysis "on the
financial indicators that were consistently weak throughout the period of investigation," to the
exclusion of other contradictory factors. That the domestic industry had pre -tax losses throughout
the period of investigation says nothing about the changes or trends in the industry 's financial

- B-15 -

performance. Nor does it take into consideration the multiple other "releva nt economic factors"
enumerated in AD Agreement Article 3.4 and SCM Agreement Article 15.4. The record before
MOFCOM showed that the domestic industry 's worst financial performance during the 2006 -2008
period occurred in 2006, before the increase in subjec t import volume and market share. The data
show that most of the increase in subject import volume and market share coincided with an
improvement in the industry 's financial performance, according to every measure. By ignoring
these trends, just as it discounted all other positive trends in the industry's performance, MOFCOM
failed to objectively evaluate "all relevant economic factors," in vi olation of AD Agreement
Article 3.1 and 3.4 and SCM Agreement Articles 15.1 and 15.4. The third factor that China ci tes in
defense of MOFCOM 's impact analysis, alleged future subject import volume, was completely
irrelevant to MOFCOM's analysis of the impact of subject imports on the domestic industry during
the period of investigation. MOFCOM found that "U.S. producers of chicken products or broiler
products are likely to expand exports to China, and cause further adverse effects to China 's
industry." China 's argument has two fundamental problems. First, this finding on likely future
trends was not supported by the reco rd. Second, future subject imports could have no impact
whatsoever on the domestic industry during the period of investigation.
Finally, China is incorrect that MOFCOM 's analysis of the domestic industry 's capacity 24.
utilization supported its finding th at subject imports adversely impacted the domestic industry
during the 2006 -2008 period. China argues that the domestic industry 's capacity did not grow in
excess of demand between 2006 and 2008 because the increase in capacity, at 780,700 MT, was
less than the increase in demand, at 955,600 MT. The increase in the domestic industry 's capacity
between 2006 and 2008, equivalent to 81.7 percent of the increase in apparent consumption, was
not proportionate to the industry 's share of apparent consumpt ion, whic h increased from
37.81 percent to 42.42 percent during the period. Only the domestic industry 's 26.2 percent
increase in capacity, in excess of the 17.0 percent increase in apparent consumption, prevented
the industry's capacity utilization rate from impro ving just as dramatically as other measures of
industry performance.
C. MOFCOM's Causation Analysis Breached AD Agreement Articles 3.1, 3.5, 12.2
and 12.2.2 and SCM Agreement Articles 15.1, 15.5, 22.3 and 22.5
MOFCOM's reliance on a flawed analysis of the effects of subject imports to demonstrate a 25.
causal link breaches the first sentence of AD Agreement Article 3.5 and SCM Agreement
Article 15.5. Moreover, MOFCOM acted inconsistently with the second sentence of these articles by
failing to base its caus ation analysis on "an examination of all relevant evidence." Specifically,
MOFCOM ignored evidence that the increase in subject import volume and market share was not at
the expense of the domestic industry, which increased its market share by an even grea ter
amount.
1. MOFCOM Failed to Examine All Relevant Evidence in Breach of
AD Agreement Articles 3.1 and 3.5 and SCM Agreement Article 1 5.1
and 15.5
MOFCOM explicitly predicated its finding of a causal link between subject imports and injury 26.
on "the increase of the import volume" and "the large volume of dumped imports originating in the
U.S.," yet ignored that the 3.92 percentage point increase in subject import market share during
the period of investigation did not prevent the domestic industry fro m increasing its market share
by an even greater 4.38 percentage points. This evidence that subject imports captured no market
share from the domestic industry during the period of investigation, and did not prevent the
industry from growing its market sha re during the period, was clearly "relevant evidence" within
the meaning of AD Agreement Article 3.5 and SCM Agreement Article 15.5 that MOFCOM was
required to "objectively examine" under AD Agreement Articl e 3.1 and SCM Agreement
Article 15.1. That MOFCOM "noted" the increase in the domestic industry 's market share
somewhere in the redetermination does not remedy this deficiency.
MOFCOM's isolated reliance on the increase in subject import volume and market share in 27.
finding a causal link between subje ct imports and injury also ignored that 40 percent of subject
imports, and 60 percent of the increase in subject imports, consisted of chicken paws that could
not, as a factual matter, have injured the domestic industry. An uncontested fact on the record
before MOFCOM, which China does not dispute, was that domestic producers were incapable of
producing more chicken paws without increasing production of other chicken products to

- B-16 -

uneconomic levels. The clear implication of this irrefutable fact is that subje ct imports of chicken
paws could not have injured the domestic industry.
China asserts that MOFCOM 's reference to its preliminary finding that chicken feet were 28.
within the scope of the investigation somehow satisfied its obligation. MOFCOM 's observation that
chicken feet were within the scope was a complete non sequitur. By ignoring that subject imports
of chicken feet could not have injured the domestic industry, MOFCOM 's causation analysis relied
on an increase in subject import volume and market sha re that was greatly inflated by the
inclusion of non-injurious chicken feet. Relying on its defective impact analysis, MOFCOM 's finding
of a causal link between subject import and injury also ignored evidence that most of the increase
in subject import vol ume and market share coincided with a strengthening of the domestic
industry's performance between 2006 and 2008. By limiting its causation analysis to those
portions of the period of investigation in which the industry 's performance weakened while
ignoring those portions coinciding with most of the increase in subject imports, MOFCOM failed to
base its causation analysis on an "objective examination," and "all relevant evidence."
Contrary to China 's claim that the United States has made no challenge to MOFCOM 's 29.
analysis of adverse volume effects, the United States continues to argue, as it did before the
original panel, that MOFCOM ignored evidence that the increase in subject import volume and
market share coincided with strengthening domestic indust ry performance between 2006 and
2008, and did not prevent the domestic industry from increasing its own market share to an even
greater degree. These deficiencies in MOFCOM 's volume eff ects finding underscore the
WTO-inconsistency of MOFCOM's causation analysis.
2. MOFCOM's Failure to Address Key Cau sation Arguments Raised by
U.S. Respondents Violated AD Agreement Articles 12.2 and 12.2.2 and
SCM Agreement Articles 22.3 and 22.5
MOFCOM's approach manifestly failed to provide "in sufficient det ail . . . the reasons for the 30.
. . . rejection of relevant arguments." Specifically, China argues that MOFCOM "addressed"
USAPEEC's and the United States ' argument that subject imports had no adverse volume effects
because they captured no market share from the dome stic industry by stating that "[d]uring the
whole injury investigation period, the quantity of the produce concerned had increased
sustainably, and the imports prices were at a low level, which resulted in significant undercutting
and suppression to the do mestic like product . . . ." Conspicuously absent from MOFCOM 's
response is any mention or consideration of market share, and specifically the record evidence
highlighted by USAPEEC and the United States showing that subject imports captured no market
share from the domestic industry. Having failed to address the very point raised by USAPEEC and
the United States, MOFCOM cannot be said to have provided "in sufficient detail" its reasons for
rejecting the argument.
China also argues that MOFCOM "address ed" USAPEEC's argument that the 40 percent of 31.
subject imports consisting of chicken paws could not have injured the domestic industry by
referencing its finding from the preliminary determination that "the scope of the investigated
products includes Paw; t herefore, the investigation authority proceeds by investigating the import
of all the investigated products including Paw as a whole . . . ." That MOFCOM included the words
"chicken paws" in its response to USAPEEC 's argument revealed nothing about the "re asons" why
MOFCOM decided to ignore completely uncontested evidence on the record that 40 percent of
subject imports, and 60 percent of the increase in subject imports, consisted of non -injurious
chicken paws.
V. CHINA'S TERMS OF REFERENCE ARGUMENTS ARE WITHOUT MERIT
The United States' Panel Request provides more information than is required under the DSU 32.
to present the claims at issue in this dispute. In particular, the United States often previewed
some of the specific arguments it intended to advan ce by providing indicative examples of how
China breached its WTO obligations. In each of the instances China complains of, the U.S. Panel
Request has clearly stated the measures and claims at issue – and is thus entitled to have the
Panel consider them. C hina's position essentially demands that Members not only identify claims,
but that they must also provide in the Panel Request the precise arguments that will be presented
in their submissions. The DSU does not compel this result.

- B-17 -

The Panel Request c learly identifies that the measures at issue are those leading to the 33.
continued imposition of AD and CVD duties on U.S. broiler products – and further clarifies for
China that the United States is concerned with MOFCOM 's conduct during the reinvestigation. For
each of its claims, the United States has identified the relevant obligation in the covered
agreement. The United States has done so not only by identifying treaty provisions, but also by
providing appropriate narrative descriptions when necessary. Moreover, the United States has also
provided in some instances precise examples of how it might seek to demonstrate breach. The
Appellate Body 's prior analysis has correctly recognized that Members may provide indicative
examples of how the claim might be e stablished. Such an examples are simply foreshadowed
arguments; they do not detract from the claim itself.
VI. CHINA HAS BREACHED A D AGREEMENT ARTICLE 1, SCM AGREEMENT ART ICLE 10,
AND GATT ARTICLE VI
Because China has not rebutted the foregoing claims demonstrated by the United States, 34.
China as a consequence is also unable to rebut that it has breac hed AD Agreement Article 1,
SCM Agreement Article 10, and Article VI of the GATT 1994.
VII. CONCLUSION
For the reasons set forth in this submission and its first written submiss ion, the 35.
United States respectfully requests the Panel to find that China 's measures are inconsistent with
China's obligations under the AD Agreement, SCM Agreement, and the GATT 1994, and thus that
China has failed to comply with the DSB recommendations in this dispute.

- B-18 -

ANNEX B-3
EXECUTIVE SUMMARY OF THE OPENING ORAL STATEMENT OF THE UNITED STATES
AT THE SUBSTANTIVE MEETING OF THE PANEL
I. INTRODUCTION
We are here today because China, notwithstanding the clear findings earlier in this dispute – 1.
and other disputes – has breached the basic procedural and substantive obligations of the AD and
SCM Agreements in maintaining antidumping and countervailing duties on U.S. broiler products. To
a large extent, China has not addressed the legal and factual arguments of the United States, but
rather relies on rhetoric and conclusory statements. Rather, China 's arguments are primarily, as
this Panel put it in the original proceeding, simply post-hoc rationalizations that are "irrelevant for
the purposes of our assessment of MOFCOM's actions."
II. MOFCOM'S FLAWED INJURY REDE TERMINATION BREACHES THE AD AND
SCM AGREEMENTS
China's defense of MOFCOM 's injury redetermination centers on the assertion that the 2.
United States is seeking to substitute its judgment for MOFCOM 's. The issue is not whether
MOFCOM has discretion, but whether the exercise of that discretion comports with the obligations
in the AD and SCM Agreements.
A. China Cannot Defend MOFCOM's Price Effects Analysis
An objective examination of pricing data requires that the prices the investigating authority 3.
compares must correspond to comparable products. Tellingly, MOFCOM's price effec ts analysis in
the redetermination continues to rely on its original flawed analysis of AUVs, rather than make any
of the requisite adjustments to ensure comparability.
First, MOFCOM's determination does not explain why its approach of using domestic pricing 4.
data from these four particular firms would resolve the issue of product mix. As is evident, we
have no understanding how this data was applied to ensure that product mix is not an issue.
Second, there is nothing in the redetermination about why or how these firms were selected. Nor
does the record indicate the coverage of their product -specific data. Even the post hoc
rationalization offered by China in its submissions suggests the only reason these firms were
chosen was that it was convenient for MOFCOM since it was already familiar with these four firms
and decided it lacked the time and resources to examine all 17 firms. It is important to keep in
mind that the data from these fo ur firms is a sample of a sample. As the Panel may recall, in
defending against the U.S. challenge on how MOFCOM defined its domestic industry in the original
proceeding, China stressed the large number of firms that comprised its domestic industry.
Particularly, in the absence of any explanation as to the methodology employed by MOFCOM to
select these firms, it is clear that MOFCOM 's attempt to remedy the AUV deficiency is not an
"objective examination" based on "positive evidence." Third, as our submissio ns explain, the
record demonstrated that the product mix of subject imports was dynamic in that it changed over
time. China's attempted response is that MOFCOM 's "spot check" confirmed that this was not an
issue. China 's argument, which lacks any citation to the record or the determinations, is a
non-sequitur. It ignores that a "spot check" cannot, by definition, examine a changing market
situation. Fourth, China fails to address that MOFCOM did not even attempt to examine the
product mix pricing for import s. The limited data indicated that paws tended to be ranked 3 rd or
4th in terms of price, and the sales price index for paws was little higher than the sales price index
for breast meat, which China characterizes as a "lowest price product." The products ranked 1st
and 2nd in terms of price, wings and gizzards, were sold by the four domestic producers, but not
imported from the United States in appreciable quantities. In light of this, MOFCOM could not
objectively conclude that the product mix sold by the domestic industry was comparable to that of
the imported subject merchandise.

- B-19 -

China's defense of MOFCOM 's price suppression finding appears to rest on two points. First, 5.
China appears to argue that a price suppression finding does not need to be well ex plained under
the relevant obligations. This position has no legal basis. Second , China asserts that the
United States is misreading the record. But the relevant portions of the record are clear, and the
United States has accurately described MOFCOM 's reasoning: MOFCOM predicated its finding that
subject imports significantly suppressed prices for the domestic like product on its deficient
underselling analysis. In addition, MOFCOM failed to address record evidence that prices for the
domestic like product were not, in fact, suppressed during the 2006 -2008 period. In particular,
even as subject imports allegedly undersold the domestic like product, the Chinese domestic
industry was able to increase its prices by more than the increas e in its costs between 20 06
and 2008.
B. China Cannot Defend MOFCOM's Impact Analysis
China has confirmed that MOFCOM 's analysis on the impact of subject imports on the 6.
domestic industry in the redetermination remains completely unchanged from that in the original
determination. Accordingly, MOFCOM has taken no steps to address any of the arguments
concerning why its impact analysis is deficient under the AD and SCM Agreements.
First, MOFCOM 's examination of the impact of subject imports on the domestic industry 7.
failed to consider the numerous factors attesting to the overall health of the industry. Almost every
metric during the period of investigation improved. China claims MOFCOM "systematically
addressed" these factors. But the text of the redetermination indicates othe rwise. Only two factors
in the Chinese broiler industry did not appear to improve over the period of investigation: the
domestic industry 's rate of capacity utilization and end -of period inventories. With respect to
inventories, MOFCOM failed to consider t he increase in inventories in relation to the domestic
industry's production and shipments. Also, the industry 's inventories were objectively small,
equivalent to only around three percent of industry output and shipments. Likewise, MOFCOM 's
findings on ca pacity utilization fail to address evidence indicating that the level was not due to
subject imports. As our submissions explain, capacity utilization actually increased slightly during
the 2006-2008 period corresponding to most of the increase in subject import volume. The only
reason the industry 's capacity utilization did not increase dramatically during the period was the
industry's own decision to increase capacity far beyond growth in domestic demand.
C. China Cannot Defend MOFCOM's Causal Link Analysis
Our submissions highlight that MOFCOM 's causation analysis in its redetermination remains 8.
flawed for precisely the same reasons as the original determination. With respect to the first point,
the redetermination failed to address that the increase in subject import market share during the
period of investigation failed to prevent the domestic industry from increasing its market share by
an even greater amount. The second reason MOFCOM 's finding of causation is inconsistent with
the AD and SCM agreem ents is because it relies on MOFCOM 's price underselling analysis, which
remains flawed for the reasons already discussed. The third flaw in MOFCOM 's finding of a causal
link between subject import and injury is that MOFCOM ignored evidence that most of the increase
in subject import volume and market share coincided with a strengthening of the domestic
industry's performance between 2006 and 2008.
III. MOFCOM'S FLAWED REINVESTIGA TION BREACHES THE PR OCEDURAL
PROTECTIONS OF THE AD AND SCM AGREEMENTS
A. MOFCOM Failed to Provide Notice to Interested Parties of the Pricing
Information it Required from Chinese Domestic Producers and Denied Them
Ample Opportunity
As the Panel has noted in its Preliminary Ruling, "MOFCOM required, sought, and obtained 9.
additional information from Chinese domestic producers in the course of its reinvestigation." And,
because MOFCOM failed to afford both notice and opportunity to interested parties in connection
with the information that it required from Chinese producers, Chin a is in breach of AD Agreement
Article 6.1 and SCM Agreement Article 12.1. Indeed, the United States notes that it is striking that
even after two rounds of submissions, no one other than China still knows the precise requests
that were actually posed to the Chinese producers.

- B-20 -

B. MOFCOM Failed to Permit Interested Parties Timely Access to Information
Such that they could Defend Their Interests
China has also breached Article 6.4 of the AD Agreem ent and Article 12.3 of the 10.
SCM Agreement, which requires investigating authorities to permit timely access to information to
interested parties, to enable them to prepare their cases, and defend their interests. China failed
to afford those opportunities as to the data MOFCOM requests from China 's domestic prod ucers,
including the identity of those producers and the specific information requests issued by MOFCOM.
China asserts that its supposed deposit of documents to the public information room at China 's
Ministry of Commerce satisfied its obligations. The deposit of documents in the reading room is not
meaningful, absent notice to interested parties.
C. China's Failure to Disclose the Anti-dumping Calculations and Data
In the reinvestigation, Pilgrim 's Pride was denied access to the data calculations from the 11.
original investigation, even though MOFCOM cited a purported error in the data and calculations
from the original determination to increase the margin of Pilgrim 's Pride by 20 points. Keystone
likewise was denied access to its margin calculations and d ata from the original investigation.
Keystone, as a foreign producer, was indeed an "interested party" as defined under Article 6.11,
whether or not it chose to participate by submitting new data. In addition, China 's explanation
concerning Keystone's supposed lack of an authorized representative is without merit. Keystone 's
duly appointed representative indicated through a memorandum that it was authorized to "act on
behalf of Keystone and to receive any document on Keystone's behalf."
IV. MOFCOM'S FLAWED ANTI-DUMPING DETERMINATIO N BREACHES THE
AD AGREEMENT
A. China Cannot Point to Any Record Evidence to Support MOFCOM 's Assertion
that U.S. Producers' Recorded Costs Were Unreasonable
1. The Methodology Applied to Tyson is Not Proper
The Panel found in the original dispute that China bre ached the second sentence of 12.
AD Agreement Article 2.2.1.1 by relying upon a distortive weight -based allocation methodology for
Tyson. In its redetermination, MOFCOM did not address this error. China's attempt to manipulate a
value-based allocation method to distinguish total meat costs into categories, but then rely on a
separate weight-based method to allocate total meat costs for only one of those categories into
specific products, is not consistent with Article 2.2.1.1. Furthermore, if China indeed wanted to use
a weight-based methodology, it by necessity needed to allocate costs across all products – and not
just to broiler products. To allocate costs selectively introduces substantial distortions.
Further, China's claim that the scope of its investigation only included chicken for "human 13.
consumption" must be rejected. China 's own response submission implicitly recognizes such, in
stating that "Tyson's normal books and records demonstrated that the little cost [sic] was assigned
to feathers and blood because the sales revenues of these items were very low." All parts of a
chicken, including both those for human consumption and those that are rendered, are
co-products, and a consistent, reasonable methodology must be used to allocate production costs
to all co-products.
2. The Methodology Applied to Pilgrim's Pride is Not Proper
China similarly failed to give any consideration of the "proper" allocation of costs with 14.
respect to Pilgrim's Pride. The Panel's decision made two findings that applied to all respondents –
specifically, that China failed to give proper consideration to "alternative allocation methodologies
presented by the respondents," and that China "improperly allocated all processing costs to all
products." MOFCOM failed to do any evaluation with respect to Pilgrim 's Pride's costs, and for this
reason alone breached Article 2.2.1.1's obligation to "consider all available evidence on the proper
allocation of costs," and resulted in a failure to provide a reasoned and adequate explanation for
its determination.

- B-21 -

B. MOFCOM's "All-Others" Rate
The plain text of Article 9.4 establishes a cap on the duty that may be applied to imports 15.
from "exporters or producers not included in the examination." Here, MOFCOM's investigation was
limited to only three companies; no other exporter was examined. Article 9.4 does not allow for
distinctions between classes of exporters or producers "not included in the examination". Any
exporters or producers not inclu ded in the examination are entitled to a ra te consistent with
AD Agreement Article 9.4.
C. China's Reliance on Facts Available fo r Tyson was Unsupported because
Tyson Fully Cooperated to the Best of its Ability
MOFCOM's use of facts available is incon sistent with Art icle 6.8 and Annex II of the 16.
AD Agreement. China has failed to present any evidence that Tyson refused access to, failed to
provide, or other otherwise impeded MOFCOM's ability to obtain requested information – such that
could justify the a pplication of facts available. Rather, MOFCOM during the reinvestigation sought
information that simply did not exist, and Tyson still made every reasonable effort to use the data
available in its business records to satisfy MOFCOM's request. Contrary to China's assertion, Tyson
did not make unexplained changes to its data during the redetermination proceedings. Rather,
Tyson used the standard costs data it had to breakdown these total actual costs for each
product-brand code into meat and processing costs for each cost center. Tyson was forthcoming
with MOFCOM on why and how it was proceeding in this manner. Yet China completely rejected
this information provided by Tyson in the reinvestigation, without engaging in an objective process
of examining the submitted data or an effort to verify its accuracy or reliability.
Finally, China 's reliance on the Panel report findings, at paragraph 7.196 with regard to 17.
"pure meat" and "pure processing" costs is disingenuous. In fact, Tyson provided this information
in the only way that it could. And it is obvious why the processing costs changed: those processing
costs were embedded in the total meat costs during the original investigation, and Tyson had to
disaggregate those processing costs during the reinvestigation, using the data Tyson had at its
disposal. Such extensive efforts by Tyson do not reflect a failure to cooperate.
V. CHINA HAS BREACHED A D AGREEMENT ARTICLE 1, SCM AGREEMENT ART ICLE 10,
AND GATT ARTICLE VI
These claims are consequential and therefore do not require any independent evidence to be 18.
established – they simply result from breaches of other provisions of the AD and SCM Agreements.
Accordingly, the Panel may issue findings on these claims if it find s breaches on the foregoing
claims we have discussed.
VI. CONCLUSION
For these reasons and those set forth in our submissions, the United States respectfully 19.
requests the compliance panel to find that China 's measures taken to comply with the
recommendations and rulings of the DSB are inconsistent with China 's obligations under the
AD Agreement, the SCM Agreement, and GATT 1994.

- C-1 -

ANNEX C
ARGUMENTS OF CHINA
Contents Page
Annex C-1 Executive summary of the First Written Submission of China C-2
Annex C-2 Executive summary of the Second Written Submission of China C-10
Annex C-3 Executive summary of the Oral Statements of China at the Substantive Meeting
of the Panel
C-18

- C-2 -

ANNEX C-1
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF CHINA
I. INTRODUCTION
1. The United States seriously mischaracterized the factual context and the findings made by
MOFCOM during the redetermination proceedings that bring the antidumping and countervailing
duty measures at issue in DS427 into compliance with China 's obligations under the WTO. First,
the United States seeks to pursue several specific claims that are beyond this Panel 's Terms of
Reference. In other areas, the U.S. First Written Submission drops any argument about provisions
that were included in the Panel Request. Second, the United States argues for other approaches to
issues that would have also been permissible, had MOFCOM decided to adopt them, but that
simply were not required given the Panel findings. Third, when focusing on the specifics of each
U.S. claim, it is important not to lose sight of what the United States has not challenged and
therefore concedes to be WTO -consistent. The Panel focus, of course, will be on the U.S. claims,
but the evaluation of those claims needs to take into account the factual and legal context that has
not been challenged.
II. THE FACTUAL BACKGROU ND PROVIDED BY THE U NITED STATES CONCERN ING
MOFCOM'S INVESTIGATIVE PROCESS OMITS OR MISSTATES KEY FACTS
2. The United States has presented a somewhat self -serving summary of the redetermination
proceeding, omitting or misstating key facts that are important for the Panel's consideration.
3. China promptly began the procedure to implement the Panel findings in this dispute. O n
25 December 2013, MOFCOM issued its Announcement No.88 of 2013 notifying its intention to
reinvestigate the anti -dumping and countervailing measures on imports of broiler products
originating in the United States. The purpose of the reinvestigation was to implement the findings
of the Panel in DS427.
4. Questionnaires were issued to those U.S. exporters for which the Panel findings required
some reconsideration by MOFCOM on 7 January 2014. I nvestigative procedures were tailored
appropriately, seeking specific information regarding the issues about which the Panel had made
findings. No company was asked to prepare entirely new responses for a new period of time or for
a new product. U.S. expor ters had a typical due date of two weeks to respond to the initial
questionnaire. They requested more time, and MOFCOM granted the requests to the extent
practicable, as well as multiple opportunities to clarify their responses.
5. MOFCOM also reinvestiga ted the Chinese domestic producers. On 19 February 2014, the
MOFCOM released its Notification on On -spot Verifications in the Anti -dumping and Anti -subsidy
Re-investigation on Broiler Products, which provided the schedule and the methodology of the
investigations to be carried out. Given the Panel Report findings on MOFCOM 's failure to ensure
price comparability with regard to its analysis of price effects, the parties had a clear sense of what
was expected from them through the Notice.
6. MOFCOM conducted on-site verifications of the same three producers whose questionnaire
responses had been verified in the original verification, as well as the largest producer that was
visited before the original final determination. Product -specific price data were sour ced using
standard verification methodologies and on the basis of the companies ' questionnaire responses
from the original investigation. MOFCOM requested a breakdown of the sales quantity and value
reported to show product -specific pricing data. MOFCOM also verified these data by requesting
product coding, sales ledgers and sampled invoices.
7. On 16 May 2014 MOFCOM issued disclosures to Pilgrim 's Pride, Tyson, and the U.S.
Government. These disclosures covered all issues for the two U.S. exporters. Keystone had not
designated an agent and was otherwise not cooperating with the reinve stigation, so MOFCOM tried

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reaching out to Keystone directly and through the U.S. Embassy, but MOFCOM was not able to
provide any disclosure directly to Keystone.
8. On 20 May 2014, the four domestic producers filed the public versions of their
Post-Verification Supplemental Information. The names of these producers were disclosed in the
public version. On 21 May 2014, MOFCOM released its injury disclosure and the essential facts to
all known interested parties, and provided an opportunity for comment.
9. On May 23, 2014, the Investigating Authority issued its Notification on Hearing and o n
May 30, 2014, the hearing was held. The domestic parties declined to attend the hearing. The U.S.
Government, Tyson Foods Inc and Pilgrim 's Pride Corporation attended the hearing. At the
hearing, the U.S. Government gave a presentation. The U.S. exporters choose not to make their
own presentations, but they attended.
III. MOFCOM ABIDED BY ITS PROCEDURAL OBLIGATIONS UND ER THE
ANTI-DUMPING AGREEMENT AND THE SCM AGREEMENT
A. China Did Not Act Inconsistently with Article 6.1 of the
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement
10. This U.S. claim falls outside the Panel Request. The U.S. claim cites to documents that do
not even exist, and does not "present the problem clearly" as required by Article 6.2 of the DSU. It
only identifies MOFCOM 's alleged failure to disclose questionnaires submitted to the domestic
industry and it is preceded by the phrase "for example". Although such language might serve to
specify a previously generally identified measure, it does not reference any specific part of the
Redetermination, and instead references only "questionnaires" that do not even exist.
11. Even if the claim were properly raised, it nevertheless fails on its merits as factually
incorrect and legally baseless. The U.S. argument simply ignores all of the disclosure, including the
initiation notice of re -investigation, the general verification letter, and the public versions of
verification exhibits, that took place ea rlier in the process and was more than sufficient to satisfy
Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement.
B. China Did Not Act Inconsistently with Article 6.4 and Article 6.5 of the
Anti-Dumping Agreement and Articles 12.3 and 12.4 of the SCM Agreement
12. This U.S. claim is outside the Panel 's Terms of Reference because it does not identify the
"specific measures" at issue nor does it provide a "brief summary of the legal basis" for its claim.
The U.S. purports to have identified the "specific measures" at issue and to have provided a "brief
summary of the legal basis" but there are several key aspects of this language that ignore the
requirements of Article 6.2 of the DSU. In its First Written Submission, the U.S. conte nds that
China acted inconsistently with certain specific provisions, yet paragraph 5 of the Panel Request
does not even mention Article 6.1.2 of the Anti -Dumping Agreemen t and Article 12.1.2 of the
SCM Agreement at all. Nor do the claims under Articles 6. 4 and 12.3 present the problem clearly.
To include these provisions now would be contrary to Article 6.2 of the DSU.
13. Even if the Panel were to consider such claim as within its Terms of Reference, t he U.S.
claim that MOFCOM acted inconsistently with th ese provisions is without merit . These provisions
require that relevant information provided by one party in an investigation is promptly made
available to other participating parties. China promptly made available evidence in writing to the
interested par ties participating in the investigation in accordance with these provisions by
releasing as timely as possible – that is on the very same day of receipt – the Public Versions of
the Post-Verification Exhibits by the domestic producers and by providing to a ll interested parties
in the reinvestigation access to the files in the Public Information Room.
14. The United States has dropped its claim under Article 6.5 of the Anti -Dumping Agreement
and Article 12.4 of the SCM Agreement. But even if considered, this claim fails. MOFCOM provided
the parties with access to all relevant information through notice and public summaries. The
parties had sufficient time to prepare their defenses and in fact did so.

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C. China Did Not Act Inconsistently with Article 6.9 of the
Anti-Dumping Agreement by Failing to Disclose the Essential Facts
15. MOFCOM in fact disclosed the "essential facts" to Pilgrim 's Pride. The U.S. narrative is
factually inaccurate. MOFCOM not only provided Pilgrim's Pride with all of the data and calculations
used in the reinvestigation, which included the data from the original investigation, but also
discussed its corrections with Pilgrim 's Pride. In fact, MOFCOM made additional adjustments to its
calculations based on Pilgrim's Pride input, further evidencing that Pilgrim 's Pride in fact had all of
the essential facts necessary to have a meaningful participation.
16. The other objection raised by the United States is that Pilgrim 's Pride received the essential
facts too late. This statement is factually wrong. MOFCOM disclosed the essential facts to Pilgrim 's
Pride at the opportune moment and before i ts decision was final. Moreover, MOFCOM discussed its
corrections with Pilgrim 's Pride. By indicating calculation errors and corresponding corrections,
Pilgrim's Pride was fully aware of the data and calculations of dumping margin from the original
investigation. Consequently, there is no factual basis to argue that MOFCOM acted inconsistently
with Article 6.9 as regards Pilgrim's Pride.
17. MOFCOM also disclosed essential facts to Keystone. The U.S. argument fails to note that
although Keystone was duly notified of the reinvestigation through the publication of Notice No. 88
on MOFCOM's website, and that MOFCOM also attempted to contact Keystone directly, as well as
through the U.S. Embassy, Keystone refused to participate in the reinvestigation proceedings . The
precise calculations were business confidential information, and could not be released publicly.
Since Keystone did not duly appoint any representative, there was no one to whom MOFCOM could
have disclosed such confidential information and so MOFCOM was limited in its ability to disclose.
Nonetheless, it is clear in the Redetermination that MOFCOM did comply with its obligation to
disclose essential facts to Keystone.
IV. MOFCOM'S REDETERMINATION IS CONSISTENT WITH ARTI CLES 2.2.1.1, 6.8, 9 .4,
AND ANNEX II OF THE ANTI-DUMPING AGREEMENT
A. China Did Not Act Inconsistently with the Second Sentence of Article 2.2.1.1
of the Anti-Dumping Agreement
18. In terms of Pilgrim 's Pride, the U.S. claim is outside the Panel 's terms of reference because
nothing in the Panel request provided a summary sufficient to understand this particular claim. But
even if the U.S. claim is within the Terms of Reference, it fails because it depends on a finding that
the Panel in fact never made. The Panel finding under the second s entence of Article 2.2.1.1
applied only to Tyson and Keystone, not to Pilgrim 's Pride. MOFCOM made no change in the
redetermination proceedings with regard to Pilgrim 's Pride on cost allocations because the Panel
had made no finding that MOFCOM needed to address in its Redetermination.
19. With regard to the Tyson claim, the United States misstates the nature of the obligation
under the second sentence of Article 2.2.1.1. This provision requires only that the authority
"consider all available evidence". MOF COM did in fact "consider all available evidence" on the
alternative cost allocation proposed by Tyson, including whether they were "historically utilized" by
Tyson, as required by Article 2.2.1.1. MOFCOM reasonably rejected the Tyson alternative cost
methodology as not correctly reflecting costs and instead applied a weight -based cost allocation to
Tyson for the products under investigation.
20. MOFCOM made the reasonable choice to adopt a weight allocation for the meat cost of the
product under considera tion, and not to include products not under consideration, and explained
its rationale for doing so in some detail. The U.S. claim that Tyson 's costs of blood and feathers
were not allocated appropriately under MOFCOM's weight based allocation method is flawed.
21. First, the Redetermination confirms the original determination that MOFCOM reasonably
replaced Tyson's flawed value -based allocation method with a weight -based allocation method to
allocate meat cost among different models of the product concerned – the edible parts of the
broiler products. Tyson had misused the price of offal (waste products) to estimate unreasonably
the cost of paws (edible products), which led to distorted costs for each model of the product
concerned. The Redeterminati on confirms MOFCOM 's reasonable rejection of Tyson accounting

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records for allocating the cost of each model of the product concerned. The United States does not
challenge it under the first sentence of Art. 2.2.1.1.
22. Second, Tyson treated the inedibl e p art of the broiler product – blood and feather s – as
waste products under its cost allocation. Unlike the treatment of edible products, the
Redetermination finds that the use of prices of waste products to allocate the cost of inedible
products did not unr easonably reflect costs, which also means that Tyson 's accounting records on
this specific point could be accepted. The United States does not challenge MOFCOM 's finding
under the first sentence of Art. 2.2.1.1.
23. Third, the essence of the U.S. claim is to challenge appropriateness of the MOFCOM 's
rejection of Tyson 's alternative by using a total live -chicken weight-based method under second
sentence of Art.2.2.1.1. This U.S. alternative, however, is not based on any cost allocation that
had been historic ally utilized by Tyson, and cannot be considered as evidence under
second sentence of Art. 2.2.1.1.
24. Fourth, Tyson tried to obfuscate the nature of the different products to distort the costs. For
instance, at the beginning, Tyson tried to confuse offa l and broiler products such as paws; later,
Tyson tried to equate the waste products, such as feathers and blood, with edible products
including the products concerned; finally, Tyson even tried to treat dead birds equally with live
chicken. Tyson argued f or all these alternatives for the same purpose – to obscure the nature of
different products to distort the costs. The Tyson approaches that the United States now defends
could not reasonably reflect the cost of the product concerned, nor appropriately all ocate the costs
for the product concerned. It would depart from common sense notions about edible products and
non-edible products, primary products and waste products, and basic antidumping rules to
distinguish the product concerned and the non-product concerned.
25. The U.S. argument is little more than a disagreement with MOFCOM 's determination on this
issue. The United States is essentially asking the Panel to second -guess MOFCOM and substitute
the Panel's opinion about the proper cost allocation for t he decision that MOFCOM made on this
issue.
B. China Did Not Act Inconsistently with Article 6.8 of the
Anti-Dumping Agreement with Respect to Tyson
26. The United States focuses exclusively on the MOFCOM`s decision to apply "facts available",
but presents no argument at all about MOFCOM`s choice of particular facts. The Appellate Body
and several panels have concluded that Article 6.8 and Annex II impose a particularly high
standard on responding parties, explaining that a respondent is required to act "t o the best of its
ability". Failing that, the investigating authority is entitled to resort t o facts available under
Article 6.8. Furthermore, even if an interested party cooperates and acts "to the very best of its
ability", if the requested information i s not obtained, investigating authorities may resort to facts
available.
27. Tyson did not meet this high standard during the reinvestigation. There were significant
discrepancies between what Tyson said about costs in the original proceedings and what Tys on
was saying in the redetermination proceedings. In the original Panel proceeding, the United States
claimed that MOFCOM did not allocate Tyson 's product -specific processing cost as they were
actually incurred in the production of those specific products. MOFCOM made repeated efforts
during the reinvestigation to obtain the cost of raw material used to grow broiler chickens, without
any processing costs. Yet, Tyson never satisfactorily provided this information and did not
participate in the original inves tigation and reinvestigation proceedings to the "best of its ability".
Instead, Tyson provided MOFCOM with unreliable and inconsistent answers to several
questionnaires. For instance, the meat cost was discovered containing processing costs, while
some pro cessing costs became negative. Under these circumstances, MOFCOM was completely
justified in applying "facts available" under Article 6.8 and Annex II.

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C. China Did Not Act Inconsistently with Article 9.4 of the
Anti-Dumping Agreement Through the "All Oth ers" Rate Assigned to
Exporters or Producers that did Not Identify Themselves
28. The United States argues that China acted inconsistently with Article 9.4 of the
Anti-Dumping Agreement by setting a rate for those exporters who did not identify themselves for
purposes of the proceeding based on the rate applied to Pilgrim 's Pride rather than the weight
average of rates for individually investigated companies.
29. The argument is mistaken because Article 9.4 does not apply to the "all others" rate set in
the underlying proceeding. In the underlying proceeding "all others" pertained to producers and
exporters who did not cooperate in the selection of respondents. Thus, the facts involved in
MOFCOM's reinvestigation do not implicate Article 9.4 of the Anti -Dumping Agreement. The flaw in
the U.S. argument is in its apparent assumption that "all others" as used by MOFCOM in the
reinvestigation has the same meaning the U.S. Department of Commerce assigns to "all others" in
its own domestic proceedings. In U.S. De partment of Commerce cases, "all others" refers to those
parties not asked to cooperate in the investigation. But this term was used differently by MOFCOM.
In the reinvestigation "all others" referred to those companies that chose not to register and
provide information as requested in MOFCOM's Notice of Initiation.
V. MOFCOM'S REDETERMINATION IS CONSISTENT WITH ARTICLES 3 AND 12 OF THE
ANTI-DUMPING AGREEMENT AND ARTICLES 15 AND 22 OF THE SCM AGREEMENT
A. China's Price Effects Analysis Was Consistent with Articles 3.1 and 3.2 of the
Anti-Dumping Agreement and Articles 15.1, 15.2, and 15.4 of the
SCM Agreement
30. The United States makes two specific and relatively narrow claims concerning MOFCOM 's
price effects analysis, focused on: (i) the way that MOFCOM found price undercutting, and (ii) the
implications of that price undercutting for the price suppression analysis. Both claims should be
dismissed.
31. First, the United States claims that MOFCOM failed to ensure objective price comparisons in
its underselling analysis because the product -specific price data relied upon for that purpose were
not representative. But this argument fundamentally misstates MOFCOM 's analysis to create the
false issue of representativeness . In its original determination MOFCOM analyzed annual trends in
the average unit price of subject imports and in the price of the domestic like product. The Panel
found that differences in product mix risked affecting price comparability and distorting any price
effects analysis if steps were not taken to control for product mix, or if necessary adjustments
were not made. Consistent with the Panel 's findings and conclusions, MOFCOM 's Redetermination
took steps to control for differences in physical characteristics affecting price comparability to
determine if any adjustments were necessary.
32. Specifically, MOFCOM performed an additional round of on -site verifications of the domestic
industry in order to collect supplemental price data with which to distinguish among product
specifications. MOFCOM also analyzed product-specific import statistics from Chinese Customs and
cross-checked it with export data from the respondents. MOFCOM's approach was sufficiently
representative for the limited purposes to which it was applied. MOFCOM found that imp orts from
the United States were concentrated in products that the Chinese market valued at the high end of
the value chain. As such, any bias existing in its aggregate AUV price comparison in fact favored
U.S. producers, not the domestic industry, since U .S. imports were shown to be concentrated in
high value products whereas the domestic industry sold the full spectrum of domestic like product.
Therefore, MOFCOM's use of AUVs to reflect price undercutting was a cautious and conservative
approach given the specific facts of this case.
33. Having met its obligations to take additional steps to ensure that product mix and price
comparability were not problems in this specific case, MOFCOM reasonably relied on price
undercutting based on overall annual AUVs f or the domestic industry. These AUVs reflected all
products for all 17 domestic firms that were part of the domestic industry as defined by MOFCOM,
and as previously upheld by the Panel.

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34. Second, the United States also claims that China failed to estab lish that subject import
prices had the effect of suppressing domestic like product prices. But this U.S. claim also relies
upon a mischaracterization of the record and MOFCOM 's approach in the redetermination.
MOFCOM did not rely solely or principally on its price undercutting findings, and presented various
other reasons in support of its price suppression analysis.
B. China Properly Analyzed Impact as Required by Articles 3.1 and 3.4 of the
Anti-Dumping Agreement and Articles 15.1 and 15.4 of the SCM Agreement
35. At the outset, we note this claim is outside the Panel 's Terms of Reference. There were no
changes in the MOFCOM determination on this issue and therefore no measure taken to comply
with regard to this issue now before the Panel. To find otherw ise would sanction China for not
making changes when no changes were required, and would deny China any chance to bring its
findings into conformity with regard to this issue.
36. The United States accuses MOFCOM of ignoring the positive evidence, and focu sing on a few
isolated indicia of injury. By doing so the United States ignores the totality of the evidence before
MOFCOM, and selectively picks time periods to create the illusion of a domestic industry doing
well, when it in fact was suffering material injury.
37. The United States makes three analytical errors. First, it focuses on an earlier period, the
period from 2006 -2008, and ignores the sharp declines in various indicators during the most
relevant and most recent period, the first half of 2009. Second, it also ignores MOFCOM 's findings
that U.S. exporters may expand exports to China, causing continued adverse effects to the
domestic industry. Material injury at the end of an investigative period reinforced by expected near
term trends is still material injury. Third, it focuses on volume indicators, and ignores the w eak
financial indictors over the entire period. A domestic industry with net operating losses every year
is suffering material injury.
38. The U.S. arguments regarding two specific injury indicators, production capacity utilization
and end -of-period inven tories, are similarly flawed. Note that although Articles 3.4 of the
Anti-Dumping Agreement and 15.4 of the SCM Agreement list numerous factors to be considered
in the examination of the impact of the subject imports, the United States raises claims about only
two. MOFCOM's Redetermination included "an evaluation of" these two factors, and thus complied
with the relevant obligation. That the United States disagrees with how MOFCOM evaluated these
two factors does not mean the MOFCOM evaluation was not an "objective examination".
C. China Properly Demonstrated the Causal Li nk Required by Articles 3.1
and 3.5 of the Anti -Dumping Agreement and Articles 15.1 and 15.5 of the
SCM Agreement
39. At the outset, China notes that certain aspects of this U.S. claim are beyond the Panel 's
Terms of Reference. The third part of the U.S. claim – that MOFCOM did not reconcile its causation
analysis with the improving domestic industry performance – was excluded from the Panel Request
and cannot be included now.
40. The Appellate Body has repeatedly made clear that a causation requirement in the context
of a trade remedy proceeding requires only that the imports under investigation have contributed
in some meaningful way to the injury being suffered by the domestic industry. Th e Appellate Body
was careful to clarify that the authority need not show that the subject imports were the only
cause, or the major cause, of the injury.
41. Thus, the burden on the United States in making a prima facie claim under Articles 3.5
and 15.5 i s to demonstrate that MOFCOM failed to show that subject imports were making a
meaningful contribution to the material injury. On the other hand, China can defeat the U.S. claim
simply by showing that MOFCOM reasonably found that subject imports were contr ibuting in some
way to the material injury.
42. Second, MOFCOM did not rely on a flawed analysis of price effects as the sole basis of its
discussion of causal relationship. Rather, MOFCOM reasonably relied on both a proper price
undercutting analysis and a proper price suppression analysis as legally independent bases for

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adverse price effects. Moreover, in the Redetermination, MOFCOM also proved that the differences
in the product specifications alleged by the United States has not distorted the price und ercutting
reflected in the average prices comparison, and the price undercutting reflected in the average
prices comparison was not caused by differences in the specifications. Even without any finding of
price undercutting, MOFCOM established a causal lin k based on increasing subject import volume
and price suppression.
43. Third, MOFCOM did not fail to reconcile its causation analysis with trends over the period.
Rather, it is the U.S. argument that tries to ignore and downplay the sharp declines in the first half
of 2009 and the dismal financial performance over the entire period of investigation. The existence
of some positive trends does not negate the conclusions MOFCOM drew from weak and
deteriorating financial performance over the period. Thus, MOFC OM's determination that subject
imports were causing injury is not based on a flawed impact analysis.
D. China Properly Addressed Key Causation Ar guments as Required by
Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3
and 22.5 of the SCM Agreement
44. Contrary to the U.S. argument, MOFCOM did not "merely reiterated its unfounded
assertions" regarding gains in domestic market share. The United States may not agree with
MOFCOM's conclusion, and the focus on other aspects of the factual record to draw its conclusions
about causal link, but MOFCOM sufficiently addressed this issue.
45. MOFCOM noted the specific U.S. argument about the domestic industry market share, and
then responded at length in the original determination. MOFCOM again noted this specific
argument during the redetermination process, and then responded once again. As MOFCOM
summarized: "During the whole injury investigation period, the quantity of the produce concerned
had increased sustainably, and the imports prices wer e at a low level, which resulted in significant
undercutting and suppression to the domestic like product, impacted by which, the domestic
industry have been suffering long -term losses, the pre -tax profit margin and ratio of return on
investment have stayed at a very low level". There is no doubt that MOFCOM addressed this issue
and explained why it rejected the U.S. argument. As important, the Panel previously addressed
this same U.S. argument, and rejected the U.S. argument. The United States has not pres ented
any reasons for the Panel to reach a different conclusion in this Article 21.5 proceeding.
46. Also contrary to the U.S. argument, the impact of subject imports of chicken paws was in
fact injurious and MOFCOM explained why. The U.S. argument focuses on the physical quantity of
chicken paws in isolation, without addressing the price effects that were so important to MOFCOM's
causation analysis. MOFCOM addressed this issue twice: once in the original determination, and
again in the Redetermination.
47. The Redetermination proceedings provided particularly relevant discussions relating to
chicken paws, and the importance of considering not just the physical quantity but also the prices.
The Redetermination collected data that showed price undercuttin g fo r chicken paws ranging
from 9.51 percent to 24.74 percent. The volume of chicken paws, therefore, was lower priced and
had adverse price effects on the domestic industry. The Panel has previously addressed this same
U.S. argument. In the original proceeding, the Panel found that MOFCOM would need only to cross
reference its rejection of the argument in the preliminary determination. That is precisely what
MOFCOM has done, referencing the preliminary determination and the lack of any need to repeat
those findings again. This is more than sufficient. The United States now simply repeated the
argument from the original investigation. Therefore, there is no new element that MOFCOM needed
to address other than cross-referencing the preliminary determination.
VI. THE REDETERMINATION IS CONSISTENT WIT H ARTICLE 1 OF THE
ANTI-DUMPING AGREEMENT, ARTICLE 1 0 OF THE SCM AGREEMENT, AND
ARTICLE VI OF THE GATT 1994
48. The United States raised three consequential claims in its Panel Request but did not present
any substantive arguments in this regard. It appears that the United States has decided to waive
these three conseq uential claims as it did not even present a prima facie case regarding these
claims. Even if the Panel decides to reach these claims, they fail for reasons explained above.

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VII. CONCLUSION
49. For the reasons set forth above, China respectfully requests t he Panel to reject all of the
U.S. claims and to find that the Redetermination is fully consistent with China 's WTO obligations
under all of the covered agreements.

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ANNEX C-2
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF CHINA
INTRODUCTION
The themes that China highlighted in its First Written Submission continue to apply after the 1.
U.S. Second Written Submission. The United States has not seriously addressed any of these
concerns. First, the United States continues to press several claims that are wholly or partially
beyond the Panel's terms of reference. Since China's arguments under Article 6.2 of the DSU go to
the Panel 's very jurisdiction to hear those challenged claims, the Panel has no choice but to
address those arguments and confirm the precise limits of the Panel's jurisdiction in this dispute.
Second, the United States continues to assert a single approach to iss ues for which the text 2.
of the relevant obligation contemplates a range of approaches, arguing that MOFCOM should have
agreed with the U.S. respondents and their efforts to distort the per unit cost of producing
different types of edible broiler parts, and to dismiss the injurious impact of the increasing volume
of low -priced subject imports. But MOFCOM met its obligation by unbiasedly and objectively
considering all available evidence and alternative cost allocations, and then explaining reasonably,
objectively, and thoroughly why it chose one reasonable and proper allocation method, as
mandated by Article 17.6 of the Anti-Dumping Agreement, as well as why Tyson 's alternative was
not acceptable. It met the same obligation by objectively and reasonably ensuri ng that its
underselling analysis, based on a comparison of aggregate average unit values ("AUVs"), was not
distorted. The underselling found was not merely a function of product mix. Indee d, the
U.S. contention that that price of chicken paws is lower tha n the price of chicken breast was
proven false. Thus, the analysis conservatively showed that imports undersold the domestic like
product given the extremely limited volume of breast imports.
Third, the United States continues to press claims that make little sense in light of what the 3.
United States did not challenge in MOFCOM 's Redetermination and concedes was WTO consistent.
The specific U.S. claims must be evaluated in the context of the overall Redetermination. The
MOFCOM Redetermination addressed a ll the findings made by the Panel in its original report, and
did so in a way that respected China's obligations under the Anti-dumping and SCM Agreements.
I. CHINA RAISES SERIOUS OBJECTIONS UNDER ART ICLE 6.2 OF THE DSU THAT THE
UNITED STATES SEEKS TO DISREGARD
The United States filed a deficient Panel Request that prevented China from anticipating the 4.
scope of several of the claims the United States raised in its First Written Submission. In its
Second Written Submission, the United States attempts to disregard China 's challenges under
Article 6.2 of the DSU, claiming them to be "irrelevant or extraneous matters" to implementation
proceedings under Article 21.5 of the DSU. This is simply wrong. On numerous occasions panels
and the Appellate Body have affirmed the fundamental nature of an assessment of the scope of
their jurisdiction in consideration of the text of the panel request, emphasising the due process
objective of such assessment. They have also affirmed that such a jurisdictional assessment is
relevant and applicable to implementation procedures under Article 21.5 of the DSU. T he
United States failed to identify with sufficient detail the measures taken to comply with the original
panel report by China that it seeks to challenge, nor did it i dentify the specific omissions or
deficiencies in such measures. Instead, the United States presents broad references, ambiguous
language, and seeks to challenge unchanged aspects of the original determination. If also fails "to
provide the 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".

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II. MOFCOM'S REDETERMINA TION FULLY COMPLIED WITH THE PROCEDURAL
OBLIGATIONS OF THE ANTI-DUMPING AND SCM AGREEMENTS
A. MOFCOM Fulfilled Its Obligations Under Article 6.1 of t he
Anti-Dumping Agreement and Article 12.1 of the SCM Agreement
The claims under Article 6.1 of the Anti -Dumping Agreement and 12.1 o f the 5.
SCM Agreement fall outside the panel 's terms of reference and should be dismissed without
consideration of its merits. The United States has failed to demonstrate that a reference to the
Redetermination in toto accompanied by the use of non -exclusive language suffice to satisfy the
requirements of Article 6.2 of the DSU in respect of its claim under Articles 6.1 and 12.1.
Moreover, China complied with its obligations under Article 6.1 of the Anti -Dumping 6.
Agreement and Article 12.1 of the SCM Agreement. This U.S. claim rests on an artificial isolation of
the procedural steps adopted by MOFCOM in the reinvestigation. But the facts for the
reinvestigation taken as a whole show that the U.S. respondents were provided with the
information requested from the Chinese producers, including their identities. The facts also show
that through the hearing held by MOFCOM on 30 May 2014 at the request of the U.S. parties, they
were provided with ample opportunities to present evidence in writing but only the United States
chose to do so on June 3. The other parties failed to do so.
B. MOFCOM Fulfilled Its Obligations Under Article 6.1.2 of the Anti -Dumping
Agreement and Article 12.1.2 of the SCM Agreement
The United States has not rebutted China 's arguments for dismissing the U.S. claims under 7.
Article 6.1.2 of the Anti -Dumping Agreement and Article 12.1.2 of the SCM Agreement. Once
again, the U.S. claim rests on the basis of an untenable mischaracterization of China 's procedural
obligation and should be rejected by the Panel.
First, as China explained in its First Written Submission, the United States simply failed to 8.
cite Article 6.1.2 and Article 12.1.2 in its Request for Panel. Given the nature of the obligations
contained in the sub -provisions of Article 6 and 12, the absence of the reference to these specific
sub-provisions is fatal for the proper identification of the legal basis for the U.S. claim. It therefore
falls outside of the terms of reference of the Panel.
Second, and even if the Panel were t o consider the U.S. claim as within its terms of 9.
reference, China respectfully submits that the claim must still be dismissed on the merits as legally
baseless. The United States has fundamentally mischaracterized MOFCOM 's obligations under
these specific provisions, emptying them of content and equating them to its obligations under
Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement. Contrary to
what the United States argues, by releasing the public versions of the verification exhibits in the
Public Reading Room, MOFCOM promptly made available non-confidential evidence provided by the
Chinese producers in the reinvestigation.
C. MOFCOM Fulfilled Its Obligations Under Articles 6.4 and 6.2 of the
Anti-Dumping Agreement and Article 12.3 of the SCM Agreement
The Panel should also dismiss the U.S. claims under Articles 6.4 and 6.2 of the 10.
Anti-dumping Agreement and Article 12.3 of the SCM Agreement. Once more, the United States
attempts to fault China for the failure of the U.S. r espondents during the redetermination
proceeding and as such these claims are factually incorrect and legally baseless.
First, the United States fails to rebut China 's terms of reference objection with respect to 11.
these claims. China has demonstrated th at a general reference to the Redetermination
accompanied by the language "for example" and followed by the reference to a non -existent
measure does not suffice to fulfil the identification requirement set forth in Article 6.2 of the DSU
in respect of the U.S. claims under Articles 6.4 of the Anti -dumping Agreement and 12.3 of the
SCM Agreement. Furthermore, the United States is bringing a new claim under Article 6.2 of the
Anti-dumping Agreement not included at all in its Request for Panel. China respectfu lly submits
that these claims should be rejected without consideration of their merits.

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Second, and even if the Panel were to consider these claims within its terms of reference, 12.
China submits that the United States fails to demonstrate that MOFCOM bre ached its obligations
under Article 6.4 of the Anti -dumping Agreement and Article 12.3 of the SCM Agreement. In
particular, the United States fails to demonstrate that the U.S. respondents were denied by
MOFCOM access to the record where the public version of the information provided by the Chinese
producers is located. Nor has the United States demonstrated that China failed to give the U.S.
respondents opportunities to make a presentation of their views.
It should be further noted that the United Stat es does not contest China 's argument in 13.
respect of the waiver of its claim under Article 6.5 of the Anti-Dumping Agreement and Article 12.4
of the SCM Agreement. Indeed the U.S. Second Written Submission confirms such waiver. While
the United States includes a reference to this provision in the title of the section where it attempts
to rebut China 's terms of reference objections, these claims are not substantially argued by the
United States.
D. MOFCOM Did Not Act Inconsistently with Article 6.9 of the
Anti-Dumping Agreement by Failing to Disclose the Essential Facts
The U.S. arguments rest on the mistaken assumption that the "essential facts" in a 14.
reinvestigation proceeding are the same as the "essential facts" of the original investigation.
According to the United States, any and all facts of the original investigation are also essential
facts in the Redetermination. This view is wrong. The facts of the original investigation do not
automatically become essential facts in the reinvestigation, and so wh at constitutes an "essential
fact" of the reinvestigation might be different from what constitutes an "essential fact" of the
original investigation. As a consequence, MOFCOM was not under the obligation to automatically
disclose any and all data and calcu lations from the original investigation to all parties to the
reinvestigation, except insofar as they were also "essential facts" for purposes of the
Redetermination.
As regards Pilgrim 's Pride, the United States argues that MOFCOM breached Article 6.9 15.
because (1) it did not inform Pilgrim 's Pride of all of its data and calculations from the original
investigation; and (2) it disclosed the information too late in the process for Pilgrim 's Pride to
defend its interests. Both arguments are mistaken. First , MOFCOM only had to disclose the
"essential facts" considered during the Redetermination proceedings. MOFCOM nonetheless
disclosed data from the original investigation to Pilgrim 's Pride. Second, the timeline of the
disclosure presented by the United Stat es is misleading. The facts show that Pilgrim 's Pride made
good use of the information and had ample opportunity to defend its interests before MOFCOM. In
fact, MOFCOM made adjustments to its margins based on Pilgrim 's Pride comments. In light of
these cir cumstances, the U.S. argument that MOFCOM acted inconsistently with Article 6.9 as
regards Pilgrim's Pride must be rejected.
The arguments concerning Keystone are equally misguided. MOFCOM recognizes that, 16.
notwithstanding Keystone 's non -cooperation, MO FCOM had an obligation to disclose "essential
facts" to Keystone. But China submits that MOFCOM properly discharged this obligation because
the "essential facts" as regards Keystone are not the same as those of a cooperating party. In any
case, MOFCOM was unable to disclose all data and calculations to Keystone, either directly or
through the U.S. Embassy, in light of its failure to appear in the proceedings or duly appoint a
representative to receive confidential information.
III. MOFCOM'S DUMPING RED ETERMINATION WAS CONSISTENT WI TH THE
ANTI-DUMPING AND SCM AGREEMENTS
A. MOFCOM's Allocation of Tyson's Costs Was Consistent With Article 2.2.1.1
1. The second sentence of Article 2.2.1.1 requires only that the authority
"consider all available evidence on the proper allocation of costs" and
MOFCOM did so
This U.S. claim about Tyson is wrong both legally and factually. Legally, the United States 17.
tries to read more into the second sentence of Article 2.2.1.1 than the provision requires. China
has presented an interpretation grounded in the text and context that the United States still has

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not addressed: the second sentence of Article 2.2.1.1 requires only that the authority "consider all
available evidence on the proper allocation of costs". China now confirms that interpretation by
showing it better reflects the three equally authentic texts of Article 2.2.1.1 and the meaning of
"proper", "juste", and "adecuada" in that provision. Moreover, under the second sentence of
Article 2.2.1.1 the allocations not "historically utilized" by the exporter should not be considered as
"evidence" for the authority. The "proper" allocation shall be interpreted in the context of
Article 2.2.1.1 as whole; a cost allocation which is reasonably reflected under the first sentence o f
Article 2.2.1.1 shall be considered as "proper" under the second sentence. The United States, by
withdrawing its claim on "reasonable reflection" under the first sentence and limiting its claim to
"proper allocation" under the second sentence, presents a n argument unhinged from that context.
Finally, there is no legal requirement under Article 2.2.1.1 to investigate all products, as wrongly
claimed by the United States.
China is not arguing that the authority can adopt an "improper" allocation of cost s. China's 18.
point is that there is not a single "proper" allocation like the solution to a math problem. Rather,
there are range of permissible "proper" allocations, provided the authority has considered the
alternatives and sufficiently explained its reasoning. MOFCOM met this obligation.
2. MOFCOM reasonably rejected the Tyson alternative cost methodology as not
correctly reflecting costs
In the original investigation, Tyson 's records did not reasonably reflect the cost of the 19.
product under considerat ion because Tyson misallocated the price of offal (waste products) to
certain edible products, such as paw. MOFCOM corrected the distortion applying a weight -based
methodology to allocate costs to specific models of the product under consideration.
Factually, MOFCOM thoroughly explained why it rejected Tyson 's proposed alternative 20.
methodology. During the original panel proceedings, the Panel found insufficient evidence in the
determination itself of MOFCOM 's consideration. Given this finding, during the reinvestigation,
MOFCOM clarified the facts and then explained the effect of Tyson 's misallocation and its distortion
in much more detail its reasons for adopting a weight -based allocation for the product under
consideration, and for not accepting the Tys on alternative weight-based allocation for all products.
MOFCOM thus complied with all findings by the original Panel, and eliminated any pr ocedural
deficiencies of MOFCOM's original determination.
After reviewing the Redetermination, the United State s has not pursued its original claim for 21.
"reasonable reflection" under the first sentence, nor its prior claims under the second sentence
that blood and feather were not allocated any cost under MOFCOM 's weight-based method, and
has now shifted to a claim about whether the cost allocation for blood, feathers, and other inedible
parts was proper under the second sentence of Article 2.2.1.1, and whether all available evidence
on the proper cost allocation had been considered. Indeed, the United States essenti ally argues
that the scope of the product concerned included blood and feathers, which is plainly false.
The Redetermination shows that MOFCOM reasonably and objectively drew a distinction 22.
between the products under consideration and those products not under consideration, a
distinction well -grounded in the anti -dumping practice and the specific facts of this particular
investigation. The United States tries to misrepresent a statement by this Panel, reading a narrow
statement about the "ambiguity" of a document as somehow embracing the U.S. substantive
theory about how costs should be allocated. This time there is no ambiguity. China has submitted
Tyson's Table 6.3, and the U.S. argument does not address this actual document. The
Redetermination sets fo rth at some length the numerous and specific reasons why MOFCOM did
not accept Tyson 's alternative methodology, none of which have been shown to be unreasonable
or biased by the United States. Tyson 's alternative was not supported by its accounting records ,
was deficient in terms of missing data (dead birds), was not verifiable (no indication of accounting
sources), and was contradictory (unit costs were incomparable to previously reported costs). The
U.S, argued that only a reallocation of costs to all pro ducts (not to the products under
consideration only) by weight can justify the MOFCOM 's weight-based allocation method. This is
fundamentally wrong. It is indeed Tyson itself to have applied different cost method for edible and
inedible products (waste pro ducts) in its accounting practice. In response, the U.S. arguments
invite the Panel to substitute its views for those of authority, something contrary to the standard
of review in Article 17.6(i) of the Anti-Dumping Agreement.

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B. MOFCOM's treatment of Pilg rim's Pride's costs was also consistent with
Article 2.2.1.1
This U.S. claim about Pilgrim 's Pride is also wrong. One legal defect is that this claim about 23.
Pilgrim's Pride is outside the Panel 's terms of reference. The Panel had not made any findings
about Pilgrim's Pride under the second sentence of Article 2.2.1.1 and the U.S. Panel Request must
be read in that context. Article 6.2 of the DSU does not allow the United States to craft a vague
claim and then define that claim only later during the dispute.
Another legal defect is that the United States now seeks to enforce a finding the Panel never 24.
made. The finding in the original Panel Report regarding the second sentence of Article 2.2.1.1 did
not apply to Pilgrim's Pride. MOFCOM completely implemented the Panel's actual finding. Since the
Panel had accepted MOFCOM 's decision to reject the Pilgrim 's Pride reported information as
unreliable, it underscores that the Panel finding about the second sentence was limited to those
companies that had submitted reliable information as mentioned by the Panel in its conclusion.
A final legal defect is that the United States has not presented any argument in support of 25.
its claim sufficient to establish a prima facie case. Merely asserting that China di d not comply with
the finding – without any legal or factual discussion – is not enough to establish a prima facie
case. And the MOFCOM explanations of the reasons for choosing the weight based allocation more
than rebut the unsupported U.S. argument.
C. MOFCOM acted consistently with Article 9.4 of the Anti -Dumping Agreement
in its selection of the rate for "all others"
The United States continues to argue the general rule of Article 9.4 that when an 26.
investigation is limited according to the second sen tence of Article 6.10 an all-others rate shall not
exceed the weighted average margin of dumping of the selected respondents. But Article 9.4(i)
does not include exporters or producers that did not identify themselves to the investigating
authority for the purpose of being selected in the limited investigation because such exporters or
producers could not have been potentially included in the selection of the parties to investigate.
MOFCOM required all exporters to identify themselves through registration. Those who did not
register did not make themselves known to MOFCOM.
Finally, the U.S. assertion that exporters subject to MOFCOM 's all -others rate were not 27.
asked to cooperate in MOFCOM 's reinvestigation is irrelevant. The Panel in the original proceed ing
expressly upheld the sufficiency of MOFCOM 's notice to interested parties. MOFCOM had no
obligation as part of its implementation of DS427 to offer such parties a second opportunity to
cooperate through the reinvestigation.
D. MOFCOM acted consistently with Article 6.8 and Annex II of the
Anti-Dumping Agreement with respect to Tyson
Tyson did not cooperate with MOFCOM to the best of its ability, and also did not provide 28.
MOFCOM with the necessary information. Since Tyson did not provide MOFCOM with t he necessary
data, MOFCOM was thus forced to turn to the "facts available" on the record – which included the
data provided by Tyson. The United States does not challenge MOFCOM 's legal argument nor the
proposed standard that a responding party has to act to the "very best of its ability" or face the
consequence that the investigating authority may resort to facts available. Rather, the
United States challenges only the factual basis for MOFCOM 's decision to resort to facts available,
attempting to show tha t Tyson acted "to the best of its ability", while remaining silent on
MOFCOM's choice of data as "facts available".
MOFCOM's purpose in the Redetermination was to implement the Panel 's findings. The Panel 29.
found that MOFCOM 's weight-based method was imp roper because the U.S. respondents such as
Tyson claimed that China did not determine the real processing cost occurring at each processing
step to each specific model. Thus, MOFCOM sought to ensure proper separation of processing and
meat costs, and to identify the detailed processing costs incurred at each processing step for each
specific model. Yet, upon earning the result from the Panel, Tyson complained in the
redetermination that MOFCOM sought too much information. To the contrary, MOFCOM sought

- C-15 -

only what was claimed by Tyson and required of it by the Panel, and without such information it
could not accomplish its task. Tyson was the cause of this result.
China reiterates that responding parties such as Tyson are required to act to the very best of 30.
their ability when responding to the investigating authority. Failure to do so entitles the
investigating authority to resort to facts available under Artic le 6.8 and Annex II of the
Anti-Dumping Agreement. The United States has neither disputed the exis tence of this rigorous
standard, nor China's interpretation of this standard. Instead, the United States attempts to shift
the debate by focusing on Tyson 's failed attempts at responding adequately to MOFCOM 's
questionnaires and trying to explain away the deficiencies of Tyson's responses. The United States
is mistaken. Tyson's conduct did not meet the rigorous standard under Article 6.8 and Annex II of
the Anti-Dumping Agreement. The reinvestigation was driven by Tyson's claims, yet Tyson was not
then prepared to comply through the provision of adequate information. Even if that was the
"best" of Tyson 's ability, MOFCOM was fully justified in resorting to facts available in light of the
fact that it did not receive the necessary information from Tyson.
IV. MOFCOM'S INJURY REDE TERMINATION WAS CONSISTENT WI TH THE
ANTI-DUMPING AND SCM AGREEMENTS
A. MOFCOM's Analysis of Underselling and Price Suppression Were Consistent
with Anti -Dumping Agreement Articles 3.1 and 3.2 and SCM Agreement
Articles 15.1 and 15.2
The United States continues to claim that MOFCOM took "no action" that complied with the 31.
Panel's instructions "to control for differences in physical characteristics affecting price
comparability" or to make any "necessary adjustments" to ensure price comparability in its
underselling analysis. As established by China, MOFCOM 's Redetermination directly responded to
the principal concerns raised by both the United States and the Panel in this proceeding.
Specifically, MOFCOM conducted on -site verifications of four producers for the purposes of 32.
collecting additional information on product -specific pricing. This approach was a reasonable and
objective method to address the issue of price comparability consistent with Article 17.6 of the
Anti-Dumping Agreement. From the information it collected MOFCOM could reasonably conclude
whether or not U.S. imports were concentrated in the low value products. This was the Panel 's
concern, and therefore MOFCOM 's approach was the direct way to address that concern. The
evidence showed that, contrary to U.S. understanding about the value of different parts of the
chicken in the Chinese market, U.S. imports were actually concentrated in high value products,
and therefore price comparisons conducted on an aggregate AUV basis would be reasonable –
there would be no risk that any price underselling showing in the comparisons would merely be the
result of product mix. The United States is unhappy with MOFCOM 's approach, but that does not
make the approach unreasonable or WTO inconsistent.
With respect to price suppression, the United States adds nothing new. It repeats the same 33.
factual arguments that China already rebutted in its First Written Submission. The only new aspect
of the U.S. argument is its insistence that an authority's obligation to establish the explanatory
force of subject imports with respect to price suppression under Articles 3.2 of the
Anti-dumping Agreement and 15.2 under the SCM Agreement is the equivalent of the causation
analysis called for under A rticle 3.5 of the Anti -dumping Agreement and Article 15.5 of the
SCM Agreement. But Articles 3.2 and 15.2 only require the authority to "consider" the "effect of
such imports" in its analysis of price suppression. The mere existence of price suppression al one is
not enough, but this does not mean that Articles 3.2 and 15.2 require a full demonstration that
subject imports caused the price suppression. This much is confirmed from the very authority cited
by the United States – the Appellate Body Report in China – GOES – in arguing the contrary
conclusion. MOFCOM's Redetermination met the relevant standard.
B. MOFCOM's Analysis of Adverse Impact Was Consistent with Articles 3.1
and 3.4 of the Anti -Dumping Agreement and Articles 15.1 and 15.4 of the
SCM Agreement
The United States complains that MOFCOM did not redo its analysis of adverse impact. This 34.
complaint, however, is misplaced for two reasons. First, since there was no measure taken to

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comply and there was no need for MOFCOM to redo its analysis, this claim is outside the Panel 's
terms of reference for this Article 21.5 proceeding. It would be fundamentally unfair to subject
China to potential consequences for acting inconsistently with Articles 3.4 and 15.4 when China
has had no chance to react to specific concerns identified by a Panel. China and other
WTO Members should not have to react to arguments, as opposed to findings by panels.
Second, MOFCOM 's finding of adverse impact completely respected the obligations of 35.
Articles 3.4 and 15.4. MOFCOM expressly considered all enumerated factors, including those raised
by the United States in its arguments. MOFCOM considered all those factors in context, putting
particular weight on the domestic industry 's consistently bad financial performance throughout the
period, and the severe ly deteriorating overall performance at the end of the period in 2008 and
early 2009. It is reasonable and objective to put particular weight on financial performance and
the more recent period. That the United States can point to some positive trends for some factors
earlier in the period does not render the MOFCOM findings unreasonable or biased. Those positive
trends were discussed, but in the end MOFCOM correctly considered all of the factors.
C. MOFCOM's Analysis of the Causal Link Was Consistent with Articles 3.1
and 3.5 of the Anti -Dumping Agreement and Articles 15.1 and 15.5 of the
SCM Agreement
The United States continues to seek an impermissible expansion of its claim #3. The 36.
United States defined that claim as ignoring certain WTO provisions " because" MOFCOM 's
determination "was not based on an examination of all relevant evidence". This language is a
specific reference to the second sentence of Articles 3.5 and 15.5. The claim does not reference
either directly or indirectly the other three se ntences of these provisions. The U.S. claim,
therefore, relates to the specific obligations found in the second sentence. The U.S. claim then
specified the two categories of evidence that were ignored as part of the very same sentence. The
claim was thus defined by reference to these two specific categories of evidence. The United States
cannot now avoid the implications of its narrowly drawn claim and add a third and entirely
different aspect about an alleged failure by MOFCOM to reconcile the causation fi nding with
improving domestic industry performance. The Panel must see this effort for what it is and limit its
consideration to the claim as it was specifically framed in the U.S. Panel Request.
Regarding the issue of chicken paws, the Panel finding o n this issue was limited to the 37.
procedural claim about proper disclosure of the MOFCOM discussion. Since the United States had
only raised the issue about chicken paws as a procedural claim under Article 12.2.2, the Panel only
addressed that issue, and MOFCOM only addressed that issue. MOFCOM fully addressed the finding
the Panel actually made regarding chicken paws. MOFCOM did pre cisely what the Panel required –
which was a cross reference to the earlier discussion of this issue in the MOFCOM preliminary
determination.
Turning to the merits of the U.S. claim, MOFCOM established the necessary causal link 38.
between subject imports and the condition of the industry, and that none of the U.S. arguments
break this causal link. To this end, the United States co ncedes that MOFCOM need only show that
subject imports contributed to the adverse condition of the domestic industry. The United States
also concedes the adverse impact from the increasing volumes of low -priced subject imports that
undersold domestic price s. These subject imports injured the domestic industry throughout the
period of investigation (as reflected by the consistent operating losses), and led to a dramatic fall
in indicators from 2007 to 2008, and in early 2009. Its rebuttal consists of an argu ment that
MOFCOM did not consider certain other facts, that MOFCOM did not examine "all" relevant
evidence. But this argument is wrong. The Redetermination shows that MOFCOM did consider "all
relevant evidence".
First, MOFCOM did not ignore the eviden ce regarding domestic market share. China 39.
addressed this point at some length in its First Written Submission. The United States simply
ignores that discussion. Second, MOFCOM did not ignore the evidence regarding chicken paws. The
United States asserts that imports of chicken paws "could not have injured the domestic industry",
but this assertion is just wrong and rests on several flawed premises about the market and the
evidence before MOFCOM. Third, MOFCOM did not ignore the evidence of correlations betw een
subject imports and the condition of the industry. The United States largely repeats is own prior
arguments, without addressing China's arguments. The United States continues to cite the change
by comparing 2006 to 2008, in a disingenuous effort to mas k the sharp decline from 2007 to

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2008, and to avoid the further decline in interim 2009. Overall, the domestic industry had an
unacceptable level of financial performance throughout the period of investigation. Finally, the
United States also makes a conse quential claim based on allegedly defective MOFCOM analysis of
price effects. But as already discussed MOFCOM did not rely on a defective analysis of price
effects.
In sum, MOFCOM established that subject imports were contributing to the adverse 40.
condition of the domestic industry, and established the requisite causal link, particularly given the
absence of any other possible causes. The Panel should uphold the Redetermination as fully
consistent with Articles 3.1 and 15.1 as well as Articles 3.5 and 15.5.
D. MOFCOM Properly Addressed Key Causation Arguments as Required by
Articles 12.2 and 12.2.2 of the Anti -Dumping Agreement and Articles 22.3
and 22.5 of the SCM Agreement
The United States reiterates its earlier argument that MOFCOM did not really address in the 41.
Redetermination the substance of the arguments made in the proceeding, but does not really
respond to China 's arguments that MOFCOM in fact did address these arguments. Regarding
domestic market share, the U.S. argument is really a complaint that MOFCOM considered all of the
evidence and put into context the single fact that the domestic industry gained market share with
all of other facts showing a domestic industry suffering material injury because of unfairly traded
subject imports. The Un ited States apparently thinks that increasing domestic share is somehow
entitled to more weight than other facts, but it is not. Regarding chicken paws, the United States
continues to argue that MOFCOM 's response was not enough, but without addressing eith er of
China's arguments. China explained how the Redetermination included new information about the
price effects of chicken paws, including specific margins of chicken paw price underselling; further,
China also explained that it made the very correction to the final determination the Panel had
suggested.
V. MOFCOM'S REDETERMINA TION WAS CONSISTENT WITH ARTICLE I OF THE
ANTI-DUMPING AGREEMENT, A RTICLE 10 OF THE SCM AGREEM ENT, AND
ARTICLE VI OF THE GATT
The United States presents no argument at all in su pport of its three consequential claims. 42.
Although these claims were raised in the Panel Request, they were no t mentioned at all in the
First Written Submission. It is not enough to raise a consequential claim in a Panel Request and
then present no argument at all. These claims have either been waived, or the United States has
failed to present a prima facie case. The United States has not responded to this legal objection at
all. The Appellate Body has made clear that (1) the complaining party bears the burden of proof
with regard to its claims, and (2) a prima facie case requires more than just an allegatio n without
any discussion of the facts or legal basis. In this dispute, the United States has made this issue
easy for the Panel by providing no discussion at all in the U.S. First Written Submission, and
essentially no rebuttal or discussion in the U.S. Se cond Written Submission. For these reasons,
whatever the Panel decides about the other U.S. claims, it must reject the U.S. consequential
claims as not having been established.
CONCLUSION
For the reasons set forth in China 's First Written Submission and Second Written 43.
Submission, China respectfully requests the Panel to reject all of the U.S. claims and to find that
the Redetermination is fully consistent with China 's obligations unde r all of the covered
agreements.

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ANNEX C-3
EXECUTIVE SUMMARY OF THE ORAL STATEMENTS OF CHINA
AT THE SUBSTANTIVE MEETING OF THE PANEL
This document summarizes the key points presented by China during its opening and closing 1.
statement at the substantial meetings with the Panel on 25 and 26 April, 2017.
China notes at the outset that the United States has effectively abandoned one of its claims 2.
under the first sentence of Article 2.2.1.1 of the Anti -dumping Agreement and its other
two claims under the second sentence. The U.S. claims that MOFCOM acted inconsistently with the
second sentence of Article 2.2.1.1 by including costs for products not subject to investigation into
the costs for the products subject to investigation.
China did not address in detail the U.S. argument concerning Pilgrim 's Pride as Panel 3.
acknowledged in its preliminary ruling on jurisdictional issues that in the original dispute, the Panel
made no specific findings of violation under the second sentenc e of Article 2.2.1.1 regarding
Pilgrim's Pride. But even if the Panel allows the U.S. claim on Pilgrim 's Pride cost allocation, the
United States merely asserted that China did not comply with the findings and has not provided
any legal or factual discussion during this proceeding. This is not enough to establish a prima facie
case.
In regards of Tyson and what it concerns the proper allocation of cost, China considers that 4.
the U.S. interpretation of the second sentence in isolation from the context provided in the first
sentence improperly eliminates the logical interrelationship between the two sentenc es, an
approach that is contrary to the U.S. interpretative approach in the original dispute. Instead, it is
China's belief that Article 2.2.1.1 focuses on the correct process to consider evidence for the
proper allocation of costs and that the second sent ence needs to be read in conjunction with the
first sentence of Article 2.2.1.1. Indeed, the "proper" allocation of costs under the second sentence
is supplemental to "reasonable" reflection under the first sentence of Article 2.2.1.1. Since China 's
weight-based allocation method does "reasonably reflect" the cost under first sentence, it should
be considered as the "proper" allocation of costs under second sentence of Article 2.2.1.1. China 's
argument is that, depending on the facts of each case, there may well be more than one "proper"
way to allocate costs. China's interpretation has not been challenged by the United States and can
be confirmed easily by looking at the text of Article 2.2.1.1 in all three authentic languages.
The United States challenges MOFCOM's decision to reject Tyson 's proposed alternative cost 5.
methodology. However, China notes that MOFCOM 's redetermination satisfies the Panel 's ruling in
the original proceeding; and that MOFCOM was entitled under Article 2.2.1.1 not to accept Tyson's
proposal as evidence since it had not been historically utilized. This has been confirmed by the
findings of the panel in US – Softwood Lumber V and the U.S. position in that case.
As to the factual grounds of this claim, China noted that during the original investigation 6.
MOFCOM found that Tyson 's records did not reasonably reflect the cost of the product under
consideration because it misused the price of offal (waste products) to estimate the cost of certain
edible products, such as paws. MOFCOM co rrected the distortion by applying a weight -based
methodology to properly allocate costs to specific models of the product under consideration.
During the reinvestigation, MOFCOM clarified the facts surrounding Tyson 's costs and MOFCOM 's
findings, and expl ained in much more detail why MOFCOM decided to adopt a weight -based
allocation for the products. In short, the problem is that Tyson tried to confuse the product subject
to investigation with products not subject to investigation to assert that MOFCOM did not properly
reallocate the cost to all products.
The Redetermination sets forth at some length the four specific reasons why MOFCOM did 7.
not accept Tyson 's alternative methodology, none of which have been shown to be unreasonable
or biased by the Unite d States. First, Tyson did not take into account weight loss resulting from
dead birds. Second, Tyson provided only the cost of product under investigation in Table 6 -3
without including weight and cost of non -subject product. Third, MOFCOM did not determi ne that

- C-19 -

the cost allocation methodology for non-subject products was unreasonable. And fourth, Tyson did
not provide the cost of live chickens used for the product concerned.
The United States essentially argues that the scope of the product concerned included blood 8.
and feathers, which is plainly false. The Redetermination shows that MOFCOM reasonably and
objectively drew a distinction between subject products and non -subject products. This distinction
is well-grounded in the anti-dumping practice and the specific facts of this particular investigation.
Moreover, Tyson was fully aware of the distinction. For example, in the original investigation,
Tyson submitted cost table 6 -3 listing many specific products, all edible, none inedible; and in the
reinvestigation, when it submitted some information on products not within the scope in its first
supplemental questionnaire response, Tyson provided that information under the heading
"inedible".
MOFCOM's definition of the subject products (i.e., edible products) is reasonable. The 9.
United States cannot require MOFCOM to use a different definition because doing so violates
Article 17.6(ii) of the Anti-Dumping Agreement – requiring MOFCOM to replace its permissible
interpretation of the like product (i.e., edible products) with a different one.
In respect of the U.S. claim under Article 6.8, China notes that Tyson did not cooperate 10.
with MOFCOM to the best of its ability, and also did not provide MOFCOM with the necessary
information as requested. Consequ ently, MOFCOM was thus forced to turn to the "facts available"
on the record –facts that were based on the data provided by Tyson. For the purpose of
implementing the findings by the original Panel, MOFCOM sought to ensure a proper separation of
processing and meat costs, and to identify the detailed processing costs incurred at each
processing step for each specific model. Yet, upon learning the result from the Panel, Tyson
complained during the redetermination proceeding that MOFCOM sought too much inform ation
while Keystone failed to cooperate in the redetermination. Tyson 's conduct did not meet the
rigorous standard under Article 6.8 and Annex II of the Anti-Dumping Agreement.
We now turn to the Article 9.4 issue. The United States argues that when an investigation 11.
is limited according to the second sentence of Article 6.10, an "all-others" rate shall not exceed the
weighted average margin of dumping of the selected respondents as per the general rule of
Article 9.4. But Article 9.4(i) does not inclu de exporters or producers that did not identify
themselves to the investigating authority for the purpose of being selected in the limited
investigation because such exporters or producers could not have been potentially included in the
selection of the pa rties to investigate. MOFCOM required all exporters to identify themselves
through registration. Those who did not register did not make themselves known to MOFCOM.
Let me turn to price suppression and underselling. The U.S. claim is that MOFCOM took 12.
"no action" to comply with the Panel 's instructions "to control for differences in physical
characteristics affecting price comparability" or to make any "necessary adjustments" to ensure
price comparability in its underselling analysis. But MOFCOM 's Redetermination directly responded
to the principal concerns raised by both the United States and the Panel by collecting the full range
of product specific pricing data from the verified producers in the reinvestigation –and by expressly
addressing the product mix issue.
First, under Articles 3.2 of the Anti -Dumping Agreement and 15.2 of the 13.
SCM Agreement, MOFCOM is free to select its own method of pricing analysis, provided it
conducts an "objective examination" of "positive evidence"; and two, the Panel did not require
MOFCOM to abandon its use of average annual AUVs. MOFCOM was simply required to "consider"
whether there was "significant" price undercutting and had ample discretion to choose its
methodology.
MOFCOM disproved the U.S. assertion that subject imports were dominated by low value 14.
products. MOFCOM examined: (1) import data compiled by China Customs; (2) export data
provided by USPEEC; (3) product-specific pricing by four domestic producers, data which was
verified during the Redeterminatio n; and (4) the prices shown on the invoices. This data proved
that imports were concentrated in high value products, suggesting that any comparison of
aggregate AUVs would work against the domestic industry, not in favor. The United States no
longer directly challenges this argument; rather, it attacks the representativeness of the domestic
data. The United States effectively conceded the point in the redetermination proceeding and now

- C-20 -

seeks to ignore this reality. But the reality is clear: in the Chinese m arket even Tyson charges
more for products like paws than products like chicken breast.1
 First, MOFCOM has the discretion to select the method it considers best depending on the 15.
particular circumstances of the investigation. And second, MOFCOM 's under selling analysis was
based on complete industry data, not the data of four producers. There was no sampling of data.
MOFCOM's limited examination of product -specific data was merely to confirm the two key points:
(1) whether U.S. imports were concentrated in lower value products; and (2) whether the overall
AUV comparison was conservative, including whether the underselling would have been higher
using product specifications. On both points, the supplemental analysis confirmed MOFCOM 's
conclusions in the original determination, an approach that is both reasonable and objective.
As to price suppression, it needs to be noted that MOFCOM considered the combined effects 16.
of increasing volume and underselling and found price suppressing effects from both. As e xplained
in the redetermination, the dumped and subsidized imports had two effects. First, they created a
situation of price undercutting. Second, they also caused price suppression, as reflected in the
decreasing profit levels. Both of these effects were the result of the dumped and subsidized
subject imports.
The United States further insists that an authority 's obligation to establish the explanatory 17.
force of subject imports with respect to price suppression under A rticles 3.2 of the
Anti-dumping Agreement and 15.2 of the SCM Agreement is equivalent to the causation analysis
under Article 3.5 of the Anti -dumping Agreement and Article 15.5 of the SCM Agreement. But
Articles 3.2 and 15.2 only require the authority to "consider" the "effect of such impo rts" in its
analysis of price suppression. The mere existence of price suppression alone is not enough, but
this does not mean that Articles 3.2 and 15.2 require a full demonstration that subject imports
caused the price suppression. In this case, MOFCOM's Redetermination met the relevant standard.
The United States complains that MOFCOM did not redo its entire analysis of adverse impact. 18.
But contrary to the U.S. complaints, the Panel did not make a finding requiring MOFCOM to carry
out its analysis anew.
In its redetermination, MOFCOM listed the injury factors, and then provided an explicit 19.
overall discussion of how those factors interacted and how subject imports were explaining that
adverse impact. MOFCOM was careful in drawing an explicit link t o both lower domestic prices and
lower domestic profits. MOFCOM also discussed the causal link extensively, and explained how the
subject imports were linked to specific injury indicators. The increasing volume and market share
of low priced subject imports led MOFCOM to conclude: (1) such imports had a "material impact on
the sales price" of the domestic industry; (2) the domestic industry could not "reach a reasonable
profit margin"; (3) domestic industry capacity utilization "has been on a relative low l evel"; (4) the
return on investment was on a "relative low level"; and (5) the inconsistent cash flow "impacted
the investment and financing". Articles 3.4 and 15.4 expressly include these as injury factors.
The other arguments raised by the United St ates also miss the point. Contrary to the 20.
U.S. argument, the prospect of future imports is not irrelevant to MOFCOM 's current injury
analysis. China presented a specific argument regarding the meaning of the key phrase "potential
decline". In China 's opini on, this language contemplates a forward -looking analysis. The
United States simply ignores this part of the text of Article 3.4 and instead cites to language from
the decision of the Appellate Body in China – GOES that was not addressing this specific issue. The
United States has simply not responded to China's argument based on the text.
The weak capacity utilization reinforced the severe financial problems of the domestic 21.
industry, and reinforced MOFCOM 's finding of current material injury. First, the United States has
not seriously challenged MOFCOM's finding about increasing inventories; in fact, it largely dropped
this part of its claim and does not address at all the increase in inventory in 2009. The U.S.
argument on adverse impact thus comes down to its argument about capacity utilization. Yet by
focusing on one or two of the many injury factors, the United States misses the point that
although the authority must address each factor, the authority need no t show that each individual

1 See, e.g.,
https://list.tmall.com/search_product.htm?q=%CC%A9%C9%AD&type=p&vmarket=&spm=875.7931836%2F
B.a2227oh.d100&from=mallfp..pc_1_searchbutton (listing Tyson chicken prices in China).

- C-21 -

factor by itself has been linked to subject imports. The authorities are to consider all the factors,
but then consider them as a whole when making the broader conclusion that subject imports have
explanatory force with regard to the condition of the domestic industry.
The evidence on the record fully supports MOFCOM 's finding. China 's argument is 22.
straightforward: by definition, any volume of subject imports was having some impact on the
excess domestic capacity. Any volume not supplied by subject imports would have been available
for domestic suppliers. Even if non -subject imports supplied some of that volume, domestic
suppliers would also have supplied some and therefore, would have had higher capacity utilization.
Instead, the United States argues that there was low capacity utilization because of 23.
expanding domestic capacity. Regardless, the rate of utilization would have been higher, but for
the presence of increasing volumes of subject imports.
MOFCOM properly fo cused on the actual situation of the domestic industry, and properly 24.
found material injury consistent with Articles 3.4 and 15.4.
Let me briefly touch on the issue of causation. We refer the Panel to paragraph 31 of the 25.
U.S. opening statement and the U .S. claim that MOFCOM in i ts redetermination ignored
U.S. arguments concerning increasing market share. There, the United States cites to a single
page in the redetermination and contends this constitutes MOFCOM 's entire analysis of the market
share issue as contended by China in its First Written Submission. The United States ignores other
sections of China 's First Written Submission, such as paragraph 385, where China demonstrated
that MOFCOM took into account all the factors as a whole, including market share. The
United States also ignored China 's discussion of this issue at parag raphs 345 and 346 of its
Second Written Submission. But perhaps most glaring is that the United States ignored MOFCOM 's
specific response to this U.S. argument about market shar e at page 79 of its Redetermination,
which is provided as Exhibit China -1. The redetermination, read as a whole, clearly addresses and
responds to the U.S. argument.
China wishes to conclude its remarks with two very important matters that we believe play a 26.
very important role and that came to a head during these meetings.
The first is the standard of review under Article 17.6. A Panel 's role is to review the 27.
authority's determination, but not to arrive at its own separate conclusion about what the Panel
would have done under similar circumstances. To this end, we expect the Panel to conclude that if
MOFCOM's redetermination was reasonable, it will be upheld, even if the Panel would have
approached the matter differently.
Second, China believes it is extremely important to establish and respect who bears the 28.
burden of proof in this proceeding. China requests the Panel to review whether the United States
has met its own burden by presenting evidence in support of its claim. To this end, the fact t hat
China has produced a document at the request of the Panel does not necessarily mean that t he
burden has shifted to China.

- D-1 -

ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Integrated executive summary of the arguments of the European Union D-2
Annex D-2 Integrated executive summary of the arguments of Japan D-4

- D-2 -

ANNEX D-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. This executive summary integrates comments made by the European Union at the
Third Party Hearing on 26 April 2017.
2. On the United States' procedural claims relating to disclosure requirements , the
European Union notes that following the Panel's Preliminary Ruling of 22 March 2017, the
United States' claims under Articles 6.1.2 and 6.2 of the Anti -Dumping Agreement (ADA) are
outside the Panel's terms of reference, while the United States' claim s under Articles 6.1 and 6.4
ADA are within the Panel's terms of reference.
3. The European Union considers that Article 6.4 ADA is more directly relevant to the alleged
omission than Article 6.1 ADA. The data provided by the domestic firms, which was the main pillar
of the revised price effects analysis, is "relevant information" "used by the authorities" pursuant to
Article 6.4. MOFCOM thus had to give interested parties a timely opportunity to see such
information and prepare presentations accordingly. "Timely opportunities" means that the
information must be made available early enough in the process, so that the comments can still be
taken into account in the decision -making of the investigating authorities. The European Union
invites the Panel to closely scrutinize whether this was the case here.
4. The European Union is of the view that the obligations set out in Article 6.1 ADA (both
alternatives) concern information requests to those parties that are supposed to hold the relevant
information. It should not be read as establishing a general obligation to systematically notify any
information request to all players in the investigation, regardless of whether the information
required falls within their remit.
5. On Article 6.9 ADA , the European Union c onsiders that calculations employed by an
investigating authority to determine dumping margins, and the data underlying the authority’s
calculations, constitute essential facts pursuant to Article 6.9. As far as the redetermination is
concerned, this means that all data and calculations for determining this duty must be disclosed,
including data from the original investigation, if it was determinative/ relied on in the
redetermination. On the other hand, data from the original investigation which had no dir ect
relevance for the re -determined duty would not qualify as an essential fact. Where facts available
are used to determine a duty, the same disclosure obligation applies in principle. Thus, specific
data and calculation methods used must be disclosed, su bject to the requirements of Article 6.5
ADA.
6. Regarding the United States' claims on dumping , the European Union's position is that
Article 2.2.1.1 ADA sets up a substantive obligation of proper cost allocation, not just a
procedural obligation to consider evidence. Such a procedural obligation would be void and empty
if it did not reflect, and were not tied to, the existence of a substantial obligation. In this regard,
the European Union agrees with the original Panel 1 and the panel in EC – Salmon (Norway)2 that
the allocation method applied by an investigating authority must not result in the calculation of a
cost of production that includes costs not "associated" with production and sale of this product in
the period of investigation. The European Unio n also agrees with the United States that the
allocation method used must be applied consistently. Thus, if the allocation is done on the basis of
weight, and not value, costs which occur with regard to the whole chicken, must be spread over all
products a ccording to their weight, even if they generate little value – to the extent they are
associated with the product in question.
7. On the use of facts available pursuant to Article 6.8 ADA, the European Union stresses that
the aim of the provisions on the u se of facts available is not to punish non -cooperating interested
parties. It is to allow investigating authorities to arrive at accurate determinations based on
reliable data, where interested parties do not provide such data. Thus, an investigating authority is

1 Panel Report, paras. 7.196-7.197.
2 Panel Report, EC – Salmon (Norway), paras. 7.491, 7.507.

- D-3 -

allowed to replace any necessary information that has been requested from an interested party but
has not been provided, whatever the reason for not providing it (non -cooperation or not). To the
extent that information is not missing, for instance because the respondent has provided partial
information, it cannot be replaced3, unless it is unreliable. Non-cooperation is one case where data
is considered unreliable, but there are others, as Annex II.3 ADA shows. Untimely submission
which makes a nece ssary verification impossible is one example. Another example, a selective
submission of data, where one sub -set of data is provided but not another one, may cast doubts
on the reliability of the whole data set. In this context, costs of production have be en identified as
a particularly crucial sub -set of data, the absence of which may very well have ramifications
beyond the pure cost analysis. If an investigating authority wants to disregard data as unreliable,
the burden of substantiating the unreliabilit y falls on the authority; lack of cooperation will make
findings of unreliability more plausible.
8. Regarding the United States' claims relating to the findings on injury, as far as the price
effects analysis under Article 3.1 ADA is concerned, the Europe an Union notes that the
requirement to base the "determination of injury" on positive evidence and an objective
examination extends to all fundamental elements of the injury analysis. Any finding on this issue
should thus be supported by "positive evidence " pursuant to Article 3.1 ADA (i.e., evidence of an
affirmative, objective and verifiable character, which is credible 4), which is gathered, inquired into
and, subsequently, evaluated in a way that conforms to the basic principles of good faith and
fundamental fairness. The analysis must be based on data which provides an accurate and
unbiased picture of what it is that one is examining 5. The European Union acknowledges that
where samples are used, the samples must be "properly representative of the domesti c industry"6.
Samples that represent a too low proportion of the domestic industry can be problematic.
9. However, in the European Union's view, the standards for representativeness of samples for
general price levels of products (as at stake in the prese nt case) are not necessarily the same as
for samples on price trends. Price trends depend on a range of factors and easily vary from one
segment of the industry to another, in particular due to different economic performance of
different segments of the in dustry. On the other hand, the European Union would a priori imagine
that the difference in value of certain product types is less likely to change fundamentally
according to which segment of the industry is being looked at, as it does normally not depend on
the economic performance of the industry segment in question. Depending on the circumstances
of the case, a smaller sample could thus be sufficient for assessing differences in value of product
types.
10. On the impact analysis under Article 3.4 ADA, the European Union expects that the Panel
will be guided by the high standard that the Appellate Body has set in this field. According to this
standard all factors having a bearing on the state of the industry must always be evaluated by the
investigating a uthorities in every investigation 7; this evaluation consists of an analysis and
interpretation of the facts established in relation to each listed factor, its role, relevance and
relative weight8. Where several factors show positive trends, an overall eval uation of all factors
becomes even more indispensable. This evaluation, which puts data on all factors in context to
each other, must explain why and how, despite the positive factors , the domestic industry was
injured, and whether and how the positive movements were outweighed by any other factors9.
11. The Panel might wish to examine in particular the two main aspects highlighted by China,
namely the weaker financial indicators and the trends in the first half of 2009, in order to assess
how "heavy" they weigh in relation to the other factors examined, in particular those that were
positive. The European Union invites the Panel to assess carefully whether the consideration that
China submits it has given to all relevant factors is apparent not only from t he submissions to the
Panel, but duly reflected in relevant documentation from the investigation10.

3 Appellate Body Report, Mexico – Anti-Dumping measures on Rice, para. 288.
4 Appellate Body Reports, US – Hot-Rolled Steel, para. 192; China – GOES, para. 126.
5 Appellate Body Reports, US – Hot-Rolled Steel, para. 193; China – GOES, para. 126.
6 Appellate Body Report, EC – Fasteners (China), paras. 435–436.
7 Appellate Body Reports, China – HP-SSST, paras. 5.203-5.209, and cases cited therein.
8 Panel Reports, Egypt – Steel Rebar, paras. 7.42-7.51; EC – Tube or Pipe Fittings, para. 7.314
9 Panel Reports, Thailand – H-Beams, paras. 7.249 and 7.255; Korea – Certain Paper, para. 7.273.
10 Appellate Body Report, China – GOES, para. 131.

- D-4 -

ANNEX D-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
1. In this proceeding, Japan addresses its views on systemic aspects regarding the
interpretation of Articles 2.2.1.1, 3.1, 3.2, and 6.9 of the Agreeme nt on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (the "ADA") and Articles 15.1
and 15.2 of the Agreement on Subsidies and Countervailing Measures (the "SCM"), as well as
regarding its view on judicial economy regarding the claims under ADA Article s 3.4 and 3.5 and
SCM Articles 15.4 and 15.5. Japan does not take any particular position on factual aspects on this
dispute.
I. MOFCOM'S Analysis of Price Comparability under ADA Articles 3.1 and 3.2 and
SCM Articles 15.1 and 15.2
2. The original panel found that the product mix of the subject impor ts and that of the
domestic like products varied considerably. The subject imports were composed of limited parts of
chicken products, including a high proportion of paws, legs, wings and gizzards, whereas the
domestic like products included all other parts of chicken , including breast meat.1 Despite such
difference, MOFCOM simply compared their average unit values (AUVs) and found that the subject
imports had undersold the domestic like products.2 The panel found that the evidence showing
price differences between different chicken parts "should [] have alerted MOFCOM to the fact that
the outcome of its price comparison would be affected by the composition of each of the product
'baskets'".3 The original panel thus found that MOFCOM failed to ensure pri ce comparability in
terms of product mix in violation of ADA Articles 3.1 and 3.2 and SCM Articles 15.1 and 15.2.
3. In this dispute, the United States alleges that , MOFCOM collected product -specific pricing
data from four out of the seventeen domestic producers that constituted the domestic industry in
the course of the Reinvestigation4. According to the United States, MOFCOM found that, these data
from the four domestic producers show that chicken paws, legs, wings and gizzards were priced
higher than oth er parts of chicken , indicating that subject import s consisted primarily of
higher-value products, not lower-value products as respondents alleged.5 MOFCOM thus concluded
in the Redetermination that "the price undercutting reflected in the average price di fference is not
caused by different product mix".6
4. The United States argues in its first written submission that MOFCOM still failed to ensure
the price comparability, because MOFCOM failed to establish that the data collected from only four
domestic producers were sufficiently representative of the prices of the domestic like products. 7
The United States also argues that MOFCOM's analysis of price comparability is deficient.
5. China argues that MOFCOM 's additional findings based on the product -specific price data in
the Reinvestigation were made only to establish that the comparison based on the overall AUVs did
not negatively bias the US producers.8 China explains that "[i]f any bias existed in the comparison,
it in fact favored U.S. producers, not the domestic industry, since U.S. imports were shown to be
concentrated in high value products whereas the domestic industry sold the full spectrum of
domestic like product."9

1 Panel Report, China – Broiler Products, para. 7.490.
2 Panel Report, China – Broiler Products, paras. 7.490-494.
3 Panel Report, China – Broiler Products, para. 7.493.
4 United States' first written submission para. 145.
5 United States' first written submission, para. 134.
6 United States' first written submission, para. 38, quoting RID, Section VII (ii) (2) p. 18-19
(Exhibit USA-8).
7 United States' first written submission, paras. 145-149.
8 China's first written submission, para. 288. ("MOFCOM made additional findings about product-specific
underselling based on the available data. But these findings were only to establish there was no bias in using
the overall AUV approach.")
9 China's first written submission, para. 274.

- D-5 -

6. Japan agrees with the United States that the analysis of price effects of the subject imports
on the domestic like products would not be performed properly unless MOFCOM would show that
the product-specific price data collected by MOFCOM were sufficiently representative of the entire
sales of the domestic like products. O ther domestic producers , who were not reinvestigated by
MOFCOM, may have different product-specific pricing. Thus, the investigating authority must make
sure that t he sales data on the chicken paws, legs, wings and giz zards collected from a limited
number of domestic producers are sufficiently representative of the entire sales by the domestic
industry.
7. In addition to the above, Japan notes that the need to ensure the price comparability
between the subject imports and the domestic like products in conducting the price effects analysis
is well-established in the WTO jurisprudence. According to the Appellate Body in China – GOES,
"[a]s soon as price comparisons are made, price comparability necessarily arises as an iss ue."10
The Appellate Body has stated that a failure to ensure price comparability is inconsistent with the
requirement under ADA Article 3.1 and SCM Article 15.1 , which provide that a determination of
injury be based on "positive evidence " and involve an "objective examination ".11 The Appellate
Body has emphasised that "if subject import and domestic prices were not comparable, this would
defeat the explanatory force that subject import prices might have for the depression or
suppression of domestic prices ."12 The requirement to ensure the price comparability between the
subject imports and the domestic like products is therefore an integral aspect of the obligation to
consider the price effects of subject imports under ADA Article 3.2 and SCM Article 15.2.
8. The requirement to ensure the price comparability between them is supported by the notion
of the "logical progression of inquiry " under ADA Article 3 and SCM Article 15. Drawing on this
notion, the panel in China – X-ray Equipment stated, in the context of ADA Article 3, that:
It is precisely because the price undercutting analysis under Article 3.2 ultimately
must be used to assess whether dumped imports "through the effects of dumping, as
set forth in paragraphs 2 and 4 " are causing injury to the domesti c industry, that it is
necessary to ensure the prices that are the subject of an undercutting analysis are
comparable.13
9. As the panel in China – X-Ray Equipment also correctly observed, prices of the subject
imports and the domestic like products are not comparable if they are not in a competitive
relationship, and consequently do not interact to each other in the domestic market. The original
panel also stated to this effect: "the focus of the comparison performed under ADA Article 3.2 and
SCM Article 15.2 is on the competitive relationship".14
10. Recently, the Appellate Body has confirmed in China – HP-SSST (Japan) / China – HP-SSST
(EU) that the analysis "must provide a meaningful basis for subsequently determining whether the
dumped imports are causing injury to the domestic industry within the meaning of Article 3.5 of
the Anti-Dumping Agreement."15 Accordingly, in order to reach the ultimate determination of the
causation, "[a]n examination of the competitive relation ship between products is … required so as
to determine whether such products form part of the same market."16
11. It is therefore irrelevant whether the product-mix difference between the subject imports
and the domestic like products would work in favour of the former or the latter. Japan considers
that in this regard, China 's argument does not speak to the propriety of such comparison and
cannot cure the flawed price comparability analysis.
12. Japan also notes that the likeness finding between the product under investigation and the
domestic like products as a whole would not provide sufficient basis to conclude that each

10 Appellate Body Report, China – GOES, para. 200.
11 Appellate Body Report, China – GOES, para. 200.
12 Appellate Body Report, China – GOES, para. 200.
13 Panel Report, China – X-Ray Equipment, para. 7.50. See also Panel Report, China – Broiler Products,
para. 7.475. See also Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU), para. 5.162.
14 The original panel expressly stated that "the focus of the comparison performed under Articles 3.2
and 15.2 is on the competitive relationship between subject imports and domestic like products in the market
of the importing Member". Panel Report, China – Broiler Products, fn 737.
15 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU), para. 5.180.
16 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU), para. 5.262.

- D-6 -

individual type of the products under investigation competes with, and accordingly are comparable
with, each of the domestic like products.
13. In this regard, the panel in China – X-ray Equipment clarified that an investigating
authority's conclusion of "likeness" for the purpose of defining the product under consideration and
the domestic like products cannot automatically form the basis for the price comparability between
individual products. The panel in China – Autos (US) also noted, "these issues arise at and relate
to different stages of an investigation "17, and accordingly, "[e]ven granting that a like product
determination may be relevant as the starting point of an assessment of price comparability…it will
not always be determinative".18
14. As the original panel found, "evidence of [price differences between different chicken parts]
should in our view have alerted MOFCOM to the fact that the outcome of its price comparison
would be affected by the composition of each of the product 'basket' [and would] have required
MOFCOM to take necessary steps to ensure price comparability ".19 As discussed above, it is
irrelevant whether the difference in product -mix would favo ur the US imports or the domestic
products. The focus should be on whether, for example, chicken gizzards and ch icken breasts are
in a competitive relationship and thus comparable for the purpose of price effects analysis. If the
average price of chicken gizzards is substantially higher than that of chicken breasts in the Chinese
market, this suggests that different parts of chicken may have limited substitutability and a weak
competitive relationship. If this is the case, a price undercutting of chicken gizzards would have
little, if any, effects on the price of chicken breasts and thus the AUV comparison between th e
broad basket of the subject imports and that of the domestic like products would be inappropriate
for the purpose of the price effect analysis under Articles 3.2 and 15.2 . Japan invites the Panel to
take into account these legal considerations in deciding on this issue in this dispute.
II. The Practice of Judicial Economy r egarding the United States ' claims under ADA
Articles 3.4 and 3.5 and SCM Articles 15.4 and 15.5
15. The original panel found that MOFCOM 's price effects analysis was inconsistent with ADA
Article 3.2 and SCM Article 15.2. With respect to the United States' claims under ADA Article s 3.4
and 3.5 and SCM Article s 15.4 and 15.5, the panel exercised judicial economy and did not make
any findings . The panel stated that making additional findi ngs with regard to ADA Article s 3.4
and 3.5 and SCM Article s 15.4 and 15.5 would not assist the resolution of the dispute, because
"[i]mplementing the Panel 's findings with respect to MOFCOM 's price effects analysis will require
China to re-examine MOFCOM's Determination concerning the impact [and causation]".20 However,
in implementing the original panel 's finding with respect to the price effects, MOFCOM did not
change its impact analysis in the re-determination.
16. In this compliance proceeding, China alleges that MOFCOM was not in a position to change
its impact analysis and causation analysis, given that the original panel exercised judicial economy
and did not make any findings on whether its impact and causation analyses are WTO consistent.
Irrespective of whether China 's allegation is correct or wrong, Japan considers that it might have
assisted in resolving this issue of dispute had the panel made findings with respect to ADA
Articles 3.4 and 3.5 and SCM Articles 15. 4 and 15.5.
17. In this respect, Japan recalls that the Appellate Body has stated, in Australia – Salmon that
"the principle of judicial economy has to be applied keeping in mind the aim of the dispute
settlement system......A panel has to address those claims on which a finding is necessary in order
to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for
prompt compliance by a Member ."21 A panel should carefully assess how its findings or
non-findings regarding a claim would affect the Member 's implementation of DSB
recommendations and rulings.

17 Panel Report, China – Anti-Dumping and Countervailing Duties on Certain Automobiles from the
United States, fn 441.
18 Panel Report, China – Anti-Dumping and Countervailing Duties on Certain Automobiles from the
United States, para. 7.278.
19 Panel Report, China – Broiler Products, para. 7.493. See also Appellate Body Report, China –
HP-SSST (Japan)/China – HP-SSST (EU), para. 5.181 ("a proper analysis of price effects ought to have taken
into account the fact that there were significant differences in the prices of these product types.").
20 Panel Report, China – Broiler Products, paras. 7.555, 584.
21 Appellate Body Report, Australia – Salmon, para. 223. (underline added).

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18. In the Panel's preliminary ruling of 22 March 2017 , the Panel held that the claims of the
United States under ADA Articles 3.4 and 3.5 and SCM Articles 15.4 and 15.5 we re within the
terms of reference for this compliance proceeding . To secure a positive resolution of the current
dispute, Japan encourages the Panel to make findings with respect to the claims of the
United States that are within the terms of reference for this compliance proceeding.
III. Proper Allocation of Costs under ADA Article 2.2.1.1
19. With respect to ADA Article 2.2.1.1, Japan agrees with the United States that the
investigating authority is required to evaluate all available evidence and undertake a "proper"
allocation of cost to calculate the normal value. On this point, the original panel suggested that the
investigating authority may weigh in mind the facts of a particular case under inve stigation when
considering the evidence relating to cost allocation methods.
20. ADA Article 2.2.1.1 read together with Article 2.2, for the purpose of this paragraph,
provides conditions an investigating authority needs to satisfy when constructing the no rmal value
on the basis of production costs in the country of origin. Japan understands that in principle, the
normal value should be an appropriate proxy of the price in the "ordinary course of trade " for the
products when destined for the consumption in the exporting country . Japan notes that in
circumstances where a certain part of joint -products has little commercial value in the exporting
country's market, while all joint products are commercially marketed in the importing market , due
to consumers' different eating habits, such fact s in a particular case may need to be taken into
account in calculating the dumping margin. The question is whether an investigating authority can
take into consideration the actual market practices of relevant countries , such as differences in
consumers' perceptions, as against only evidence s of exporting countries , when deciding the
proper allocation of costs.
21. In the original panel proceeding there was a debate on whether the investigating authority
should have used weight-based cost allocation or value-based cost allocation. The issue disputed
could be understood as whether the investigating authority may take into consideration the
relevant countries ' proper market practices under the circumstances of the case . In t his
compliance proceeding, the United States focused its argument on MOFCOM 's use of alleged
distortive weight -based allocation methodology in its redetermination, and challenged that
MOFCOM's cost allocation methodology was not "proper". Japan considers that whether or not the
cost allocation is "proper" cannot be determined in the abstract. If the investigating authority
chooses to deviate from the cost allocation used by exporters and foreign producers, it should
adhere to the actual market practices of the relevant countries and fully explain its deviation. In
this regard, Japan views that China has not adequately explained why MOFCOM 's decision
regarding cost-allocation was "proper" based on the market practices of the relevant countries.
IV. Disclosure of Essential Facts
22. Finally, Japan would like to emphasise the importance of the disclosure of "essential facts"
which form the investigating authority 's basis of determination, pursuant to ADA Article 6.9.22 The
necessity to secure the transparency and due process of interested parties in anti -dumping
investigations remains the same under reinvestigations. ADA Article 6.9 obliges the authorities to
inform interested parties of the body of facts necessary for the authorities' process of analysis. In
other words, disclosure by investigating authorities should provide the interested parties with the
necessary information that enables them to comment on the completeness and correctness of the
facts being considered by the investigating authority, and thus ensure a fair determination by the
investigating authority. In light of the above, while Japan takes no position on the factual issues of
this case, Japan respectfully request the panel to review the consistency o f MOFCOM's disclosure
during its reinvestigation with AD Agreement Article 6.9.

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ANNEX E
PRELIMINARY RULING
Contents Page
Annex E-1 Ruling by the Panel on jurisdictional issues dated 22 March 2017 E-2

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ANNEX E-1
RULING BY THE PANEL ON JURISDICTIONAL ISSUES
22 March 2017
1 INTRODUCTION
1.1. In its written submissions, China has requested that the Panel rule a number of claims
outside its jurisdiction. To enable the parties to better focus their arguments at the substantive
meeting, we have decided to resolve at this stage of the proceeding China's assertions that certain
US claims set out in its panel request 1 are outside the Panel's terms of reference either because
they do not comply with Article 6.2 of the Dispute Settlement Understanding (DSU), or as a
consequence of the Panel's exercise of judicial economy in the original dispute.
2 ARTICLE 6.2 OF THE DSU
2.1 Arguments of the parties
2.1.1 China
2.1. Claims under AD Agreement Articles 6.1.2 and 6.2 and SCM Agreement Article 12.1.2 are not
within the Panel's terms of reference because they are not set out in the panel request.
2.2. The claim under the second sentence of AD Agreement Article 2.2.1.1 in respect of
Pilgrim's Pride is not within the Panel's terms of reference because:
a. the Panel made no findings in respect of Pilgrim's Pride under the second sentence of
Article 2.2.1.1 in the original dispute2;
b. cost allocation issues with regard to Pilgrim's Pride were not addressed by MOFCOM in
the redetermination, and are therefore not befor e the Panel, and the original
determination in this respect cannot be raised in this Article 21.5 proceeding3; and
c. the narrative language of the panel request concerns cost allocation issues related to
Tyson and is unrelated to the reinvestigation of Pilgrim's Pride.4
2.3. Claims under AD Agreement Articles 6.1 and 6.4 and SCM Agreement Articles 12.1 and 12.3
are not within the Panel's terms of reference because the panel request does not identify the
specific measure 5 and does not "present the problem clearly". In particular, the panel request
refers, as "an example", to documents that do not exist (i.e. questionnaires).
2.4. The United States asserts in its first written submission that MOFCOM failed to reconcile its
causation analysis with the improving domestic ind ustry performance. This assertion constitutes a
new element of the claim under AD Agreement Articles 3.1 and 3.5 and SCM Agreement

1 Request for the establishment of a panel by the United States, WT/DS427/11 and

2 China's first written submission, para. 131; second written submission, paras. 199 and 202.
3 China's first written submission, para. 133.
4 China's first written submission, para. 134; second written submission, paras. 197 and 198.
5 China's second written submission, para. 82:
[T]he United States general reference to measures imposing AD/CVD duties to U.S.
products, accompanied with the reference to the Redeterminati on without any
further specification, does not fulfil the requirements of Article 6.2 of the DSU since
it fails to identify with sufficient precision the challenged measure.
China's second written submission, para. 83: "China is arguing that the United States has failed to identify the
measure".

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Articles 15.1 and 15.5 that had not been set out in the panel request. In partic ular, the use of the
word "including" in the panel request, as opposed to "including but not limited to", indicates an
intention on the part of the United States to set out an exhaustive list of the elements of its claims
under these provisions.
2.1.2 United States
2.5. In respect of the US claims under AD Agreement Articles 6.1.2 and 6.2 and SCM Agreement
Article 12.1.2, "China's argument is misplaced beca use it rests on an erroneo us assumption: that
the United States simply cited AD Agreement Article 6 and SCM Agree ment Article 12 – and
nothing more. "6 In fact, the panel request "explicitly references A D Agreement Article 6.1 and
SCM Agreement Article 12.1 "7; thus, t he United States "narrowed its concerns to those that flow
from AD Agreement Article 6.1 and SCM Agree ment Article 12.1 ".8 The findings of the Appellate
Body in respect of DSU Article 23 in US – Countervailing Measures on Certain EC Products that
"there is a close relationship between the obligations set out in paragraphs 1 and 2 of Article 23 "9
and finding a claim within the panel's terms of reference as a result are "directly on point" in this
context. In a similar way, the claims at issue are " a particular application of the broader obligation
in AD Agreement Article 6.1 and SCM Agreement Arti cle 12.1".10 The claims are included in the
claims under Articles 6.1 and 12.1 because the "factual predicate" is the same as that of the
claims under Articles 6.1 and 12.1.
2.6. Regarding its claim under Article 2.2.1.1 with respect to Pilgrim's Pride, the Uni ted States
asserts:
The Panel Request clearly states that the United States is bringing a claim under the
second sentence of Article 2.2.1.1. Moreover, the language the United States uses is
with respect to "producers," not simply Tyson . There is no reason from the language
of the claim to believe that the United States circumscribed its claim with respect to
Tyson only.11
"[T]he DSU requires identification of measures and claims – not particular interested parties ."12
Because the Panel's findings under the s econd sentence of Article 2.2.1.1 in the original report
were "with respect to consideration of allocation methodologies and allocation of processing [costs]
extended to all respondents, including Pilgrim 's Pride"13, this matter falls within the jurisdictio n of
the Panel.
2.7. The "example" referred to in connection with the claim under AD Agreement Article 6.1 and
SCM Agreement Article 12.1 in the second sentence of paragraph 5 of the panel request is "wholly
unnecessary" to the statement of the US claim as it w as "simp ly a preview of what the
United States might argue in its submissions". 14 In particular, "[t] he questionnaire is not the
measure at issue; the continued imposition of AD and CVD duties are, including the conduct of the
reinvestigation".15
2.8. In respect of the claim under AD Agreement Article 6.4 and SCM Agreement Article 12.3 , the
United States maintains it is clear that " the measures at issue are those that continue to lead to
imposition of AD and CVD duties on U.S. broiler products";16 the second sentence example simply
foreshadows US arguments. In particular, the reference to questionnaires is simply an example.

6 United States' second written submission, para. 203.
7 United States' second written submission, para. 204.
8 United States' second written submission, para. 204.
9 United States' second written submission, para. 205 (quoting Appellate Body Report, US –
Countervailing Measures on Certain EC Products, para. 111).
10 United States' second written submission, para. 205.
11 United States' second written submission, para. 212. (emphasis added)
12 United States' second written submission, para. 211.
13 United States' second written submission, para. 213.
14 United States' second written submission, para. 195.
15 United States' second written submission, para. 197.
16 United States' second written submission, para. 207.

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Whether MOFCOM called its information requirements a questionnaire, or verification,
or anything else, the critical point is that MOFCOM did n ot provide a timely
opportunity to see the information it obtained from Chinese domestic producers.17
2.9. In respect of the claim under AD Agreement Article 3.5 and SCM Agreement Article 15.5 ,
"China conflates claims with arguments".18 Responding to the arguments of China in respect of the
scope of the term "including" in the panel request:
What panel and the Appellate Body have appropriately recognized is that the term 's
open-ended meaning cannot be used to keep claims undefined . At no time has any
panel or the Appellate Body ever found that it cannot be used as part of an indication
to preview some – but not all – arguments.19
2.2 Relevant Law
2.10. Articles 7 and 6.2 of the DSU govern the jurisdiction of the Panel. Article 7 provides that,
unless the parties agree otherwise, a panel shall have the standard terms of reference set out in
that provision, which encompass the "matter referred to the DSB" by the complainant in the
request for establishment. Article 6.2 sets out the requirements for a request for establishment of
a panel (panel request), which describes the "matter referred to the DSB" and thus establishes the
parameters of the jurisdiction of the panel. Article 6.2 states:
The request for the establishment of a panel shall be made in w riting. 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.
2.11. It is well settled that:
a. The "matter" referred to the DSB comprises the measure(s) at issue and the claims as
set out in the request for establishment.20
b. Where a matter, including claims, does not satisfy the requirements of Article 6.2, it is
not within the jurisdiction of the panel.21
c. To determine whether a matter or a claim falls within the terms of reference of the
panel, the panel request should be read in its entirety.22
d. A defect in the panel request may not be "cured" in later submissions.23
e. The use of terminology such as "including" "cannot operate to include any and all other
claims not specifically included in the request".24
f. There is a difference between the claims of a complainant and its arguments in support
of those claims. The Panel may only address the claims set out in the panel request.
However, arguments need not be included in the request for establishment, and a party
may raise any arguments in support of those claims it wishes. Moreover, a panel is not
limited to arguments submitted by the parties in resolving the matter before it, but may
develop its own reasoning.25

17 United States' second written submission, para. 207.
18 United States' second written submission, para. 220.
19 United States' second written submission, para. 221.
20 Appellate Body Report, Guatemala – Cement I, para. 72.
21 Appellate Body Reports, Brazil – Desiccated Coconut, p. 22, DSR 1997:I, p. 186; and US – Carbon
Steel, para. 126.
22 Appellate Body Report, US – Carbon Steel, para. 127.
23 Appellate Body Report, EC – Bananas III, para. 143.
24 Appellate Body Reports, EC – Fasteners (China), para. 597; and India – Patents (US), para. 90.
25 Appellate Body Reports, India – Patents (US), para. 88; and EC – Hormones, para. 156.

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g. Article 6.2 protects Members' due process interests in the course of dispute settlement.26
At the same time, the procedural rules of the WTO should not be used as litigation
techniques, but so as to promote the fair, prompt and effective resolution of disputes.27
h. A panel has the inherent jurisdiction to determine whether a matter falls within its terms
of reference, and may need to do so even in the absence of any request by a party.28
2.3 Analysis
2.3.1 Claims under AD Agreement Articles 6.1 .2 and 6.2 and SCM Agreement
Article 12.1.2
2.12. DSU Article 6.2 requires that a complainant "identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint" . It is axiomatic that "the listing of the
treaty provision(s) allegedly violated is normally a prerequisite for a panel request to be consistent
with Article 6.2 of the DSU ".29 At the same time, because a finding under DSU Article 6.2 goes to
the parameters of our jurisdiction, deciding whether a claim is sufficiently set out in the panel
request is not a mechanical task. Rather, we are required to read the panel request in its entirety ;
the statement of a claim may be inferred from the totality of a panel request, such that a
complainant's failure to list a specific provision would not necessarily deprive a panel of jurisdiction
to address a claim under that provision.30
2.13. The question before us in this proceeding is whether the US claims under AD Agreement
Articles 6.1.2 and 6.2 and SCM Agreement Article 12.1.2, as argued in its first written submission,
were properly set out in the panel request. Paragraph 5 of the panel request states:
Article 6.1 of the AD Agreement and Article 12.1 of the SCM Agreement beca use
during the reinve stigation MOFCOM did not provide notice of the information that
MOFCOM required and did not provide interested parties ample opportunity to present
in writing all evidence they considered relevant. For example, MOFCOM did not
disclose the questionnaires it submitted to Chinese domestic producers during the
re-investigation.31
On its face, the panel request does not refer to AD Agreement Articles 6.1.2 and 6.2 and
SCM Agreement Article 12.1.2.

2.14. China's jurisdictional challenge is simple: AD Agreement Arti cle 6.2 is not referred to in the
panel request. The United States does not make any arguments in response to China's arguments.
In the absence of any response from the United States that would explain that a claim under that
provision is nonetheless set o ut in the panel request, we conclude that no claim under
AD Agreement Article 6.2 is properly before us in this dispute.
2.15. According to the United States, the claim in respect of AD Agreement Article 6.1.2 and
SCM Agreement 12.1.2 may be understood to be wi thin the terms of reference under paragraph 5
of the panel request, because:
a. the US panel request "explicitly references A D Agreement Article 6.1 and
SCM Agreement Article 12.1"32;

26 Appellate Body Report, US – Carbon Steel, para 126; Argentina – Import Measures, Annex D-2,
para. 4.26. This extends to third parties, to ensure that they receive "sufficient notice" of the specific measures
that a complainant is challenging. (Argentina – Import Measures, Annex D-2, para. 4.20).
27 Appellate Body Report, Thailand – H-Beams, para. 97 (citing Appellate Body Report, US – FSC,
para. 166).
28 Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 45.
29 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.31.
30 Appellate Body Report, US – Countervailing and Anti-Dumping Measures (China), para. 4.33. We also
recall our findings to this effect regarding claims under Articles 12.2.2 and 22.5 of the AD and SCM Agreements
respectively in the original panel report, para. 7.520.
31 United States' request for the establishment of a panel, WT/DS427/11 (United States' panel request),
para. 5.
32 United States' second written submission, para. 204.

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b. US concerns in respect of AD Agreement Article 6.1.2 and SCM Agreement Article 12.1.2
"flow from" its concerns under AD Agreement Article 6.1 and SCM Agreement
Article 12.133;
c. there is a "close relationship"34 between AD Agreement Article 6.1.2 and SCM Agreement
Article 12.1.2 on the one hand, and the listed provisions on the other , in that the claims
at issue are " a particular application of the broader obligation in AD Agreement
Article 6.1 and SCM Agreement Article 12.1"; and
d. the claims at issue are included in the claim under AD Agreement Article 6.1 and
SCM Agreement Article 12.1 because they have the same "factual predicate".
2.16. We recall that Articles 6.1.2 and 12.1.2 were addressed in the US first written submission
but not mentioned in the US panel request. At issue is whether these Articles are so closely related
to Articles 6.1 and 12.1 that, as a consequence, and in the light of the narrative in paragraph 5 of
the panel request, the statement of claims specifically under Articles 6.1 and 12.1 may be found to
include claims under Articles 6.1.2 and 12.1.2. To resolve this ques tion, we first examine the
provisions at issue. Articles 6.1 and 6.1.2 of the AD Agreement provide:
6.1 All interested parties in an anti -dumping investigation shall be given notice of the
information which the authorities require and ample opportunity to present in writing
all evidence which they consider relevant in respect of the investigation in question.
…
6.1.2 Subject to the requirement to protect confidential information,
evidence presented in writing by one interested party shall be made
available promptly to other interested parties participating in the
investigation.
The corresponding provisions of the SCM Agreement, Articles 12.1 and 12.1.2, are largely identical
– the minor textual differences are not relevant in this context.

2.17. AD Agreement Article 6 and SCM Agreement Article 12, entitled "Evidence", address a wide
range of topics beyond strictly evidentiary matters and establish a number of diverse but often
related obligations in respect of the conduct of anti -dumping and countervailing duty
investigations. AD Agreement Article 6.1 and SCM Agreement Article 12.1 contain two distinct but
related obligations on the investigating authority concerning the conduct of the investigation:
a. to give notice to all interested parties o f information required by the investigating
authorities; and
b. to provide to all interested parties an ample opportunity to present relevant evidence in
writing.
AD Agreement Article 6.1.2 and SCM Agreement Article 12.1.2 require that non -confidential
evidence presented in writing by one party must be made available to other participating
interested parties promptly.35

2.18. There is no question that AD Agreement Articles 6.1 and 6.1.2 and SCM Agreement
Articles 12.1 and 12.1.2 are related to some extent, as they all refer to the presentation of
evidence in writing. However, it is not at all clear to us that Articles 6.1.2 and 12.1.2 are, as the
United States argues, "nothing less than a specific application of the denial of opportunity that

33 United States' second written submission, para. 204.
34 United States' second written submission, para. 205.
35 Articles 6.1.1 and 12.1.1, not at issue here, set out a time-frame for exporters and producers (and in
countervailing duty investigations, interested Members) to reply to questionnaires they receive; Articles 6.1.3
and 12.1.3 require the provision of the full text of the application to known exporters and the authorities of the
exporting Member, and other interested parties upon request, with due regard for the protection of confidential
information.

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AD Agreement Article 6 .1 and SCM Agreement Article 12.1 require". 36 Articles 6.1.2 and 12.1.2
require that evidence submitted by one interested party in writing be made available promptly to
other participating interested parties. In our view, this is a very different obligation from those set
out in Articles 6.1 and 12.1, requiring notice of the information required and "ample opportunity"
for interested parties to present relevant evidence in writing. Thus, while the obligation in
Articles 6.1.2 and 12.1.2 may be related to the "ample opportunity" to present evidence in writing
required under Articles 6.1 and 12.1, compliance with the one does not require or establish
compliance with the other. It is entirely possible for an investigating authority to give notice of the
information required and ample opportunity to submit evidence in writing, but fail to ensure that
evidence presented in writing is made available promptly to other interested parties, and vice
versa. Neither in form nor in substance do we consider the provisions s o "closely related" that the
statement of a claim under Articles 6.1 and 12.1 in a panel request can, without more, be
understood to include a claim under Articles 6.1.2 and 12.1.2. Merely that Articles 6.1.2
and 12.1.2 concern information submitted in wri ting pursuant to the opportunity required by
Articles 6.1 and 12.1, does not suffice to bring the former within the scope of the latter.
2.19. Nonetheless, according to the United States, "The U.S. Panel request explicitly references
the lack of opportunity affo rded by MOFCOM in the reinvestigation thus placing clear parameters
on the scope of the claim." 37 This, we understand, refers to the statement in paragraph 5 of the
panel request concerning " ample opportunity to present in writing all evidence they consider ed
relevant". This language is in the text of Articles 6.1 and 12.1. It does not appear in Articles 6.1.2
and 12.1.2. Moreover, it is not clear to us how the failure to make information submitted in writing
available to other interested parties is linked t o the alleged lack of ample opportunity to present
evidence in writing referred to in the narrative in paragraph 5 of the panel request. This reference
cannot, in our view, bring the asserted failure to make information available within the scope of
the ob ligations in Articles 6.1 and 12.1, and thus paragraph 5 fails to state a claim under
Articles 6.1.2 and 12.1.2. The United States also relies on its first written submission to "confirm"
the scope of its claim in the panel request. However, given our view that the panel request, read
as whole, does not state a claim under Articles 6.1.2 and 12.1.2, there is nothing to "confirm".
2.20. In the light of the foregoing, we find that the United States' claims under Articles 6.1.2
and 6.2 of the AD Agreement and Articles 12.1.2 are not within our terms of reference.
2.4 Claims under AD Agreement Articles 6.1 and 6.4 and SCM Agreement and 12.1
and 12.3
2.21. The question before us in this context is whether the claims under AD Agreement
Articles 6.1 and 6.4 and SCM Agreement Arti cles 12.1 and 12.3 as set out in the panel request
provide the required clarity and specificity. The questions at issue are similar and so we deal with
them together.
2.22. Paragraph 5 of the panel request states:
Article 6.1 of the AD Agreement and Article 12. 1 of the SCM Agreement beca use
during the reinvestigation MOFCOM did not provide notice of the information that
MOFCOM required and did not provide interested parties ample opportunity to present
in writing all evidence they considered relevant. For exampl e, MOFCOM did not
disclose the questionnaires it submitted to Chinese domestic producers during the
re-investigation.38
Paragraph 4 of the panel request states:

Articles 6.4 and 6.5 of the AD Agreement, and Articles 12.3 and 12.4 of the
SCM Agreement, beca use during the reinvestigation MOFCOM did not provide
interested parties timely opportunities to see all non -confidential information that was
relevant to their case and that was used by the investigating authority, and MOFCOM
treated information as confidential absent good cause. For example, MOFCOM failed to

36 United States' second written submission, para. 205.
37 United States' second written submission, para. 205.
38 Emphasis added.

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disclose the questionnaires it submitted to Chinese domestic producers during the
re-investigation.39
2.23. China's principal argument is that "the United States has failed to identify the measure". 40
Moreover, because no "questionnaires" were sent to domestic producers, these claims as set out in
the panel request caused China puzzlement. The use of the words "for example" does not save
each claim by enlarging it to encompass other forms of information reques t than "questionnaires".
Neither claim presents the problem "clearly"; each is therefore inconsistent with DSU Article 6.2.
2.24. The United States responds that:
a. the measures at issue are " those that continue to l ead to imposition of AD and
CVD duties on U.S. broiler products " and the panel request properly identifies the
measures by explicitly referencing the reinvestigation41;
b. the reference in the panel request to "the questionnaire" foreshadows US arguments,
and is not relevant to the identification of the claim42; and
c. "[w]hether MOFCOM called its information requirements a questionnaire, or verification,
or anything else, the critical point is that MOFCOM did not provide a timely opportunity
to see the information it obtained from Chinese domestic producers."43
2.25. Articles 6.1 and 12.1 require notice of the information required by the investigating
authorities. Articles 6.4 and 12.3 require the authorities to provide opportunities to see relevant
non-confidential information used by the authorities. The alleged violation in respect of each
provision as stated in the panel request is an omission: that is, for Articles 6.1 and 12.1, the
alleged failure to provide "notice of the information which the authori ties require", and for
Articles 6.4 and 12.3, the alleged f ailure to "provide interested parties timely opportunities to see
all non -confidential information that was relevant to their case". As an "example" of the
information subject to these requirements, the panel request refers to " questionnaires [MOFCOM]
submitted to Chinese domestic producers during the re-investigation".
2.26. We make the following observations:
a. The "measure taken to comply" within the meaning of Article 21.5 is the
redetermination. The measure before us has been specifically identified in the pa nel
request.
b. The question, then, is whether the references to questionnaires as examples in
paragraphs 4 and 5 of the panel request result in the claims as set out not presenting
the problem "clearly":
i. China asserts that no questionnaires were sent to Chinese producers. All MOFCOM
did in the course of the reinvestigation was engage in a verification exercise. At the
same time, however, throughout the redetermination MOFCOM states that it not only
verified the information it had, but sought and obtained additional information .44
Whether or not "questionnaires" in some formal sense were used in this effort, there
were clearly requests made to Chinese domestic producers for further information,
and information was submitted.
ii. Where, as in this c ase, claims are based on alleged omissions by the investigating
authority, the investigating authority is in possession of information that it allegedly
did not give notice of as required under Articles 6.1 and 12.1, and did not provide

39 Emphasis added.
40 China's second written submission, para. 83.
41 United States' second written submission, para. 207.
42 United States' second written submission, para. 207.
43 United States' second written submission, para. 207.
44 We note also China's second written submission, para. 252: "Specifically, MOFCOM conducted on-site
verifications of four producers for the purposes of collecting additional information on product-specific pricing."
(emphasis added)

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ample opportunities to see under Articles 6.4 and 12.3. The complaining Member, of
course, does not know what the relevant information is, or in what form it was
required or received – or indeed, whether it exists – but does believe that
information was requested and submitt ed to the investigating authorities. In these
circumstances, it is difficult to see how the complainant could be expected to
pin-point with any precision in a panel request information (including its format – in
the form of a questionnaire or otherwise) it does not have and might not even know
about.
iii. Whether a claim as set out in the panel request presents the problem clearly
depends on not just the specific words used in the panel request but also the
underlying obligations. The term "questionnaire" has a generally understood
technical meaning in the context of anti -dumping and countervailing duty practice
more generally; MOFCOM might not have sent a "questionnaire" in the technical
sense to domestic producers during the reinvestigation. But that does not render the
claim as a whole, which refers to "questionnaires" only as an example of the
problem, opaque to the point of vitiating China's due process rights under DSU
Article 6.2.
iv. MOFCOM required, sought, and obtained additional information from Chinese
domestic producer in the course of its reinvestigation. Under Articles 6.1 and 6.4
and 12.1 and 12.3, it had obligations with respect to notice of the information
required (which is not limited to information required in questionnaires ) and
providing oppor tunities to see relevant information. It is not disputed that the
information provided by the Chinese domestic producers in the reinvestigation was
relevant and used by MOFCOM. 45 Regardless of the limited example – reference to
questionnaires – in the panel request, in our view there is little doubt as to the scope
of the claims under Articles 6.1, 6.4, 12.1, and 12.3.
2.27. In the light of the foregoing, we find that the claims of the United States under Articles 6.1
and 6.4 of the AD Agreement and Articles 12.1 and 12.3 of the SCM Agreement are within our
terms of reference.
2.4.1 Second sentence of Article 2.2.1.1 and Pilgrim's Pride
2.28. The question before us here is the scope of the claim of violation of Article 2.2.1.1, second
sentence, specifically whether it encompa sses MOFCOM's alleged violation in respect of the
calculation of a dumping margin for Pilgrim's Pride in the reinvestigation. In this respect, China
advances two lines of argument:
a. While the claim in the panel request is drafted broadly, the narrative language concerns
only the allocation issues related to the calculation of Tyson's dumping margin. The claim
itself, as set out in the panel request, appears to be unrelated to the issues surrounding
the calculation of a dumping margin for Pilgrim's Pride during the reinvestigation .
Accordingly, the claim as developed in the first written submission of the United States is
not within the terms of reference of the Panel.46
b. In the original dispute the Panel made no findings in respect of the calculation of a
dumping margin for Pilgrim's Pride under the second sentence of Article 2.2.1.1 . Indeed,
the findings of the Panel in respect of the first sentence underline that its findings under
the second sentence could not have applied to Pilgrim's Pride. For these re asons,
MOFCOM did not address any cost allocation issues with regard to Pilgrim's Pride during
the reinvestigation , and therefore the consistency of the dumping margin for Pilgrim's
Pride with Article 2.2.1.1 is not within the terms of reference of the Panel.47
2.29. The United States responds that:

45 China's second written submission, para. 252: "From the information it collected MOFCOM could
reasonably conclude whether or not U.S. imports were concentrated in the low value products."
46 China's first written submission, para. 134; second written submission, paras. 197 and 198.
47 China's first written submission, para. 131; second written submission, paras. 199 and 202.

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a. the claim in the panel request is clear in that it refers to "producers", and not just
Tyson48;
b. the Panel's findings of violation of the second sentence of Article 2.2.1.1 in the original
dispute were not limited to Tyson49; and
c. in any event, DSU Article 6.2 requires identification of measures and claims of violation –
not particular interested parties.50
2.30. Turning to the first basis for China's challenge, we recall paragraph 8 of the panel request:
Articles 2.2 and 2.2.1.1 of the AD Agreement beca use MOFCOM improperly calculated
the cost of production for US producers, failed to calculate costs on the basis of the
records kept by the US producers under investigation, and did not consider all
available evidence on the prope r allocation of costs. For example, MOFCOM allocated
production costs of non -subject merchandise to subject merchandise and failed to
properly allocate processing costs for subject merchandise.51
2.31. For purposes of considering the scope of the Panel's jurisdic tion, there is an important
distinction between claims and arguments. The claim here is that the redetermination in respect of
the calculation of costs for US producers does not meet the requirements of Articles 2.2
and 2.2.1.1. We note that:
a. The "measure taken to comply" within the meaning of Article 21.5 is the
redetermination. The measure before us has been specifically identified in the panel
request.
b. The legal basis for the claim is set out as Article 2.2 and both sentences of
Article 2.2.1.1. The two examples provide additional clarity, but they neither expand nor
restrict the scope of the claim, and are not limited as to the producers to which they
refer.
Nothing in the DSU requires that the arguments in support of a claim be specified in the request
for establishment. It is true that in the original dispute, there was no specific finding of violation of
the second sentence of Article 2.2.1.1 with respect to Pilgrim's Pride. Nonetheless, t he Panel's
findings regarding that provision were not strictly limited to Tyson, but were more general in some
aspects. Thus, we see no reason to foreclose the possibility of a claim under Article 2.2.1.1
involving arguments concerning other producers. We note that the panel request refers to US
producers in the plura l. This clearly opens the possibility for arguments concerning the alleged
failure of MOFCOM to comply with the cited AD Agreement provisions in calculating a dumping
margin for more than one US producer. We see no basis to require the identification of sp ecific
interested parties in respect of which an investigating authority has made a determination with
respect to each claim of violation.

2.32. Among the various arguments made in support of the US claim under the second sentence
of Article 2.2.1.1 is the arg ument in respect of Pilgrim's Pride. These arguments do not go beyond
the claim as set out in the panel request. Accordingly, the claim of violation as set out in the panel
request meets the requirements of DSU Article 6.2 and is properly before us.
2.33. Having so concluded, we do not consider it necessary to address China's second ground for
its jurisdictional challenge.
2.34. We therefore find that China has not established that the US claims in respect of Articles 2.2
and 2.2.1.1 insofar as they relate to Pilgrim's Pride fall outside our jurisdiction.

48 United States' second written submission, para. 212.
49 United States' second written submission, para. 213.
50 United States' second written submission, para. 211.
51 Emphasis added.

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2.5 Alleged failure to reconcile causation analysis with evidence
2.35. The question before us here is the scope of claims of violation of AD Agreement Articles 3.1
and 3.5 and SCM Agreement Articles 15.1 and 15.5, and whether they encompass MOFCOM's
alleged failure to reconcile its causation analysis with the improving domestic industry
performance. China refers to the specific language of paragraph 3 of the panel request:
Articles 3.1 and 3.5 of the AD Agreement, and Ar ticles 15.1 and 15.5 of the
SCM Agreement, because MOFCOM's determination that subject imports were ca using
injury to the domestic ind ustry was not based on an examination of all relevant
evidence, including that subject import volume did not increase at the expense of the
domestic ind ustry and that a large portion of subject imports consisted of products
that could not have been injurio us, and was ba sed on MOFCOM's flawed price and
impact analyses.
2.36. China argues that:
a. The use of the word "including" instead of "including but not necessarily limited to" must
be understood as setting out an exha ustive list of elements of the US claim under
Articles 3.1, 3.5, 15.1, and 15.5.52
b. "The contrast between the phrase 'for example' for all of the other claims, but the term
'including' only for claim #3 shows an explicit effort to distinguish the two types of
claims. In this context, 'including' is being used in a limiting sense."53
c. The language of the paragraph is " a specific reference to the second sentence of
Articles 3.5 and 15.5. The claim does not reference either directly or indirectly the other
three sentences of these provisions. The U.S. claim, therefore r elates to the specific
obligations found in the second sentence."54
2.37. The United States argues that:
a. "The claim is that MOFCOM 's continued imposition of AD/CVD measure on U.S. broiler
products is inconsistent with the cited provisions. "55 The examples set out in the panel
request are arguments; the United States was not under an obligation to set any of its
arguments out in the panel request.
b. The term "include" is not exclusive.56
2.38. We make the following observations:
a. The phrase "including but not necessarily limited to" is an unfortunate redundancy that
clutters many a legal document. We note that in certain contexts, of course, the term
"including" may have a limiting effect. For example, the legal maxim eiusdem generis
provides that a listing of items "inclu ded" in a general term could limit the scope of that
term to the genre of the included items. But that is not what China argues. We are asked
to find that the use of the term "including" in a jurisdictional document creates an
exhaustive list for the sole reason that it is not accompanied by a redundant qualifier.
We are not aware of a canon of interpretation that would require us to reach this
conclusion.
b. The use of "including" in one paragraph of the panel request and "for example" in the
other paragraphs is not determinative of the meaning of either term. It is the case that
in certain circumstances, in a treaty the use of one term rather than another may give
rise to the presumption that a different meaning was intended by its drafters. In this
instance, read in the context of the panel request as a whole, nothing in the use of "for

52 China's first written submission, para. 378.
53 China's second written submission, para. 330.
54 China's second written submission, para. 328.
55 United States' second written submission, para. 220.
56 United States' second written submission, para. 221.

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example" in some paragraphs suggests a "limiting" – that is, an exhaustive – sense for
the term "including".
c. As we have observed, in addressing questions of panel jurisdiction, there is an important
distinction between claims and arguments. The claims here allege that the
redetermination, which is the measure take to comply, does not satisfy the requirements
of Articles 3.1 and 3.5 of the AD Agreement and 15.1 and 15.5 of the SCM Agreement.
We note in this respect that the four sentences of Articles 3.5 and 15.5 are inextricably
linked. Among the various arguments the United States makes in support of those claims
is MOFCOM's alleged failure to reconcile its causation analysis with the improving
domestic industry performance. Merely because this argument is not set out in the panel
request does not preclude the United States from making it in the course of the dispute.
2.39. In the light of the foregoing, we find that the argument tha t MOFCOM allegedly failed to
reconcile its causation analysis with the improving domestic industry performance is within the
scope of the United States' claims that China has acted inconsistently with Articles 3.1 and 3.5 of
the AD Agreement and Articles 15.1 and 15.5 of the SCM Agreement, and within the jurisdiction of
the Panel.
2.6 Conclusion on DSU Article 6.2
2.40. We find that US claims in respect of Articles 6.1.2 and 6.2 of the AD Agreement and
Articles 12.1.2 of the SCM Agreement are not within the scope of our terms of reference and we
will make no findings on such claims.
2.41. We find that US claims in respect of Articles 3.1, 6.1, 2.2.1.1, and 3.5 of the AD Agreement
and Articles 15.1, 12.1, and 15.5 of the SCM Agreement are within the scope of our terms of
reference.
3 THE PANEL'S EXERCISE OF JUDICIAL ECONOMY IN THE ORIGINAL DISPUTE
3.1 Introduction and arguments of the parties
3.1. In the original dispute, the Panel found that MOFCOM's findings of price undercutting and of
price suppression were inconsistent with the re levant obligations. It observed that " MOFCOM's
examination of the situation of the domestic ind ustry was inextricably linked to its earlier analysis
of the price effects of subject imports " and that implementation of its findings regarding price
effects wo uld " require China to re -examine MOFCOM's Determination concerning the impact of
subject imports on the domestic ind ustry".57 In this situation, the Panel took the view that making
additional findings with respect to MOFCOM's analysis of the impact of the subject imports on the
domestic ind ustry would not assist in the resolution of t he dispute between the parties 58, and
made no findings with respect to the United States' claims under AD Agreement Articles 3.1
and 3.4 and SCM Agreement Articles 15.1 and 15.4.59 The Panel in the original dispute also made
no findings, on the same grounds, in respect of US claims under AD Agreement Article 3.5 and
SCM Agreement Article 15.5.60
3.1.1 China
3.2. The US claims under AD Agreement Articles 3.1, 3.4, and 3.5 61 and SCM Agreement
Articles 15.1, 15.4, and 15.5 in this proceeding are beyond the scope of the Panel's terms of
reference because the Panel exercised judicial economy in respect of these claims in the original
dispute. Specifically:

57 Panel Report, China – Broiler Products, para. 7.555.
58 Panel Report, China – Broiler Products, para. 7.555.
59 Panel Report, China – Broiler Products, para. 7.556.
60 Panel Report, China – Broiler Products, paras. 7.584 and 7.585.
61 China raised arguments in respect of AD Agreement 3.5 and SCM Agreement Article 15.5 for the first
time in its second written submission. (China's second written submission, paras. 335 and 336). As the issues
are the same as the arguments under AD Agreement Articles 3.1 and 3.4 and SCM Agreement Articles 15.1
and 15.5, we address all these arguments at the same time.

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a. The Panel exercised judicial economy and did not rule on the US claims or otherwise
address in any way the merits of the US arguments in support of th ese claims. "Neither
China nor the United States 'lost' this claim – the claim was not addressed "62; t his
rendered the claims of no effect.63
b. "China recognizes that the Panel believed in good faith that the Panel findings on price
effects 'will require' MOFCOM to reconsider its impact analysis . But with all due respect,
that belief was incorrect. "64 And so, the unchanged part of the redetermination was not
an "inseparable element" of the measure taken to comply 65; MOFCOM did not need to
revisit it.66 Indeed, "there was no measure taken to comply and there was no need for
MOFCOM to redo its analysis".67
c. The reassertion of th ese claims in this proceeding creates a fundamental unfairness to
the detriment of China. 68 Because this is a compliance proceeding, China is deprived of
any chance to address any inconsistency that may now be found or otherwise to bring its
measure into compliance.
d. "If the Panel agrees with China 's argument about price effects, then the Panel will be
acknowledging it was incorrect in saying implementation 'will require' a change to the
impact analysis. If the Panel does not agree with China 's argument about price effects,
then there is no need to address the separate claims on impact . The additional claim
would not add anything to the overall U.S. challenge and rights under the WTO . The
separate claims on impact th us really matters to the United States only if it has lost its
claims regarding price effects (and other claims), and needs some independent basis to
establish the WTO inconsistencies of the AD and CVD measures."69
e. This situation is "functionally the same " as the case in which a party did not bring a
claim in the ori ginal dispute that it could have brought. 70 The United States is th us
barred from bringing these claims in these 21.5 proceedings.
3.1.2 United States
3.3. The claims under AD Agreement Article 3.4 and SCM Agreement Article 15.4 are within the
Panel's terms of reference71, because:
a. "[W]here a Member fails to prove inconsistency on a claim, that claim may not be
re-litigated in a compliance proceeding . The Appellate Body has never found that the
exercise of judicial economy precludes consideration of a claim in a complia nce
proceeding. The logic for this distinction is compelling . A Member is not entitled to a
second chance to prove a claim that has been already rejected . There is no j ustification
for rejecting a claim that was never decided."72
b. The Panel exercised judicial economy in the original dispute "on the basis that MOFCOM
would need to undertake a reexamination of its impact analysis – and thus decide how to
address the US claim. MOFCOM's decision to decline to do so cannot absolve it from
having its injury findings assessed."73

62 China's second written submission, para. 291.
63 China's first written submission, para. 336.
64 China's second written submission, para. 292.
65 China's second written submission, para. 293.
66 China's second written submission, para. 291.
67 China's second written submission, para. 287.
68 China's first written submission, paras. 333 and 335.
69 China's second written submission, para. 294.
70 China's first written submission, para. 336.
71 The United States has responded to the arguments set out in China's first written submission. Given
that the arguments in respect of AD Agreement Article 3.4 and SCM Agreement Article 15.4 are the same as
those in respect of AD Agreement Article 3.5 and SCM Agreement Article 15.5, we believe we can dispose of
this matter without further submission by the United States.
72 United States' second written submission, para. 215. (emphasis original; fn omitted)
73 United States' second written submission, para. 216.

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c. "Precluding consideration of claims in a compliance proceeding on the basis that judicial
economy was exercised" would undermine Articles 3.4 and 3.7 of the DSU.74
d. "[T]here was no barrier to China engaging in a reexamination of its impact analysis."75
3.2 Analysis
3.4. First, the findings of the panel and the Appellate Body in EC – Bed Linen (Article 21.5 – India)
relied on by China do not support its position. We recall that in that case, the panel in its original
report found that the complainant had failed to establish a prima facie case in respect of the claim
at issue. The complainant then sought to raise the same claim in the Article 21.5 proceedings. The
Appellate Body upheld the panel's finding that the claim was not within the scope of is jurisdiction,
noting due process and fairness concerns:
A complainant that, in an original proceeding, fails to establish a prima facie case
should not be given a "second chance" in an Article 21.5 proceeding, and th us be
treated more favourably than a com plainant that did establish a prima facie case but,
ultimately, failed to prevail before the original panel, with the result that the panel did
not find the challenged measure to be inconsistent with WTO obligations. Nor should a
defending party be subject to a second challenge of the measure found not to be
inconsistent with WTO obligations, merely beca use the complainant failed to establish
a prima facie case, as opposed to failing ultimately to persuade the original panel.76
Accordingly, the foc us of the Appellate Body in that case was the actions of the complainant in
failing to establish a prima facie case in the original dispute. More important for the question
before us here, both the panel and the Appellate Body were aware of the potential consequences
of their findings and explained further:

We also recall that the Panel noted, in paragraph 6.44 of the Panel Report, that the
original panel's dismissal of India's claim under Article 3.5 relating to "other factors"
was not an exercise of "judic ial economy". The issue raised in this appeal is different
from a situation where a panel, on its own initiative, exercises "judicial economy" by
not ruling on the substance of a claim.77
3.5. The Appellate Body had occasion to revisit the question of the effect of an exercise of judicial
economy on the admissibility of a claim in the context of Article 21.5 proceedings involving
redeterminations in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina). At
issue in that case was whether,
[T]he USDOC's finding that the volume of imports of OCTG from Argentina declined
after the imposition of the anti -dumping duty order – which was made in the original
sunset determination and incorporated into the Section 129 Determination – is part of
the "measure taken to comply" within the meaning of Article 21.5 of the DSU.78
The Appellate Body noted that while Argentina had in fact challenged the USDOC's volume analysis
in the original panel proceedings, the panel had not made a finding regarding the WTO-consistency
of that analysis. 79 In that case the panel did not expressly exercise judicial economy, but both
disputing parties characterized the panel's approach to the issue in the original OCTG dispute as an
exercise of judicial economy. In that case, the Uni ted States argued that the findings of the
Appellate Body in EC – Bed Linen (Article 21.5 – India) applied to the USDOC's findings on volume
of imports, asserting – as China does in this case – that because there had been no panel findings,

74 United States' second written submission, para. 217.
75 United States' second written submission, para. 218.
76 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), para. 96.
77 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), fn. 115 to para. 96. (italics original;
underline added)
78 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 138.
79 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 141.

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there had been no change in the USDOC findings, and the complainant could not raise the matter
again in an Article 21.5 proceeding. The Appellate Body disagreed:

[E]ven 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. 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."80
3.6. China expressly acknowledges that the Panel exercised judicial economy in respect of the
claims at issue in the original dispute. It does not argue that the Panel did not have the authority
to exercise judicial economy or that it did so improperly in the original dispute; if anything, China
encourages the Panel to continue to exercise judi cial economy in respect of claims under
Articles 3.4 and 15.4 if the Panel makes findings adverse to its interests under Articles 3.2
and 15.2.81 In addition, China did not appeal the findings of the original Panel in this regard. 82 In
our view, the findings in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina)
and EC – Bed Linen (Article 21.5 – India) clearly establish that the exercise of judicial economy by
a panel in respect of a claim does not , for that reason alone , preclude a comp laining party from
bringing that same claim before a subsequent Article 21.5 panel.
3.7. In this instance, the Panel in its original report did not make any substantive findings in
respect of the US claims under Articles 3.1, 3.4, 15.1 , and 15.4. This was because, having found
China in breach of AD Agreement Article 3.2 and SCM Agreement Article 15.2, the Panel concluded
that re -examination of the analysis under those provisions would require re -examination of the
impact of subject imports on the domestic ind ustry, and therefore additional findings with respect
to MOFCOM's analysis under Articles 3.4 and 15.4 would not assist in the resolution of the dispute .
As it turned out, MOFCOM did not change its analysis under Articles 3.2 and 15.2, and did not
deem it nec essary to change its analysis under Articles 3.4 and 15.4 . Nevertheless, this is not a
case where the "central rationale" of the Appellate Body in EC – Bed Linen (Article 21.5 – India) is
directly applicable, beca use it was not the complainant that failed to establish its claim in the
original dispute, it was the Panel that opted to not rule on the claim. The fairness and due process
concerns cited by the Appellate Body in denying a second chance to raise the same claim in an
Article 21.5 proceeding are simply not relevant here.
3.8. Second, we note China's argument that:
If the Panel agrees with China 's argument about price effects, then the Panel will be
acknowledging it was incorrect in saying implementation 'will require' a change to the
impact analysis. If the Panel does not agree with China 's argument about price
effects, then there is no need to address the separate claims on impact.83
Neither of these arguments is relevant to whether these claims are within our terms of reference in
this proceeding. Whether or not we erred in not making findings under Articles 3.4 and 15.4 in the
original dispute does not change the fact that we did not make such findings, and that exercise of
judicial economy was not challenged on appeal . That MOFCOM did not a ct as we had anticipated
does not, of course, demonstrate that we erred. In any event, it would not be appropriate for us to
make a finding in respect of our terms of reference in this proceeding on the basis of a potential
finding or exercise of judicial economy that might be the result of our consideration of the claims
in this proceeding.

80 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina),
para. 148. (fn omitted)
81 China's second written submission, para. 294: "If the Panel does not agree with China's argument
about price effects, then there is no need to address the separate claims on impact." (emphasis added)
82 We recall the findings of the Appellate Body in EC – Bed Linen (Article 21.5 – India), para 96:
Moreover, here, India decided not to appeal the panel finding at issue in the
original proceedings, even though it could have done so, inasmuch as the issue
was not of an excl usively factual nature. Hence, India itself seems to have
accepted the finding as final.
(emphasis added)
83 China's second written submission, para. 294.

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3.9. Finally, we do not consider the premise of China's assertion of "fundamental unfairness" to be
correct or to suffice to change our view that the United States is not p recluded from raising its
claims under Articles 3.1, 3.4, 15.1, and 15.4 in this proceeding. Nothing suggests that "China will
never have any chance to address that inconsistency or otherwise bring its measure into
compliance"84, should the Panel find that the redetermination is inconsistent with Articles 3.1 , 3.4,
3.5, 15.1, 15.4, and 15.5. It is true that China would not have the benefit of another reasonable
period of time to do so, but that is not the same thing as being "deprived" of the opportunity to do
so.85 The fact that in making its redetermination, MOFCOM did not have the benefit of Panel
findings in respect of the original determination did not absolve China of its obligation, under the
WTO Agreement, to ensure that the measure taken to comply is consistent with all its obligations
under the WTO Agreement.
3.3 Conclusion
3.10. In the light of the foregoing, we find that the claim s of the United States under
AD Agreement Articles 3.1, 3.4, and 3.5 and SCM Agreement 15.1, 15.4, and 15.5 are within our
terms of reference.
Body Reports, Canada/US – Continued Suspension, para. 347).