Document: WT/DS322/RW Page C-1 ANNEX C EXECUTIVE SUMMARIES OF THE SECOND WRITTEN SUBMISSIONS OF THE PARTIES Contents Page Annex C-1 Executive Summary of the Second Written Submission of Japan C-2
Document codes: WT/DS322/RW
Complainant: Japan
Respondent: U.S.
Third parties: Argentina, China, EU, Hong Kong, India, South Korea, Mexico, New Zealand, Norway, Taiwan, Thailand
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.2, 9.3, 5.8, 3, 9.5, 11.1, 11.2, 11.3, 1  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

ANNEX C

EXECUTIVE SUMMARIES OF THE SECOND WRITTEN
SUBMISSIONS OF THE PARTIES

Contents Page
Annex C-1 Executive Summary of the Second Written Submission of Japan C-2
Annex C-2 Executive Summary of the Second Written Submission of the
United States
C-10

ANNEX C-1

EXECUTIVE SUMMARY OF THE SECOND
WRITTEN SUBMISSION OF JAPAN

(3 September 2008)

I. THE UNITED STATES' PRELIMI NARY RULING REQUEST SHOULD BE
REJECTED

1. The United States requests the Panel to rule th at: the three subsequent reviews (nos. 4, 5 and
61) are not "measures taken to comply" under Article 21.5 of the DSU 2; and that the Panel cannot
examine any "subsequent cl osely connected" measures. 3 Japan requests that the Panel reject the
United States' request, and find that the three su bsequent reviews are measures taken to comply
subject to Article 21.5 of the DSU. Japan notes that the United States bears the burden of proving that
the three subsequent periodic reviews are excluded from the scope of these Article 21.5 proceedings.
4

A. THE PANEL HAS JURISDICTION OVER THE THREE SUBSEQUENT REVIEWS
CHALLENGED IN THESE PROCEEDINGS

2. The United States argues that the original Ball Bearing periodic reviews (nos. 1, 2, and 3),
and the cash deposit rates they establish, were "withdrawn"
5, "superseded" 6, "eliminated" 7 and
"replaced"8 by the three subsequent reviews. Specifically, it contends that "has withdrawn" the
original reviews "within the meaning of DSU Article 3.7" 9 by "put[ting] in place new cash deposits
for the companies examined" in the three subsequent reviews.10 In the United States' view, therefore,
the subsequent reviews are replacement measures that secure the withdrawal of the original measures
found to be WTO-inconsistent. The United States expressly declares that the three subsequent
reviews are measures taken to comply with the DSB's recommendations and rulings regarding the
three original Ball Bearing reviews.

1 In this submission, Japan uses the same numbering of the eight original and subsequent periodic
reviews set forth in paragraph 53 of its First Written Submission.
2 United States' First Written Submission, para. 28.
3 United States' First Written Submission, para. 50.
4 Panel Report, EC – Bananas III (21.5 – US), para. 7.79.
5 United States' First Written Submission, paras. 39, 52, 54, 58, 65, 66 and 67.
6 United States' First Written Submission, paras. 3 and 44.
7 United States' First Written Submission, paras. 44 and 54.
8 United States' First Written Submission, para. 44.
9 United States' First Written Submission, para. 52.
10 United States' First Written Submission, para. 67. See also para. 44 (" [t]he original reviews were
superceded by subsequent reviews because the cash depo sit rate from one review was replaced by the cash
deposit rate from the next review ."), para. 65 ("in each of the five challenged administrative reviews that were
the subject of the DSB's recommendations and rulings in the original dispute, the United States has withdrawn
the cash deposit rate resulting from the challenged revi ew and calculated new cash deposit rates pursuant to
separate and distinct administrative reviews."), and para. 67 ("In these subsequent determinations, Commerce . .
. put in place new cash deposits for the companies examined " and, as a consequence, " the former cash deposit
rate is terminated . . . Thus, the United States has complied with the recommendations and rulings of the DSB
by withdrawing the challenged measures.") (emphasis added).

3. Nonetheless, the United States argues that re views issued before adoption of the DSB's
recommendations and rulings are not "measures taken to comply" because, in view of the timing of
the measures, it did not intend to comply with the DSB's recommendations and rulings when it
adopted the three subsequent reviews. However, panels and the Appellate Body have consistently
rejected an interpretations of Article 21.5 that focuses on the intent of the implementing Member. 11
Despite a recognized lack of intent to comply, the Appellate Body held that a periodic review was a
"measure taken to comply" where it enjoyed "multiple and specific links" to the dispute.12

4. Under Article 3.7 and 19.1 of the DSU, a me asure may, by its effects, achieve compliance,
even if that was not the measure's purpose, and even if the measure was taken before the adoption of
the DSB's recommendations and rulings. Articl es 3.7, 19.1 and 21.5 must be interpreted
harmoniously.
13 Thus, under Article 21.5, an implemen ting Member must be able to rely on a
measure that, in effect, "secure[s] withdrawal", and/ or "bring[s]" an original measure into conformity,
to rebut a claim that no "measure taken to comp ly" is in "existence". Neither the implementing
Member's intent nor its adoption of the measure prior to the DSB's recommendations and rulings
preclude it from asserting such a defence. A compli ance panel must equally be able to examine the
"consistency" with the covered agreements of any measure that allegedly "secure[s] withdrawal" of an
original measure and/or "bring[s]" it into conformity with its obligations.

5. The Panel should, therefore, reject the Unite d States' arguments that the three subsequent
reviews cannot be "measures taken to comply" si mply because the USDOC had no intention of
complying with the DSB's recommendations and rulings when it adopted the measures.

6. The United States' arguments regarding the stat us of the three subsequent reviews are tainted
by a fundamental inconsistency. Japan claims that the United States has not adopted appropriate
compliance measures that bring the five original measures into conformity with WTO law. In reply to
Japan's non-"existence" claims, the United States contends that "measures taken to comply" do exist
within the meaning of Article 21.5, namely, the th ree subsequent reviews. In arguing that these
reviews secure compliance, the Un ited States relies heavily on the effects of the reviews, excluding
the USDOC's intent in adopting them. Simultaneously, in reply to Japan's claim concerning the
"consistency" of the three subsequent reviews with the covered agreements, the United States
contends that these measures are not "measures taken to comply" within the meaning of Article 21.5.
Its argument that these measures are not "taken to comply" relies heavily on the USDOC's intent in
taking them, excluding the effects of the three subsequent reviews. On the US view, Article 21.5
would permit an examination of the "existence" of any measure whose effect is to secure compliance;
however, the "consistency" of such a measure could be reviewed solely if the measure was adopted
for the purpose of complying.

7. Japan rejects this asymmetrical interpretati on because it would seriously undermine the utility
of Article 21.5. In Japan's view, Article 21.5 a pplies fully to any measure that the implementing
Member declares secures the withdrawal of the orig inal measures, within the meaning of Article 3.7
of the DSU.

8. The United States must, therefore, accept the consequences of its own declaration that the
three subsequent reviews are "measures taken to comply" that "withdraw" the original Ball Bearing

11 Panel Report, US – Gambling (21.5) , para. 6.24, quoting Appellate Body Report, US – Softwood
Lumber IV (21.5), para. 67.
12 Appellate Body Report, US – Softwood Lumber IV (21.5), para. 88.
13 Appellate Body Report, Korea – Dairy, paras. 80-81; Appellate Body Report, Argentina – Footwear
(EC), para. 81; see also Appellate Body Report, US – Offset Act (Byrd Amendment) , para. 271; Appellate Body
Report, US – Gasoline , p. 23; Appellate Body Report, Japan – Alcoholic Beverages II , p. 12; and Appellate

periodic reviews.
14 As a result, the Panel can examine these measures in assessing Japan's claims
regarding both the "existence" and "consistency" of "measures taken to comply".

9. Because of the United States' declaration th at the three subsequent reviews are "measures
taken to comply", there is no reason for the Panel to enquire into the existence of the substantive
connections that, absent such a declaration, can br ing a measure within the scope of Article 21.5.
Nonetheless, Japan comments on the United States' arguments regarding the connections between the
three subsequent reviews and the three original Ball Bearing reviews subject to the DSB's
recommendations and rulings. The US arguments are beset with contradictions. On the one hand, it
asserts that two of the three subsequent reviews (nos. 4 and 5) "have no
 connection with the DSB's
recommendations and rulings". 15 Yet, on the other hand, as set forth in paragraph 2, it argues that
these same reviews (and review no. 6) bring about compliance with the DSB's recommendations and
rulings regarding reviews nos. 1, 2, and 3.16

10. It is absurd to suggest that such measures have "no connection with the DSB's
recommendations and rulings".
17 To the contrary, they have obvious and important connections to the
recommendations and rulings that they allegedly implement. 18 In light of these connections, the
subsequent reviews are "measures taken to comply ", irrespective of the United States' explicit
recognition of that fact.

11. The United States also omits to mention certain of the specific substantive connections relied
upon by Japan. In particular, it does not mention that a strong link exists between the reviews in
terms of the " specific component " of the measures that was found to be WTO-inconsistent in the
original proceedings, and that is challenged in th ese proceedings. That "specific component" is, of
course, the zeroing methodology used to make the dumping determinations. Japan argues that solely
this specific component is within the scope of these proceedings.
19 Thus, contrary to the
United States' suggestion, neither every periodic review nor every aspect of every review is subject to
these compliance proceedings.

12. For all these reasons, as well as those set fort h in Japan's First Written Submission, Japan
submits that the three subsequent reviews fall within the scope of these proceedings.

B. FUTURE CLOSELY CONNECTED MEASURES MAY FALL WITHIN THE SCOPE OF
THESE PROCEEDINGS

13. The United States objects to Japan's reservati on of the right to challenge future periodic
reviews that are closely connected to the DSB's recommendations and rulings.
20 It argues that Japan
fails to identify a specific measure, and seeks to in clude "future, indeterminate measures" to be
adopted after the date of the Panel's establishmen t. Japan requests that the Panel reject the
United States' request. Australia – Salmon (21.5) 21 and EC – Bananas III (21.5 – US) 22 support

14 United States' First Written Submission, paras. 51, 52, 54, 65 and 67.
15 United States' First Written Submission, para. 34.
16 United States' First Written Submission, para. 67.
17 United States' First Written Submission, para. 34.
18 For Japan's description of these connections, see further Japan's First Written Submission,
paras. 90-93.
19 Appellate Body Report, US – Softwood Lumber IV (21.5) , para. 83.( "[A] specific component" of a
subsequent review was a "measure taken to comply" in circumstances where the same "specific component" was
found to be WTO-inconsistent in an original measure concerning the same anti-dumping order, affecting the
same product, exported by the same companies, from the same country.)
20 United States' First Written Submission, para. 50.
21 Panel Report, Australia – Salmon (21.5) , para. 7.10 (sub-para. 24).( the Panel held that its terms of
reference included a Tasmanian import ban, "even though the ban was only introduced subsequent to this
Panel's establishment and therefore not expressis verbis mentioned in Canada's Panel request.")

Japan's view. The Panel's terms of reference are su fficiently specific for the United States to identify
exactly the measures concerned. 23 Finally, Japan considers that the United States' request is not ripe
unless and until Japan seeks to include a future periodic review within the scope of these proceedings.
There is, therefore, no reason for the Panel to exclude the possibility for Japan to challenge
subsequent closely connected "measures taken to comply".

II. THE UNITED STATES HAS FAILED TO BRING ITS WTO-INCONSISTENT
MEASURES INTO CONFORMITY WITH ITS WTO OBLIGATIONS

A. THE UNITED STATES HAS FAILED TO COMPLY FULLY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE ZEROING
PROCEDURES

14. The United States argues that by announcing that it "would no longer apply the zeroing
procedures in W-to-W comparisons in original inv estigations", it has "eliminated the single measure
that Japan had challenged and that w as found to be 'as such' inconsistent".
24 According to the
United States, "[n]ow that zeroing is no longer used in W-to-W comparisons in antidumping
investigations, the single measure that was subj ect to the DSB's recommendations and rulings has
been withdrawn".25

15. Thus, the United States believes that eliminating the use of zeroing in one narrow situation
results in the elimination of the zeroing procedures in all the other situations in which they were found
to be WTO-inconsistent. However, a small limitatio n to the scope of application of a general rule
does not eliminate the rule itself. Equally, impl ementing one of the DSB's four recommendations and
rulings regarding the zeroing procedures does not am ount to implementation of all four of those
recommendations and rulings.

16. The United States also offers no evidence whatso ever to demonstrate that it has, in fact,
eliminated the "single rule or norm"
26 in the various "manifestations" and situations in which it was
found to be WTO-inconsistent. To the contrary, the evidence shows that the United States expressly
decided in the Zeroing Notice 27 to limit its change of zeroing policy to W-to-W comparisons in
original investigations. That decision is confirme d by: (1) a string of dumping determinations made
since the end of the RPT that apply the zeroing procedures 28; and (2) decisions of United States
domestic courts since the end of the RPT. 29 The evidence, therefore, demonstrates that the

22 Panel Report, EC – Bananas III (21.5 – US) , para. 7.493.( The compliance panel agreed with the
United States, as complainant, that a measure adopted many years after the end of the RPT could be a "measure
taken to comply", even though not recognized as such by the implementing Member This ruling supports the
view of the panel in Australia – Salmon (21.5) that implementation is "an ongoing" process that can extend over
many years.)
23 WT/DS322/27, para. 12. The scope of Japan's panel request is circumscribed to include solely
specific measures that are "closely connected" to the original measures and that are "measures taken to comply".
24 United States' First Written Submission, para. 79.
25 United States' First Written Submission, para. 80.
26 Panel Report, US – Zeroing (Japan), footnote 688.
27 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin during an
Antidumping Investigation; Final Modification, 71 Fed. Reg. 77722, 77724 (Dep't of Comm.,
27 December 2006) (Exhibit JPN-35).
28 In Exhibit JPN-46, Japan presents a table summarizing evidence showing that, in the short time
between 1 January 2008 and 11 August 2008, the United States has used the zeroing procedures in at least
13 anti-dumping proceedings other than W-to-W comparisons in original investigations. These include:
11 periodic reviews, one changes circumstances review, and one new shipper review.
29 In several recent decisions, United States courts have confirmed that the United States has abandoned
the use of zeroing only in W-to-W comparisons in original investigations. Corus Staal BV v. United States , 502
F.3d 1370, 1374 (Fed. Cir. 2007) (Exhibit JPN-61); Corus Staal BV v. United States , 493 F. Supp. 2d 1276,

United States' assertion that it has complied with the DSB's four recommendations and rulings
regarding the zeroing procedures is incorrect.
30

B. THE UNITED STATES HAS FAILED TO COMPLY FULLY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE FIVE ORIGINAL
PERIODIC REVIEWS

17. The United States does not dispute that it has taken no action to revise the importer-specific
assessment rates established in the five original peri odic reviews. However, it objects that revision of
these importer-specific assessment rates would involve retrospective relief, and explains that, in its
view, a prospective remedy is one that applies solely to new entries that occur on or after the end of
the RPT.
31 Thus, it believes that action is never required to bring importer-specific assessment rates
into conformity with WTO obligations because th ese rates always apply to entries that occurred
before the end of the RPT.

18. The United States' interpretation of the DS U "compromise[s] the effectiveness" of the
disciplines in Article 9.3 of the Anti-Dumping Agreement, and is "difficult to reconcile with objectives
of the DSU".
32 The United States has not demonstrated how the text of the DSU or the Anti-Dumping
Agreement requires the extreme interpretation that it proposes.

19. The United States argues that the domestic "l egal regime" that applied at the time of
importation determines "whether [an] import is liab le" for anti-dumping duties, and a Member is not
required to change that "legal regime" during implementation.
33 The United States' argument is
wrong. As the United States recognizes 34, the domestic "legal regime" that applies at the time of
importation is merely provisional, and notably does not even include periodic reviews , which are
adopted long after importation. Further, the mere fact that Article VI of the GATT 1994 provides that
potential liability for the payment of duties is tri ggered by importation does not mean that a Member
is liberated from its obligations under Article 9.3 of the Anti-Dumping Agreement to ensure that the
amount of duties definitively collected at a later date does not exceed the margin of dumping.

20. The United States argues that Articles 8.6, 10.1, and 10.6 of the Anti-Dumping Agreement
demonstrate that "determining whether relief is 'prospective' or 'retroactive' can only be determined by
reference to date of entry."
35 Japan disagrees. Articles 8.6, 10.1, and 10.6 set forth rules governing
the earliest date of an importer's obligation to pay anti-dumping duties. The United States is not
exonerated from its duty to bring the periodic revi ews into conformity with Article 9.3 simply
because, at the time of importation, it respected Ar ticles 8.6, 10.1, and 10.6. The United States'
argument regarding these three provisions is irrelevant.

21. Although the United States argues that the date on which an import enters the United States is
decisive
36, that date is not pertinent under Article 18.3 of the Anti-Dumping Agreement , which sets
forth when that Agreement applies to a review. Under that provision, if an application for a periodic

1288 (Ct. Int'l Trade 2007) (Exhibit JPN-62); and NSK Ltd. v. United States , 510 F. 3d 1375, 1380 (Fed. Cir.
2007) (Exhibit JPN-63).
30 Even if the Panel were to find that the United St ates had eliminated the or iginal zeroing procedures,
the evidence shows that the original zeroing procedures have been repl aced by new zeroing procedures that
apply in all situations, except W-to-W comparisons in original proceedings.
31 United States' First Written Submission, paras. 53 and 54.
32 Appellate Body Report, US – Upland Cotton (21.5) , para. 246, citing to Articles 3.3 and 21.1 of the
DSU.
33 United States' First Written Submission, para. 59.
34 United States' First Written Submission, para. 61. See also the summary of the US arguments in
panel report, US – Customs Bond Directive, para. 7.89.
35 United States' First Written Submission, para. 62.
36 United States' First Written Submission, paras. 59-62.

review had been made on 2 January 1995 in connect ion with entries that occurred in 1993 and 1994,
the Member conducting the review would have been subj ect to the obligations in Article 9.3, even if
the relevant entries occurred before the Anti-Dumping Agreement entered into force. The terms of
Article 18.3, therefore, defeat the United States' assertion that the "legal regime" prevailing at the time
of importation is decisive.

22. The United States' argument that the date of entry is decisive is also contradicted by
United States domestic law, which treats the date of liquidation as the determining factor in deciding
whether a new methodology can be applied to past entries.37

23. In Japan's view, the decisive issue in dete rmining whether the United States must modify a
WTO-inconsistent periodic review is whether the review continues to produce legal effects after the
end of the RPT . If an implementing Member continues to take action pursuant to a review after that
date, the rates established in the review must be modi fied to ensure that future applications of the
rates, after the RPT, are WTO-consistent.38

24. Here, the five original periodic reviews do continue to be operati onal because the importer-
specific assessment rates will be applied to determin e the duties definitively due on entries that were
unliquidated at the end of the RPT. The Unite d States' liquidation actions, on the basis of these
importer-specific assessment rates, will give rise to ne w violations, or continue existing violations, of
the covered agreements through the collection of excessive duties after the end of the RPT, in
particular under Article 9.3 of the Anti-Dumping Agreement and Article II:1(a) of the GATT 1994.
As a result, the United States must bring the measu re into conformity by modifying the importer-
specific assessment rates to ensure that they are applied in a WTO-consistent fashion after the RPT
expires.

25. Pursuant to Articles 13, 14 and 15 of the ILC Articles
39, a breach of international law results
from an act of a State, which may or may not be c ontinuing in nature, or from a series of actions. For
an act to be wrongful, the State must be subject to the obligation breached when the breach occurs or
during the time that the breach is occu rring, as set forth in Article 13 of the ILC Articles. The ILC
Articles are useful in showing that the United States is subject to a "prospective" remedy if it is
required to revise the importer-specific assessment rat es in the original reviews to ensure that any
definitive anti-dumping duties collected, after the end of the RPT , on the basis of those rates do not
exceed the properly determined margin of dumping.

26. Japan analyses the United States' conduct, afte r the end of the RPT, pursuant to the five
original periodic reviews from the perspective of the ILC Articles. This analysis focuses on two acts
of the United States, both of which are taken on the basis of the contested periodic reviews : (1) the
issuance by USDOC of instructions to United St ates Customs and Border Protection ("USCBP") to
collect duties on the basis of the WTO-inconsistent importer-specific assessment rate in question; and,
(2) the issuance by USCBP to importers of paym ent notices on the basis of those instructions,
resulting in the collection of definitive duties and liquidation of entries.

27. Whether the USDOC's instructions and the USCBP notices issued after the end of the RPT
are viewed (1) as completed acts when they occur, (2 ) as part of a continuing act, or (3) as part of a
series of composite actions, they involve new or continued wrongful acts committed by the
United States, after the end of the RPT, on the basis of periodic reviews that, by that time, should have
been brought into conformity with WTO law. This interpretation is fully consistent with the view that

37 See Parkdale International v. United States, 475 F.3d 1375 (Fed. Cir. 2007) (Exhibit JPN-64).
38 See also European Communities' Third Party Submission, para. 46 and Hong Kong, China, Third
Party Submission, para. 7.
39 International Law Commission's ("ILC") Articles on Responsibility of States for Internationally
Wrongful Acts ("ILC Articles").

the DSB's recommendations and rulings have solely prospective effects, because the obligation to
bring the original periodic reviews into conformity with WTO law affects solely the United States'
future actions after the end of the RPT. Once again, the DSB's recommendations and rulings require
nothing more from the United States than that it mo dify its periodic reviews so that it respects the
WTO obligations that applied to the reviews at the time they were initiated and conducted.

28. Japan strongly disagrees that the United Stat es' interpretation "creates inequality" in the
implementation obligations that apply to retros pective and prospective duty collection systems.
40 The
United States appears to believe that the definitive amount of anti-dumping duties due in a prospective
system is fixed with certainty at the time of importation. This view is incorrect because it overlooks
that, in a prospective system, the definitive amount of duties due may be revised after importation in a
periodic review under Article 9.3.2. In such a revi ew, as with the retrospective system, the authorities
must examine whether the duties paid on importati on exceed the margin of dumping determined for
the product as a whole, for all entries covered by the review. 41 Following an Article 9.3.2 review, a
refund of some or all of the duties initially paid may be made. Thus, in a prospective system, the
definitive amount of duties due is determined in a periodic review, if requested, and not on
importation.

29. The United States offers an interpretation that means that the level of protection afforded by
anti-dumping duties in its retrospective system is always immune from the impact of WTO dispute
settlement, whereas the level of protection afforded by duties in a prospective system is not always
immune. There is no basis for imposing these di ffering implementation obligations on the two
systems. Japan's interpretation avoids this imbalance by requiring that the results of a periodic review
under either Article 9.3.1 or 9.3.2 be revised if the review will continue to be legally operational after
the end of the RPT.

30. By omitting to bring the five periodic reviews found to be WTO-inconsistent into conformity
with WTO law, the United States acts inconsistently with Articles 17.14, 21.1 and 21.3 of the DSU in
the sense that these provisions aim at achieving a satisfactory and prompt settlement of the matter, and
is in continued violation of Articles 2.4 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of
the GATT 1994. With respect to Article II:1(a) of the GATT 1994, as shown in Exhibit JPN-40.A,
after the end of the RPT, the United States adopt ed new measures – liquidations instructions and
notices – that effect the collection of duties that ex ceed bound tariffs and that, therefore, give rise to
new violations of that provision.

C. THREE SUBSEQUENT PERIODIC REVIEWS COMPLETED BY THE UNITED STATES
ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT AND THE
GATT 1994

31. In Section I.A above, Japan has explained that the Panel has jurisdiction to examine Japan's
claims regarding the three subsequent periodic reviews, which the United States expressly declares
are "measures taken to comply". For the reasons se t forth in paragraphs 149 to 154 of Japan's First
Written Submission, these three reviews are inc onsistent with Articles 2.4 and 9.3 of the Anti-
Dumping Agreement , and Article VI:2 of the GATT 1994, due to the application of the zeroing
procedures.

40 United States' First Written Submission, heading V.A.2 (preceding para. 68), and paras. 68 and 69.
41 Appellate Body Report, US – Zeroing (Japan) , para. 160; Appellate Body Report, US – Stainless
Steel (Mexico), para. 121.

D. THE UNITED STATES HAS FAILED TO COMPLY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS REGARDING ONE SUNSET REVIEW

32. Japan claims that the United States has fa iled to implement the DSB's recommendations and
rulings regarding the sunset review of 4 November 1999 concerning Anti-Friction Bearings
("AFB").
42

33. In reply, the United States admits that it has done nothing to implement the DSB's
recommendations and rulings, but argues that "it was unnecessary to modify the final results of the
challenged sunset review."
43 The basis for this startling position is an allegation that "an independent
WTO-consistent basis for the likelihood of continua nce of dumping determination exists". 44 T h e
United States contends that the "majority" of the margins relied on by the USDOC in the 1999 AFB
sunset review are not inconsistent with the Anti-Dumping Agreement because they either pre-date the
Anti-Dumping Agreement or they did not involve zeroing. Thus, it suggests that there is "no basis" to
consider that the sunset review "continues to be in violation of Article 11.3 of the AD Agreement".45

34. This argument is groundless and, once more, seeks to undermine the effectiveness of dispute
settlement. The Appellate Body found that the 1999 AFB sunset review is inconsistent with
Article 11.3 of the Anti-Dumping Agreement,46 and the DSB's recommendations and rulings required
the United States to bring this WTO-inconsistent me asure into conformity with its WTO obligations.
As the panel in US – Gambling (21.5) held, Article 21.5 proceedings do not provide respondents with
an opportunity to re-litigate the WTO-consistency of measures found to be inconsistent in the original
proceedings.47 The Panel cannot reverse the Appe llate Body's conclusion that the 1999 AFB sunset
review is inconsistent with Article 11.3, absent a change in the facts warranting a different conclusion.

42 See Japan's First Written Submission, paras. 155 to 158.
43 United States' First Written Submission, para. 75.
44 United States' First Written Submission, para. 75.
45 United States' First Written Submission, para. 73.
46 Appellate Body Report, US – Zeroing (Japan), paras. 186 and 190(f).

ANNEX C-2

EXECUTIVE SUMMARY OF THE SECOND
WRITTEN SUBMISSION OF THE UNITED STATES

(3 October 2008)

I. INTRODUCTION

1. Japan challenges the US implementation of the Dispute Settlement Body's ("DSB")
recommendations and rulings in US – Zeroing (Japan) . As explained in the US first written
submission, and more fully below, the United States has eliminated all measures that were found to be
WTO-inconsistent. This Panel should also reject Jap an's attempt to include measures that are outside
the scope of this proceeding.

II. THE PANEL SHOULD GRANT THE US REQUEST FOR PRELIMINARY RULINGS

A. THE THREE SUBSEQUENT ADMINISTRATIVE REVIEWS OF BALL BEARINGS FROM
JAPAN ARE OUTSIDE THE SCOPE OF THIS PROCEEDING

2. Japan erroneously claims that the United Stat es considers the three subsequent administrative
reviews of Ball Bearings to be "measures taken to comply" with the DSB's recommendations and
rulings in the original dispute. Much of Japan 's argument focuses on US statements that the cash
deposit rates from the original administrative revi ews were superceded by cash deposits rates from
subsequent reviews. However, saying that the resu lts of one administrative review were superceded
by the results of another administrative review is not the same thing as saying that the subsequent
review was a "measure taken to comply" within the meaning of DSU Article 21.5. The measures
subject to the DSB's recommendations and rulings were eliminated as an incidental consequence of
the US anti-dumping system when the cash deposit rate from one review was replaced by the cash
deposit rate from the next review.

3. Japan misrepresents the US arguments c oncerning the three subsequent administrative
reviews. The United States has not asked this Pane l to focus on the subjective intent of the United
States in adopting the final results in the three ad ministrative reviews. Rather, as the United States
has shown, from an objective standpoint, the thr ee subsequent administrative reviews are not
measures taken to comply. Concerning the two administrative reviews of Ball Bearings that were
adopted prior to the DSB's recommendations and rulings, measures taken by a Member prior to
adoption of recommendations and rulings typically are not taken for the purpose of achieving
compliance with recommendations and rulings and w ould not be within the scope of an Article 21.5
proceeding. Therefore, the two determinations made long before the DSB's recommendations and
rulings cannot be considered measures taken to comply.

4. Japan alleges that the United States argues here, as it did in US – Softwood Lumber IV
(Art. 21.5) (" US – SWL IV (Art. 21.5) "), that an administrative review initiated prior to the DSB's
recommendations and rulings cannot be a measure ta ken to comply. The United States, however,
makes no such argument in this proceeding, but instead focuses on the date that the final results in the
reviews were issued, a factor also considered important in US – SWL IV (Art. 21.5).

5. As to all three of the subsequent reviews of Ball Bearings, the US first written submission
examined factors that the Appellate Body considered in US – SWL IV (Art. 21.5) , and demonstrated
why the present dispute is different. It is surprising that Japan thinks that th e United States has asked
the Panel to focus solely on "the subjective intent of the implementing Member." Japan's exclusive
focus on effects is also disingenuous. The effect of the alleged measure taken to comply was just one
factor examined in US – SWL IV (Art. 21.5) . Timing was another important element, although in this
dispute, the timing of the subsequent administrative reviews demonstrates why they cannot be
considered measures taken to comply. Japan is al so mistaken to dismiss a Member's intentions
altogether. The Appellate Body has considered that although a Member's intentions are not
dispositive, they may nonetheless be relevant in de termining whether a measure is a measure taken to
comply. Here, unlike the alleged measure taken to comply in US – SWL IV (Art. 21.5), the final results
of the three subsequent reviews were not made "i n view of" the DSB's recommendations and rulings.
This fact, when considered alongside timing, dem onstrates that the three reviews are not measures
taken to comply.

6. Japan considers the US arguments concerning th e three subsequent revi ews as inconsistent.
However, it is Japan's own arguments that are pl agued by a "fundamental inconsistency." Japan
asserts that the three reviews are measures taken to comply, but at the same time argues that the
United States has omitted to take the necessary action to im plement the DSB's recommendations and
rulings with respect to the three administrative reviews of Ball Bearings . Japan's positions are
mutually exclusive.

7. The United States has responded to each of Japan's contradictory arguments. As to the
existence of measures taken to comply, the United States has shown that the United States removed
the WTO-inconsistent cash deposit rate by the expiry of the reasonable period of time ("RPT"). As to
Japan's consistency claim, the United States has not argued, nor does it argue now, that the three
subsequent reviews are measures taken to comply. Moreover, the United States does not advocate an
"intent-based approach" with respect to measures taken to comply.

8. Japan now tells the Panel that reliance on prio r dispute settlement reports is not necessary and
that there is no reason to examine the existenc e of substantive connec tions between the three
subsequent reviews and the DSB's recommendations and rulings. Japan's argument is based on the
erroneous proposition that the United States has expressl y declared the three subsequent reviews to be
measures taken to comply. Moreover, Japan, alt hough dismissing the need to look at substantive
connections, proceeds to an examination of the a lleged "obvious and important" connections between
the DSB's recommendations and rulings and the three subsequent reviews. However, there is no
connection between Review Nos. 4 and 5 and th e DSB's recommendations and rulings as the final
results of these two reviews were issued long be fore the recommendations and rulings. Japan's
attempt to establish close connections as to the 2005-06 administrative review of Ball Bearings also
fails. This determination did not occur around the same time as US withdrawal of the administrative
reviews subject to the DSB's recommendations an d rulings, and did not closely correspond to the
expiration of the RPT. In addition, unlik e the alleged measure taken to comply in US – SWL IV
(Art. 21.5), the 2005-06 review did not incorporate el ements from a Section 129 determination "in
view of" the DSB's recommendations and rulings.

9. Japan, citing US – SWL IV (Art. 21.5) , emphasizes the similarity between a specific
component (i.e., zeroing) that was found to be WTO- inconsistent in the original proceeding, and a
specific component of the three reviews that is chal lenged here. However, even if the United States
used zeroing in all three subsequent reviews, the subject matter of the measures subject to the DSB's
recommendations and rulings and the measure at issu e was but one factor examined by the Appellate
Body in SWL IV. For example, the Appellate Body also accorded great importance to the timing of
the declared and the undeclared measures taken to comply. Here, timing counsels against a finding
that the three administrative reviews are measures taken to comply.

10. In attempting to rebut US arguments on Australia – Salmon (Art. 21.5) and Australia –
Leather (Art. 21.5) , Japan notes that the critical issue in an Article 21.5 proceeding is whether the
implementing Member has complied with the DSB's recommendations and rulings. The United States
does not disagree. However, Japan is wrong to sugg est that the United States considers the question
to be whether a Member has complied with its ow n declared compliance measure. An Article 21.5
proceeding examines, to the extent provided in its terms of reference, whether the Member concerned
has adopted a measure taken to comply, and if so, wh ether that measure is consistent with the covered
agreements. Japan also worries about the alleged lack of a remedy were the Panel to find that the
three subsequent reviews of Ball Bearings fall outside the scope of this proceeding. However, the
jurisdiction of an Article 21.5 panel, and the sc ope of the overall dispute settlement system, is
established by the covered agreements, as agreed to by all Members. If Japan or other Members wish
to change the rules governing compliance, they must negotiate a change to the covered agreements.
And in any event, Japan has obtained relief here in the form of the removal of the specific cash
deposit rates that were challenged.

11. Japan continues to assert the relevancy of US – Upland Cotton (Art. 21.5) to its argument that
the three subsequent administrative reviews are measures taken to comply. However, what Japan fails
to comprehend is that in Upland Cotton , the Appellate Body was considering the issue of the
existence of measures taken to comply. Japan also di smisses an important difference between this
dispute and the one in Upland Cotton. The latter dispute involved an interpretation of the SCM
Agreement, and not the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 ("AD Agreement"). The issue of withdrawing an annually-recurring subsidy
in the sense of Article 7.8 of the SCM Agre ement, addressed by the Appellate Body in Upland
Cotton, is not pertinent to a dispute concerning co mpliance with the AD Agreement, which has no
provision analogous to Article 7.8.

B. FUTURE ADMINISTRATIVE REVIEWS ARE OUTSIDE THE SCOPE OF THIS
PROCEEDING

12. Japan would like to include in this proceedi ng any subsequent administrative reviews that it
claims are "closely connected" to the DSB' s recommendations and ru lings. However, under
Article 6.2 of the DSU, a panel request must identify the specific measures at issue, and under
Article 7.1, the Panel's terms of reference are limited to those specific measures. Here, each
determination that sets a margin of dumping is separ ate and distinct, and under Article 6.2, Japan had
to identify each such measure in its panel request. Further, the future measures are outside the scope
of this proceeding because they were not in existen ce at the time of the Panel's establishment. As
prior panels have recognized, a measure that did no t yet exist at the time of panel establishment
cannot be within a panel's terms of reference.

13. Japan cites Australia – Salmon (Art. 21.5) to support its argument that subsequent
administrative reviews may be challenged. That disput e is inapposite to the fact s before this Panel.
Unlike in Australia – Salmon (Art. 21.5) , Japan here is not challenging future measures that are
related to a regulatory standard that was adopted to comply with the recommendations and rulings of
the DSB. Rather, Japan is trying to challenge subsequent administrative reviews, which occur upon
request of interested parties on a schedule that is established without rega rd to dispute settlement
proceedings and pursuant to rights and obligations established in the AD Agreement.

14. Japan further cites EC – Bananas III (Art. 21.5) (US)
to argue that a compliance panel may
consider a measure adopted years after the end of the RPT. That point, however, is irrelevant here. In
the EC – Bananas III (Art. 21.5) dispute, the question before that panel did not pertain to a failure to
specify the measure, as required by DSU Article 6.2. That panel's findings are therefore inapposite to
this dispute.

15. On 15 September 2008, Japan asked the Pa nel for permission to file a supplemental
submission concerning an alleged additional measure taken to comply by the United States – the final
results of the 2006-07 administrative review of Ball Bearings . Whatever concerns Japan may have
had about ripeness of the US preliminary ruling are now irrelevant given Japan's request. The
United States objects to Japan's request to file a supplemental submission. Japan never identified the
2006-07 administrative review in its request for establis hment, as required by Article 6.2 of the DSU.
The 2006-07 review is outside the scope of this Ar ticle 21.5 proceeding, and Japan does not have the
right to file a submission on this alleged measure.

III. THE UNITED STATES HAS COMPLIED FULLY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE FIVE
ADMINISTRATIVE REVIEWS

A. JAPAN HAS FAILED TO ESTABLISH THAT THIS DISPUTE REQUIRES THE
RECALCULATION OF FINAL LIABIL ITY DETERMINED IN THE FIVE
ADMINISTRATIVE REVIEWS

16. Japan asserts that, to properly implemen t the DSB's recommendations and rulings, the
United States must undo action taken with respect to imports that entered the United States prior to
the date of implementation. Japan argues that the United States must recalculate the final anti-
dumping liability by revising the importer-specific assessment rates determined in the five
administrative reviews. Japan's theory of im plementation would create substantial inequalities
between the implementation obligations for retros pective and prospective anti-dumping systems if
implementation obligations in anti-dumping disputes extended to unliquidated imports which entered
the United States prior to the date of implementation. This is because there is no analogous concept
of unliquidated entries in a prospective system. Un der Japan's theory of implementation, there would
be two implementation obligations under a retrospec tive system. The Member would modify the
measure as it applies to imports occurring after the date of implementation and recalculate final
liability as to any prior unliquidated entries.

17. The additional obligation that Japan argues applies to the five administrative reviews in this
dispute is to recalculate the final liability applicable to prior unliquidated entries. The crux of Japan's
argument is that this obligation would exist in a prospective system if a refund proceeding under
Article 9.3.2 of the AD Agreement was challenged at the WTO and the proceeding remained legally
operational after the RPT. Japan's argument is unsubstantiated. Japan provides no evidence that
Members operating prospective systems allow WT O obligations to be implemented in refund
proceedings, and even if so, that does not mean th at the Member would be properly interpreting the
covered agreements. Furthermore, the operation of the prospective system of at least one Member
demonstrates that Japan's argument is incorrect.

18. Japan also argues that limiting implementati on obligations to imports entering after the RPT
would create advantages for retrospective syst ems because it would allow the United States to
maintain assessment rates indefinitely without an ob ligation to change these rates. Japan is incorrect.
Once a measure is found to be WTO-inconsistent, the same obligation exists under a retrospective or
prospective system, including to refrain from ass essing duties on post-implementation entries based
on the WTO-inconsistent measure. With respect to the five administrative reviews, the United States
has withdrawn the measures and completed subsequent administrative reviews before the end of the
RPT, and therefore no anti-dumping duties will be assessed on imports entering the United States
after the end of the RPT on the basis of the five WTO-inconsistent determinations.

19. In each of the five administrative reviews, the United States determined final liability for the
entries in dispute. This final liability was estab lished through importer-specific assessment rates that
were calculated in each of the administrative review s. Revising this final liability as Japan requests
would not constitute prospectiv e implementation because it would require Commerce to undo past

acts as to prior unliquidated entries. In this regard , the wording of Japan's ar gument is instructive.
Japan is arguing that "the United States is required to recalculate the importer-specific assessment
rate determined in the review to bring it into co nformity with WTO law." This use of the term
"recalculate" demonstrates that Japan is asking Commerce to undo past acts.

20. Japan references the fact that these entries re main unliquidated under US law after the RPT.
Japan's argument is premised on a misunderstanding of liquidation. Liquidation is the ministerial act
whereby US Customs determines what is owed on an entry. For entries subject to an anti-dumping
order, Customs would collect the anti-dumping duties – as previously determined by Commerce – and
also collect regular customs duties. Contrary to Japan's misunderstanding, liquidation has nothing to
do with the determination of final liability for anti-dumping duties; Commerce makes that final
determination at the conclusion of an administrative review.

21. The United States calculated the final liability for the entries in the five administrative
reviews but did not liquidate these entries. Li quidation did not occur b ecause these entries were
subject to domestic litigation in the United Stat es that included court injunctions suspending
liquidation during the pendency of the litigation. Jap an's theory of US implementation obligations is
dependent on the existence of th ese injunctions because, without them, the United States would have
liquidated all of the entries from the five administrative reviews long before the end of the RPT.
Japan is attempting to rely on domestic US litigation to alter its WTO rights.

22. In the US retrospective anti-dumping syst em, the deadline for liquidation following an
administrative review must occur within six months of Commerce's determination of final liability in
an administrative review, unless such liquidation is enjoined by domestic litigation. Because WTO
disputes will invariably last longer than six months, liquidation will always occur before the
conclusion of a WTO dispute – absent a domestic injunction . For the five original administrative
reviews, liquidation did not occur within six months for exactly this reason. The necessity of these
injunctions demonstrates that Japan's attempt to expand implementation obligations to reach these
prior unliquidated entries is not grounded in the rights and obligations found in the WTO Agreements.

23. In explaining that "prospective" and "ret rospective" relief can only be determined by
reference to the date of importation, the Unite d States identified several provisions of the AD
Agreement that support its argument, including Articles 8.6, 10.1, 10.6 and 10.8, as well as
Article VI:2 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and its
interpretative note. In response, Japan principally relies on Articles 18.3 and 9.3 of the AD
Agreement to argue that implementation obligations must extend to prior unliquidated entries.

24. With respect to Article 18.3 of the AD Agreement, Japan notes that this provision provides
that the AD Agreement applies to any administrative review based on an application made on or after
2 January 1995. Because the five challenged admi nistrative reviews were initiated pursuant to
applications made after that date, Japan reasons th at there is no manner in which a requirement to
revise importer-specific assessment instructions in the five reviews at issue can be viewed as
imposing an obligation on the United States retroact ively. Article 18.3 of the AD Agreement cannot
mean what Japan asserts it means. As an initia l matter, Article 18.3 of the AD Agreement simply
provides a transition rule with respect to the new provisions of the AD Agreement and does not
address the implementation obligations of Members pursuant to the dispute settlement provisions, nor
is it listed as a special or additional dispute settleme nt rule. Japan's argument also assumes what it
wants to prove. Japan claims that a dispute based on a post-WTO entry-into-force application
concerning pre-WTO entry-into-force entries could l ead to a revision of those pre-entry-into-force
entries. However, to reach that result assumes that there is an obligation to revise prior entries, but the
validity of that assumption is precisely the question at issue.

25. Furthermore, through Article 18.3 of the AD Agreement, Japan attempts to introduce an
implausible definition of "retroactivity" into WTO anti-dumping disputes. According to Japan, as

long as a WTO dispute involves an administrative review that was based on an application received
on or after 2 January 1995, then the dispute could r esult in an obligation to revise that administrative
review in any manner . Article 18.3 of the AD Agreement cannot support application of such an
implausible definition of "retroactive" to the AD Agreement.

26. With respect to Article 9.3 of the AD Agre ement, Japan notes that this article contains
disciplines that apply to importer-specific asse ssment instructions. According to Japan, an
administrative review by definition determines an importer-specific assessment rate for entries
occurring before initiation of the review, before a WTO dispute challenging the administrative review,
and long before the end of the RPT. Japan c oncludes that the US argument that implementation
applies only to imports occurring after the date of implementation means that WTO-inconsistent
assessment rates need never be brought into confor mity, rendering Article 9.3 of the AD Agreement a
nullity. US implementation obligations under Article 9.3 of the AD Agreement are the same as those
for a Member operating a prospective system. Under either system, if the results of a review pursuant
to Article 9.3 are challenged and found to be WT O-inconsistent, implementation does not require the
Member to undo the results of the review as to the period examined and (presumably) refund
additional duties.

27. Japan's argument under Article 9.3 of the AD Agreement fails to distinguish between
obligations that exist under the AD Agreement and implementation obligations under the DSU. The
United States does not dispute that Article 9.3 of the AD Agreement obliges WTO Members to ensure
that the amount of anti-dumping duty collected not exceed the margin of dumping established under
Article 2 of the AD Agreement. However, the exis tence of this obligation does not establish that the
United States must retroactively recalculate final an ti-dumping liability. Japan attempts to bolster its
Article 9.3 argument by citing to US – Upland Cotton (Art. 21.5) (AB) and arguing that the United
States interpretation of the DSU compromises the effectiveness of the AD Agreement and conflicts
with the objectives of the DSU. However, it is Jap an's interpretation that would result in significant
damage to the dispute settlement system by crea ting inequality between WTO dispute resolution in
prospective and retrospective anti-dumping syst ems and by making implementation obligations
entirely dependent upon domestic US litigation.

B. JAPAN'S ARGUMENT IMPROPERLY RELIES ON THE ARTICLES ON
RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS

28. Japan argues that the International Law Co mmission's ("ILC") Articles on Responsibility of
States for Internationally Wrongful Acts ("ILC Articles") confirm Japan's arguments with respect to
the five original administrative reviews. The IL C Articles are not incorporated either expressly or
implicitly into the covered agreements, and do not c onstitute an element of WTO law. In addition,
when interpreting the provisions at issue in this pro ceeding, there is no reason for this Panel to invoke
the ILC Articles for interpretive guidance or support. There is no provision in the Vienna Convention
justifying reference to the ILC Articles. Las tly, the ILC Articles are not "relevant rules of
international law" for purposes of this dispute. Th e ILC Articles themselves make plain that they are
not intended to apply in the situ ation presented by this proceeding. Article 55 provides that the ILC
Articles "do not apply where and to the extent that the conditions for the existence of an
internationally wrongful act or the content or impl ementation of the international responsibility of a
State are governed by special rules of interna tional law." Here, the specific WTO provisions on
dispute settlement and compliance trump the general rules as set forth in the ILC Articles.

C. JAPAN HAS NOT ESTABLISHED A VIOLATION OF DSU ARTICLES 17.14, 21.1, AND
21.3, NOR A VIOLATION OF ARTICLE II OF THE GATT 1994

29. Japan argues that the United States has faile d unconditionally to accept the Appellate Body's
findings with respect to the five original admini strative reviews in this dispute in violation of
Article 17.14 of the DSU. Nothing Japan argu es can change the fact that the United States

unconditionally accepted the recommendations and rulings of the DSB in this dispute. Japan also
argues that the alleged US failure to promptly co mply with the recommendations and rulings of the
DSB concerning the five original administrative revi ews is inconsistent with Articles 21.1 and 21.3 of
the DSU. The United States maintains that th ese DSU provisions do not impose a substantive
obligation on Members. The panel reports to whic h Japan cites do not support Japan's claims as to
these articles.

30. The United States reiterates its general objecti on to Japan's Article II claims. These Article II
claims are entirely derivative, and the Panel is not required to address them to resolve this dispute.
Japan also failed to request findings from the Panel under these Article II claims. Even were the
Panel to address Japan's claims under Article II of the GATT 1994, the United States notes that the
liability for anti-dumping duties that Japan claims resulted in collection of duties above the bound rate
was incurred prior to the expiration of the RPT. In addition, when the RPT expired, the United States
was no longer collecting cash deposits pursuant to the administrative reviews that were subject to the
DSB's recommendations and rulings.

D. JAPAN HAS FAILED TO ESTABLISH A CONTINUING VIOLATION OF ARTICLES 2.4
AND 9.3 OF THE AD AGREEMENT AND ARTICLE VI:2 OF THE GATT 1994

31. The United States brought the five original ad ministrative reviews into conformity with the
AD Agreement and the GATT 1994 by withdrawi ng each of these measures. As such, these
administrative reviews cannot serve as a basis to claim a continued violation of the covered
agreements.

IV. THIS PANEL SHOULD NOT REACH THE MERITS OF JAPAN'S CLAIMS
CONCERNING THE THREE SUBSEQUENT ADMINISTRATIVE REVIEWS

32. As the United States has explained here a nd in its prior submission, these reviews of Ball
Bearings from Japan are not measures taken to comply and are not properly within the scope of this
proceeding. Therefore, this Panel should not reach the issue of the WTO consistency of these alleged
measures.

V. THE UNITED STATES HAS COMPLIED FULLY WITH THE DSB'S
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE SUNSET
REVIEW OF ANTI-FRICTION BEARINGS

33. In the underlying dispute, Japan challenged a specific aspect of the AFB sunset review,
namely the reliance upon margins calculated with zeroing. The Appellate Body found that the
United States acted inconsistently with the AD Agreement in that review, "when it relied on margins
of dumping calculated in previous proceedings through the use of zeroing." Accordingly, both Japan's
challenge and the Appellate Body's finding were li mited to the extent the United States relied on
margins from previous proceedings calculated with zeroing. Japan's assertion that the United States
should have presented the arguments defending its reliance upon non-zeroed margins and pre-WTO
margins in the original proceeding is unfounded.

34. Japan's reliance on the dispute settlement reports in US – Gambling (Art. 21.5) and US –
Shrimp (Art. 21.5) is misplaced. In this dispute, the United States is not seeking a new finding on that
part of the sunset review determination that was already litigated and on which there were
recommendations and rulings. Rather, the United Stat es is asking this Panel to examine issues which
were never addressed by the panel or the Appellate Body (i.e., the reliance upon margins that were
determined without zeroing or the margins that predated the AD Agreement).

35. Commerce in the sunset review of AFB was required to determine the likelihood of dumping
on an order-wide basis, and did so by examini ng the results from administrative reviews concluded

during the sunset review period. Its finding of likelihood of dumping was supported by higher than de
minimis margins that were calculated without zeroing. In the fifth administrative review, Commerce
reviewed twenty-one respondents, eleven of whic h failed to cooperate. For ten of those eleven
respondents, Commerce applied the dumping margin of 106.61 percent that was based upon a petition
rate calculated without zeroing. These respondents were not subs equently reviewed during the sunset
period and their non-zeroed dumping margins represent their most recent dumping experience. These
high dumping margins vitiate Japan's argument that th e order should have been terminated. It is
entirely unreasonable to interpret the Appellate Bo dy's findings in this dispute as prohibiting the
United States from relying upon margins calculated without zeroing. Finally, Japan cites no authority
that supports its argument that a Member cannot rely upon pre-WTO margins in making a sunset
determination.

VI. THE UNITED STATES HAS COMPLIED WITH THE DSB'S
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE ZEROING
PROCEDURES

36. Japan misapprehends the DSB's recommendati ons and rulings concerning the "zeroing
procedures." Those recommendations and rulings applied to the single measure known as the
"zeroing procedures," regardless of the comparison methodology used or the type of anti-dumping
proceeding. Japan, however, has de-constructed that single measure, and essentially treats each use of
zeroing as a separate measure that the United States was required to withdraw.

37. The original panel was explicit that the zeroi ng procedures were a single measure that applied
in all contexts and when using all comparison met hodologies. The panel concluded that the "zeroing
procedures" were " a measure which can be challenged as such." The Appellate Body upheld the
panel's conclusion. It is clear that the original panel, and the Appellate Body, considered the zeroing
procedures to be a single measure that was always applied in any comparison methodologies and in
any anti-dumping proceeding – "whenever" Commer ce calculates margins of dumping or assessment
rates. Logically, if the United States stops using zeroing in any one of these different contexts, as it
did, then the single measure is eliminated or withdrawn.

38. Japan now contradicts the very same position that it took in the original proceeding, and with
which the panel and the Appellate Body agreed. Japan, for example, considered the zeroing
procedures to be "a single measure that applies to W-to-W comparisons, T-to-T comparisons and
W-to-T comparisons, used in any type of anti-dum ping proceeding." According to Japan's own view,
the zeroing procedures were a single measure applied in all contexts. Once the use of zeroing was
eliminated in any one of these contexts, then the measure ceased to exist.