UNITED STATES – COUNTERVAILING MEASURES ON CERTAIN PIPE AND TUBE PRODUCTS FROM TURKEY REPORT OF THE PANEL
Document: Addendum
Date: 18 December 2018
Document codes: WT/DS523/R/Add.1; WT/DS523/R.
Complainant: Turkey
Respondent: U.S.
Third parties: Brazil, Canada, China, EU, Japan, Kazakhstan, South Korea, Mexico, Russia, Saudi Arabia, UAE
Dispute stage: Panel
Agreements cited: Art. 1, 2, 12, 14, 15, 1.1(a)(1), 1.1(b), 14(d), 12.7, 2.1(c), 2.4, 15.3  Subsidies and Countervailing Measures (SCM)Art. VI:3  GATT 1994Art. 10, 19.4, 32.1  Subsidies and Countervailing Measures (SCM)

UNITED STATES – COUNTERVAILING MEASURES ON CERTAIN PIPE
AND TUBE PRODUCTS FROM TURKEY
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 9
Annex A-3 Interim Review 11
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of Turkey 19
Annex B-2 Second integrated executive summary of the arguments of Turkey 29
Annex B-3 First integrated executive summary of the arguments of the United States 38
Annex B-4 Second integrated executive summary of the arguments of the United States 50
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 62
Annex C-2 Integrated executive summary of the arguments of the European Union 63
Annex C-3 Integrated executive summary of the arguments of Japan 67
Annex C-4 Integrated executive summary of the arguments of Mexico 72

ANNEX A
PANEL DOCUMENTS
Contents Page
Annex A-1 Working Procedures of the Panel 4
Annex A-2 Additional Working Procedures on Business Confidential Information 9
Annex A-3 Interim Review 11

ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 8 November 2017

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 confidential.
Nothing in the DSU or in these Working Procedures s hall 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 another Member which the submitting Member
has designated as c onfidential. 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 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 invited by the Panel to
appear before it.
4. 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 de legation 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

5. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which its presents the facts of the case and its arguments, in accordance
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable
adopted by the Panel.
6. 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 Turkey requests such
a ruling, the United States shall submit its response to the request in its first written submission.
If the United States requests such a ruling, Turkey shall submit its response to the request prior to
the first 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.
7. Each party shall submit all evidence to the Panel no later than during the first subs tantive
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 h as been granted, the Panel shall
accord the other party a period of time for comment, as appropriate, on any new evidence
submitted after the first substantive meeting.

8. 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
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 a ccuracy 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. Should a party become aware of any inaccuracies in the
translations of the exhibits submitted by that party, it shall inform the Panel and the other party
promptly, and provide a new translation.
9. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by Turkey could be numbered TUR -1,
TUR-2, etc. If the last exhibit in connection with the first submission was nu mbered TUR-5, the
first exhibit of the next submission thus would be numbered TUR-6.
Questions

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

11. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 12h00 (noon) the previous working day.
12. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Turkey to make an opening statement to present its case first.
Subsequently, the Panel shall invite the United States to present its point of view. Before
each party takes the floor, it shall provide the Panel a nd other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies for the interpreters,
through the Panel Secretary. Each party shall make availa ble to the Panel and the other
party the final version of its opening statement as well a s its closing statement, if any,
preferably at the end of the meeting, and in any event no later than 17h00 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 written 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 Turkey presenting its statement first.
13. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask the United States if it wishes to avail itself of the right to pr esent its
case first. If so, the Panel shall invite the United States to present its opening statement,

followed by Turkey. If the United States chooses not to avail itself of that right, the Panel
shall invite Turkey to present its opening statement first . Before each party takes the
floor, it shall provide the Panel and other participants at the meeting with a provisional
written version of its statement. In the event that interpretation is needed, each party
shall provide additional copies for the interp reters, through the Panel Secretary. Each
party shall make available to the Panel and the other party the final version of its
opening statement as well a s its closing statement, if any, preferably at the end of the
meeting, and in any event no later than 17h00 of 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 answ er 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 ot her party's written 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 party that presented its opening statement
first, presenting its closing statement first.
Third parties

14. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first 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 this first
substantive meeting, set aside for that purpose. Each third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 12h00 (noon) 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 17h00
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 statements. 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 party shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a ti meframe 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 section

17. The description of the arguments of the parties and third parties in the descriptive section of
the Panel report shall consist of executive 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 an integrated executive summary of the facts and arguments as
presented to the Panel in its first written submissions, first opening and closing oral statements
and responses to questions following the first substantive meeting, and a separate integrated
executive summary of its written rebuttal, second opening and closing oral s tatements and
responses to questions following the second substantive meeting, in accordance with the timetable
adopted by the Panel. Each integrated executive summary shall be limited to no more than
15 pages. The Panel will not summarize in a separate pa rt of its report, or annex to its report, the
parties' responses to questions.
19. Each third party shall submit an integrated executive summary of its arguments as
presented in its written submission and statement in accordance with the timetable adopted by the
Panel. This integrated executive summary may also include a summary of responses to questions,
if relevant. The executive summary to be provided by each third party shall not exceed six pages.
20. The Panel reserves the right to request the parties and thi rd 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 interim repo rt, 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 exercised 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 timetable
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 three paper copies of all documents it submits to the
Panel. Exhibits may be filed in two copies on a CD-ROM, DVD or USB key and two paper
copies. The DS Registrar shall stamp the documents with the date and time of the filing.
c. Each party and third party s hall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD -ROM, DVD or USB key or as an e -mail attachment. If the
electronic copy is provided by e-mail, it should be addressed to xxxxx@wto.org, with a
copy to xxxxx@wto.org and xxxxx@wto.org. If a CD -ROM, DVD or USB key is provided,

it shall be filed with the DS Registry. The paper version of documents shall constitute the
official version for purposes of the record of the dispute.
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 first substantive meeting with 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 17h00 (Geneva time) on the
due dates established by the Panel. A party or third 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 electroni c version of the descriptive section,
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.
25. The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties.

ANNEX A-2
ADDITIONAL WORKING PROCEDURES ON BUSINESS CONFIDENTIAL INFORMATION
Adopted on 8 November 2017
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 submitting the information to the Panel. The 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
information that was previously treated by the U.S. Department of Commerce or the United States
International Trade Commission as confidential or proprietary information protected by
Administrative Protective Order in the course of the countervailing duty proceedings at issue in this
dispute. In addition, these procedures do not apply to any BCI if the entity which provided the
information in the course of the aforementioned proceedings agrees in writ ing to make the
information publicly available.
3. If a party considers it necessary to submit to the Panel BCI as defined above from an entity
that submitted that information in the proceedings at issue, the party shall, at the earliest possible
date, obtain an authorizing letter from the entity and provide such authorizing letter to the Panel,
with a copy to the other party. The authorizing letter from the entity shall authorize both Turkey
and the United States to submit in this dispute, in accordance with these procedures, any
confidential information submitted by that entity in the course of the proceeding. Each party shall,
at the request of the other party, facilitate the communication to an entity in its territory of any
request to provide an authorizing letter referred to above. Each party shall encourage any entity in
its territory that is requested to grant the authorization referred to in this paragraph to grant such
authorization.
4. No person may have access to BCI except a member of the Secretariat or the Panel, an
employee of a party or third party, or an outside advisor to a party or third party for the purposes
of this dispute. However, 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 proceedings at issue in this dispute, or an
officer or employee of an association of such enterprises.
5. A person having access to BCI shal l treat it as confidential, i.e. shall not disclose that
information other than to persons authorized to have access to it pursuant to these procedures.
Each party and third party is responsible for ensuring that its employees and/or outside advisors
comply with these procedures. BCI obtained under these procedures may be used only for the
purpose of providing information and argumentation in this dispute and for no other purpose. All
documents and electronic storage media containing BCI shall be stored in such a manner as to
prevent unauthorized access to such information.
6. A party submitting BCI shall mark the cover and/or first page of the document containing
BCI, and each page of the document, to indicate the presence of such information. The specific
information in question shall be placed between double brackets, as follows: [[xx,xxx.xx]]. The
first page or cover of the document shall state "Contains Business Confidential Information on
pages xxxxxx", and each page of the document shall contain the notic e "Contains Business
Confidential Information" at the top of the page. Documents previously submitted to the United
States Department of Commerce containing information designated as BCI for purposes of these
proceedings pursuant to paragraph 2, and marked as "Contains Business Proprietary Information",
shall be deemed to comply with this requirement. 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 TUR-1 (BCI)).

7. 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".
8. Where a party or third party submits a document containing BCI to the Panel, the other
party or third party 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. In the case of an oral statement containing
BCI, the party or third party making such a statement shall inform the Panel bef ore 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 present or observing the session at that time. The
written versions of such oral statements sub mitted to the Panel shall be marked as provided for in
paragraph 7.
9. 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 objects to its submission without such designation ,
it shall forthwith bring this objection to the attention of the Panel and the other party, and, where
relevant, the third parties, together with the reasons for the objection. Similarly, if a party or third
party 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 and the
other party, and, where relevant, the third parties, together with 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.
10. 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 final report to the
Members, the Panel will give each party and, where BCI was submi tted 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.
11. 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.

ANNEX A-3
INTERIM REVIEW
1 INTRODUCTION
1.1. On 14 September 2018, the Panel issued its Interim Report to the parties. On 28 September
2018, Turkey and the United States submitted their written requests for review. In addition to its
written request, the United States also requested the Panel to hold an interim review meeting with
the parties. On 5 October 2018, Turkey submitted comments on the United States' written request
for review. The Panel held an interim review meeting with the parties on 13 November 2018.
1.2. In accordance with Article 15.3 of th e DSU, this Annex sets out our discussion of the
arguments made at the interim review stage. We have revised certain aspects of the
Interim Report in light of the parties' comments. In addition, we have made certain editorial
changes to improve the clarity and accuracy of the Final Report, or to correct typographical and
non-substantive errors, including those suggested by the parties. The footnote numbers in the
Final Report have changed due to these revisions. The footnote numbers indicated in this Annex
pertain to those in the Final Report. The paragraph numbers in the Final Report remain
unchanged.
2 SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE PARTIES
2.1 Paragraph 3.1
2.1. The United States requests us to modify paragraph 3.1 to clarify which claims Turkey brought
"as such" and those claims it brought "as applied".1 Turkey did not comment on this request.
2.2. We have modified this paragraph to specify which claims Turkey brought "as such" and those
it brought "as applied".
2.2 Paragraphs 7.6 and 7.15
2.3. The United States requests us to delete the term "manager" in describing OYAK as a pension
fund, as this term is not used in the description of OYAK in the USDOC's determinations. 2 Turkey
did not comment on this request.
2.4. We have made the requested change in these two paragraphs.
2.3 Paragraph 7.17
2.5. The United States requests us to modify this paragraph to accurately describe its argument
concerning OYAK.3 Turkey asks us to reject the United States' request because Turkey considers
that the USDOC did treat OYAK as a governmental entity or as governmental in the broader
sense.4
2.6. We have made some changes to more closely reflect the actual language used by the
United States in its submissions without making any of the requested changes objected to by
Turkey. We consider that these changes reflect the United States' position.

1 United States' request for interim review, para. 4.
2 United States' request for interim review, paras. 5-6.
3 United States' request for interim review, para. 7.
4 Turkey's comments on the United States' request for interim review, para. 1.

2.4 Paragraph 7.21 and footnote 51
2.7. The United States requests us to modify footnote 51 to r eiterate its argument that we should
not consider Turkey's arguments with respect to OYAK in the context of its challenge to Erdemir
and Isdemir because the claim was independently raised .5 Turkey requests us to modify the last
sentence to avoid suggesting that the parties have agreed on OYAK's status.6
2.8. We have made the requested changes to clarify the United States' argument and to address
Turkey's concern.
2.5 Paragraph 7.27 and footnote 61
2.9. The United States requests us to modify this paragraph and footnote 6 1 to reflect the fact
that Erdemir's ownership interest in Isdemir differed slightly in each of the challenged
determinations.7 Turkey did not comment on this request.
2.10. We have made changes to paragraph 7.27 and footnote 61 to reflect that Erdemir's
ownership interest in Isdemir differed slightly in the context of each of the challenged
determinations.
2.6 Paragraph 7.61
2.11. The United States requests us to delete the language "not legally 'relevant'" from this
paragraph because the USDOC's determinations used the phrase "not dispositive".8 Turkey asks us
to reject the United States' request because the USDOC used the language "not legally 'relevant'"
in the OCTG CVD Final Determination Memorandum.9
2.12. We reject the United States' request because, as Turkey notes, the USDOC used the word
"relevant" in the OCTG CVD Final Determination Memorandum. The USDOC alternately used the
term "dispositive" in the WLP, HWRP, and CWP CVD Final Determination Memorand a. Therefore,
it is accurate to include both terms.
2.7 Paragraph 7.96
2.13. The United States requests us to delete the word "sole" before the word "basis" when
referring to the United States' argument concerning Turkey's "as such" claim corresponding to the
benefit determination in the OCTG investigation.10 Turkey did not comment on this request.
2.14. We have made the suggested deletion.
2.8 Paragraph 7.102
2.15. The United States requests us to modify this paragraph to clarify that the United States
requested the Panel to find that the OCTG Final Determination is outside the Panel's terms of
reference.11 Turkey did not comment on this request.
2.16. We have made the suggested change.
2.9 Paragraphs 7.103 and 7.105
2.17. The United States requests us to delete paragraph 7.103 concerning panels' discretion to
rule on expired measures, and to additionally modify parag raph 7.105 to indicate that the Panel
has no basis to make findings on a measure that ceased to have legal effect or was withdrawn

5 United States' request for interim review, para. 8.
6 Turkey's request for interim review, para. 2.
7 United States' request for interim review, paras. 9-10.
8 United States' request for interim review, para. 11.
9 Turkey's comments on the United States' request for interim review, para. 2.
10 United States' request for interim review, para. 12.
11 United States' request for interim review, para. 13.

prior to the establishment of a panel. 12 The United States considers that prior panel reports
support its position that panels have no discretion to make findings regarding measures that
expire before a panel's establishment. In such instances, the United States considers that panels
are required to rule that such measures fall outside of a panel's terms of reference. 13 Turkey did
not comment on this request.
2.18. We see no basis to make either of the United States' requested changes. Paragraph 7.103 is
correct as formulated. The Panel otherwise disagrees with the United States that panels have no
discretion to make findings on measures at issue that ceased to have legal effect or were
withdrawn prior to the establishment of a panel. We hold the view that the decision whether to
make findings on a given measure that has expired – including measures that have expired prior
to a panel's establishment – will depend on the circumstances of the case. A panel is therefore
required to exercise its discretion in deciding whether to make findings depending on the
circumstances.
2.10 Paragraph 7.106
2.19. The United States requests us to conform the language in this paragraph with the changes it
has requested to paragraphs 7.103 and 7.105. In particular, the United States requests that the
Panel state that it has no basis to make "as applied" findings, rather than stating that the Panel
does not need to make f indings on the WTO consistency of the initial benchmark determination. 14
Turkey asks us to reject this request in the view that the phrases "see no basis" and "do not need
to make" have different meanings, and because Turkey disagrees with the United States' view that
the Panel had no discretion in deciding whether to make findings or not.15
2.20. We decline to make this change for the same reason as we declined to make changes to
paragraphs 7.103 and 7.105.
2.11 Paragraph 7.123
2.21. The United States requests us to adjust l anguage in this paragraph to indicate that the
United States submitted examples in response to the Panel's questions seeking such examples. 16
Turkey did not comment on this request.
2.22. We have made the requested change.
2.12 Paragraphs 7.153, 7.157, 7.209, 7.213, 7.217, 7.220, and 7.249
2.23. The United States requests us to replace the phrase "reasonable and unbiased investigating
authority" with "objective and unbiased investigating authority" in last sentence of
paragraph 7.153, as well as in paragraphs 7.157, 7.209, 7.213, 7.217, 7.220, and 7.249, to reflect
the standard of review as articulated in prior panel reports. 17 Turkey did not comment on this
request.
2.24. We have made the requested changes to improve consistency and to conform the language
to the applicable standard of review as set out in, inter alia , paragraphs 7.2, 7.3 , 7.205,
and 7.222.
2.13 Paragraph 7.190
2.25. The United States requests us to replace the word "determine" with "make determinations"
in the first sentence of paragraph 7.190 to more accurately reflec t the text of Article 12.7 of the
SCM Agreement.18 Turkey did not comment on this request.

12 United States' request for interim review, para. 18.
13 United States' request for interim review, paras. 15-17.
14 United States' request for interim review, para. 19.
15 Turkey's comments on the United States' request for interim review, para. 3.
16 United States' request for interim review, para. 20.
17 United States' request for interim review, paras. 21-22.
18 United States' request for interim review, para. 23.

2.26. We have made the requested change.
2.14 Subsection 7.5.2.2.2 heading and paragraph 7.203
2.27. The United States requests us to modify the heading of this subsection to read "Punitive
application of facts available" rather than "Punitive facts available". The United States also
requests us to make similar modifications to the third and fifth sentences of paragraph 7.203.19
Turkey did not make any comment on this request.
2.28. We have made the requested changes.
2.15 Paragraph 7.200
2.29. The United States requests us to replace "this data" in the second sentence of
paragraph 7.200 with "the data provided by Borusan regarding its purchases of HRS for the Gemlik
mill" to specify which data that is being discussed.20 Turkey did not comment on this request.
2.30. We have made the requested change.
2.16 Paragraph 7.202
2.31. The United States requests us to modify this paragraph to more accurately refl ect the
United States' argument that the use of weighted average transaction prices would in general
"require a finding that is necessarily better than some of the outcomes for cooperating entities". 21
In particular the United States requests that we replac e the language "have led to a finding which
would have made Borusan necessarily better off" with the language "in general lead to findings
that are necessarily better than some of the outcomes for cooperating entities" . Turkey did not
comment on this request.
2.32. We have made the requested change.
2.17 Paragraph 7.204
2.33. The United States requests us to modify the language in the second sentence to reflect that
the alleged punitive nature of the USDOC's application of facts available is an argument advanced
by Turkey and contested by the United States.22 Turkey did not comment on this request.
2.34. We have made the requested change.
2.18 Paragraph 7.215
2.35. The United States requests us to strike the phrase "to discourage non -cooperation" in the
second sentence in paragraph 7.215 to avoid giving the impression that the USDOC inferred
adversely by selecting the lower price on the record to discourage non -cooperation. According to
the United States, there is no statement in the USDOC's Final D etermination to this effect. 23
Turkey disagrees that the sentence is inaccurate as currently drafted. In the event that the Panel
were to modify this paragraph, Turkey requests us to indicate that the USDOC inferred adversely
in selecting the lowest price on the record because of Borusan's non-cooperation.24
2.36. We do not consider that the United States' requested change is a fair reflection of the
USDOC's determination in this regard. Although the USDOC does not explicitly state in its
determination that it inferred adversely in order to di scourage non -cooperation, the USDOC 's
OCTG Final Determination nevertheless clearly connects its decision to apply an adverse inference

19 United States' request for interim review, paras. 24 and 27.
20 United States' request for interim review, para. 25.
21 United States' request for interim review, para. 26 (referring to United States' response to Panel
question No. 47, para. 146).
22 United States' request for interim review, para. 28.
23 United States' request for interim review, para. 29.
24 Turkey's comments on the United States' request for interim review, para. 4.

to its finding that Borusan failed to cooperate. 25 We have accordingly modified this paragraph to
reflect the USDOC's sta tements in the OCTG Final Determination that the USDOC inferred
adversely in selecting the lowest price on the record because of Borusan's non-cooperation.
2.19 Paragraph 7.250
2.37. The United States requests us to modify this paragraph to indicate that the CWP revi ew and
the WLP investigation did not cover the identical subsidy programmes, but only some of the same
programmes.26 Turkey did not comment on this request.
2.38. We have made the requested change.
2.20 Paragraph 7.260, footnote 418
2.39. The United States requests us to d elete footnote 418 because it does not support the
proposition in the text.27 Turkey did not comment on this request.
2.40. We have modified the footnote to more clearly support our statement that this is not a
situation in which the USDOC did not have other facts on the record to consider.
2.21 Paragraphs 7.267, 7.317, 7.330, and 7.333
2.41. Turkey requests us to identify the CWP sunset review at issue as the 2011 CWP sunset
review.28 The United States did not comment on this request.
2.42. We have made the requested change.
2.22 Paragraph 7.275, footnote 431
2.43. The United States requests us to modify footnote 431 to more accurately reflect the text of
the Appellate Body's report in Argentina – Import Measures.29 Turkey did not comment on this
request.
2.44. We have made the requested changes.
2.23 Paragraphs 7.285-7.295 and footnote 444
2.45. The United States requests us to revise our approach as set out in paragraphs 7.285 to
7.295 and footnote 444 regarding the interpretation of Article 15.3 of the SCM Agreement. The
United States submits that the P anel erred in enquiring whether the United States has identified
"cogent reasons" for deviating from the conclusions reached by the panel and the Appellate Body
in US – Carbon Steel (India) regarding the interpretation of Article 15.3. According to the
United States, the Panel's understanding of the value of prior adopted panel or Appellate Body
reports is inconsistent with the relevant provisions of the DSU and the WTO dispute settlement
system. The United States thus asks us to eliminate any reference to the notion of "cogent
reasons" or to otherwise engage with specific provisions in Article 3.9 of the DSU and Article IX:2
of the WTO Agreement, and with arguments that have been presented against a "cogent reasons"
approach.30
2.46. At an interim review meeting held with the Panel, the United States elaborated on its
position that the DSU does not assign precedential value to adopted panel and Appellate Body

25 See, e.g. OCTG CVD Final Determination Memorandum, (Exhibit TUR-85), p. 12 ("[W]e find that
Borusan failed to cooperate by not acting to the best of its ability because Borusan withheld requested
information on its purchases of HRS, despite having two opportunities, and never requested an extension to
provide this information in accordance with 19 CFR 351.302(c). Consequently, an adverse inference is
warranted in the application of facts available.")
26 United States' request for interim review, para. 30.
27 United States' request for interim review, para. 32.
28 Turkey's request for interim review, para. 2.
29 United States' request for interim review, para. 33.
30 United States' request for interim review, paras. 34-36 and 41.

reports and the interpretations contained in those reports. According to the United States, a panel
(or the Appellate Body) is to apply customary rules of interpretation of public international law in
assisting the DSB to determine whether a measure is inconsistent with a Member 's commitments
under the covered agreements. The United States also argues that t hose rules of interpretation do
not assign to interpretations given as part of dispute settlement a precedential value for purposes
of discerning the meaning of the text of the covered agreements. The United States further
elaborated on why it considers that there are flaws in the Appellate Body's statement that a panel
must follow an Appellate Body interpretation absent undefined "cogent reasons" for departing from
that interpretation. In this respect, the United States considers that the Appellate Body's "c ogent
reasons" approach is flawed because (a) it fails to appreciate the functions of panels and the
Appellate Body in the WTO dispute settlement system; (b) it is based on an erroneous
interpretation of Article 3.2 of the DSU; (c) it relies on previous re ports that do not support it;
(d) it misunderstands why parties cite previous reports in WTO disputes; (e) it rests on
inappropriate analogies to other international adjudicative fora; and (f) it incorrectly assumes the
existence of a hierarchical structure that does not reflect the role assigned to the Appellate Body in
the DSU.31 Although the United States disagrees that adopted panel and Appellate Body reports
have precedential value, the United States considers it appropriate for a panel to consider and
refer to prior Appellate Body or panel reasoning in conducting its own objective assessment of the
matter.32
2.47. Turkey disagrees with the United States' requests. Turkey considers that, although the
concept of "cogent reasons" does not appear in the text of the DSU, it can be derived from a
reading of Article 3.2, 17.6, and 17.13 of the DSU, and it is well -established that a panel will
resolve the same legal question in the same way in a subsequent case, absent cogent reasons to
rule differently. Turkey further submits that the Panel correctly concluded that the United States
provided no cogent reasons for why the Panel should depart from prior guidance in interpreting
Article 15.3, and that the Panel did not fail to engage with the United States' arguments.33
2.48. We have made certain modifications to paragraphs 7.283 and 7.285 -7.295, and
accompanying footnotes to clarify our approach and the reasoning supporting our conclusions.
In making our own objective assessment of the matter before us, we have recalled that p anels
may take into account the reasoning followed in prior adopted panel and Appellate Body reports
when resolving similar legal issues. In this respect, the Report explains that we are persuaded by
and agree with the panel 's and the Appellate Body's interpretations of Article 15.3 of the
SCM Agreement in US – Carbon Steel (India) , and we therefore adopt the reasoning contained in
these reports as our own in making our objective assessment of Turkey's claim in this dispute. We
found it all the more appropr iate to do so given that the United States has raised essentially the
same arguments in this dispute regarding the interpretation of Article 15.3 of the SCM Agreement
as were before the panel and the Appellate Body in US – Carbon Steel (India) and were rejected in
their entirety.
2.24 Paragraphs 7.288 and 7.295
2.49. The United States requests us to modify these paragraphs to avoid suggesting that the
United States did not raise any new arguments in this dispute concerning the interpretation of
Article 15.3 of the SCM Agreement apart from those raised before the panel and the Appellate
Body in US – Carbon Steel (India) . The United States also disagrees that the Appellate Body in
US – Carbon Steel (India) dismissed those arguments raised by the United States in their entirety.
Accordingly, the United States requests us t o replace the phrase "identical arguments" with "these
same arguments". 34 The United States also requests that we specify the US statute that is
discussed in this paragraph.35 Turkey did not comment on these requests.
2.50. We have made the requested clarification s in the context of addressing other comments
made by the United States in connection with paragraphs 7.285-7.295.

31 United States' statement at the interim review meeting, paras. 55-82.
32 United States' statement at the interim review meeting, para. 27.
33 Turkey's comments on the United States' request for interim review, paras. 5-6; statement at the
interim review meeting, paras. 6-7.
34 United States' request for interim review, paras. 37 and 39-40.
35 United States' request for interim review, para. 38.

2.25 Paragraph 7.327, footnote 528
2.51. The United States requests us to delete footnote 528 for the same reasons as it requests us
to make changes to paragraph 7.285 and footnote 444 as discussed above. 36 Turkey asks us to
reject the United States' request because it considers that it is well -established that adopted panel
and Appellate Body reports create legitimate expectations among WTO Members and that absent
cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a
subsequent case.37
2.52. We have deleted footnote 528 consistently with our modifications to paragraphs 7.285-7.295
as discussed above.

Body Reports, Japan – Alcoholic Beverages II, DSR 1996:1, p. 143; and US – Stainless Steel (Mexico),
para. 160).

ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 First integrated executive summary of the arguments of Turkey 19
Annex B-2 Second integrated executive summary of the arguments of Turkey 29
Annex B-3 First integrated executive summary of the arguments of the United States 38
Annex B-4 Second integrated executive summary of the arguments of the United States 50

ANNEX B-1
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY
I. EXECUTIVE SUMMARY OF TURKEY'S FIRST WRITTEN SUBMISSION
1. This dispute relates to the countervailing duty measures imposed by the United States
pursuant to its investigations of Turkish imports of Certain Oil Country Tubular Goods ("OCTG")
(C-489-817); Welded Line Pipe ( "WLP") ( C-489-823); and Heavy Walled Rectangular Welded
Carbon Steel Pipes and Tubes ( "HWRP") ( C-489-825); and pursuant to its sunset and
administrative reviews, for calendar years 2011 and 2013, respectively, of the countervailing duty
order on Turkish imports of Circular Welded Carbon Steel Pipes and Tubes ("CWP") (C-489-502).
2. The United States ' determinations in these proceedings suffer from a number of manifest
defects. As discussed in greater detail below, these measures are inconsistent with core
WTO obligations, namely: Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), and 15.3 of the
Agreement on Subsidies and Countervailing Measures ( "SCM Agreement "). Moreover, the
United States' approach is particularly surprising because in most of th ese instances, the
problematic approach is very similar, and in some cases identical, to that in previous
determinations which the Appellate Body and prior panels have found to be inconsistent with the
SCM Agreement.
3. At its core, this dispute originates with the United States' post-preliminary determinations in
the OCTG proceeding. Specifically, in the OCTG proceeding, the U.S. Department of Commerce
("USDOC") first made a preliminary determination that no countervailing duty measures were
warranted because it calculated de minimis subsidy rates. If that preliminary result had been left
undisturbed, there would be no countervailing duty measures on Turkish imports of OCTG, and
likely none on WLP or HWRP either.
4. However, the USDOC reversed its negative preliminary determination when it issued post -
preliminary determinations increasing the calculated subsidy rates above the de minimis level and
thus finding countervailable subsidies where originally it had not. In these post -preliminary
determinations, th e USDOC treated the private occupational pension fund for employees of the
Turkish military, Ordu Yardimlasma Kurumu ( "OYAK"), as well as Eregli Demir ve Celik Fabrikalari
T.A.S. ( "Erdemir") and Iskenderun Iron & Steel Works Co. ( "Isdemir"), two of Turkey 's three
integrated iron and steel producers, as public bodies. The USDOC then relied on these and other
erroneous findings in the OCTG proceeding to reach positive findings of subsidization in the
investigations of WLP and HWRP and in a subsequent administ rative review of the order on CWP.
The U.S. International Trade Commission's ("ITC") injury determinations in these proceedings also
suffer fatal flaws.
5. The United States ' determinations in these proceedings are now enshrined in its
countervailing duty regime, resulting in further WTO -inconsistent rulings and subjecting Turkey 's
steel imports to countervailing duty measures that should not exist.
A. Overview of Occupational Pension Funds, Turkey 's Pension Fund System, the
Turkish Steel Industry, and the United States Countervailing Duty Measures
against Certain Turkish Steel Pipe and Tube Products
6. Like many other countries, Turkey has a diversified pension fund system, consisting of: a
mandatory public social security system; mandatory and voluntary pr ivate occupational pension
funds; and voluntary personal savings funds. This "three pillar " system is precisely the
organizational structure recommended by the World Bank. There are two supplementary
mandatory private occupational pension funds in the Turk ish pension fund scheme. One of these
funds is the Armed Forces Pension Fund, OYAK.
7. OYAK is the mandatory private occupational pension fund established in 1961 for employees
of the Turkish military. OYAK operates as a non -profit foundation, providing pe nsion plans and

other benefits such as retirement, disability, death, and mortgage and consumer loans for its over
300,000 members. OYAK is not part of the Turkish Armed Forces or affiliated with the
Turkish Ministry of National Defense, or any other gover nment agency. Turkey notes that the
investigating authorities of other WTO Members that have investigated OYAK concluded it is not a
public body. In 2014, for example, the Canada Border Services Agency found that
"Ordu Yarimlasma Kurumu (OYAK) is a private pension fund established by law in 1961 with the
objective of providing retirement benefits to member {sic} of the Turkish Armed Forces."
8. The challenged measures in this dispute all relate to OYAK and its alleged subsidization of
Turkey's steel industry. As such, it may be useful to provide some background on that industry as
well, including its development over time, and privatization. As previously mentioned, Erdemir and
Isdemir are two of Turkey 's three integrated iron and steel producers. Erdemir and Isdemir were
previously owned by the GOT. Turkey established Erdemir in 1965 to produce flat steel products.
Isdemir is one of Erdemir's subsidiaries.
9. Turkey began the process of privatizing its steel industry in 1996, when it entered into a free
trade agreement with the European Coal and Steel Community to regulate trade in steel and
eliminate customs duties on steel products. Pursuant to this agreement, Turkey committed to
privatizing its steel industry and banning all forms of state aid.
10. In October 2005, the GOT, through the Turkish Privatization Administration, held a public
tender to sell the entirety of its ownership interest in the Erdemir Group. OYAK participated in the
public tender and was selected as the winning bid, with the terms of the sale finalized in 2006.
Since then, i.e., more than a decade ago and more than seven years prior to the countervailing
duty petition that lay at the basis of the various measures now challenged in this dispute, Erdemir
and its subsidiary Isdemir have operated on a commercial basis, fully independent from the GOT.
11. On July 2, 2013, several U.S. steel companies filed a petition with the USDOC alleging that
the GOT provides countervailable subsidies to Turkish producers of OCTG. Petitioners alleged that
the GOT, through OYAK and Erdemir, provides hot rolled steel, the primary input used to produce
OCTG, for less than adequate remuneration. The USDOC agreed with petitioners, erroneously
finding that OYAK, Erdemir, and Isdemir are "public bodies" because the GOT allegedly exercises
"meaningful control " over OYAK. The USDOC also made similarly inadequate findings that the
GOT's supposed "meaningful control" of OYAK extends to Erdemir and Isdemir.
12. The USDOC repeated the same errors in subsequent investigations of WLP and HWRP, and in
a subsequent administrative review of the order on CWP, applying the same incorrect legal
standard in its public body findings, which again were unsupported by the evidence. The USDOC
consequently imposed additional, WTO-inconsistent countervailing duties measures on these other
Turkish steel pipe and tube products. In short, the USDOC made a WTO -inconsistent set of
findings in one determination, and then kept repeating that same set of mistakes over and over
again.
B. Legal Standards
13. Turkey's claims in this dispute are based on several provisions of the SCM Agreement,
namely: Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), and 15.3. The common thread among
all of these claims is the United States ' repeated failure to apply the correct legal standard and
ground its findings in the evidence on the record.
C. The United States ' Countervailing Duty Measures on Certain Oil Country
Tubular Goods from Turkey Are Inconsistent with Its WTO Obligations
14. First, in determin ing that OYAK is a "public body, " the USDOC failed to adhere to the
appropriate legal standard under Article 1.1(a)(1) of the SCM Agreement and follow the Appellate
Body's guidance regarding the interpretation of that standard. The USDOC failed to make any
findings that OYAK meets the public body standard articulated by the Appellate Body, i.e., that it
possesses, exercises, or is vested with governmental authority. Instead, the USDOC found OYAK is
a public body, within the meaning of Article 1.1(a)(1) of t he SCM Agreement, alleging that the
GOT exercises meaningful control over OYAK. However, the USDOC failed completely to assess
how the GOT 's alleged control of OYAK has been exercised in a meaningful way. The USDOC,

moreover, failed to engage in any analys is whatsoever of the overall relationship between OYAK
and the GOT within the Turkish legal order.
15. The USDOC also failed to provide a reasoned and adequate explanation, based on the
evidence on the record, for its finding that OYAK is a public body. The evidence cited by the
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to
give proper consideration to evidence that contradicted its finding and which demonstrates that
OYAK acts independently from the GOT. The USDOC made the same errors in finding that Erdemir
and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the SCM Agreement.
In particular, (1) the evidence cited by the USDOC does not support its public body findings; and
(2) the USDOC improperly failed, or outright refused, to consider evidence which contradicted its
findings.
16. Second, the USDOC 's determination that sales of hot rolled steel conferred a benefit and
were made for less than adequate remuneration is inconsistent with Ar ticles 1.1(b) and 14 of the
SCM Agreement. The USDOC has a practice, in assessing whether a good is provided for less than
adequate remuneration thereby conferring a benefit, of rejecting in -country prices as a benchmark
based solely on evidence that the g overnment owns or controls the majority or a substantial
portion of the market for the good, with no consideration of whether in -country prices are
distorted. This USDOC practice is inconsistent with Article 14(d) of the SCM Agreement both "as
such" and as applied in this investigation. Furthermore, b ecause the USDOC failed to properly
establish that Erdemir and Isdemir provided hot rolled steel to the respondents for less than
adequate remuneration under Article 14(d), it also failed to establish that the alleged provision of
hot rolled steel conferred a benefit within the meaning of Article 1.1(b) of the SCM Agreement.
17. Third, the USDOC 's application of "facts available " and use of an "adverse inference " is
inconsistent with Article 12.7 of the SCM Agreement in light of difficulties the respondent, Borusan,
experienced in gathering and reporting requested information. The USDOC's application of "facts
available" is also inconsistent with Article 12.7 of the SCM Agreement because the USDOC applied
an "adverse inference" for the purpose of punishing Borusan for its alleged non-cooperation.
18. Fourth, the USDOC's determination that the alleged provision of hot rolled steel for less than
adequate remuneration is "specific" is inconsistent with Articles 2.1(c ) and 2.4 of the
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on
positive evidence on the record as required under Article 2.4, the existence of a "subsidy
programme" related to the provision of hot rolled steel. Moreover, the USDOC 's determination is
inconsistent with Article 2.1, because the USDOC failed to consider the two factors specified in the
last sentence of subparagraph (c).
19. Fifth, the ITC 's cumulation of imports in its determination of injury is inco nsistent with
Article 15.3 of the SCM Agreement. The ITC has a practice, in assessing material injury, of
cumulating imports that are subject to countervailing duty investigations with imports that are
subject only to antidumping duty investigations, i.e., non-subsidized imports. This practice of
"cross-cumulating" subsidized and non -subsidized imports, with respect to which antidumping or
countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the
SCM Agreement both "as such" and as applied in its investigation of OCTG.
D. The United States ' Countervailing Duty Measures on Welded Line Pipe from
Turkey Are Inconsistent with Its WTO Obligations
20. First, the USDOC repeated the same errors it made in the OCTG investigati on in determining
that OYAK is a "public body." The USDOC failed to adhere to the appropriate legal standard under
Article 1.1(a)(1) of the SCM Agreement and follow the Appellate Body 's guidance regarding the
interpretation of that standard. The USDOC failed to make any findings that OYAK meets the public
body standard articulated by the Appellate Body, i.e., that it possesses, exercises, or is vested
with governmental authority. Instead, the USDOC found that OYAK is a public body, within the
meaning of Article 1.1(a)(1) of the SCM Agreement, because the GOT exercises meaningful control
over OYAK. However, the USDOC failed completely to assess how the GOT 's alleged control of
OYAK has been exercised in a meaningful way. The USDOC, moreover, failed to engage in any
analysis whatsoever of the overall relationship between OYAK and the GOT within the Turkish legal
order.

21. The USDOC also failed to provide a reasoned and adequate explanation, based on the
evidence on the record, for its finding that OYAK is a pu blic body. The evidence cited by the
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to
give proper consideration to evidence that contradicted its finding and which demonstrates OYAK
acts independently from the GO T. The USDOC again repeated the same errors in finding that
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the
SCM Agreement.
22. Second, the USDOC 's application of "facts available " and use of an "adverse inference" is
inconsistent with Article 12.7 of the SCM Agreement because the USDOC applied an "adverse
inference" for the purpose of punishing the respondent, Borusan, for its alleged non -cooperation.
Furthermore, the United States has acted contrary to its obligations under Article 19.4 of the
SCM Agreement and Article VI:3 of the GATT 1994 by applying countervailing duty measures in
excess of the amount of subsidization attributable to WLP.
23. Third, the USDOC's determination that the alleged provision of hot rolled steel for less than
adequate remuneration is "specific" is inconsistent with Articles 2.1(c) and 2.4 of the
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on
positive evidence on the record as required under Article 2.4, the existence of a "subsidy
programme" related to the provision of hot rolled steel. Moreover, the USDOC 's determination is
inconsistent with Article 2.1, because the USDOC failed to consider t he two factors specified in the
last sentence of subparagraph (c).
24. Fourth, the ITC 's cumulation of imports in its determination of injury is inconsistent with
Article 15.3 of the SCM Agreement. The ITC has a practice, in assessing material injury, of
cumulating imports that are subject to countervailing duty investigations with imports that are
subject only to antidumping duty investigations, i.e., non -subsidized imports. This practice of
"cross-cumulating" subsidized and non -subsidized imports, with re spect to which antidumping or
countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the
SCM Agreement both "as such" and as applied in its investigation of WLP.
E. The United States ' Countervailing Duty Measures on Heavy Walled
Rectangular Welded Carbon Steel Pipes from Turkey Are Inconsistent with
Its WTO Obligations
25. First, the USDOC again repeated the same errors it made in the OCTG investigation in
determining that OYAK is a "public body." The USDOC failed to adhere to the appropriate legal
standard under Article 1.1(a)(1) of the SCM Agreement and follow the Appellate Body 's guidance
regarding the interpretation of that standard. The USDOC failed to make any findings that OYAK
meets the public body standard articulated by the Appellate Body, i.e., that it possesses,
exercises, or is vested with governmental authority. Instead, the USDOC found that OYAK is a
public body, within the meaning of Article 1.1(a)(1) of the SCM Agreement , because the GOT
exercises meaningful control over OYAK. However, the USDOC failed completely to assess how the
GOT's alleged control of OYAK has been exercised in a meaningful way. The USDOC, moreover,
failed to engage in any analysis whatsoever of the o verall relationship between OYAK and the GOT
within the Turkish legal order.
26. The USDOC also failed to provide a reasoned and adequate explanation, based on the
evidence on the record, for its finding that OYAK is a public body. The evidence cited by th e
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to
give proper consideration to evidence that contradicted its finding and which demonstrates OYAK
acts independently from the GOT. The USDOC again repeated the sam e errors in finding that
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the
SCM Agreement.
27. Second, the USDOC 's application of "facts available " and use of an "adverse inference" is
inconsistent with Article 12.7 of th e SCM Agreement because the USDOC applied "adverse
inferences" for the purpose of punishing the respondents, MMZ and Ozdemir, for their alleged non -
cooperation. Furthermore, the United States has acted contrary to its obligations under
Article 19.4 of the SCM Agreement and Article VI:3 of the GATT 1994 by applying countervailing
duty measures in excess of the amount of subsidization attributable to HWRP.

28. Third, the USDOC's determination that the alleged provision of hot rolled steel for less than
adequate remuneration is "specific" is inconsistent with Articles 2.1(c) and 2.4 of the
SCM Agreement, because the USDOC failed to sufficiently identify or substantiate, based on
positive evidence on the record as required under Article 2.4, the existence of a "subsidy
programme" related to the provision of hot rolled steel. Moreover, the USDOC 's determination is
inconsistent with Article 2.1, because the USDOC failed to consider the two factors specified in the
last sentence of subparagraph (c).
29. Fourth, the ITC's cumulation of imports in its determination of injury is inconsistent with
Article 15.3 of the SCM Agreement. The ITC has a practice, in assessing material injury, of
cumulating imports that are subject to countervailing duty investigations with impor ts that are
subject only to antidumping duty investigations, i.e., non -subsidized imports. This practice of
"cross-cumulating" subsidized and non -subsidized imports, with respect to which antidumping or
countervailing duty petitions are filed on the same d ay, is inconsistent with Article 15.3 of the
SCM Agreement both "as such" and as applied in its investigation of HWRP.
F. The United States ' Countervailing Duty Measures on Circular Welded Carbon
Steel Pipes and Tubes from Turkey Are Inconsistent with Its WTO Obligations
30. First, the USDOC again repeated the same errors it made in the OCTG investigation in
determining that OYAK is a "public body." The USDOC failed to adhere to the appropriate legal
standard under Article 1.1(a)(1) of the SCM Agreement and follow the Appellate Body 's guidance
regarding the interpretation of that standard. The USDOC failed to make any findings that OYAK
meets the public body standard articulated by the Appellate Body, i.e., that it possesses,
exercises, or is vested with gov ernmental authority. Instead, the USDOC found that OYAK is a
public body, within the meaning of Article 1.1(a)(1) of the SCM Agreement, because the GOT
exercises meaningful control over OYAK. However, the USDOC failed completely to assess how the
GOT's alleged control of OYAK has been exercised in a meaningful way. The USDOC, moreover,
failed to engage in any analysis whatsoever of the overall relationship between OYAK and the GOT
within the Turkish legal order.
31. The USDOC also failed to provide a reason ed and adequate explanation, based on the
evidence on the record, for its finding that OYAK is a public body. The evidence cited by the
USDOC does not support its finding that OYAK is a public body; moreover, the USDOC failed to
give proper consideration t o evidence that contradicted its finding and which demonstrates OYAK
acts independently from the GOT. The USDOC again repeated the same errors in finding that
Erdemir and Isdemir are public bodies, within the meaning of Article 1.1(a)(1) of the
SCM Agreement.
32. Second, the USDOC 's determination that the alleged provision of hot rolled steel for less
than adequate remuneration is "specific" is inconsistent with Articles 2.1(c) and 2.4 of the
SCM Agreement, because the USDOC failed to sufficiently id entify or substantiate, based on
positive evidence on the record as required under Article 2.4, the existence of a "subsidy
programme" related to the provision of hot rolled steel. Moreover, the USDOC 's determination is
inconsistent with Article 2.1, because the USDOC failed to consider the two factors specified in the
last sentence of subparagraph (c).
33. Third, the ITC 's cumulation of imports in its determination of injury is inconsistent with
Article 15.3 of the SCM Agreement. Similar to its practice in investigations, the ITC has a practice,
in assessing material injury in five -year reviews, of cumulating imports that are subject to
countervailing duty orders with imports that are subject only to antidumping duty orders,
i.e., non-subsidized imports, with respect to which the five -year reviews are initiated on the same
day. This practice of "cross-cumulating" subsidized and non -subsidized imports, with respect to
which five-year reviews of antidumping or countervailing duty orders are initiated on the sa me
day, is inconsistent with Article 15.3 of the SCM Agreement both "as such" and as applied in its
review of the countervailing duty order on CWP.
34. Moreover, because the United States ' imposition of countervailing duty measures was
inconsistent with it s obligations under Articles 1.1(a)(1), 1.1(b), 2.1(c), 2.4, 12.7, 14(d), 15.3,
and 19.4 of the SCM Agreement, as well as Article VI:3 of the GATT 1994, the United States is also
in violation of its obligations under Articles 10 and 32.1 of the SCM Agreement.

II. EXECUTIVE SUMMARY OF TURKEY 'S OPENING STATEMENT AT THE FIRST MEETING
OF THE PANEL
35. This dispute relates to several countervailing measures imposed by the United States on
imports of steel products from Turkey in violation of its obligations under the SCM Agreement,
specifically the United States ' countervailing duty measures imposed pursuant to its investigation
of Certain Oil Country Tubular Goods; Welded Line Pipe; and Heavy Walled Rectangular Welded
Carbon Steel Pipes and Tubes; and pursua nt to its sunset and administrative reviews, for calendar
years 2011 and 2013, respectively, of the countervailing duty order on Circular Welded Carbon
Steel Pipes and Tubes. As the two governments were unable to resolve this matter through
consultations, the Government of Turkey has found it necessary to request the establishment of
this Panel.
36. The United States ' determinations in these proceedings are flawed in numerous respects,
which are detailed in Turkey 's First Submission. In this statement, Turk ey will focus on a few key
issues that should inform the Panel 's examination of the measures at issue in this dispute. First,
Turkey will address the legal standards for "governmental" entities, both for "public body " and
"government organ", under Article 1.1(a)(1) of the SCM Agreement and explain why the USDOC
failed to apply the correct legal standards with regard to OYAK and Erdemir (and its subsidiary
Isdemir). Second, Turkey will explain why the USDOC failed to provide a reasoned and adequate
explanation for its findings that OYAK and Erdemir are public bodies, within the meaning of
Article 1.1(a)(1) of the SCM Agreement.
37. Third, Turkey will explain why the USDOC's rejection of in-country or "tier one" benchmarks,
for purposes of assessing the level of benefit under Articles 1.1(b) and 14(d) of the
SCM Agreement, based solely on evidence of government ownership or control of domestic
suppliers is a "practice," subject to challenge "as such," and why this practice is inconsistent with
Articles 1.1(b) a nd 14(d) of the SCM Agreement, both "as such " and "as applied " in the OCTG
investigation. Fourth, Turkey will address the USDOC 's reliance on facts available and its drawing
of adverse inferences in choosing among the facts available for punitive purposes, which is
inconsistent with Article 12.7 of the SCM Agreement.
38. Fifth, Turkey will address the USDOC 's failure to identify a subsidy programme, within the
meaning of Article 2.1(c) of the SCM Agreement, or evaluate the two specificity factors in the fin al
sentence of Article 2.1(c). Finally, Turkey will address the legal standard for cumulation of imports
under Article 15.3 of the SCM Agreement and explain why the ITC 's practice of cross -cumulating
subsidized and non -subsidized imports is inconsistent wi th Article 15.3, both "as such " and "as
applied" in the proceedings at issue.
A. The USDOC Applied Incorrect Legal Standards for "Governmental" Entities,
for Either "Government Organ" or "Public Body", Under Article 1.1(a)(1)
39. First, the United States' subsidy determinations are inconsistent with Article 1.1(a)(1) of the
SCM Agreement because the USDOC failed to apply the correct legal standards for "governmental"
entities, either for "public body" or "government organ", in its assessments of OYAK and E rdemir.
The Appellate Body has defined "public body, " within the meaning of Article 1.1(a)(1) of the
SCM Agreement, as "an entity that possesses, exercises or is vested with governmental authority."
40. The United States does not dispute that this is the l egal standard for "public body" under
Article 1.1(a)(1) articulated by the Appellate Body, and Turkey considers that it is the correct
standard. Moreover, Turkey has shown that the USDOC failed to apply this standard in its analysis
of whether OYAK and Erd emir are public bodies. In particular, not once in any of the four
proceedings at issue did the USDOC refer to the correct legal standard for "public body," that is,
an entity that possesses, exercises, or is vested with governmental authority, " let alone find that
OYAK or Erdemir meet this standard. The United States ' arguments to the contrary are nothing
more than a post hoc rationale created for the benefit of this Panel in a belated attempt to
reconcile the USDOC's public body findings with the requirements of Article 1.1(a)(1).
41. Second, contrary to the United States ' argument, the USDOC did not examine OYAK as a
"government organ ". The United States provides no citation or evidentiary support for this
assertion, and, indeed, nowhere in any of the USD OC's determinations did it make such a

statement regarding OYAK, or even mention the term "government organ. " Moreover, the
USDOC's reasoning and analysis in its published determinations compels the conclusion that it
implicitly found OYAK to be a "public body."
42. However, assuming, arguendo, that the United States ' characterization of the USDOC 's
analysis regarding OYAK is correct and that the USDOC did in fact examine OYAK as a
"government organ," the USDOC still applied the incorrect legal standard under Article 1.1(a)(1).
In particular, the legal standard for a "government organ" is actually a stricter one than the legal
standard for "public body " articulated by the Appellate Body, i.e., "an enti ty {that} possesses,
exercises or is vested with governmental authority." The USDOC made no findings regarding OYAK
that would suggest it applied this standard; rather, its findings were strictly limited to the concept
of "meaningful control. " As Turkey de monstrated in its First Submission, this is not the correct
standard for a "public body," let alone for a "government organ."
43. Third, the lack of a financial contribution determination with regard to OYAK is irrelevant to
this Panel 's assessment of the USDOC's "public body ", or "government organ ", determination
under Article 1.1(a)(1) of the SCM Agreement. The Appellate Body 's guidance in interpreting
Article 1.1(a)(1) makes clear that it is first necessary to determine whether an entity is
governmental or a private body in order to establish that a financial contribution exists, because
an additional showing of entrustment or direction is necessary if the entity is not governmental.
Accordingly, the fact that the USDOC did not find that OYAK itself made a financial contribution
does not mean that the USDOC could not make an analysis regarding OYAK 's status, within the
meaning of Article 1.1(a)(1). Moreover, Turkey submits that the United States ' interpretation of
Article 1.1(a)(1) raises serious concerns regarding the reviewability of an investigating authority 's
determinations.
B. The Evidence on the Records of the Underlying Proceedings Does Not Support
the USDOC's Public Body Findings
44. The second issue Turkey will address is the lack of evidentiary support for the USDOC 's
public body findings. In each of the underlying proceedings, the USDOC provided a bulleted list of
the pieces of evidence which it relied on in finding that OYAK and Erdemir are public bodies. While
the USDOC may have considered the se pieces of evidence in their totality, as the United States
asserts, the Panel must enquire whether those particular pieces of evidence, taken individually and
as a whole, support the USDOC's public body findings.
45. As Turkey discussed in its First Sub mission, the USDOC failed to provide a reasoned and
adequate explanation for its findings that OYAK and Erdemir are public bodies. In particular, the
evidence relied on by the USDOC does not support its public body findings and consists almost
entirely of evidence that demonstrates, at most, "formal indicia " of government control. Turkey
considers that indicia of government control can demonstrate, at most, that a government has the
ability to control an entity; they are not evidence of that entity 's functi ons or conduct and, in
particular, they are not evidence that the government in fact exercises its ability to control an
entity, or that entity 's conduct. Turkey explained in detail in its First Submission these and other
errors which the USDOC made in eva luating the evidence it relied on to find that OYAK and
Erdemir are public bodies, and Turkey reaffirms those arguments.
46. Turkey also observes that the United States discusses in its First Submission several facts on
the record of the underlying proceed ings which the USDOC did not rely upon in finding that OYAK,
Erdemir, and Isdemir are public bodies. As the United States acknowledges elsewhere in its First
Submission, the Panel must consider the investigating authority 's, i.e., the USDOC's, explanations
and conclusions on their own terms, not the United States ' post hoc justifications for the USDOC's
findings.
47. Moreover, while it is well established that a panel should not conduct a de novo review of
the evidence, nor substitute its judgment for that of the investigating authority, a panel must take
into account all of the evidence on the record before the investigating authority and, in the context
of reviewing individual pieces of evidence , a panel should examine whether the evidence may
reasonably be relied on in support of the particular inference drawn by the investigating authority.
In this regard, Turkey submits that it is appropriate for this Panel to examine the immediate
context of certain statements in Erdemir's Annual Reports which the USDOC cited and that, in light

of this context, the two statements cannot reasonably be relied on to support an inference that
Erdemir implements governmental policies.
48. Finally, Turkey submits th at the USDOC 's public body findings lack evidentiary support
because the USDOC failed to give proper consideration to evidence which contradicts its
conclusions regarding OYAK and Erdemir. The Appellate Body has made it clear that evidence of an
entity's conduct is relevant to whether that entity is a public body. As Turkey explained in its First
Submission, there was a considerable amount of evidence on the record regarding OYAK 's and
Erdemir's conduct which demonstrates that these entities operate on a co mmercial basis,
autonomously from the Government of Turkey.
C. The USDOC's Practice of Rejecting In -Country Benchmarks for Benefit Based
on Evidence of Government Ownership or Control is Inconsistent with
Articles 1.1(b) and 14(d) of the SCM Agreement
49. The third issue Turkey will address is the USDOC 's practice of rejecting in -country prices as
potential benchmarks in benefit determinations. Turkey has shown in its First Submission that the
USDOC has a practice of rejecting in -country benchmarks for benefit based solely on evidence of
government ownership or control of domestic suppliers and that this practice is inconsistent with
Articles 1.1 (b) and 14(d) of the SCM Agreement, both "as such " and "as applied " in the OCTG
investigation.
50. Turkey considers that the practice at issue is expressed in a written document, namely the
Preamble to the Department 's regulations. Turkey also provided exa mples of several cases,
including the OCTG investigation, which confirm the USDOC 's understanding and application of the
Preamble in practice; thus, there can be no uncertainty as to the existence or content of this
practice.
51. Turkey has also demonstrat ed that the USDOC 's practice of rejecting in -country prices as
potential benchmarks is a rule or norm which has both "general" and "prospective" application.
In particular, the Preamble explains that the USDOC will normally reject in -country benchmarks
where the government owns or controls a majority or substantial portion of domestic production.
This practice therefore has general application, because it may apply to an unidentified number of
economic operators, and prospective application, because it embo dies the USDOC's administrative
guidance for future benefit determinations and the USDOC applies it systematically, such that
economic operators have an expectation the practice will be applied in future. Turkey also submits
that the USDOC's departure from its normal practice, under protest and at the direction of a U.S.
domestic court, is not dispositive evidence that the practice does not exist or cannot be challenged
"as such."
52. Accordingly, Turkey asks this Panel to find that the USDOC 's practice of rejecting in-country
prices as potential benchmarks based solely on evidence of majority or substantial government
ownership or control of domestic production is a measure subject to challenge "as such," and that
this practice is inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement, both "as such"
and "as applied" in the OCTG investigation, as Turkey explained in its First Submission.
D. The USDOC Impermissibly Drew Adverse Inferences in Selecting among the
Facts Available for the Purpose of Punishing Respondents
53. Fourth, Turkey will address several issues related to Turkey's claim under Article 12.7 of the
SCM Agreement that the USDOC improperly applied adverse inferences in selecting among facts
available, including by doing so for the expre ss purpose of punishing respondents in the OCTG,
WLP, and HWRP investigations. At the outset, Turkey reiterates that its claims under Article 12.7
of the SCM Agreement are not limited to particular subsidy programs as the United States
suggests, but rather relate to the USDOC 's application of facts available in general in these
proceedings.
54. Turkey notes that the United States does not dispute that the USDOC applies adverse
inferences in a manner specifically designed to punish respondents or that the US DOC did so in
these proceedings. Nor does the United States dispute that the Appellate Body has found such

practices to be inconsistent with Article 12.7, because it could result in inaccurate subsidization
determinations.
55. Turkey submits that if there is no connection between the "necessary information" that is
missing and the "facts available " on which a determination is based, a subsidy determination
cannot be considered "accurate" within the meaning of Article 12.7. The USDOC failed to establish
a connection between the rates it selected by drawing adverse inferences and the "necessary
information" missing from the record in these proceedings, and it is clear from the record of the
underlying proceedings that this res ulted in inaccurate subsidy determinations. Moreover, the
USDOC's application of facts available and drawing of adverse inferences was clearly intended to
be punitive, which is not permissible under Article 12.7.
E. The USDOC Failed to Identify a Subsidy P rogramme, Within the Meaning of
Article 2.1(c), or Evaluate the Specificity Factors in Article 2.1(c)
56. Next, Turkey will address the USDOC's failure to identify a "subsidy programme," within the
meaning of Article 2.1(c) of the SCM Agreement, or evaluat e the factors in the last sentence of
Article 2.1(c).
57. First, Turkey demonstrated in its First Submission that the USDOC failed to sufficiently
identify or substantiate the existence of a "subsidy programme," i.e., a "plan" or "scheme", related
to the provision of hot rolled steel. In response, the United States points to evidence which was on
the record of the OCTG investigation but on which the USDOC did not rely, in any way, in its
specificity findings. Turkey respectfully submits that this is yet ano ther example of post hoc
justification by the United States. Turkey also submits that evidence that there was more than one
transaction for which respondents ' purchase prices for hot rolled steel were below the benchmark
price is not positive evidence of a systematic series of actions, let alone a plan or scheme to
provide hot rolled steel for less than adequate remuneration.
58. Second, Turkey demonstrated in its First Submission that the USDOC failed to take into
account the two factors identified in the last sentence of Article 2.1(c) of the SCM Agreement.
While consideration of these two factors need not be done explicitly, prior panels have made it
clear that there must be some evidence on the record that the investigating authority took the two
factors in the final sentence of Article 2.1(c) into account, either explicitly or implicitly. The
United States points to no such evidence, and indeed it cannot, because the USDOC did not
consider the two factors in Article 2.1(c), even implicitly. Moreover, Tur key submits that the
USDOC's obligation to consider the two factors in the last sentence of Article 2.1(c) exists
independent of whether any interested party raised the relevance of these factors in the
underlying proceedings.
F. The ITC 's Practice of Cross-Cumulating Subsidized and Non -Subsidized
Imports Is Inconsistent with Article 15.3 of the SCM Agreement
59. Finally, Turkey will address the ITC 's practice of cross -cumulating subsidized and non -
subsidized imports in injury determinations. As Turkey explained in its First Submission, the ITC
has a long -standing practice of cross -cumulating imports subject to the USDOC 's affirmative
subsidy determinations with imports subject to the USDOC 's affirmative dumping determinations,
when certain other conditions are met. Turkey would like to focus on this practice in the context of
injury investigations.
60. Turkey provided evidence that this practice satisfies the three-prong test for measures which
are challengeable "as such" articulated by the Appellate Bod y in US – Zeroing (EC). First, Turkey
identified the precise content of the ITC 's practice in investigations: namely, the cumulation of
subject imports from all countries as to which petitions were filed and/or investigations self -
initiated by the USDOC on the same day, if such imports compete with each other and with the
domestic like product in the U.S. market, regardless of whether those imports are subject to
subsidy determinations or not. The ITC developed this practice in its cases over time, both as a
result of its own interpretation of the Tariff Act and the interpretation of U.S. domestic courts.
61. Second, this practice is clearly attributable to the United States and, in particular, the ITC.
The ITC is the sole U.S. agency responsible for making injury determinations in countervailing duty

investigations and reviews. In this regard, Turkey notes that the ITC discusses its practice of
cross-cumulating subsidized and non -subsidized imports in its injury determinations in which it
applies this practice.
62. Third, the ITC 's practice has general and prospective application. It is a practice which the
ITC developed based on its own and U.S. domestic court interpretations of the statute. As a result,
the ITC considers this practice to be required under section 771(7)(G)(i) of the Tariff Act. The ITC
applies this practice in all investigations involving subsidized and non-subsidized imports for which
petitions were filed on the same day and/or investigations self-initiated by the USDOC on the same
day. The practice thus affects an unidentified number of economic operators and therefore has
"general application."
63. With regard to its "prospective application," the ITC has consistently applied the challenged
practice in injury investigations since 1987, dem onstrating a systemic application of the measure.
Finally, the fact that the ITC interprets the statute to require this practice demonstrates that the
practice provides administrative guidance for future conduct and creates expectations among
economic oper ators that it will be applied in the future. In this regard, Turkey notes that the
United States does not assert that the ITC has the authority to depart from its cross -cumulating
practice in injury investigations. To the contrary, the ITC 's own statements demonstrate that it
may not depart from this practice in investigations, because it considers the practice to be
required under the statute.
64. Turkey also demonstrated in its First Submission that the ITC 's practice is inconsistent with
Article 15.3 of the SCM Agreement, both "as such " and as applied in the underlying injury
investigations. In particular, in its First Submission, Turkey discussed the legal standard for
cumulation under Article 15.3 and the Appellate Body's approach to interpretation of Article 15.3 in
US – Carbon Steel (India) . Turkey considers this to be the correct approach to interpreting
Article 15.3 and one that this Panel should follow.
65. The United States presents an alternative approach to interpreting Article 15 .3, but fails to
explain why the Panel should deviate from the approach taken by the Appellate Body. Turkey
respectfully submits that ensuring security and predictability in the dispute settlement system
implies that, absent cogent reasons, panels should r esolve the same legal questions in the same
way in subsequent cases. The United States has provided no cogent reasons for why this Panel
should interpret Article 15.3 in a manner that differs from the Appellate Body 's approach in US –
Carbon Steel (India) . Turkey also notes that the United States presented many of the same
arguments regarding its preferred interpretation of Article 15.3 in US – Carbon Steel (India), and
both the Appellate Body and the panel in that case specifically rejected these arguments.

ANNEX B-2
SECOND INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY
I. EXECUTIVE SUMMARY OF TURKEY'S SECOND WRITTEN SUBMISSION
1. This submission by the Government of Turkey ( "Turkey") responds to the arguments
presented by the United States in its First Submission, during the first meeting of the Panel and in
its responses to questions from the Panel concerning the countervailing duty measures imposed by
the United States pursuant to its investigations of Turkish imports of Certain Oil Country Tubular
Goods ( "OCTG") ( C-489-817); Welded Line Pipe ( "WLP") ( C-489-823); and Heavy Walled
Rectangular Welded Carbon Steel Pipes and Tubes ( "HWRP") ( C-489-825); and pursuant to its
sunset and adm inistrative reviews, for calendar years 2011 and 2013, respectively, of the
countervailing duty order on Turkish imports of Circular Welded Carbon Steel Pipes and Tubes
("CWP") (C-489-502).
2. At the outset, Turkey makes a few overarching observations . The first issue is the
United States' continued, and repeated, efforts to rely on post hoc justification and explanations
for actions that the USDOC and the ITC took in the past. Turkey recalls that the Appellate Body
has made it very clear that WTO Members m ay not justify an investigating authority 's
determinations by providing reasoning and explanation that the authority itself did not provide.
Thus, the Panel should disregard the United States ' arguments to the extent those arguments are
not reflected in the reasoning and evaluation provided by the USDOC, or the ITC, in the challenged
determinations.
3. The second issue Turkey addresses upfront is the importance of the legal reasoning in
previously adopted panel and Appellate Body reports. Turkey finds the U nited States' arguments
during the first substantive meeting and in its responses to the Panel 's questions regarding the
alleged limited or non -existing relevance of prior panel and/or Appellate Body findings to be
concerning.
4. The third issue is that Turkey observes that the United States appears to not dispute several
key issues: (1) that the USDOC 's benefit determination as applied in the OCTG investigation was
inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement; (2) that the USDOC 's
application of facts available based on adverse inferences for purposes of punishing a respondent
is impermissible under Article 12.7 of the SCM Agreement; and (3) that the ITC has a practice of
cross-cumulating subsidized and non -subsidized imports in injury d eterminations. Turkey believes
that it is important to note this as this means that the Panel can now also consider that these
issues are no longer in dispute.
5. The final issue is the United States ' continued portrayal of OYAK and Turkish pension funds
in general as some sort of anomaly. In reality, as noted in Turkey 's First Submission, occupational
pension fund schemes, both public and private, are widespread and a major source of capital in
OECD countries, and OYAK is very comparable to the occupationa l pension fund schemes found in
many countries.
A. The United States Has Failed to Rebut Turkey's Claim that the USDOC's Public
Body Findings with Regard to OYAK and Erdemir and Isdemir are
Inconsistent with Article 1.1(a)(1) of the SCM Agreement
6. As explained in Turkey 's First Submission, the USDOC 's findings in the underlying
proceedings that OYAK, Erdemir, and Isdemir are "public bodies, " within the meaning of
Article 1.1(a)(1) of the SCM Agreement, are fundamentally flawed in two respects. First, t he
USDOC applied an incorrect legal standard for "public body." Second, the USDOC failed to provide
a "reasoned and adequate " explanation for its public body findings. In its prior submissions and
during the Panel meeting, the United States presented a num ber of arguments in an attempt to
rebut Turkey's arguments to this effect. Each of these attempted counter arguments fails.

7. First, the United States argues that the USDOC did apply the correct standard, at least with
regard to Erdemir and Isdemir, becau se "USDOC {} considered numerous indicia of the GOT 's
meaningful control over Erdemir and Isdemir " and "this evidence demonstrated that Erdemir and
Isdemir possess, exercise or are vested with governmental authority. " The United States '
argument is nothing more than a post hoc rationale created for the benefit of this Panel. Not once
in any of the four proceedings at issue did the USDOC refer to the correct legal standard for
"public body, " that is, an entity that possesses, exercises, or is vested with gov ernmental
authority," let alone find that OYAK, Erdemir, or Isdemir meets this standard. Moreover, to the
extent the United States is arguing that this Panel should interpret Article 1.1(a)(1) in a manner
differently than the Appellate Body, the United Sta tes has failed to provide any cogent reasons for
why this Panel should depart from the Appellate Body's guidance in interpreting Article 1.1(a)(1) of
the SCM Agreement.
8. Second, the United States argues that the USDOC evaluated OYAK as a "government organ"
not a "public body" and made no legal findings regarding OYAK. This argument is demonstrably
false, based on the reasoning and findings of the USDOC in its published determinations.
In particular, the USDOC articulated its preferred legal standard for "public body" and applied that
legal standard to OYAK in each of the challenged proceedings.
9. Third, the United States argues that the USDOC did not make a "financial contribution "
finding with regard to OYAK, and thus did not find OYAK to be a "public body." As Turkey
previously explained, the USDOC did investigate OYAK under its preferred public body standard,
and thus this argument is just another example of post hoc rationalization. Moreover, the United
States is incorrect that a "financial contribution" finding is a necessary prerequisite for application
of the disciplines of Article 1.1(a)(1) to an investigating authority 's "public body" finding regarding
a particular entity. Turkey also considers that the United States ' interpretation of Article 1.1(a)(1),
and its argument that the requirements of Article 1.1(a)(1) do not apply to the USDOC 's
examination of OYAK, raise serious concerns regarding the reviewability of an investigating
authority's determinations.
B. The United States Has Failed to Rebu t Turkey's Claim that the USDOC Failed
to Provide a Reasoned and Adequate Explanation for its Public Body Findings
10. The USDOC 's determinations are also inconsistent with Article 1.1(a)(1) of the
SCM Agreement because the USDOC failed to provide a "reasoned and adequate " explanation for
its findings that OYAK, Erdemir, and Isdemir, are public bodies for two reasons. First, the evidence
cited by the USDOC does not support its public body findings. Second, the USDOC improperly
refused to consider evidence which contradicted its findings. Specifically, the USDOC failed to give
proper consideration to conflicting evidence on the record regarding the relationship between the
Government of Turkey and OYAK (or Erdemir and Isdemir) "and, in particular, the degree of
control by the {Government of Turkey} and the degree of autonomy enjoyed by " OYAK or Erdemir
and Isdemir, such as evidence of the latters' commercial conduct. The United States makes several
arguments in response, none of which has any merit.
11. First, the United States argues that Turkey essentially asks the Panel to act as an initial trier
of facts. The United States is incorrect; Turkey merely asks that the Panel examine the USDOC 's
conclusions in a critical and searching manner, based on the information on the record and the
explanations given by the USDOC in its published determinations, to determine if the USDOC 's
conclusions are "reasoned" and "adequate." Turkey also encourages the Panel to focus its analysis
on the evidence actually relied upon by the USDOC in finding that OYAK, Erdemir, and Isdemir are
public bodies.
12. Second, the United States argues that Turkey focuses narrowly on individual pieces of
evidence and ignores that the USDOC's determinations were based on the totality of the evidence
on the record. Turkey submits that the United States ignores the Appellate Body 's guidance that
there is no error in a panel 's review of individual pieces of evidence, even where th e investigating
authority draws its conclusions from the totality of the evidence. The Panel should assess whether
the particular pieces of evidence relied upon by the USDOC, taken individually and as a whole,
support the inferences and conclusions drawn b y the USDOC in its public body determinations.
Turkey respectfully submits that they do not.

13. Third, the United States argues that evidence on the record of indicia of government control
support the USDOC 's public body determinations. As Turkey has prev iously explained, indicia of
government control are insufficient to support a public body determination without evidence that
the alleged government control has been exercised in a meaningful way. Turkey respectfully
submits that there was, in fact, no evidence on the record of the Government of Turkey ever
exercising its alleged control, or ability to control, OYAK (or Erdemir and Isdemir). Moreover, the
evidence on the record demonstrates that OYAK, Erdemir, and Isdemir are autonomous and
independent from the Government of Turkey. The USDOC improperly refused to consider this
evidence, and its evaluation of this evidence would not risk conflating the "financial contribution"
and "benefit" analyses, as the United States argues.
C. The United States Has Fail ed to Rebut Turkey's Claim that the USDOC's
Practice of Rejecting In -Country Benchmarks for Benefit Based Solely on
Evidence of Government Ownership or Control of Domestic Producers is
Inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement
14. Turkey demonstrated in its First Submission that the USDOC has a practice of rejecting in -
country benchmarks for benefit based solely on evidence of government ownership or control of
domestic suppliers and that this practice is inconsistent with Articles 1.1(b) and 14(d) of the
SCM Agreement, both "as such" and "as applied" in the OCTG investigation. Turkey observes that
the United States has not disputed that it would be impermissible under Articles 1.1(b) and 14(d)
for the USDOC to reject in -country prices based solely on evidence of government ownership or
control of domestic suppliers or even attempted to rebut Turkey 's claim that this practice as
applied in the OCTG investigation is inconsistent with Articles 1.1(b) and 14(d) of the
SCM Agreement.
15. The United States argues instead that Turkey has not sufficiently demonstrated that the
USDOC's practice of rejecting in -country benchmarks for benefit based solely on evidence of
government ownership or control of domestic suppliers exists as a rule or no rm of "general" and
"prospective" application. The United States' argument is incorrect. Turkey has provided evidence,
including the Preamble to the USDOC 's regulations and numerous examples of cases,
demonstrating that the USDOC, systematically and as a m atter of practice, rejects in -country
market prices based solely on a finding of majority or substantial government ownership or control
of domestic suppliers and with no consideration or investigation of whether in -country market
prices are, in fact, dist orted. Thus, there can be no uncertainty as to the existence or content of
this practice or its "general" and "prospective" application with regard to an unidentified number of
economic operators in future benefit determinations.
16. The United States also argues that Turkey has failed to establish the existence of a rule of
"general" and "prospective" application because the USDOC exercised its discretion to depart from
this practice on remand in the OCTG investigation and in the subsequent WLP, HWRP, and CWP
proceedings. However, the USDOC 's exercise of its discretion to deviate from its normal practice,
under protest and at the direction of a U.S. domestic court, is not dispositive evidence that the
USDOC's practice is not a rule of "general" or "prospective" application, challengeable "as such."
Turkey notes in this regard that it submitted several other examples of cases following the OCTG
investigation in which the USDOC has continued to apply the challenged practice. Moreover,
nowhere has the U SDOC or the United States confirmed that the USDOC will no longer apply the
challenged practice in future cases.
D. The United States Has Failed to Rebut Turkey's Claim that the USDOC Did Not
Identify, Based on Positive Evidence on the Record, a "Subsidy P rogramme"
or Evaluate the Two Factors in the Last Sentence of Article 2.1(c) of the
SCM Agreement
17. Turkey demonstrated in its First Submission that the USDOC 's specificity determinations in
the underlying proceedings are inconsistent with Articles 2.1(c) and 2.4 of the SCM Agreement for
two reasons. First, the USDOC failed to sufficiently identify or substantiate, based on positive
evidence on the record as required under Article 2.4, the existence of a "subsidy programme "
related to the provision of hot rolled steel. Second, the USDOC failed to consider the two factors in
the last sentence of Article 2.1(c). The United States has failed to rebut either of these two
arguments.

18. First, the United States argues that evidence regarding Turkey's National Restructuring Plan,
OYAK's alleged policies of boosting output for export-oriented production, and two statements in
Erdemir's Annual Reports demonstrate the existence of a "subsidy programme." Turkey notes that
the USDOC did not rely on any of this evidence in its de facto specificity determinations. Moreover,
Turkey disputes that this evidence demonstrates the existence of a subsidy programme for the
provision of hot rolled steel for less than adequate remuneration.
19. Second, the United States argues that evidence of a series of transactions for the provision
of hot rolled steel for less than adequate remuneration demonstrates the existence of a subsidy
programme. Turkey respectfully submits that a list of transactions, some of which are above and
some of which are below a benchmark price, is not positive evidence of a systematic series of
actions, let alone a plan or scheme to provide hot rolled steel for less than adequate remuneration.
20. Moreover, there is no explanation whatsoever in the USDOC 's determinations for how the
evidence cited by the United States in its submissions demonstrates or otherwise reflects a
systematic series of actions, or a "plan" or "scheme" to provide hot rolled steel for less than
adequate remuneration. Thus, to the extent the USDOC purports to have relied on this evidence, it
failed to provide a reasoned and adequate explanation for its specificity determinations.
21. Third, the United States argues that the USDOC implicitly considered the two fa ctors in the
final sentence of Article 2.1(c) because there was evidence on the record of the length of time
Erdemir and Isdemir have been in operation and because of certain statements in Erdemir's annual
reports. Turkey respectfully submits that these fa cts are not evidence of the duration of the
alleged subsidy programme, particularly in light of the fact that Erdemir and Isdemir were
privatized in 2006. Moreover, the USDOC did not rely upon or even cite this evidence, or any of
the other evidence the Un ited States discusses in its submissions, in its de facto specificity
determinations in the challenged proceedings. Thus the United States ' argument is simply another
example of post hoc rationalization.
E. The United States Has Failed to Rebut Turkey's Cl aim that the USDOC
Improperly Used Facts Available and Drew Adverse Inferences for the
Purpose of Punishing Respondents, Resulting in Inaccurate Subsidy
Determinations That Are Inconsistent with Article 12.7 of the SCM Agreement
22. Turkey explained in its First Submission that the USDOC's use of facts available and drawing
of adverse inferences in the OCTG, WLP, and HWRP proceedings is inconsistent with Article 12.7 of
the SCM Agreement. In particular, in the OCTG investigation, the USDOC 's determination to use
facts available and draw adverse inferences is inconsistent with Article 12.7 for two reasons: first,
because the USDOC failed to take "due account " of the difficulties Borusan experienced in
gathering the requested information; and second, because the USDOC, in drawing adverse
inferences, chose the worst facts available, in order to punish Borusan for its alleged non -
cooperation. The USDOC 's use of facts available in the WLP and HWRP investigations is also
inconsistent with Article 12.7 for the lat ter reason —in drawing adverse inferences, the USDOC
purposefully selected the worst possible facts available in order to punish respondents for their
alleged failure to cooperate.
23. The United States appears to not dispute that the USDOC uses facts avail able and draws
adverse inferences for the purpose of punishing respondents, or that the Appellate Body has found
such practices to be inconsistent with Article 12.7, because it could result in inaccurate
subsidization determinations. Instead, the United St ates argues that the USDOC 's use of facts
available was not punitive in these cases because the USDOC selected facts that were a
"reasonable replacement" for the missing "necessary information" and because it did not result in
inaccurate subsidy determinations. Each of these arguments fails.
24. First, the USDOC did not select facts that "reasonably replace" the missing necessary
information. The USDOC did not engage in a process of "reasoning and evaluation " involving "a
degree of comparison " of all the su bstantiated facts on the record, but instead simply chose the
worst possible facts in order to punish respondents.

25. Second, the USDOC failed to identify or explain the connection between the selected "facts
available" and the missing "necessary information." Thus, the resulting determinations cannot be
considered "accurate" for purposes of Article 12.7. In this regard, Turkey submits that the lack of a
connection between the allegedly missing "necessary information" and the rates selected by the
USDOC is particularly egregious with regard to the programs for which the USDOC used rates
calculated in the 1996 investigation of Certain Pasta from Italy and the 1986 investigation of CWP.
F. The United States Has Failed to Rebut Turkey's Claim that the ITC's
Cross-Cumulation of Subsidized and Non -Subsidized Imports in Injury
Determinations is Contrary to Article 15.3 of the SCM Agreement
26. Turkey explained in its First Submission that the ITC has a practice, in assessing material
injury, of cumulating imports that are subject to countervailing duty investigations or reviews with
imports that are subject only to antidumping duty investigations or reviews, i.e., non-subsidized
imports. Turkey also explained that the ITC 's practice of "cross-cumulating" subsidized and non -
subsidized imports is inconsistent with Article 15.3 of the SCM Agreement both "as such" and as
applied in the OCTG, WLP, HWRP, and CWP proceedings. In response, the United States argues
that Turkey has failed to demonstrate that the ITC's practice exists or can be challenged "as such"
and that cross -cumulation is permissible under Article 15.3. Neither of these arguments has any
merit.
27. First, Turkey has met its burden of proof to show the ITC 's practice of cross -cumulating
exists and is challengeable "as such. " Turkey has explained that the ITC cumulates all imports
from countries as to which antidumping or countervailing duty petitions were filed
(or investigations self -initiated) on the same day, and therefore cumulates subsidized and non-
subsidized imports. The ITC developed this practice in its cases over time, both as a result of its
own interpretation of the Tariff Act and the interpretation of U.S. domestic courts. Turkey has also
demonstrated that the ITC 's practice has "general" and "prospective" application, both in
investigations and in reviews. The ITC considers its cross -cumulation practice to be required under
the statute in investigation, and while the ITC has discretion to depart from its normal practice in
reviews, the United States has not identified any cases in which the ITC has declined to cross -
cumulate subsidized and non-subsidized imports when the conditions for cumulation are met.
28. Second, Turkey has explained that cross -cumulation is not permitted under Article 15.3 of
the SCM Agreement, in any circumstances. This is confirmed by the Appellate Body's interpretation
of Article 15.3 in US – Carbon Steel (India) , as well as the ob ject and purpose of the
SCM Agreement and its negotiating history. Contrary to the United States ' argument, the text of
Article 15.3 is not silent on this issue, and the United States has failed to identify any cogent
reasons for why this Panel should inte rpret Article 15.3 in a manner that differs from the
Appellate Body's approach in US – Carbon Steel (India).
29. Moreover, the United States' reliance on the Appellate Body 's reasoning in US – Oil Country
Tubular Goods Sunset Reviews and EC – Tube or Pipe Fittings is misplaced. The Appellate Body did
not address the permissibility of cross -cumulation of subsidized imports and dumped
(non-subsidized) imports in those cases. Turkey respectfully submits that the cross-cumulation of
subsidized and non-subsidized imports presents distinct concerns from the cumulative assessment
of subsidized (or dumped) imports from multiple countries, and indeed is contrary to the very
object and purpose of the SCM Agreement.
II. EXECUTIVE SUMMARY OF TURKEY'S OPENING STATEMENT AT THE SECOND
MEETING OF THE PANEL
30. In its prior submissions, Turkey explained that the United States ' determinations in the
challenged proceedings suffer from a number of manifest defects in violation of core obligations
under the SCM Agreement. In today's statement, Turkey will not repeat those points. Instead, we
will focus on a few overarching points raised by the United States in its submissions and some of
the key issues at stake in this dispute.

A. The Panel Should Reject the United States' Challe nge to Factual Evidence
Submitted by Turkey in Its Responses to the Panel's Questions
31. The first issue Turkey would like to discuss is the United States ' argument in its Second
Submission that the Panel should reject factual evidence which Turkey submit ted in its responses
to the Panel's questions—including evidence regarding the USDOC's practice of rejecting in-country
benchmarks and the ITC 's practice of cross -cumulation—as "untimely and contrary to the Panel 's
Working Procedures." Turkey respectfully submits that the complained -of evidence falls within the
scope of paragraph 7 of the Panel's Working Procedures both because this evidence is necessary to
rebut arguments made by the United States and to answer questions posed by the Panel.
32. Turkey recalls that Article 11 of the DSU does not establish time limits for the submission of
evidence to a panel. Moreover, contrary to the United States ' arguments, a complainant is not
required to submit all factual evidence in its First Submission in order to ma ke a prima facie case.
Turkey observes that the United States failed to cite a single example of a panel or Appellate Body
refusing to consider factual evidence submitted in response to questions from the panel following
the First Substantive Meeting of th e parties. The United States has also failed to demonstrate how
Turkey's submission of additional factual information in response to questions from the Panel has
prejudiced its ability to present its defense.
B. The United States Has Failed to Rebut Turkey's Claim that the USDOC Applied
an Incorrect Legal Standard and Failed to Provide Reasoned and Adequate
Explanations for Its Public Body Determinations Under Article 1.1(a)(1) of
the SCM Agreement
33. Turkey will next address some of the United State s' counter arguments regarding Turkey 's
claims under Article 1.1(a)(1) of the SCM Agreement. First, the United States argues that the
USDOC did apply the correct legal standard, at least with regard to Erdemir and Isdemir, because
the USDOC considered nume rous indicia of the Government of Turkey 's meaningful control and
that this evidence demonstrated that Erdemir and Isdemir possess, exercise, or are vested with
governmental authority. However, as Turkey has previously not ed, not once in any of the
four proceedings at issue did the USDOC refer to the correct legal standard for "public body. "
Instead, the USDOC simply substituted its preferred concept of "meaningful control" for the public
body standard articulated by the Appellate Body. The Appellate Body i n US – Carbon Steel (India)
did not adopt the concept of "meaningful control " as the legal standard for "public body, " and
indeed criticized the panel in that dispute for doing so.
34. The United States also argues that standard for "public body " articulated by the
Appellate Body erroneously collapses the concepts of "public body " and "government" or
"government agency. " While the United States may disagree with the Appellate Body's
interpretation of Article 1.1(a)(1) of the SCM Agreement, it has failed to provide any cogent
reasons for why this Panel should not follow the Appellate Body 's guidance and apply this standard
to OYAK, Erdemir, and Isdemir.
35. Second, the United States argues that the record evidence supports the USDOC 's conclusion
that the Government of Turkey exercised meaningful control over Erdemir and Isdemir. As Turkey
has previously demonstrated, the substantive legal question to be answered by the USDOC, and
this Panel, is whether one or more of the characteristics of a public body exist, i.e., whether OYAK,
Erdemir, and Isdemir possess, exercise, or are vested with governmental authority, not whether
the Government of Turkey exercised meaningful control over them.
36. Moreover, the alleged "formal indicia " of government control cited by t he USDOC are
insufficient to support a public body determination without further analysis and corroborating
evidence of an entity's conduct. In this regard, consideration of evidence of OYAK's, Erdemir's, and
Isdemir's conduct does not conflate the issues of "financial contribution " and "benefit," as the
United States argues. The USDOC's outright refusal to consider evidence of OYAK's, Erdemir's, and
Isdemir's conduct demonstrates a clear failure to provide a reasoned and adequate explanation for
its determinations.

37. Third, the United States is incorrect that the USDOC did not, and did not need to, make a
public body finding regarding OYAK. As Turkey has previously observed, the USDOC articulated its
preferred standard for "public body" in the OCTG investigation and applied that standard to OYAK
in all of the challenged determinations; the USDOC thus plainly found OYAK to be a public body.
The United States ' assertions to the contrary are nothing more than post hoc rationalization.
Furthermore, the U nited States is incorrect that it was unnecessary for the USDOC to make a
public body finding regarding OYAK because the USDOC did not find that OYAK itself provided a
countervailable subsidy.
C. The United States Has Failed to Rebut Turkey's Claim that th e USDOC's
Practice of Rejecting In -Country Benchmarks Is Contrary to Articles 1.1(b)
and 14(d) of the SCM Agreement
38. The next issue Turkey would like to address is the USDOC 's practice of rejecting in-country
prices as potential benchmarks for benefit w ith no consideration of price distortion. Turkey has
already demonstrated that this practice exists as a rule or norm of general and prospective
application and is inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement, both "as
such" and "as applied" in the OCTG investigation. Turkey would like to make two brief additional
points regarding the United States' arguments.
39. First, the United States argues that in several of the examples Turkey provided the USDOC
considered evidence of price distor tion such as import penetration. Turkey submits that according
to the Appellate Body 's guidance in US – Countervailing Measures (China) and US – Carbon Steel
(India), an investigating authority cannot presume that governm ent ownership or control of
domestic producers results in price distortion but rather must conduct a market analysis that
explains how the alleged government ownership or control results in price distortion. Evidence of
import penetration may be relevant to such a market analysis, bu t in the examples cited by the
United States that is not how the USDOC used evidence of import penetration.
40. Second, the United States argues that because the USDOC exercised its discretion to depart
from its normal practice in the WLP, HWRP, and CWP de terminations, Turkey cannot establish a
rule or norm necessarily leading to WTO -inconsistent action. The United States' argument appears
to be based on a GATT -era distinction between mandatory and discretionary legislation, which is
not relevant in this case. Indeed, Turkey submits that the fact that the USDOC does not apply the
complained-of practice in all instances, or that it has the discretion to depart from its normal
practice, does not mean the practice is not challengeable "as such," or that the pra ctice does not
necessarily result in a WTO inconsistency.
D. The United States Has Failed to Rebut Turkey's Claim that the USDOC Failed
to Identify a Subsidy Programme, Within the Meaning of Article 2.1(c), or
Evaluate the Specificity Factors in Article 2.1(c)
41. The next issue Turkey will address is the USDOC's failure to identify a "subsidy programme,"
within the meaning of Article 2.1(c) of the SCM Agreement, or evaluate the factors in the last
sentence of Article 2.1(c). Turkey demonstrated in its prior submissions that the USDOC failed to
sufficiently identify or substantiate the existence of a "subsidy programme" related to the provision
of hot rolled steel. In response, the United States points to certain evidence on the record, namely
the respondents' transaction-specific accounting and statements in Erdemir's annual reports.
42. Turkey observes th at the USDOC did not cite any of this evidence now referenced by the
United States in its de facto specificity findings. Moreover, to the extent the USDOC purports to
have relied upon this evidence in its de facto specificity findings, it failed to provide a reasoned
and adequate explanation for how this information demonstrates a "plan," "scheme," or
"systematic series of actions" to provide subsidies.
43. Turkey also demonstrated in its First Submission that the USDOC failed to take into account
the two factors identified in the last sentence of Article 2.1(c) of the SCM Agreement, namely the
length of time the alleged "subsidy programme" was in operation and the extent of diversification
of the Turkish economy. In response, the Unite d States argues that the USDOC 's implicit
consideration of these factors is reflected in the USDOC 's examination of certain pieces of record
evidence.

44. Turkey explained in detail in its Second Submission why this evidence is not relevant to an
analysis of the two factors in the last sentence of Article 2.1(c). Moreover, as Turkey also
previously explained, the USDOC did not rely upon or even cite this evidence in any way in its de
facto specificity findings. Thus, there is no indication in the USDOC 's de terminations that it
explicitly or even implicitly considered the two factors in the last sentence of Article 2.1(c), which
it was obligated to do regardless of whether any interested party raised the issue.
E. The United States Has Failed to Rebut Turkey' s Claim that the USDOC
Impermissibly Drew Adverse Inferences in Selecting among the Facts
Available for the Purpose of Punishing Respondents
45. Next, Turkey addresses several of the United States ' arguments regarding Turkey 's claims
under Article 12.7 of the SCM Agreement that the USDOC improperly applied adverse inferences in
selecting among facts available, including by doing so for the express purpose of punishing
respondents in the OCTG, WLP, and HWRP investigations.
46. First, the United States argues with respect to the OCTG investigation that the USDOC
appropriately resorted to facts available and that the outcome was less favorable to Borusan does
not mean the application of facts available was punitive or otherwise inconsistent with Article 12.7.
The United States also argues that Turkey has failed to explain how the USDOC 's use of facts
available was not accurate because Borusan 's actual prices for hot rolled steel for the Halkali and
Izmit mills could have been lower than the lowest price it paid for the Gemlik mill.
47. Turkey submits that the United States ' argument is yet another example of post hoc
rationalization. Moreover, it is entirely speculative and has no basis in the actual record of the
case. The USDOC did not engage in any reasoning or evaluation of which of the substantiated facts
available on the record of the OCTG investigation could "reasonably replace" the missing necessary
information. Instead, the USDOC simply applied an adverse inference to select the lowest price
Borusan paid for hot rolled steel. The USDOC 's reasoning suggests that it viewed this price as the
worst possible information on the record and that it selected this price to punish Borusan for
alleged non-cooperation.
48. Second, the United S tates argues that Turkey dramatically expanded the scope of its
arguments with respect to the WLP proceeding in its responses to the Panel 's questions. Turkey
has already explained that its claim under Article 12.7 regarding the WLP proceeding is not limit ed
to certain subsidy programs, as the United States suggests, but rather relates to the USDOC 's
application of "facts available " in general. In any event, and as previously discussed, a
complainant is not required to submit all arguments and evidence in its First Submission to make a
prima facie case and Turkey submitted the evidence in question in response to a question from the
Panel, as expressly permitted under paragraph 7 of the Panel's Working Procedures.
49. Third, the United States argues that Turkey has failed to demonstrate that the subsidy rates
the USDOC selected in the WLP and HWRP proceedings were not "accurate," because the rates
were based on information provided in other Turkish countervailing duty proceedings and reflect
the actual subsidy practices of the Turkish government. Turkey strongly disputes that subsidy
rates calculated in a previous Turkish countervailing duty proceeding can be used as "facts
available" to replace any missing "necessary information," if the subsidy programs are "similar" or
if a rate is otherwise "based on information provided by cooperating companies. " As Turkey has
previously explained, there was no connection between the USDOC 's selected facts available and
the missing "necessary information " in the challenged proceedings. Moreover, the USDOC 's
methodology of selecting the highest possible rates —or, in other words, the worst possible
information—as "facts available" is clearly intended to be punitive, as Turkey has discussed in its
prior submissions.
F. The Unit ed States Has Failed to Rebut Turkey's Claims Regarding the
ITC's Practice of Cross -Cumulating Subsidized and Non -Subsidized Imports,
Both in Investigations and in Sunset Reviews, in Violation of Article 15.3 of
the SCM Agreement
50. The final issue Turkey addresses is the ITC 's practice of cross -cumulating subsidized and
non-subsidized imports in injury determinations and sunset reviews, which is inconsistent with

Article 15.3 of the SCM Agreement both "as such" and as applied in the challenged proceedings .
Turkey has already addressed the United States ' challenge to the factual evidence which Turkey
submitted in its responses to the Panel 's questions. Turkey will briefly respond to three additional
points raised by the United States in its Second Submission.
51. First, the United States argues that Turkey failed to make a prima facie case in support of its
claims under Article 15.3 because Turkey failed to engage in an interpretation of Article 15.3
according to the customary rules of interpretation of international law. Turkey explained why the
United States' argument, and its contrary interpretation of Article 15.3, are incorrect in Turkey 's
prior submissions. What is more, and in any event, Turkey does not believe that the United States'
argument is correct that to meet its burden of proof, a party must engage in a detailed
interpretation of the legal provisions on which it relies. Indeed, these are two very different issues.
52. Second, the United States argues that Turkey failed to adequately describe all of the
conditions of competition which the ITC examines to determine if the conditions for cumulation are
met. Turkey disputes that it has not accurately described the factors whi ch the ITC evaluates in
determining whether to exercise its discretion to cumulate imports in sunset reviews, although it
also does not believe that this is necessarily its burden. Regardless, however, this does not alter
the fact that the ITC 's conditions for cumulation, and thus it s exercise of discretion in reviews, do
not even relate to whether subject imports are subsidized or not.
53. Third, the United States argues that if investigating authorities are not mandated to follow
the provisions of Article 15 in making a likelihood -of-injury determination under Article 21.3, then
Article 15 cannot prohibit cross-cumulation in sunset reviews. Turkey does not argue that all of the
requirements for injury determinations in Article 15 apply with equal force in sunset reviews.
Rather, Turkey considers that the cumulative assessment of subsidized and dumped, non-
subsidized imports for purposes of determining injury is fundamentally inconsistent with
Article 15.3, in light of its context and the object and purpose of the SCM Agreement.
54. None of the United States ' arguments explain why or how it would be a correct
interpretation of the SCM Agreement to prohibit cross -cumulation in investigations but allow it in
sunset reviews. Indeed, it would be an absurd and irr ational result if, after having reached a
positive injury determination based on the effects of only subsidized imports, investigating
authorities were permitted in sunset reviews to also cumulatively consider the effects of dumped,
non-subsidized imports for purposes of determining whether revocation of a countervailing duty
order is likely to result in recurrence of injury.

ANNEX B-3
FIRST INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
I. PRELIMINARY RULING REQUEST
A. Turkey's Panel Request Improperly Included Measures and Claims that Were
Not the Subject of Consultations
1. DSU Article 4.4 provides that a request for consultations must state the reasons for the
request, "including identification of the measures at issue a nd an indication of the legal basis for
the complaint. " Under DSU Article 6.2, a panel request must "identify the specific measures at
issue and provide a brief summary of the legal basis of the complaint[.] " The panel request may
neither "expand the scope " nor change the essence of a consultations request. A panel should
"compare the respective parameters of the consultations request and the panel request to
determine whether an expansion of the scope or change in the essence of the dispute occurred
through the addition of instruments in the panel request that were not identified in the
consultations request."
2. In its consultations request, Turkey identifies the specific measures at issue as the
"preliminary and final countervailing duty measures imposed by the United States on Turkish
imports of Certain Oil Country Tubular Goods (‘OCTG '); Welded Line Pipe [WLP]; Heavy Walled
Rectangular Welded Carbon Steel Pipes and Tubes [HWRP]; and Circular Welded Carbon Steel
Pipes and Tubes [CWP]. " The legal basis for T urkey's complaint is that USITC 's "determination of
injury based on cumulated imports " in the OCTG, WLP, HWRP, and CWP proceedings is
inconsistent with Article 15.3 of the SCM Agreement.
3. Turkey has attempted to expand the scope of this dispute by improper ly introducing in its
panel request new measures and claims. First, Turkey's panel request challenges USITC's "practice
of 'cross-cumulating' subsidized and non -subsidized imports " as being inconsistent with
Article 15.3 of the SCM Agreement "both 'as such', as a practice and as applied " in the OCTG,
WLP, HWRP, and CWP proceedings. Turkey had identified no "practice" of cross-cumulating in its
consultation request. Moreover, Turkey failed to request consultations on this alleged practice "as
such," instead limiting its claims to the injury determinations made in the specific investigations
identified in its consultations request. Thus, Turkey's newly added "as such" legal claims are not
within the Panel's terms of reference.
4. Second, Turkey also has attempte d to expand the scope of this dispute by improperly
introducing in its panel request new measures and claims with respect to benefit. Turkey claims
that USDOC has a practice of rejecting in-country prices as a benchmark "based solely on evidence
that the g overnment owns or controls the majority or a substantial portion of the market for the
good," and asserts that this practice is inconsistent with Article 14(d) of the SCM Agreement "both
'as such ', as a practice, and as applied in [the OCTG] proceeding. " Turkey failed to request
consultations on this alleged "practice" of rejecting in -country prices as a benchmark. A measure
on which Turkey failed to consult cannot be included in its panel request and falls outside the
Panel's terms of reference. In addition, Turkey's panel request challenges this alleged practice "as
such," but this claim was not included in its consultation request. Because the consultation request
was limited to claims concerning the benefit determination made in the OCTG proceeding, Turk ey's
newly added legal claims are not within the Panel's terms of reference.
B. Turkey's First Written Submission Improperly Included Claims that Are Not
Within the Panel's Terms of Reference
5. Article 6.2 requires two elements to be included in a panel request, namely:
(a) identification of the specific measures at issue; and (b) a brief summary of the legal basis of
the complaint. These elements comprise the "matter referred to the DSB," which is the basis for a
panel's terms of reference under Article 7.1 of the DSU. "[I]f either of them is not properly
identified, the matter would not be within the panel's terms of reference."

6. First, Turkey 's claim with respect to Article 12.7 of the SCM Agreement in the WLP
investigation is expressly limited to the a pplication of facts available by USDOC "[i]n connection
with the alleged Provision of Hot Rolled Steel [HRS] for Less Than Adequate Remuneration
[LTAR]." The other 29 subsidy programs are not the subject of any claims in Turkey 's panel
request, including a ny claims under Article 12.7, and are thus outside the Panel 's terms of
reference.
7. In its first written submission, however, Turkey has dramatically expanded its arguments.
In addition to the application of facts available with respect to the Provision of HRS, Turkey
challenges its application for all 30 subsidy programs at issue in the WLP investigation. Having
failed to raise claims regarding these other 29 programs in either its consultations request or panel
request, Turkey may not argue for the first time in its first written submission that the applications
of facts available for these programs are inconsistent with Article 12.7.
8. Second, in its request for establishment of a panel, Turkey includes claims under Article 19.4
of the SCM Agreement and Article VI:3 of the GATT 1994 that are expressly dependent on the
Panel finding that the United States ' practices are inconsistent with other provisions of the
SCM Agreement.
9. Turkey attempts to raise independent arguments with respect to Article 19.4 and
Article VI:3 in its first written submission. Since the only claims Turkey included in its panel
request under Article 19.4 and Article VI:3 were expressly contingent on the Panel finding a
violation of Articles 1.1(a)(1), 1.1(b), 2.1(c), 12.7, 14(d) and/or 15 .3 of the SCM Agreement,
these new, independent claims are not within the Panel's terms of reference.
C. The Benchmark Measure Challenged by Turkey Ceased to Have Legal Effect
Prior to The Date of The Panel's Establishment
10. With respect to its Articles 1.1(b) and 14(d) claims, Turkey challenges an aspect of USDOC's
benefit determination in the OCTG investigation that was superseded and ceased to have any legal
effect prior to the establishment of the Panel. Accordingly, it is thus outside its terms of reference.
11. When the DSB establishes a panel, the panel 's terms of reference under Article 7.1 are
(unless otherwise decided) "[t]o examine . . . the matter referred to the DSB " by the complainant
in its panel request. Under DSU Article 6.2, the "matter" to be examined by the DSB consists of
"the specific measures at issue " and "a brief summary of the legal basis of the complaint. " As the
Appellate Body recognized in EC – Chicken Cuts , "[t]he term ‘specific measures at issue ' in
Article 6.2 suggests that, as a general rule, the measures included in a panel 's terms of reference
must be measures that are in existence at the time of the establishment of the panel."
12. However, the measure challenged by Turkey in this dispute —USDOC's rejection of in -
country benchmark s to determine whether HRS was provided to the Turkish respondents for
LTAR—was no longer the legal basis for USDOC 's benefit determination at the time of
establishment of the Panel in this case. Rather, the benchmarks determination supporting the CVD
order at the time of panel establishment was reflected in the OCTG remand determination, issued
on remand pursuant to domestic litigation. On March 10, 2016, USDOC published notice of its
OCTG amended final determination, which effectuated USDOC 's new benchmar k and benefit
determination reflected in the OCTG remand determination.
13. Therefore, when the OCTG amended final determination was published on March 10, 2016,
USDOC's determination to use of out -of-country benchmarks ceased to have any legal effect, and
was replaced by USDOC 's remand determination, in which it determined to use in -country
benchmarks. The Panel subsequently was established on June 19, 2017. Because the task of a
panel is to determine whether the measure at issue is consistent with the relevan t obligations at
the time of establishment of the Panel , Turkey 's challenge to the benchmark and benefit
determination in the OCTG final determination falls outside the Panel's terms of reference.
II. TURKEY'S "AS SUCH" CHALLENGE UNDER ARTICLES 1.1(B) AND 14(D)
14. Turkey's "as such " claim with respect to the benchmark determination is not within the
Panel's terms of reference. For completeness, the United States notes that Turkey 's challenge also

fails on the merits. Turkey alleges that "[t]he USDOC has a prac tice, in assessing whether a good
is provided for less than adequate remuneration thereby conferring a benefit, of rejecting
in-country prices as a benchmark based solely on evidence that the government owns or controls
the majority or a substantial portio n of the market for the good, with no consideration of whether
in-country prices are distorted."
15. The Appellate Body explained in US – Zeroing (EC) that "a panel must not lightly assume the
existence of a ‘rule or norm ' constituting a measure of general an d prospective application,
especially when it is not expressed in the form of a written document. " In finding the existence of
a rule or norm in US – Zeroing (EC), the Appellate Body noted that the "evidence consisted of
considerably more than a string of cases, or repeated action, based on which the Panel would
simply have divined the existence of a measure in the abstract."
16. Turkey's showing with respect to USDOC 's alleged rule falls far short of its burden.
In support of its claim, Turkey points only to a statement in the final benchmark determination for
OCTG – which, as explained, was reversed by a U.S. domestic court and amended by USDOC –
and the preliminary benchmark determinations in four other investigations, one of which also was
reversed in the f inal benchmark determination. Turkey has not explained how these
determinations support its claim, only merely citing to conclusory sentences from the
determinations. Turkey also attempts to support its claim by citing to language in the preamble of
USDOC's regulations; however, Turkey concedes just two paragraphs prior in its submission that
the USDOC regulation is consistent with Article 14(d) of the SCM Agreement.
17. Moreover, in none of the four cases challenged by Turkey in this dispute did USDOC "reject[]
in-country prices as a benchmark based solely on evidence that the government owns or controls
the majority or a substantial portion of the market for the good, with no consideration of whether
in-country prices are distorted, " as alleged by Turkey. Rather, as demonstrated, in each case,
USDOC discussed and considered evidence relevant to the distortion of in -country prices, in
addition to the government 's market share, to determine whether in -country prices are an
appropriate benchmark. Therefore, th e United States respectfully requests that the Panel reject
Turkey's "as such " claim because Turkey has not met the "high" evidentiary burden in these
circumstances to establish a rule or norm of general and prospective application.
III. TURKEY'S ARTICLE 1.1(A)(1) CLAIMS
18. Turkey claims, "[t]he USDOC's determinations that OYAK, Erdemir, and Isdemir are public
bodies is inconsistent with Article 1.1(a)(1). " Contrary to Turkey's claims, USDOC did not find, in
any of the determinations, that OYAK provided a financia l contribution, and thus did not find OYAK
to be a public body for purposes of Article 1.1(a)(1). Such a finding was neither necessary, nor
appropriate, because USDOC did not find that OYAK provided a countervailable subsidy. Rather, in
determining that HR S was provided for LTAR, USDOC found Erdemir and Isdemir to be public
bodies.
19. Therefore, because USDOC did not find a countervailable subsidy with respect to OYAK, and
thus did not find that OYAK provided a financial contribution, Turkey 's claim must fail because the
requirements of Article 1.1(a)(1) of the SCM Agreement do not apply to USDOC 's analysis of
OYAK.
20. Regarding Erdemir and Isdemir, after consideration of the record as a whole, USDOC
determined Erdemir and Isdemir to be public bodies, based on n umerous considerations, including
the involvement of OYAK in Erdemir. USDOC first described the legal basis for OYAK 's authority as
the pension fund for the Turkish military and the functions it performs pursuant to this authority.
In carrying out this fun ction, USDOC noted that Law No. 205 specifies that OYAK 's property "shall
enjoy the same rights and privileges as State property " and that OYAK is exempt from corporate
and other taxes in parallel with the privileges granted to all actors operating within the social
security system in Turkey. USDOC likewise observed that "members of the armed forces must by
law contribute part of their salaries to OYAK."
21. USDOC also described the extensive overlap between OYAK 's leadership structure and the
Turkish Armed Fo rces, as well as other organs of the GOT. In the OCTG final determination,
USDOC explained that a study by the Turkish Economic and Social Studies Foundation concluded

that "a review of the membership and administrative structure of OYAK reveals that the m ilitary is
clearly in control."
22. USDOC next examined the functions and conduct of Erdemir and Isdemir, specifically the
meaningful control by the GOT. USDOC examined the ownership of Erdemir and Isdemir. USDOC
then tied the stated corporate objectives and accomplishments of Erdemir and Isdemir to certain
macroeconomic goals defined by the GOT, demonstrating that Erdemir and Isdemir designed their
corporate priorities to adhere to state -crafted policy. In doing so, USDOC established that
Erdemir's and Isdemi r's purview extends beyond that of a typical profit -oriented private firm to
encompass considerations that are governmental in the legal order of Turkey. Specifically, in the
OCTG final determination, USDOC explained that Erdemir 's 2012 Annual Report is "in line with the
GOT's…2012-2014 Medium Term Programme. " Similarly, in the WLP, CWP and HWRP
determinations, USDOC examined Erdemir 's 2013 Annual Report, and determined that it was "in
line with the GOT 's stated policy in its 2012 -2014 Medium Term Programm e to improve Turkey 's
balance of payments."
23. USDOC then examined Erdemir 's Annual Report and Articles of Association. USDOC found
evidence indicating that "OYAK effectively decides the composition of the majority of Erdemir 's
board through its majority shar eholder voting rights in Erdemir. " In each of the determinations,
USDOC also examined the role of the Turkish Prime Ministry Privatization Administration (TPA).
USDOC examined Erdemir 's Annual Reports, which state that OYAK and the TPA both maintain
members on Erdemir's Board of Directors. In addition, USDOC cited the TPA's veto power over any
decision related to the closure, sale, merger, or liquidation of Erdemir and Isdemir. Accordingly,
USDOC provided reasoned and adequate explanations in each determina tion that the GOT,
through OYAK and the TPA, exercised "meaningful control" over Erdemir and Isdemir.
24. Turkey also argues that the evidence cited by USDOC does not support a determination that
OYAK is a public body. In arguing that the evidence relied upon by USDOC does not support its
examination concerning OYAK, Turkey mainly points to a position paper authored by a law firm,
and the GOT's and Borusan's case briefs. Throughout its submission, Turkey presents as objective
facts, statements from these non-objective pieces of record evidence.
25. Specifically, in countering the OCTG, HWRP and WLP determinations, Turkey relies on a
position paper authored by a law firm that was on the record of the three proceedings. As USDOC
explained, however, this position pap er was commissioned by OYAK as a result of a report from
WYG, a consulting firm, ( "WYG Report "), "that OYAK qualified as a public undertaking and that
State aid rules are applicable to OYAK 's investment decisions. " Specifically, the position paper
explains that OYAK asked the law firm to "provide assessments of sections of the WYG report" and
that its "legal analysis ... should result in rectifying any erroneous statements, especially as to any
misrepresentations contained in the WYG report that could potentially be very damaging to OYAK if
further relied upon by the Commission. " Because the position paper was created for the express
purpose of rebutting statements in the WYG report, that is, a report that opined that OYAK was a
public undertaking and that S tate aid rules were applicable to OYAK 's investment decisions,
USDOC asked the GOT twice to submit the referenced WYG report and other documents that this
position paper cited. However, the GOT claimed that it could not submit the documents under its
confidentiality agreements with the European Union or provide public summaries of their contents.
26. As for the CWP determination, in attempts to undermine USDOC 's finding, Turkey points
repeatedly to Borusan 's case brief in the proceeding. A case brief in a USDOC administrative
proceeding, at which point parties are not permitted to submit new record evidence, is simply
argument made by an interested party in a proceeding. Moreover, the statements that Turkey has
pulled from Borusan's case brief are themselve s unsupported by record evidence, and are merely
assertions presented by an interested party. Thus, by relying on administrative case briefs and the
law firm position paper, Turkey does no more than proffer, in a conclusory manner, its alternative
interpretation of the record facts.
27. Turkey argues that USDOC refused to consider evidence that demonstrates that OYAK
operates independently of the government, and that Erdemir operates on a commercial basis.
However, USDOC considered this information and provide d a reasoned and adequate explanation
for its rejection. As USDOC explained, "a firm 's commercial behavior is not dispositive in
determining whether that firm is a government 'authority.'" Specifically, USDOC explained, "this
line of argument conflates the issues of the ‘financial contribution ' being provided by an authority

and ‘benefit.'" This reasoning is consistent with the approach taken by dispute settlement panels in
prior proceedings, for example, in Korea – Commercial Vessels (Panel). Moreover, this reasoning is
supported by the structure of the SCM Agreement. Accordingly, contrary to Turkey 's claims,
consideration of whether a financial contribution was provided consistent with market principles is
not germane to the determination of the existence of a financial contribution, as determined
by USDOC.
28. As discussed above, USDOC considered the evidence that was submitted and, taking into
account the totality of the evidence before it, came to a different conclusion than that for which
Turkey now argues. The Panel should, as the Appellate Body has found previously, "seek to review
the [USDOC 's] decision on its own terms, in particular, by identifying the inference drawn by
[USDOC] from the evidence, and then by considering whether the evidence could sust ain that
inference." For the reasons given above, the Panel should find that USDOC 's public body
determinations with respect to Erdemir and Isdemir are consistent with Article 1.1(a)(1) of the
SCM Agreement.
IV. TURKEY'S CLAIMS UNDER ARTICLE 12.7 OF THE SCM AGREEMENT
29. Article 12.7 provides a Member 's authority to make determinations on the basis of the facts
available. The extent to which the investigating authority must evaluate the possible "facts
available," and the form that evaluation may take, "depend[s] on the particular circumstances of a
given case. " A non -cooperating party 's knowledge of the consequences of failing to provide
information can be taken into account by an investigating authority, along with other procedural
circumstances in which informa tion is missing, in ascertaining those "facts available" on which to
base a determination. "[A]n investigating authority must nevertheless evaluate and reason which
of the ‘facts available ' reasonably replace the missing ‘necessary information ', with a view to
arriving at an accurate determination."
A. USDOC's Application of Facts Available in the OCTG Investigation
30. Turkey argues that USDOC 's determination to rely on facts available is inconsistent with
Article 12.7 because USDOC allegedly failed to take "due account " of the difficulties Borusan
experienced in gathering and reporting the requested information. Turkey claims that USDOC
improperly failed to select a "reasonable replacement" for the missing information in light of these
difficulties.
31. Turkey's argument is not supported by record evidence. USDOC took due account of
Borusan's difficulties in gathering data regarding its HRS purchas es, including by granting an
extension and by issuing a supplemental questionnaire to allow Borusan to remedy its initial
deficient reporting, which permitted Borusan significant additional time to gather such data.
USDOC also selected a reasonable replace ment for the missing information by relying on the HRS
purchase data that Borusan had provided for another of its facilities. Therefore, USDOC 's
application of facts available was not punitive and fully complied with Article 12.7.
B. USDOC's Application of Facts Available in the WLP Investigation
32. Turkey claims that USDOC acted inconsistently with Article 12.7 because its use of facts
available resulted in an inaccurate subsidy calculation that has no factual connection to the
programs under investigation. Turkey only included argumentation and evidence in its written
submission for two categories of subsidy programs: (1) programs for which USDOC was unable to
identify above -zero rates calculated for the same or similar programs in prior Turkish
countervailing proceedings, and (2) income tax reduction or elimination programs.
33. For those programs where USDOC was unable to identify above -zero rates for the same or
similar programs, USDOC applied the highest calculated subsidy rate for any program in a Turkish
countervailing duty proceeding that could be used by Borusan. USDOC appropriately selected this
rate as a reasonable replacement for necessary benefit information that was not on the record due
to Borusan 's failure to cooperate, and specifically excluded any rates from company -specific
programs or from programs that would not benefit the industry to which Borusan belongs. USDOC
thus sought to arrive at an accurate benefit determination.

34. With respect to the income tax programs, USDOC found that the programs "pertained to
either the reduction of income tax paid or the payment of no income tax. " USDOC inferred that
Borusan had paid no income tax during the period of investigation and determined that the
amount of that benefit was 20 percent, the standard income tax rate for corporations in Turkey.
USDOC thus acted consistently with Article 12.7, and Turkey has not shown otherwise.
35. Turkey also claims that USDOC acted contrary to its obligations under Article 19.4 of the
SCM Agreement and Article VI:3 of the GATT 1994 "by applying countervailing duty measures in
excess of the amount of subsidization attributable to HWRP [sic]. " Turkey's arguments are based
upon a flawed understanding of these provisions. Consistent with Article VI:3, Article 19.4 requires
that "[n]o countervailing duty shall be levied on any imported product in excess of the amount of
the subsidy found to exist. " There is no argument by Turkey that any amounts levied have
exceeded the subsidy amount calculated. The United States has thus acted consistently with
Article 19.4 and Article VI:3 by not applying countervailing duties in excess of the amount of
subsidy found to exist by USDOC.
C. USDOC's Application of Facts Available in the HWRP Investigation
36. Turkey argues that USDOC 's application of facts available is inconsistent with Article 12.7
because the subsidy rates applied to MMZ and Ozdemir "are not accurate and ha ve no factual
connection to the alleged subsidy programs actually investigated. " Turkey disagrees with USDOC's
selection of the "highest subsidy rate for similar programs" from other Turkish countervailing duty
proceedings.
37. Turkey has provided no evidence or substantive argumentation that the rate USDOC
selected for the Deduction from Taxable Income program was determined contrary to Article 12.7.
The rate USDOC selected is the same rate that USDOC calculated for Ozdemir for the same
program in the same proceeding. With respect to the remaining programs — Provision of Electricity
for LTAR and Exemption from Property Tax — USDOC was unable to find a rate for the same
programs, and therefore turned to "facts available " for similar subsidy programs. Because th e
subsidy rate for each program was on a par with identical or similar subsidy programs, the rate is
not a punitive one, but instead provides a reasonable estimate of the level of subsidization
provided by the government consistent with Article 12.7.
38. Turkey also claims that USDOC acted contrary to its obligations under Article 19.4 of the
SCM Agreement and Article VI:3 of the GATT 1994 "by applying countervailing duty measures in
excess of the amount of subsidization attributable to HWRP. " Turkey's arguments are based upon
a flawed understanding of these provisions.
39. Consistent with Article VI:3, Article 19.4 requires that "[n]o countervailing duty shall be
levied on any imported product in excess of the amount of the subsidy found to exist. " There is no
argument by Turkey that any amounts levied have exceeded the subsidy amount calculated.
The United States has thus acted consistently with Article 19.4 and Article VI:3 by not applying
countervailing duties in excess of the amount of subsidy that was found to exist by USDOC.
V. TURKEY'S CLAIMS UNDER ARTICLES 2.1(C) AND 2.4
40. Turkey alleges that USDOC failed to identify or evidence the existence of a "subsidy
programme" for the provision of HRS. In US – Countervailing Measures (China) , the
Appellate Body considered the significance of the term "programme" in paragraph (c) of Article
2.1, and envisioned that a subsidy program, in the form of an unwritten "plan or scheme" could be
evidenced by "a systematic series of actions pursuant to which financial contributions that confer a
benefit have been provided to certain enterprises."
41. Here, the record supports USDOC 's determination that the provision of HRS for LTAR is a
"subsidy program " in the form of "plan or scheme " through a systematic series of actions . In
particular, in each challenged proceeding, the HRS for LTAR subsidy program was first identified in
the application submitted by the petitioners, which USDOC found to be substantiated by record
evidence. USDOC thereafter determined to investigate the program, including by asking questions
of Turkey and other interested parties and reviewing their responses, identified the program in the
preliminary determinations, gave all parties the opportunity to comment, and ultimately made a

final determination with respect to the program in each of the cases. Specifically, the respondents
provided USDOC with a complete transaction -specific accounting of the provision of HRS for LTAR.
USDOC in each proceeding relied on this evidence in identifying the subsidy progr am alleged by
petitioners.
42. Turkey also asserts in its submission that USDOC did not consider in its specificity
determination the factors listed in the final sentence of Article 2.1(c). However, Turkey has not
even asserted a prima facie case of inconsistency, because it fails to explain how USDOC allegedly
neglected the factors set out in the third sentence of Article 2.1(c).
43. USDOC took all required factors into account in its specificity determinations. The third
sentence of Article 2.1(c) does not impo se a purely formalistic requirement. An authority takes a
factor into account when it deals or reckons with it. Where these factors are not relevant to the
authority's determination, it need not include express discussion of each factor. Rather, an
authority satisfies its obligation by implicitly taking into account the factors. Accordingly, previous
panels have found that "taking into account the two factors in the final sentence of Article 2.1(c)
need not be done explicitly. " Such implicit findings are al l the more reasonable where, as here,
none of the parties to the countervailing duty proceedings ever argued or suggested that the
factors had any bearing on the facts at issue.
44. Here, neither of the two factors identified in the third sentence of Article 2.1(c) was alleged
in the proceedings at issue to have any bearing on the specificity inquiries, nor does Turkey point
to any such evidence now. Accordingly, USDOC's specificity findings in each of the four challenged
determinations are consistent with the SCM Agreement.
VI. TURKEY'S CLAIMS UNDER ARTICLE 15.3 OF THE SCM AGREEMENT
45. Turkey claims that "the ITC has a practice, in assessing material injury, of cumulating
imports that are subject to countervailing duty investigations with imports that are subject only to
antidumping duty investigations, i.e., non -subsidized imports, " and that this "practice" is
inconsistent "as such " with Article 15.3. Turkey argues that this alleged practice should be
considered a rule or norm of general application, subject to challenge "as such."
46. "[A] panel must not lightly assume the existence of a ‘rule or norm ' constituting a measure
of general and prospective application, especially when it is not expressed in the form of a written
document." A "high [evidentiary] threshold " must be reached by a complaining party, who must
clearly establish that the alleged "rule or norm " is attributable to the responding Member; its
precise content; and that it does have general and prospective application.
47. Turkey's showing falls far short of its burden. First, Turkey states that the alleged "practice"
it challenges is considered by the USITC to be required by U.S. statute . The statement cited by
Turkey from each determination similarly states that "section 771(&)(G)(i) of the Tariff Act
requires the Commission " to take certain action. However, Turkey has not challenged that U. S.
law. Irrespective of what the U.S. statute may or may not require, Turkey has not alleged, much
less demonstrated, that a "practice" autonomous from the U.S. statute exists.
48. Second, Turkey has not proven the content of the alleged practice, much less it s existence.
Turkey cites only to the specific injury determinations at issue. The fact that USITC cumulated the
effects of subsidized and non -subsidized imports in the investigations at issue, however, does not
demonstrate "systemic application " or that t he alleged practice has "general and prospective
application." Furthermore, the statement by the USITC in each determination to which Turkey next
specifically refers does not describe the cumulation of subsidized imports and dumped, non -
subsidized imports. Rather, the statement says that the relevant statute requires USITC "to
cumulate subject imports from all countries as to which petitions were filed ... on the same day, if
such imports compete with each other and with the domestic like product in the U.S. market." This
statement does not indicate that both subsidized and dumped imports must be cumulated.

49. Finally, under U.S. law a U.S. investigating authority may depart from a practice as long as
it explained its reasons for doing so. As the panel in US – Export Restraints found, this "prevents
such practice from achieving independent operational status in the sense of doing something or
requiring some particular action."
A. The Cumulation of Dumped and Subsidized Imports In Original Investigations
50. A proper interpretation of a provision of the WTO Agreements "must be made on the basis of
a careful examination of the text, context and object and purpose of that provision. " Turkey has
claimed that USITC 's cumulation of imports in the OCTG, WLP, and HWR P investigations is
inconsistent with Article 15.3. The burden of proving those claims thus falls on Turkey. Yet Turkey
has failed to engage in any analysis of Article 15.3 that would allow that burden to be met. Turkey
has provided no interpretation of Ar ticle 15.3's text, context, object, or purpose. Instead, Turkey
has simply quoted statements made by the Appellate Body in a previous dispute. This is not a
sufficient basis upon which to make a legal showing.
51. Even in the absence of argumentation by a party, under DSU Article 11, a panel must satisfy
itself that a breach has been made out by application of a covered agreement, properly
interpreted, to the facts before it. A proper interpretation reveals that nothing in the text of
Article 15.3 prohibits the cumulation of subsidized imports with imports that are dumped.
Article 15.3 addresses the conditions under which an authority may cumulatively assess the effects
of imports from multiple countries that are found to be subsidized. Article 15.3 does not address —
and certainly does not set any prohibition against — an investigating authority conducting a
cumulative assessment of the effects on the domestic industry of subsidized imports and dumped
imports. In fact, it does not address dumped imports at all. Article 15.3 is silent on the issue of
whether cumulation of dumped and subsidized is permissible.
52. The fact that Article 15.3 does not specifically authorize an authority to cumulate subsidized
imports with imports that are dumped does not, in and of itse lf, indicate that such an approach is
prohibited by the SCM Agreement. Turkey's claim would have the Panel read into Article 15.3
terms that are not there. Such an interpretation is not consistent with proper rules of
interpretation, and should therefore be rejected by the Panel.
53. An analysis that focused solely on the injurious effects of either dumped or subsidized
imports alone when both types of imports are injuring the industry at the same time would prevent
the investigating authority from "adequately tak[ing] into account " the injurious effects of all
unfairly traded imports, rendering the authority 's injury analysis less than complete. In US – Oil
Country Tubular Goods Sunset Reviews (AB) and EC – Tube or Pipe Fittings , the Appellate Body
emphasized that a cumulative assessment of the effects of unfairly traded imports from multiple
countries is a critical component of the injury analysis authorized in the AD Agreement. The
Appellate Body 's reasoning is similarly applicable to a situation where dumped and subsidized
imports are having a simultaneous injurious impact on an industry. The AD and SCM Agreements
contain nearly identical provisions governing an authority's injury analysis, including cumulation, in
original investigations. Both contemplate that an authority may consider the cumulative injurious
effects of unfairly traded imports from multiple sources, given that these imports can have a
cumulative injurious impact on the domestic industry.
54. Turkey, through its reliance on the Appellate Body report in US – Carbon Steel (India) alone,
would have the Panel read the cumulation provisions of the AD and SCM Agreements "in willful
isolation" from each other, resulting in a reading of Article 15.3 that makes little sense in light of
the policies underlying the cumulation provisions of each Agreement.
55. Article VI also provides important context for considering the object and purpose of the SCM
Agreement and its relationship with the AD Agreement. Article VI:6(a) provides that a Member
shall not impose a ntidumping or countervailing duties "unless it determines that the effect of
dumping or subsidization , as the case may be, is such as to cause or threaten to cause material
injury to an established domestic industry ... . " The phrase "as the case may be " acknowledges
that cumulation of dumped and subsidized imports may be appropriate in particular injury
investigations.

56. Prohibiting investigating authorities from cross -cumulating, such that the same volume of
subsidized imports from a country can be countervailed in some circumstances (where exporters in
other countries also happen to be subsidized) but not in others (where the unfairly traded imports
from other countries are dumped but not subsidized), will impair the right afforded to Members
under the SCM Agreement to countervail injurious subsidized imports. The United States urges the
Panel to interpret the SCM Agreement in a way that ensures that the treatment of those imports is
consistent under all the applicable provisions of the WTO agreements.
B. The Cumulation of Dumped and Subsidized Imports in Sunset Reviews
57. Turkey's "as such " challenge to USITC 's alleged practice of cross -cumulation in sunset
reviews must fail because Turkey has not established the existence of a rule or norm of general
and prospective application. The alleged practice it challenges is subject to USITC 's discretion. To
succeed in an "as such" challenge, a complainant must show that the application of the measure
necessarily leads to WTO inconsistent action. Turkey has made no suc h showing. Turkey does not
claim that the statute itself is inconsistent with the SCM Agreement. Therefore, Turkey must prove
its claim that USITC has exercised this discretion "in practice" in a manner that would constitute a
"rule or norm " of "general an d prospective application. " Turkey's reference to the single sunset
determination at issue in this dispute is insufficient to do so.
58. Turkey also has failed to show that Article 15.3 prohibited the cumulation of dumped and
subsidized imports in the sunset review determination at issue. Review proceedings, including
sunset review proceedings, are governed by Article 21 of the SCM Agreement — not Article 15.3.
Therefore, Article 15.3 does not apply directly to the review determination at issue.
59. The provisions of the WTO Agreements governing dumping, subsidies, and injury findings in
original investigations do not apply to an authority 's likely injury analysis in sunset reviews. The
Appellate Body has expressly rejected claims that the Agreements ' specific requirements relating
to cumulation in original investigations can be applied directly in sunset reviews.
60. Article 21 of the SCM Agreement does "not expressly prescribe any specific methodology for
investigating authorities to use in making a lik elihood determination in a sunset review, " nor does
it "identify any particular factors that authorities must take into account in making such a
determination." Accordingly, the SCM Agreement imposes no specific limitation on an authority 's
cumulation decisions in a sunset review.
EXECUTIVE SUMMARY OF U.S. OPENING ORAL STATEMENT AT THE FIRST SUBSTANTIVE
MEETING OF THE PANEL
I. TURKEY'S RESPONSE TO THE U.S. PRELIMINARY RULING REQUEST
61. Turkey attempts to argue in response to the U.S. Preliminary Ruling Reques t that it
identified the injury and benefit "practices" by including the phrase "and related practices " at the
end of a description of the challenged measures. This reference to "related practices" is so general
that it does not identify any "practices" at issue.
62. Turkey further argues that its "identification of the measures at issue as the United States '
preliminary and final countervailing duty measures imposed in the OCTG, WLP, HWRP, and CWP
proceedings does not limit Turkey 's legal claims to ‘as applied' claims." The issue, however, is not
that Turkey described its claims with respect to the alleged practices as "as such" claims, but that
Turkey failed to identify those alleged measures in its consultations request.
63. With respect to its claims und er Article 12.7, Turkey attempts to draw a distinction between
the "claims" being asserted and the "arguments put forth by a party in support of its claims. " For
purposes of DSU Article 6.2, a "claim" refers to an "allegation that the respondent party has
violated . . . an identified provision of a particular agreement, " whereas "arguments . . . are
statements put forth by a complaining party to demonstrate that the responding party 's measure
does indeed infringe upon the identified treaty provision. " Here, Turkey alleged that the
U.S. application of facts available in connection with the Provision of HRS for LTAR breached
Article 12.7 of the SCM Agreement. Turkey's arguments with respect to that allegation would be
any "statements put forth . . . to demonst rate" that the application of facts available in connection

with the Provision of HRS for LTAR did indeed breach Article 12.7. If Turkey had intended to raise
legal claims regarding the application of facts available with respect to subsidy programs other
than the Provision of HRS for LTAR program, it should have identified those claims in its panel
request.
64. By contrast, with respect to the HWRP proceeding, Turkey not only identified two claims
under the SCM Agreement "[i]n connection with the alleged Prov ision of Hot Rolled Steel for Less
than Adequate Remuneration, " Turkey also raised a separate claim under Article 12.7 regarding
the application of facts available "[i]n connection with ‘other subsidies ' not previously reported to
the USDOC." In contrast to the HWRP proceeding, in the WLP proceeding Turkey failed to raise any
claims regarding subsidy programs other than the Provision of HRS for LTAR program.
65. Turkey also claims that USDOC 's determination to apply facts available in the WLP
proceeding was n ot a "program-specific determination," but was based on respondent Borusan 's
decision not to participate in verification. However, Turkey's characterization of USDOC 's findings
regarding Borusan cannot have the effect of curing the deficiencies in its pane l request, and does
not change the fact that the only claim Turkey raised in its panel request regarding Article 12.7
was with respect to the Provision of HRS for LTAR subsidy program.
66. Turkey also claims that the United States was not "prejudiced" by its deficient panel request.
However, the Panel need not make a finding of prejudice to the United States in order to find the
additional claims under Article 12.7 to be outside its terms of reference.
67. Regarding the challenge to USDOC 's use of benchmarks, Tur key "acknowledges that the
USDOC reversed its benefit determination on remand, but disputes that the measures at issue has
{sic} ceased to have legal effect. " Turkey claims that because of potential subsequent domestic
litigation, there was still the possi bility that the OCTG remand determination still could have been
reversed at the time of its panel request. This is both factually inaccurate and legally irrelevant.
68. As a result of the U.S. Court of International Trade sustaining USDOC 's remand
determination, USDOC issued an amended final determination on March 10, 2016, which
effectuated USDOC's remand determination to use in-country benchmarks. On that date, the OCTG
final determination with respect to the use of out -of-country benchmarks ceased to have any legal
effect. The potential for a subsequent appeal did not alter the legal effect of the amended OCTG
final determination, which changed the subsidy rates and served as the legal basis for the
collection of cash deposits on entries at the time of the Panel's establishment.
69. If a challenge were permitted based on Turkey 's arguments, it would mean that a
complainant could equally challenge a countervailing duty order in which no inconsistency was
identified or claimed, based on the possibility that a dome stic legal challenge to that order might
result in an inconsistency at some time in the future. This would lead to absurd results, and is not
consistent with a proper interpretation of the DSU.
70. Turkey has also claimed that the OCTG benefit determination "continues to have legal effect
because it reflects the USDOC 's long -standing practice of rejecting in -country or ‘tier one '
benchmarks based on evidence of government ownership or control of domestic producers, " which
Turkey has also attempted to challenge in this dispute. Contrary to Turkey's claims, not only has
the United States demonstrated that no such practice exists, Turkey 's suggestion that the
existence of a "practice" would preserve the legal effect under U.S. law of a superseded USDOC
countervailing duty determination makes no sense. A U.S. court determined that USDOC 's use of
out-of-country benchmarks in the OCTG proceeding was not consistent with U.S. law, and
remanded the determination to USDOC for that reason.
71. Therefore, the United States req uests that the Panel find Turkey 's claims with respect to
USDOC's use of out -of-country benchmarks in the OCTG investigation to be outside the Panel 's
terms of reference, and to decline to make findings on those claims accordingly.

EXECUTIVE SUMMARY OF RESPONSES OF THE UNITED STATES TO THE PANEL'S
QUESTIONS FOLLOWING THE FIRST SUBSTANTIVE MEETING
U.S. RESPONSE TO PANEL QUESTION 7
72. In its determinations, USDOC did not make a legal finding regarding the status of OYAK for
purposes of Article 1.1(a)(1) of th e SCM Agreement. Therefore, the U.S. statement concerning
USDOC's examination of OYAK "as an organ of the GOT " does not require the Panel to determine
whether USDOC 's findings with respect to OYAK comply with any legal standard regarding a
"government orga n" under the SCM Agreement. In making this statement in its first written
submission, the United States was distinguishing USDOC 's factual assessment of OYAK from the
legal standard of "government or any public body " found in Article 1.1(a)(1) of the
SCM Agreement. As the United States explained in its first written submission, because USDOC did
not determine that a financial contribution was provided by OYAK, there is no legal issue before
the Panel with respect to OYAK's status under Article 1.1(a)(1).
73. Instead, USDOC found that Erdemir and Isdemir are public bodies by virtue of the
meaningful control exercised over the two entities by the GOT, including, through OYAK.
Therefore, the inquiry for the Panel with respect to OYAK is a factual one that must be e xamined
as part of the Panel 's analysis of whether USDOC properly found Erdemir and Isdemir to be public
bodies within the meaning of Article 1.1(a)(1).
74. The text of Article 1.1(a)(1) does not define "government or any public body within the
territory of a Member," nor does it prescribe the relationship between these two types of entities.
The United States has explained that a proper interpretation of the text, in context, demonstrates
that a public body is any entity that has the ability or authority to t ransfer government financial
resources, including, for example, because that entity is meaningfully controlled by the
government. The Appellate Body also has found that "evidence that a government exercises
meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence
that the relevant entity possesses governmental authority and exercises such authority in the
performance of governmental functions " such that the entity could be deemed a "public body "
under Article 1.1(a)(1).
75. USDOC having found the GOT 's meaningful control through OYAK of Erdemir and Isdemir
(which were then found to be "public bodies"), the inquiry before the Panel with respect to OYAK is
whether OYAK was found as a matter of fact to be capable of exercis ing meaningful control over
Erdemir and Isdemir, such that the controlled entities would be public bodies within the meaning
of Article 1.1(a)(1). Nothing in the text of that provision, or in the interpretations described above,
suggests that only a partic ular type of governmental entity, such as a government "organ," could
exercise such control over another entity. Rather, the characteristics of such an entity might be
consistent with those of a government "organ" or "agency," or they might be consistent with those
of a "public body," for example, or any other "governmental" entity.
76. While no legal standard under the SCM Agreement would apply to USDOC 's findings with
respect to OYAK, the Panel may find relevant to its factual a ssessment of OYAK's status in Turkey
the characteristics examined by other panels or the Appellate Body with respect to "government,"
"public body, " and other governmental entities in other contexts. As discussed, the record
evidence concerning OYAK before USDOC exhibits the attributes associated with "government" in
this broader sense. Therefore, this record evidence provided a sufficient factual basis for USDOC to
examine OYAK as an entity through which the GOT meaningfully controlled Erdemir and Isdemir,
and supported its determination that Erdemir and Isdemir are public bodies within the meaning of
Article 1.1(a)(1) of the SCM Agreement.
U.S. RESPONSE TO PANEL QUESTION 59
77. There is no provision in the DSU or the covered agreements that establishes a syst em of
"case-law" or "precedent," or otherwise requires that a panel apply the provisions of the covered
agreements consistently with the adopted findings of the Appellate Body absent "cogent reasons"
to depart from those findings. Indeed, were a panel to d ecide to apply the reasoning in prior
Appellate Body reports alone, and decline to fulfill its duty under Article 11 to make an objective
assessment of the matter before it, the panel would risk creating additional obligations for

Members that are beyond w hat has been provided for in the covered agreements – an act strictly
prohibited under Article 3.2.
78. To the extent a panel finds prior Appellate Body or panel reasoning to be persuasive, a panel
of course may rely on that reasoning in conducting its own objective assessment of the matter.
But that is very different from a conclusion that the interpretation is controlling in a later dispute.
To say that an Appellate Body interpretation in one dispute is controlling for later disputes would
appear to convert that interpretation into an authoritative interpretation of the covered agreement.
79. Such an approach would directly contradict the agreed text of the Marrakesh Agreement,
which provides in Article IX:2 that: "The Ministerial Conference and the General Council shall have
the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade
Agreements." The DSU confirms that panel and Appellate Body reports do not set out authoritative
interpretations in Article 3.9.
80. The Appellate Body itself has recognized that prior reports may not bind future adjudicators
in its report in Japan – Alcohol. According to the Appellate Body, a negative consensus report
adoption procedure by the DSB cannot supplant the "exclusive authority " of the Ministerial
Conference and the General Council to adopt, by positive consensus, an "authoritative
interpretation" of a covered agreement, as explicitly established in DSU Article 3.9 and WTO
Agreement Article IX:2.
81. The United States refers the Panel to its first written submission, in which it set out a proper
interpretation of the text of Article 15.3 of the SCM Agreement in accordance with the ordinary
meaning of the text, in context, and in the light of the object and purpose of the SCM Agreement.
If the Panel agrees that a proper interpretation of that provision leads to a different conclusion
regarding whether "cross-cumulation" is prohibited under Article 15.3 in original investigations,
that would provide all the reason the Pa nel needs not to concur with the interpretation in US –
Carbon Steel (India) (AB).

ANNEX B-4
SECOND INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
EXECUTIVE SUMMARY OF THE U.S. SECOND WRITTEN SUBMISSION
I. PRELIMINARY RULING REQUEST
A. Turkey's Panel Request Adds Measures and Claims that Were Not the Subject
of Consultations
1. In its responses to the Panel's questions, Turkey argues that Section A of its consultation
request, including its reference to "related practi ces," is "sufficient to establish that Turkey's
challenges extend beyond the preliminary and final countervailing duty determinations in the
OCTG, WLP, HWRP, and CWP proceedings." Turkey further argues that "panels have found there to
be a 'natural evolution' of claims where there is 'some connection' between the claims set forth in
the panel request and those identified in the request for consultations" and that the claims in its
panel request regarding the United States' alleged injury and benefit practic es are "clearly
connected" to the claims in its consultation request.
2. However, Turkey's "some connection" argument has almost no limit, and would effectively
read out the consultation requirement in DSU Article 4. Perhaps for this reason, in none of the
disputes cited to by Turkey had the complainant failed to identify the measure at issue in its
consultations request altogether. Since Turkey failed to identify the measures at issue in its
consultation request, the addition of these new measures in its p anel request cannot be a "natural
evolution" from its consultation request. There is nothing in Turkey's consultation request for these
measures to "evolve" from.
3. Turkey argues that "the obligation to identify a specific countervailing measure at issue in a
consultations or panel request does not limit the nature of the claims that may be brought
concerning those measures to 'as applied' claims," but this argument is equally unavailing.
The issue is not that Turkey set out "as such" claims with respect to the alleged practices in its
panel request, but that Turkey failed to identify those alleged measures in its consultations request
altogether. The obligation, and opportunity, to consult is a requirement of DSU Article 4 and is
designed to promote the r esolution of disputes. By including new measures and corresponding
claims in its panel request that were not the subject of its consultations request , Turkey has
ignored a DSU requirement and expanded the scope of the dispute in contravention of the DSU.
4. Turkey has impermissibly expanded the scope and changed the essence of the dispute,
contrary to DSU Article 4.4, and thus its challenges to alleged U.S. injury and benefit practices, as
well as its "as such" claims with respect to those practices, fall outside the Panel's terms of
reference.
B. Turkey's First Written Submission Improperly Included Claims that Are Not
Within the Panel's Terms of Reference
5. Turkey's request for establishment of a panel limited its claims under Article 12.7 of the
SCM Agreement with respect to the WLP investigation to a single subsidy program: the Provision
of Hot -Rolled Steel (HRS) for Less Than Adequate Remuneration (LTAR). However, Turkey's
written submission includes a number of new claims regarding USDOC's application of facts
available that were not identified in its panel request.
6. Turkey argues that the United States was "sufficiently notified" of the legal basis of Turkey's
claim and that the United States' "due process" rights were only affected to a limited extent.
Turkey also argues that the United States " could have asked for clarification following Turkey's
request for the establishment of a panel" or "for an ex tension of time so as to have sufficient time
to prepare its responses" to Turkey's first written submission. However, Turkey's arguments in this
respect are not relevant to the Panel's analysis under DSU Articl e 6.2. Article 6.2 requires
two elements; if either of these two elements is not properly identified, the matter would not be

within the panel's terms of reference. Moreover, compliance with the requirements of Article 6.2
"must be objectively determined on the basis of the panel request as it existe d at the time of
filing" and be "demonstrated on the face" of the panel request. Thus, the Panel need not make a
finding of whether the United States was "sufficiently notified" or the extent to which its "due
process rights" were affected in order to find the additional claims under Article 12.7 to be outside
its terms of reference.
7. In addition, it is simply incorrect that the United States was "sufficiently notified" of Turkey's
claims. In fact, the US had no notice or opportunity to begin preparing a defense with respect to
the 29 additional subsidy programs, because Turkey failed to raise any legal claims in its panel
request with respect to those programs. Nor would the United States have had any reason to ask
for "clarification" regarding the scope of Turkey's panel request. The panel request was clear on its
face; the United States had no reason to suspect that Turkey would subsequently challenge
29 additional subsidy programs in its first written submission.
8. Turkey argues that "USDOC's determi nation to apply adverse facts available with regard to
Borusan in the WLP proceeding was not a program -specific determination," but was based on
Borusan's decision to not participate in verification. However, USDOC engaged in separate fact -
finding and legal determinations with respect to each of the 30 subsidy programs at issue in that
proceeding. Turkey's decision to identify only one subsidy program in its panel request, and then
raise claims regarding the remaining 29 programs in its written submission, has placed the
United States at a distinct disadvantage in this proceeding.
C. The Benchmark Measure Challenged by Turkey Ceased to Have Legal Effect
Prior to The Date of The Panel's Establishment
9. Turkey's challenge under Articles 1.1(b) and 14(d) of the SCM Agreement falls outside the
Panel's terms of reference because the out-of-country benchmark and benefit determination in the
OCTG final determination ceased to exist and have legal effect at lea st 15 months prior to the date
of the Panel's establishment.
10. In its response to the United States' preliminary ruling request, Turkey argues that the
Appellate Body in EC – Selected Customs Matters "has also recognized two exceptions to the
general requirement that measures must be in force at the time of establishment of the panel:
where a measure is enacted subsequently or expires prior to establishment of the panel." Turkey
explains that the latter "exception" was recognized by the Appellate Body in US – Upland Cotton.
11. The Appellate Body's findings in US – Upland Cotton , however, are not applicable to this
dispute. In US – Upland Cotton , the issue was whether two subsidy measures (i.e., contract
payments) could be within the panel's terms of reference if the legislative basis for those measures
had expired prior to the panel's establishment. The situation before this Panel is very different.
The OCTG final determination in which USDOC used an out-of-country benchmark was successfully
challenged b y Turkish respondents at the U.S. Court of International Trade (USCIT), was
remanded to USDOC, and was subsequently reversed by USDOC with regard to benefit in the
OCTG remand determination. USDOC issued an amended final determination on March 10, 2016,
which effectuated USDOC's remand determination to use in-country benchmarks. On that date, the
OCTG final determination ceased to exist and have any legal effect with respect to the use of out -
of-country benchmarks.
12. Therefore, Turkey cannot demonstrate that the benchmark and benefit determination in the
OCTG final determination had effects that were "impairing the benefits accruing to it" at the time
of the Panel's establishment. Once the amended OCTG final determination was issued
on March 10, 2016, it changed the subsidy rates and served as the legal basis for the collection of
cash deposits on entries.
13. Turkey disputes that the original OCTG benefit determination ceased to have legal effect by
claiming that "there was a possibility that USDOC's rem and determination would be reversed, and
that the original benefit determined reinstated." However, that legal action in U.S. courts might
have caused USDOC to further amend the duty rates, or to alter the legal basis of those rates, at a
later date, does not mean that the superseded determination continued to have legal effect.
Moreover, if a challenge were permitted based on Turkey's arguments, it would mean that a

complainant could equally challenge a countervailing duty order in which no inconsistency w as
identified or claimed, based on the possibility that a domestic legal challenge to that order might
result in an inconsistency at some time in the future. This would lead to absurd results, and is not
consistent with a proper interpretation of the DSU.
14. Turkey argues that "although the benefit determination in the OCTG proceeding which
resulted in the imposition of countervailing duties may have been superseded by the remand
determination, the basic legislative framework and implementing regulations that gives rise to the
United States' practice of rejecting in -country benchmarks in benefit determinations based on
evidence of government ownership or control remains in place." To the extent Turkey now
attempts to challenge the "basic legislative framew ork and implementing regulations that gives
rise to the United States' practice," such a claim is outside the Panel's terms of reference.
II. TURKEY'S "AS SUCH" CHALLENGE UNDER ARTICLES 1.1(B) AND 14(D)
15. Turkey, in its responses to the Panel's questions, presents new evidence relating to
28 USDOC determinations purportedly demonstrating the existence of a "practice" that is a rule or
norm, which necessarily led to WTO -inconsistent action on the part of USD OC. The Panel should
reject Turkey's new evidence because it is untimely and contrary to the Panel's Working
Procedures. Having failed to make its affirmative case in its first written submission, or even
during the first Panel meeting, that such a "practi ce" exists, Turkey should not be permitted to
make such a case at this late stage of the panel proceedings when the parties are to present
rebuttal evidence, or evidence necessary for purposes of answering clarifying questions.
16. In addition to being un timely, Turkey also fails to attempt to explain how the newly added
28 determinations establish that USDOC had a practice at the time of the Panel's establishment
that constitutes a rule or norm of general and prospective application. In its response to Pa nel
Question 34, Turkey merely lists the titles of these 28 determinations, without more. Turkey does
not identify which of the subsidy program analyses included in each of the determinations is
alleged to support its claims, or even include a page number or section heading in its footnotes.
17. Turkey apparently considers that it is sufficient for it to submit these determinations as
exhibits, and leave it to the Panel to review and analyze them on its own. A panel is not to make
an affirmative case for a party through its own review of evidence, not based on the party's own
claims and arguments. The Appellate Body similarly found in Canada – Wheat and US-Gambling
that a complainant cannot succeed in making a prima facie case by submitting evidence without
explaining how its content is relevant to the claims before the panel. The Panel should thus not
examine this evidence further.
18. The United States also notes that the determinations fail to support Turkey's claim regarding
the existence of the alleged practice at the time of the Panel's establishment, which necessarily led
to WTO-inconsistent action on the part of USDOC. First, of the 28 determinations listed, 23 of the
determinations could not assist in establishing a practice existing at the time of t he Panel's
establishment. Turkey cannot succeed in its challenge by demonstrating that USDOC had, prior to
the date of the Panel's establishment, a practice regarding the use of out -of-country benchmarks.
And, to the extent that Turkey could show that such a practice previously existed – which it has
not – the United States has demonstrated no such practice existed at the time of the Panel's
establishment, as evidenced by the HWRP, CWP, and WLP determinations at issue in this dispute,
by other determinations that post-date these determinations, as well as the decision of the USCIT
in the Borusan case.
19. Second, the five remaining determinations are not sufficient to demonstrate the existence of
a rule or norm, and in any event, in fact contain findings by USDOC demonstrating that no such
rule or norm exists. For example, some of the listed determinations are actually examples of
where USDOC did not use out -of-country benchmarks. Other determinations listed by Turkey
demonstrate that when USDOC uses an out -of-country benchmark, such findings are not based
solely on evidence concerning the government constituting a majority or substantial portion of the
market. Therefore, the new evidence provided by Turkey fails to support its claim.

III. TURKEY'S ARTICLE 1.1(A)(1) CLAIMS
20. As the United States has explained, Turkey's claim with respect to OYAK must fail because
the requirements of Article 1.1(a)(1) of the SCM Agreement do not apply to USDOC's analysis of
OYAK. Turkey argues that, although USDOC "did not exp licitly refer to OYAK as a public body," "it
is clear from the overall analysis that the USDOC analyzed OYAK under its standard for 'public
body,' and not as a 'government organ' or part of the [GOT] in some other way." Turkey misses
the point in suggestin g that the use of particular terminology in a domestic determination can
convert a factual finding into a legal finding for purposes of WTO dispute settlement. USDOC did
not need to make a finding regarding whether OYAK was a public body under Article 1.1(a)(1), and
none of Turkey's arguments change that fact.
21. Moreover, because Turkey's arguments concerning OYAK are raised separately from its
challenge against USDOC's determinations concerning Erdemir and Isdemir, the Panel should
decline to review Turkey's OYAK arguments because they are made on an independent basis.
22. However, for completeness, to the extent that the Panel considers Turkey's arguments
concerning OYAK to be understood as a basis of its challenge against USDOC's determinations
concerning Erdemir and Isdemir, the Panel could examine whether USDOC's factual findings
regarding the relationship between the GOT and OYAK, and the relationship between OYAK and
Erdemir and Isdemir, support USDOC's legal determination that Erdemir and Isdemir are public
bodies for purposes of Article 1.1(a)(1) of the SCM Agreement.
23. In its previous submissions, the United States explained that USDOC determined Erdemir
and Isdemir to be public bodies based on numerous considerations. Throughout this dispute,
however, Turkey has attempted to draw the Panel away from its standard of review and from
considering the totality of the record evidence, as USDOC did. Rather, Turkey isolates specific facts
and assertions on the record of the proceedings, and continues to make assertions that rely on
secondary non-objective material on the record, that is, a law firm position paper and case briefs
from interested parties. Thus, in arguing that USDOC's determinations are inconsistent with the
SCM Agreement, Turkey merely offers its own interpretation of the record, and seeks for the Panel
to conduct a de novo review. However, a panel must not conduct a de novo evidentiary review,
but instead should "bear in mind its role as reviewer of agency action." Accordingly, "in orde r to
examine the evidence in the light of the investigating authority's methodology, a panel's analysis
usually should seek to review the agency's decision on its own terms, in particular, by identifying
the inference drawn by the agency from the evidence, and then by considering whether the
evidence could sustain that inference." Thus, the inquiry for the Panel is whether an unbiased and
objective investigating authority could have determined Erdemir and Isdemir to be public bodies
based on the totality of the record evidence before it.
24. A close examination of the arguments that Turkey has continued to make since its first
written submission demonstrates that Turkey fails to engage with or undermine USDOC's
examination of the totality of the record evid ence. Many of the arguments are either premised on
secondary non-objective material from the record, or are simply unsupported. Other arguments
are premised on the isolation of a sentence pulled from the record, where Turkey thereby attempts
to shield that sentence from the remainder of the record, which USDOC considered in totality.
25. Indeed, in contrast to Turkey's presentation of isolated record facts, USDOC weighed the
totality of the record evidence. Turkey has therefore failed to demonstrate that a n unbiased and
objective investigating authority, when faced with the totality of the record evidence, could not
have examined OYAK as an entity through which the GOT exercised meaningful control over
Erdemir and Isdemir, such that Erdemir and Isdemir coul d be found to be public bodies within the
meaning of Article 1.1(a)(1).
26. Turkey claims that USDOC's public body determinations concerning Erdemir and Isdemir are
inconsistent with Article 1.1(a)(1) because USDOC "refused to consider evidence regarding their
commercial conduct." Turkey errs in suggesting that evidence of commercial, profit -maximizing
behavior precludes a finding that an entity is controlled by the government. To the contrary, while
such evidence may be relevant to an investigating author ity's determination, nothing in Article 1.1
suggests that, where meaningful control by the government is otherwise demonstrated, a public
body cannot also exhibit commercial behavior.

27. Turkey argues that "evidence of an entity's corporate governance fr amework, policies and
procedures that make it accountable to shareholders or members and require it to pursue
commercial, profit-maximizing strategies, and external audit requirements are highly relevant to
whether that entity is a public body." The United States agrees that such evidence may be relevant
to an investigating authority's analysis. However, Turkey appears to equate a company exhibiting
commercial, profit -maximizing behavior with a company operating independently and/or
autonomously from the go vernment. It is not the case, however, that either a government, or a
government-controlled entity, cannot act in a commercial manner. Moreover, when viewed in light
of the totality of the evidence, as USDOC did, the information cited by Turkey purporting to show
"commercial conduct" does not undermine USDOC's finding that GOT meaningfully controlled
Erdemir and Isdemir.
28. Therefore, Turkey has failed to demonstrate that an objective and unbiased investigating
authority, after examining the totality of t he record evidence, could not have determined that the
GOT exercised meaningful control over Erdemir and Isdemir, such that the two entities are public
bodies within the meaning of Article 1.1(a)(1).
IV. TURKEY'S CLAIMS UNDER ARTICLE 12.7 OF THE SCM AGREEMENT
A. USDOC's Application of Facts Available in the OCTG Investigation
29. Turkey has clarified that its claims relate only to USDOC's "selection" of facts available, and
do not include either USDOC's decision to resort to the use of facts available or whether the
information requested by USDOC was "necessary" within the meaning of Article 12.7. In short,
Turkey does not challenge USDOC's determination that Borusan failed to provide "necessary
information," that this failure significantly impeded USDOC's investigation, and that the use of
facts available was therefore warranted. T hus, it is undisputed that by failing to provide the
requested information, Borusan hindered USDOC's ability to calculate the subsidy from the
Provision of HRS for LTAR program.
30. Turkey's argument that "USDOC should have considered whether Borusan's failure to
provide requested information was attributable to resource constraints, ... and therefore whether it
would have been reasonable to use the data which Borusan provided on its hot rolled steel
purchases for the Gemlik mill to approximate the missing information or to ask Borusan to provide
the missing information in a different form" is perplexing. USDOC did consider Borusan's "resource
constraints," including when it granted Bo rusan's extension of time to respond to the initial
questionnaire. In addition, USDOC did use the data Borusan provided on its HRS purchases for the
Gemlik mill to approximate the missing information for the Halkali and Izmit mills. Finally, Turkey's
suggestion that USDOC could have asked Borusan to provide the missing information in a different
form is pure speculation. Turkey has cited to no evidence that USDOC requested the data in a
"form" that was problematic, or that a "different form" would have reso lved Borusan's claimed
difficulties.
31. Turkey claims that USDOC acted inconsistently with Article 12.7 because it "relied on only a
part of the evidence provided by Borusan – e.g., only the lowest price on the record for the Gemlik
mill's hot rolled steel purchases from Erdemir and Isdemir." However, Turkey has failed to explain,
much less provide evidence, that its suggested approaches would provide a more accurate
determination of the missing purchase data than the method used by USDOC.
32. In this ca se, USDOC selected a reasonable replacement for the missing information by
relying on the HRS purchase data that Borusan had provided for its Gemlik facility, as well as data
provided by Borusan regarding the respective production capacities of the Halkali and Izmit mills.
Moreover, Turkey has pointed to no evidence on the record that contradicted or raised questions
about this data or its reasonableness as a replacement for the missing information. Since an
"unbiased and objective" investigating authority could have found the chosen HRS price and
quantity data to be a reasonable replacement for the missing information, there is no basis for the
Panel to overturn that assessment.

B. USDOC's Application of Facts Available in the WLP Investigation
33. In resp onse to the Panel's written questions after the first Panel meeting, Turkey has
dramatically expanded the scope of its arguments under Article 12.7 with respect to the
WLP investigation. In response to Question 49, Turkey sets forth a bullet -point list ind ividually
challenging USDOC's application of facts available with respect to 27 of the subsidy programs at
issue in the WLP investigation: the original 13 programs that it challenged in its first written
submission, as well as 14 additional programs that h ave never previously been addressed by
Turkey under Article 12.7. The Panel should reject Turkey's attempt to challenge these 14 subsidy
programs.
34. Turkey's belated introduction of new arguments and evidence is contrary to the Panel's
Working Procedures and basic procedural fairness as it impairs the United States' ability to defend
its interests. Turkey was well aware of these 14 programs at the time it filed its first written
submission, and (assuming it had properly raised these claims in its panel re quest) it could have
included a substantive challenge of USDOC's application of facts available with respect to those
programs in that submission. The Panel should reject Turkey's attempt to bring such claims now.
35. Finally, the United States notes that for three of the subsidy programs at issue – including
the Provision of HRS for LTAR program – Turkey still has provided no substantive argumentation or
analysis. Turkey has clarified that its claims under Article 12.7 "relate[] specifically to the USDOC's
selection of facts available" – namely, USDOC's selection of facts available to calculate subsidy
rates for each of the programs at issue. Since Turkey's claims relate specifically to USDOC's
selection of facts available – a necessarily program -specific determination – Turkey has failed to
meet its burden of proof with respect to the three programs for which it has provided no
substantive arguments regarding how USDOC's determination of a subsidy rate for those programs
based on facts available is allegedly inconsistent with Article 12.7.
36. Moreover, as detailed in the United States' Preliminary Ruling Request, Turkey's panel
request limited its claims under Article 12.7 with respect to the WLP investigation to the Provision
of HRS for LTAR program only. Since Turkey has opted not to raise any substantive arguments in
any of its submissions with respect to the Provision of HRS for LTAR program, Turkey has not
properly raised any claims under Article 12.7, and thus the Panel should not make any findings in
relation to these claims.
37. In the interest of completeness, the United States briefly comments on Turkey's newly -
raised arguments and demonstrates that they lack any substantive merit. Although Turkey
appears to challenge USDOC's use of the "highest" p ossible rates, it has provided no
argumentation or evidence that these rates are not a reasonable replacement for necessary
information missing from the record.
38. Second, with respect to 27 programs, Turkey asserts that "while Borusan declined to
participate in verification, the USDOC did verify the Government of Turkey's responses, which
confirmed Borusan's own responses regarding its use or non -use of the investigated subsidy
programs." However, because Borusan refused to participate in verification, U SDOC did not verify
the Government of Turkey's responses with respect to Borusan.
39. Third, Turkey's response to Panel Question 49 includes new, program-specific argumentation
regarding USDOC's application of facts available with respect to 27 of the ind ividual subsidy
programs at issue in the WLP proceeding. However, Turkey's references mischaracterize the
Government of Turkey's questionnaire response regarding certain subsidy programs or fail to
mention key pieces of information with respect to USDOC's selection of facts available to replace
missing necessary information.
40. Fourth, Turkey claims that USDOC's resulting subsidy determination "cannot be described as
'accurate' because there is no connection between the allegedly missing 'necessary inform ation'
and the rates selected by the USDOC as 'facts available.'" However, Turkey has pointed to no
evidence on the record to suggest that the rates chosen by USDOC were not accurate, or that
other information on the record would have been more appropriate for use because it was more
accurate. And in fact, for each subsidy program, USDOC's calculation of the subsidy rates was
based on information provided by cooperating companies in the same or other Turkish

countervailing duty investigations. The chosen ra tes reflect the actual subsidy practices of the
Turkish government as reflected in the actual experiences of companies in Turkey, including
Borusan's fellow respondent in the WLP investigation, and thus serve as a "reasonable
replacement" for information t hat was missing from the record. Turkey has therefore failed to
demonstrate that USDOC's application of facts available is inconsistent with Article 12.7.
C. USDOC's Application of Facts Available in the HWRP Investigation
41. Turkey's claims with respect to USDOC's application of facts available in the
HWRP investigation are without merit. Because the subsidy rate calculated for each of the three
HWRP programs challenged by Turkey was on a par with identical or similar subsidy programs,
these rates were no t punitive, but instead provided a reasonable estimate of the level of
subsidization provided by the government, that an objective and unbiased investigative authority
could have determined to use, as USDOC did.
V. TURKEY'S CLAIMS UNDER ARTICLES 2.1(C) AND 2.4
42. Turkey has confused the inquiry by claiming that "the United States argues that a 'series of
transactions for the provision of [hot rolled steel] for [less than adequate remuneration]' is
sufficient to demonstrate a subsidy 'plan' or scheme.'" US DOC's determinations were based on
both the transaction -specific accountings of the provision of HRS for LTAR provided by the
respondent parties and statements in Erdemir's 2012 and 2013 Annual Reports indicating that its
actions furthered the promotion of export-oriented production consistent with GOT policy as set
out in Turkey's 2012 -2014 Medium Term Programme. Thus, Turkey's arguments that USDOC
relied only on a list of transactions to demonstrate the existence of a subsidy program are
misplaced.
43. Next, in the determinations at issue, USDOC took account of the extent of diversification of
economic activities within Turkey and the length of time during which the HRS subsidy program
had been in operation. With respect to the length of time factor, USDO C examined Erdemir's 2012
and 2013 Annual Reports, and in each proceeding requested and received from the GOT
information regarding the production and provision of HRS for not only the period of investigation,
but also the preceding two years, which demons trated that the program usage data for the period
of investigation was not anomalous in comparison to data for past years. With respect to the
extent of diversification factor, USDOC took into account this factor when it considered and
discussed the Medium Term Programme and Erdemir's 2012 and 2013 Annual Reports, which
reflected the publicly known fact of Turkey's highly diversified economy.
44. The lack of any explicit findings with respect to the two factors is both reasonable and
appropriate where, as here, none of the parties to the countervailing duty proceedings ever argued
or suggested that the factors had any bearing on the facts at issue. This is also relevant to the
Panel's assessment, as it reaffirms the United States' position that there were n o facts on the
record that call into question the soundness of USDOC's specificity findings.
VI. TURKEY'S CLAIMS UNDER ARTICLE 15.3 OF THE SCM AGREEMENT
45. Turkey's claims regarding cumulation in the context of original investigations under
Article 15.3 of the SCM Agreement must fail. Not only has Turkey failed to demonstrate that a
"practice" regarding cumulation exists, but Turkey is wrong that Article 15.3 prohibits the
cumulation of dumped and subsidized imports.
46. Turkey has challenged USITC's alleg ed practice of cumulating dumped and subsidized
imports in original investigations as a rule or norm of general and prospective application. In such
a case, there is a "high [evidentiary] threshold" that must be reached by the complaining party.
Turkey must not only show that the alleged "rule or norm" is attributable to the United States, but
must establish its precise content, and that it has general and prospective application.
47. Turkey's showing with respect to USITC's alleged "practice" in original investigations has
fallen far short of its burden. In support of its claim, Turkey's first written submission pointed to
the three original injury determinations at issue in this dispute. However, as the United States
explained in its previous submissions, the fact that USITC cumulated the effects of subsidized and

non-subsidized imports in the investigations at issue does not demonstrate that the alleged
practice has been "systemic[ally] appli[ed]" or that it has general and prospective application.
Moreover, the fact that an investigating authority may have employed a practice in the past
"would not be sufficient to accord such a practice an independent operational existence."
48. In light of the United States' arguments, Turkey in its responses to Panel q uestions presents
additional injury determinations which it argues provide further evidence of the existence of a
practice. The Panel should reject Turkey's evidence because it is both untimely and unpersuasive.
Permitting Turkey to introduce new evidence at this late stage is contrary to the Working
Procedures adopted by the Panel and to procedural fairness and the orderly resolution of this
dispute.
49. Further, Turkey bears the burden of proving that USITC's cumulation of imports in the
OCTG, WLP, and H WRP investigations is inconsistent with Article 15.3. Yet Turkey has failed to
engage in any analysis of Article 15.3 that would allow that burden to be met. It has provided no
interpretation of the text, in context, of Article 15.3, or of the object and p urpose of the
SCM Agreement. Turkey has simply quoted statements made by the Appellate Body in a previous
dispute, but this is not a sufficient basis upon which to make a legal showing. Under DSU
Article 11, a panel must make an "objective assessment" of the matter before it, and that a breach
has been made out by application of a covered agreement, properly interpreted, to the facts
before it. Turkey has failed to provide the Panel with any argumentation that would allow the Panel
to engage in such an interpretation, and its claims thus must fail.
50. Moreover, a proper interpretation of Article 15.3 reveals that nothing in the text of that
provision prohibits the cumulation of subsidized imports with imports that are dumped. Article 15.3
addresses the conditions under which an authority may cumulatively assess the effects of imports
from multiple countries that are found to be subsidized. Article 15.3 does not address – or set any
prohibition against – an investigating authority conducting a cumulative assessment of the effects
on the domestic industry of subsidized imports and dumped, non -subsidized imports. Article 15.3
is silent on this issue, and silence cannot be read as a prohibition. Both the purpose of the
cumulation provisions of the AD and SCM Agreements and relevant context support the proposition
that cumulation of dumped and subsidized imports is consistent with the WTO Agreements.
51. Turkey's "as such" challenge to USITC's alleged practice of cross -cumulation in sunset
reviews also must fa il because Turkey has not established the existence of a rule or norm of
general and prospective application. To succeed in an "as such" challenge to any measure, a
complainant must also show that the application of the measure necessarily leads to
WTO-inconsistent action. Turkey has made no such showing. First, Turkey itself acknowledges that
USITC has discretion in electing whether or not to cumulate in five -year reviews and does not
argue that USITC is required to cumulate in the context of sunset review s. Second, it cited to no
evidence in its first written submission, other than the sunset determination in the CWP
proceeding. Evidence that USITC has exercised its discretion to cumulate on one occasion does not
demonstrate the existence of a measure, muc h less that the alleged practice necessarily leads to
WTO-inconsistent action.
52. In its responses to Panel questions, Turkey erroneously asserts that the ITC always cross -
cumulates subsidized and non -subsidized imports in reviews, despite its discretion not to do so, if
the other conditions for cumulation are satisfied. In actuality, in sunset reviews, USITC decides on
a case-by-case basis whether to cumulate subject imports, largely on the basis of whether or not
subject imports compete under similar con ditions of competition. This examination of the
conditions of competition is a separate, distinct, and additional analytic step from the question of
whether imports are likely to compete with each other or with the domestic like product in the
U.S. market. Turkey's listing of cases in its response to the Panel's questions does not cure
Turkey's failure to provide sufficient evidence to demonstrate the content or existence of the
alleged "practice" it challenges, or that the "practice" constitutes a rule or norm of general and
prospective application.
53. Turkey has also failed to show that Article 15.3 prohibits the cumulation of dumped and
subsidized imports in the context of sunset reviews. Sunset review proceedings are governed by
Article 21, and not by Article 15.3, of the SCM Agreement. In fact, the Appellate Body has
expressly rejected claims that the SCM and AD Agreements' specific requirements relating to
cumulation in original investigations can be applied directly in sunset reviews.

54. Turkey offers no textual support for its position that Article 15.3 prohibits cross -cumulation
in sunset reviews. Turkey's reliance on the object and purpose of the SCM Agreement, and its
contention that cross -cumulation, whether in investigations or reviews, is inc onsistent with this
object and purpose, fails. The object and purpose of an agreement cannot have the effect of
changing the text of that agreement.
55. Turkey also relies on the negotiating history of the SCM Agreement to support its argument
that cross-cumulation is prohibited in reviews. Recourse to supplementary means of interpretation
is not warranted, since the meaning of Articles 15 and 21 is clear. However, even if the use of
supplementary means of interpretation were warranted, the negotiating his tory of the
SCM Agreement does not support Turkey's position. In particular, Turkey has not pointed to any
mention at all in the negotiating history of the issue here – cumulation in the context of sunset
reviews – and therefore Turkey's entire discussion is inapposite.
EXECUTIVE SUMMARY OF U.S. OPENING STATEM ENT AT THE SECOND SU BSTANTIVE
MEETING OF THE PANEL
I. TURKEY'S CHALLENGE TO USDOC'S PUBLIC BODY DETERMINATIONS
56. We note Turkey's argument that the United States has engaged in a " post hoc " defense.
In making this argument, Turkey appears to suggest that where, for example, USDOC referred to
specific language in a record document, its review of that document must be understood as having
been limited to that language only, such that the Panel should f ind that USDOC otherwise did not
examine or rely on that document in making its determination. Turkey's position is untenable and
without any basis in the SCM Agreement or the DSU. An investigating authority is not required to
cite or discuss, down to the word, every piece of supporting record evidence for each factual
finding in its determination.
II. TURKEY'S CHALLENGE TO USDOC'S SPECIFICITY DETERMINATIONS
57. Turkey continues to suggest that the finding of a subsidy program was based on "a list of
transactions, some of which are above and some of which are below a benchmark price." Turkey
argues that such a series of transactions is not positive evidence of a systematic series of actions,
let alone a plan or scheme because "the frequency or number o f transactions that provide a
subsidy may be relevant evidence of an underlying 'plan or scheme,' but is not, in and of itself,
sufficient evidence."
58. Turkey's arguments are wrong on both a factual and a legal basis. Factually, it is the two
findings in conjunction – the repeated provision of hot -rolled steel for less than adequate
remuneration, and its provision in accordance with stated GOT policy – that formed the basis of
USDOC's finding that a "subsidy programme" existed.
59. Legally, Turkey's ar guments also reflect a misunderstanding of the text of Article 2.1, as
well as the findings of the Appellate Body on which it relies. In US – Countervailing Measures
(China), the Appellate Body recognized, the inquiry under "Article 2.1 assumes the existen ce of a
financial contribution that confers a benefit, and focuses on the question of whether that subsidy is
specific." Thus, the only remaining question is whether the contribution and benefit were provided
"pursuant to" "a systematic series of actions." Contrary to Turkey's claim then , a "systematic
series of actions" need not consist entirely of acts of subsidization; rather, the subsidy in question
must be provided "pursuant to" a series of actions that qualifies as a "program." The identification
of a plan or scheme pursuant to which the subsidies in question are provided serves a particular
purpose in this context because, in an analysis of de facto specificity, it is not the financial
contribution or benefit that is in question, but rather "whether t here are reasons to believe that a
subsidy is, in fact, specific, even though there is no explicit limitation of access to the subsidy set
out in [law]." As the Appellate Body observed, systematic activity or a series of activities may be
evidence of an unwritten subsidy program.
60. Turkey's arguments that USDOC did not consider the two factors in Article 2.1(c) are equally
unavailing. Turkey claims that the evidence presented by the United States is post hoc. However,
where the path of an investigating a uthority's determination is reasonably discernable, an
adjudicator should meet with that reasoning rather than avoid it on the basis of form. This

principle is apparent in past cases. For example, the panels in US – Softwood Lumber IV and EC –
Countervailing Measures on DRAM Chips both upheld the investigating authority's consideration of
the factors provided in the final sentence of Article 2.1(c) where such consideration was implicit.
Likewise, in US – DRAMS, the Appellate Body found that an investigating authority need not cite or
discuss every piece of record evidence supporting its conclusion.
61. Here, USDOC explicitly discussed the evidence demonstrating the two factors in its
determination. Having done so, and without these issues having been raised by any interested
party in the investigation in the context of specificity, the Panel should find that USDOC took the
two factors identified in Article 2.1(c) into account in making its specificity determination.
EXECUTIVE SUMMARY OF RESPONSES OF THE U NITED STATES TO THE PANEL'S
QUESTIONS FOLLOWING THE SECOND SUBSTANTIVE MEETING
U.S. RESPONSE TO PANEL QUESTION 64
62. The Appellate Body in US – Carbon Steel (India) further stated that "a government's
exercise of 'meaningful control' over an entity and it s conduct, includ[es] control such that the
government can use the entity's resources as its own." Thus, the Appellate Body has recognized
that a government's exercise of meaningful control includes evidence that "the government
can use the entity's resources," and has not stated that evidence that the government is in fact
actually using an entity's resources is necessary.
63. In the United States' view, requiring evidence that the government is "in fact actually"
exercising control over the entity and its conduct would conflate the public body analysis with the
examination of a private body under Article 1.1(a)(1)(iv) of the SCM Agreement, where a
demonstration of entrustment or direction is required. The Appellate Body in US – Anti-Dumping
and Countervailing Duties (China) similarly found that there need not be "an affirmative
demonstration of the link between the government and the specific conduct" as part of a public
body analysis. Rather, "all conduct of a governmental entity [incl uding an entity determined to be
a public body] constitutes a financial contribution to the extent that it falls within
subparagraphs (i)-(iii) and the first clause of subparagraph (iv)."
64. Turkey appears to suggest that an entity may be deemed a public body only when the
entity is "exercising" governmental authority. This is incorrect, however, even under the public
body approach of the Appellate Body. The Appellate Body has "explained that the term public body
in Article 1.1(a)(1) of the SCM Agreement means 'an entity that possesses, exercises or is vested
with governmental authority'." Under the framework elaborated by the Appellate Body, an entity
might be deemed a public body when there is evidence that the entity possesses or is vested with
governmental authority, even if there is no evidence that the entity is exercising governmental
authority at the time of the particular transaction at issue. Likewise, in the United States' view, an
entity's ability or authority to transfer government resources is sufficient to find an entity as a
public body.
65. Therefore, a determination that an entity exercises meaningful control, such that the
government can use an entity's resources as its own, is sufficient. An investigating authority need
not demonstrate that the government has "in fact actually" used an entity's resources, that is, that
the government "in fact actually" exercised meaningful control.
U.S. RESPONSE TO QUESTION 74
66. The Appellate Body has stated that "[w]hether the conduct of an entity is t hat of a public
body must in each case be determined on its own merits, with due regard being had to the core
characteristics and functions of the relevant entity, its relationship with the government, and the
legal and economic environment prevailing in t he country in which the investigated entity
operates." Thus, the question is not whether the conduct under Article 1.1(a)(1) is governmental.
Rather, the question is whether the entity engaging in the conduct is governmental.

67. Regardless, to the extent the Panel finds certain statements in US – Carbon Steel (India )
persuasive concerning this issue, the United States observes that the evidence before USDOC in
this case substantially differs both in substance and volume from that before USDOC in US –
Carbon Steel (India).
U.S. RESPONSE TO QUESTION 86
68. In its oral statement at the second panel meeting, for the first time in this dispute, Turkey
raised a new argument concerning certain USDOC determinations it cited in response to
Question 34. Turkey appe ars to suggest that import penetration does not demonstrate an
evaluation of whether in -country prices are distorted. However, past panels have recognized that
import penetration is relevant to an investigating authority's distortion analysis. The panel in US –
Carbon Steel (India) stated that "import transactions necessarily relate to prevailing market
conditions in India because they are made by entities in India operating subject to Indian market
conditions." The panel in US – Coated Paper (Indonesia) also recognized the relevance of import
penetration to the distortion analysis. Therefore, contrary to Turkey's claim, USDOC's evaluation of
import penetration is one factor that may be examined to determine whether a domestic market is
distorted by government involvement

ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil 62
Annex C-2 Integrated executive summary of the arguments of the European Union 63
Annex C-3 Integrated executive summary of the arguments of Japan 67
Annex C-4 Integrated executive summary of the arguments of Mexico 72

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
1. Brazil would like to comment on the interpretation of Article 12.7 of the Agreement on
Subsidies and Countervailing Measures (SCM Agreement). Brazil understands that a proper
reading of that provision would lead to the conclusion that recourse to facts ava ilable is possible
only with the purpose of identifying replacements for the "necessary information" that is missing
from the record. This understanding is corroborated by the Appellate Body findings in US –Carbon
Steel that "Article 12.7 is not directed a t mitigating the absence of 'any' or 'unnecessary'
information, but is rather concerned with overcoming the absence of information required to
complete a determination."1
2. Brazil notes that nothing in the wording or context of Article 12.7 suggests it co uld be used
in a punitive manner. On the contrary, as found by the Panel of EC - Countervailing Measures on
DRAM Chips2, that provision allows an authority to make determinations on the basis of the facts
available, but not on the basis of mere assumptions or inferences. In fact, when the provisions of
the Covered Agreements open the possibility to draw adverse inferences they are explicitly
determined in the text, as in paragraph 7 of Annex V of the SCM Agreement.
3. In addition, Brazil points out that Art icle 12.7 allows for the use of " the facts available"3 and
not merely "facts available". This reinforces Brazil 's interpretation that all facts available to the
authority would have to be considered in order to fill in the gap of the missing information.
Consequently, the investigating authority is not allowed to "cherry-pick" those facts that would
lead to a biased determination of subsidy , while disregarding other facts that may point in a
different direction.
4. The importance of preventing a Member 's investigating authority to pick and choose which
facts to consider cannot be overstated. It is the investigating authorities' duty to perform a process
of reasoning and evaluation that takes into account all the facts available on the record. Brazil
notes that the United States acknowledges that, when faced with a lack of information regarding
the purchase price of Hot Rolled Steel (HRS) as a n input by some plants of one of the interested
parties, it invoked facts available to select "the lowest price on the record for the Gemlik Facility 's
HRS purchases"4.
5. This is not a proper application of Article 12.7 of the SCM Agreement. The admissio n by the
United States that it selected the lowest price available on record as the basis for its inferences
regarding the price paid by other facilities indicates that the record also contained other prices paid
for the same product over the investigated period. Brazil believes that recourse to facts available
does not allow a Member to select the lowest price and disregard the other data.
6. Brazil is cognizant of the fact that, as mentioned by the United States in its First Written
Submission, "a non -cooperating party 's knowledge of the consequences of failing to provide
information can be taken into account by an investigating authority, along with other procedural
circumstances in which information is missing"5. That, however, does not allow the depart ure from
the facts actually available on the record nor does it exempt the investigating authority from the
duty to "evaluate and reason which of the ‘facts available ' reasonably replace the missing
‘necessary information ', with a view to arriving at an ac curate determination. "6 The authority
must, therefore, weigh all the information and evidence available in order to reach a reasonable
conclusion.

1 Appellate Body Report, United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel
Flat Products, para. 4.416.
2 Panel Report, EC - Countervailing Measures on DRAM Chips, para. 7.245.
3 Emphasis added.
4 United States FWS, para. 146.
5 United States FWS, para. 133.
6 Appellate Body Report, US — Carbon Steel (India), para. 4.426.

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
I. PUBLIC BODY RELATED CLAIMS UNDER ARTICLE 1.1 ASCM
1. The Appellate Body in US – Anti-Dumping and Countervailing Duties (China) found that a
public body is properly understood as one that is governmental in nature. The performance of
governmental functions, or the fact of being vested with, and exercising, the authority to perform
such functions are core commonalities between government and public body. 1 Whether the
functions or conduct are of a kind that are ordinarily classified as governmental in the legal order
of the relevant Member may be a relevant consideration. The classification and functions of entities
within WTO Members generally may also bear on the question of what features are normally
exhibited by public bodies.2 State ownership is a relevant but not decisive criterion.3
2. The Appellate Body concluded that a public body is an entity that possesses, exercises or is
vested with governmental authority, which is to be determined on a case -by-case basis having
regard to all the relevant facts. Evidence t hat an entity is in fact exercising governmental
functions, particularly if there is a sustained and systematic practice, may serve as evidence that it
possesses or has been vested with governmental authority. Evidence that government exercises
meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence
that the relevant entity possesses governmental authority and exercises such authority in the
performance of governmental functions. However, the existence of mere form al links is unlikely to
suffice to establish the necessary possession of governmental authority. The mere fact that a
government is the majority shareholder of an entity does not demonstrate that the government
exercises meaningful control over the conduct of that entity, or that the government has bestowed
it with governmental authority. On the other hand, where the evidence shows that the formal
indicia of government control are manifold, and there is also evidence that such control has been
exercised in a meaningful way, then such evidence may permit an inference that the entity
concerned is exercising governmental authority. 4 The Panel would therefore have to assess
whether the USDOC's determinations reveal sufficient evidence of the existence of governm ent
control and of the exercise of such control by the GOT over Erdemir and Isdemir.
3. The EU considers that the question whether OYAK constitutes a "government" entity would
be a particularly relevant factor to be considered for the qualification of Erde mir and Isdemir as
public bodies, notably for the question of government ownership and hence the existence of
government control. In this context, the EU considers that the conditions of Article 1.1(a)(1) ASCM
apply and are relevant for an assessment of OY AK even if it provided no financial contribution.
The USDOC did not qualify OYAK as a "public body" but as a GOT "organ".5 The EU considers that
the relationship of an organ with the government would appear to be more closely linked than that
of a public body with the government. The term "government organ" connotes a closer relationship
with the government than the more generic term "public body". The Appellate Body distinguished
in Article 1.1(a)(1) ASCM between the term "government" in the narrow sense a nd the term
"government" in a parenthetical phrase which means, collectively, government in the narrow sense
and any public body. 6 Hence if OYAK is not a public body, it must necessarily form part of the
government in the narrow sense in order to be qualif ied as "government". The Appellate Body has
not provided a definition of the term government in the narrow sense and whether an entity falls
into this category will therefore have to be determined on a case -by-case basis in view also of the
internal laws a nd organisation of the Member in question. Possible examples could include the
police, ministries or the judiciary. The Panel may therefore have to assess whether the pension
fund OYAK falls into that category.

1 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 290.
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), paras. 295-297.
3 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), paras. 309-316.
4 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), paras. 317-322.
5 United States' First Written Submission, paras. 75, 84, 97.
6 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), paras. 286, 288.

II. BENEFIT RELATED CLAIMS UNDER ARTICLES 1.1(B) AND 14(D)
4. The EU recalls that the Appellate Body found that the primary benchmark under
Article 14(d) is the prices at which the same or similar goods are sold by private suppliers in arm's
length transactions in the country of provision. 7 The use of out-of-country benchmarks is rather
the exception.8 But the Appellate Body has found, for example, that prices of private suppliers in a
country could not be used as benchmarks because of the government's predominant role in the
market.9 The Appellate Body also held that the question whether a relevant entity is to be qualified
as "government" (including as a "public body") does not automatically answer the question of
whether the prices of goods provided by private or government -related entities in the country of
provision are to be considered as market determined for the purpose of selecting a benefit
benchmark.10 Hence, even assuming that Erdemir and Isdemir are public bodies (and control a
substantial part of the market), this fact alon e may not evidence market distortion. Assuming
Erdemir and Isdemir are public bodies, the government could be considered as a predominant or
significant supplier of the market through these entities which would be relevant considerations for
a demonstratio n of market distortion. The Appellate Body found previously that the more
"predominant" a government is as a supplier in the market in question, the less relevant other
evidence will become for a finding of price distortion. 11 However, if the government is only a
"significant" supplier, evidence from other sources will always be required. 12 There is no clear
dividing line between the concepts of "predominant" and "significant" supplier. In previous cases,
predominance was found where the government had above 90% market share. 13 Therefore, an
important element in the assessment of market distortion – even if not the only element - is the
level of the market share held by the government as supplier regarding the product in question.
5. Having said that, given that the USDOC’s original out-of-country benchmark was replaced by
an in-country benchmark, the EU recalls that "as a general rule, the measures included in a panel’s
term of reference must be measures that are in existence at the time of the establishment o f the
panel" pursuant to Article 6.2 of the DSU.14 [emphasis added]. This means that, in a case of expiry
of the measure prior to panel establishment, a panel should normally exercise its discretion to the
effect of not making findings regarding the expired measure. In addition, in the present case the
measure not only expired but was replaced by a different measure which addressed and resolved
the concern of the complaining Member. Previous panels in similar circumstances declined to make
findings.15 The EU therefore considers that the Panel should not make findings in this respect.
III. SPECIFICITY UNDER ARTICLE 2.1(C)
6. A subsidy programme in the form of a "plan or scheme of some kind" under Article 2.1(c)
may be manifested in written instruments or it m ay take less explicit forms such as a systematic
series of actions. 16 With respect to subsidies in the form of a provision of goods for less than
adequate remuneration as in the present case, the Appellate Body found that a subsidy
programme cannot be evide nced by the mere fact that financial contributions have been granted
to certain enterprises. Rather, an investigating authority must have adequate evidence of the
existence of a systematic series of actions pursuant to which financial contributions that co nfer a
benefit are provided to certain enterprises, 17 possibly over a period of time. 18 The EU agrees. The
fact that some of the transaction prices are higher than the benchmark price whereas other prices
are lower than the benchmark price may be one of the elements relevant for the assessment of
the existence of a subsidy programme. If the list of transactions alone does not demonstrate a
series of systematic actions, the investigating authority must otherwise demonstrate the existence

7 Appellate Body Report, US – Carbon Steel (India), para. 4.154.
8 Appellate Body Report, US – Softwood Lumber IV, para. 102.
9 Appellate Body Report, US – Softwood Lumber IV, para. 90.
10 Appellate Body Report, US – Countervailing Measures (China), para. 4.43.
11 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 446.
12 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 443.
13 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 455; Panel
Report, US –Coated Paper (Indonesia), para. 7.80.
14 Appellate Body Report, EC－ Chicken Cuts, para. 156.
15 Panel Report, US – Gasoline, para. 6.19, Panel Report, Argentina – Textiles and Apparel, para. 6.15.
16 Appellate Body Report, US – Countervailing Measures (China), para. 4.141.
17 Appellate Body Report, US – Countervailing Measures (China), para. 4.143.
18 Appellate Body Report, US – Countervailing Measures (China), para. 4.142.

of a policy of providing goods at less than adequate remuneration (e.g., through policy documents
or statements).
IV. ARTICLE 12.7 ASCM (ADVERSE FACTS AVAILABLE)
7. The purpose of Article 12.7 is to "overcome a lack of information" and to enable
investigating authorities to continue with the investigation and make determinations. 19
The Appellate Body found that Article 12.7 ASCM "permits the use of facts on record solely for the
purpose of replacing information that may be missing, in order to arrive at an accurate
subsidization or injury determination." 20 The Appellate Body also found that in view of this
objective of Article 12.7 ASCM, an investigating authority may not use any information in whatever
way it chooses but that there are limitations. The first limitation is that an investigating authority
must take into account all the substantiated facts provided by an interested party and the second
limitation is that the "facts available" to the agency are generally limited to those that may
reasonably replace the information t hat an interested party failed to provide. 21 The EU considers
that the legal requirement that facts available must "reasonably replace" missing information
should be interpreted in light of the overall objective of Article 12.7 ASCM of arriving at an
"accurate determination." 22
8. A key decision in the present case is which (adverse) inferences may be drawn from
non-cooperation and which facts may be available to support a determination. The authority is not
permitted to identify two different equally possible inferences, and then select the inference that is
more adverse to the interests of a particular interested party, solely because it is more adverse
(for example, in order to "punish" non -cooperation).23 Rather, the authority must draw the
inference that best fits the facts that have been evidenced. However, the facts that may be taken
into account for this purpose include such things as the precise question that has been put; the
procedural circumstances; the availability of the evidence being sought; and all the circumstances
surrounding the absence of the requested information from the record. Thus, the behaviour of an
interested party as "procedural circumstance " can colour the inferences that can be reasonably
drawn in any particular instance. The more uncooperative a party is in fact, the more attenuated
and extensive the inferences that it may be reasonable to draw.
9. Whether or not a WTO Member has acted inconsistently with Article 12.7 ASCM might
therefore depend less upon the particular label that has been used (e.g., "adverse inference"), and
more upon a specific examination of all the surrounding facts and procedural context. The EU
considers that one element that an investigating authority may consider when weighing the
evidence is whether and t o what extent the available information on the record is reliable. There
may be situations where all or part of the information provided by an interested party that could –
in principle - be used as facts available may be "tainted" by non -cooperation which may justify the
authority to use information e.g. from a different producer or from a different subsidy programme.
Depending on the circumstances, an authority may in such scenario decide to discard the entire
data set of the particular producer and instead rely on information provided by a different producer
or on information from a different subsidy programme. However, an investigating authority must
properly reason and evaluate why it selected the facts that it did, consider all the evidence on
record a nd may not select exclusively certain "adverse" evidence in order to punish non -
cooperation.
V. CROSS-CUMULATION UNDER ARTICLE 15.3 ASCM
10. The EU recalls that the Appellate Body in US – Carbon Steel (India) addressed the legality of
cross-cumulating s ubsidized and dumped imports under Article 15.3 ASCM. The Appellate Body
agreed with the panel's findings that "the consistent use of the term "subsidized imports" in
Article 15 ASCM limits the scope of the investigating authority's injury assessment to subsidized

19 Panel Report, EC – Countervailing Measures on DRAM Chips, para. 7.245.
20 Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, para. 293. In a
similar vein, the Appellate Body has also stated that the use of inferences in order to select adverse facts that
punish non-cooperation would lead to an inaccurate determination and thus not accord with Article 12.7 ASCM,
Appellate Body Report, US – Carbon Steel (India), para. 4.468.
21 Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, para. 294.
22 Appellate Body Report, US – Carbon Steel (India), paras. 4.416 and 4.419.
23 Appellate Body Report, US – Carbon Steel (India), para. 4.419.

imports only." The Appellate Body further found that the consistent references to "subsidies" and
"subsidised imports" require investigating authorities to ensure that their examinations are
directed at the effects of subsidized imports and excl ude non-subsidized imports."24 It concluded
that "we see no basis in the text of Article 15.3 ASCM for cumulatively assessing the effects of
subsidized imports with those of non -subsidized imports."25 In the EU's view, the Appellate Body's
case law on cross-cumulation is relevant also for Turkey's claim under Article 15.3 ASCM.

24 Appellate Body Report, US – Carbon Streel (India), para. 4.591.
25 Appellate Body Report, US – Carbon Streel (India), para. 4.593.

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. THE DEFINITION OF "PUBLIC BODY" UNDER ARTICLE 1.1 OF THE SCM AGREEMENT
1. In this dispute, Turkey challenges the determination of the U.S. Department of Commerce
("USDOC") that Eregli Demir ve Celik Fabrikalari T.A.S. ("Erdemir") and its affiliate Iskenderun
Iron & Steel Works Co. ("Isdemir") are "public bodies" as defined under Article 1.1 of the
SCM Agreement.1
2. The Appellate Body has explained that a "public body" is "an entity that possesses, exercises
or is vested with governmental authority." 2 The Appellate Body has further found that "evidence
that a government exercises meaningful control over an entity and its conduct" may serve as
evidence that the relevant entity "possesses governmental authority and exercises such authority
in the performance of governmental functions,"3 and is thus a public body.
3. In determining whether a government exercises "meaningful control" over an entity, the
Appellate Body has explained that "formal indicia of control," such as the government’s ownership
interest in the entity and the government’s power to appoint and nominate directors, are "certainly
relevant."4 However, without further evidence and analysis of several other factors, those indicia
"do not provide a sufficient basis" for a public body determinat ion.5 Factors other than formal
indicia that the Appellate Body has found relevant include whether board directors appointed by
the government are independent, 6 and the extent to which the government in fact exercised
meaningful control over the relevant entity and over its conduct.7
4. Taking this into account, Japan considers that the relevant factors in determining whether
the Government of Turkey ("GOT") exercises meaningful control over Erdemir and Isd emir include
not only formal indicia of control, s uch as share ownership and the government’s power to appoint
directors, but also whether, and to what extent, the GOT influences the management of these
entities (i.e., whether the business decisions of the entities are independent from the GOT), the
legal status and structure of the entities, and the legal status of their property, as compared with
those of other private steel producers in Turkey. Thus, Japan considers that a key question before
the Panel is whether Erdemir and Isdemir are independent from the GOT, and whether these
entities are structured in a manner that ensures that management decisions are made
independently and without government interference.
5. Japan notes the United States' explanation that, as part of its public body determination, the
USDOC examined the involvement of Ordu Yardimlasma Kurumu ("OYAK") , which the
United States contends is an "organ of the GOT," in Erdemir, including OYAK ’s majority interest in
Erdemir.8 The term "government organ" is not contained in the SCM Agreeme nt, and no WTO
precedent has exact ly defined this term. Moreover, the United States itself does not provide a
definition of the term in this proceeding. Japan considers that the relationship between the GOT
and OYAK is relevant only to the extent that it i s part of the factual analysis of whether the
involvement of OYAK in Erdemir, and by extension, in Isdemir, contributes to establishing
"meaningful control" by the GOT over these entities.

1 For example, First Written Submission of Turkey, paras. 94-95.
2 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 317.
3 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 318.
4 Appellate Body Report, US – Carbon Steel (India), paras. 4.43 and 4.54; See also Appellate Body
Report, US – Anti-Dumping and Countervailing Duties (China), para. 318.
5 Appellate Body Report, US – Carbon Steel (India), para. 4.43.
6 Appellate Body Report, US – Carbon Steel (India), para. 4.45.
7 Appellate Body Report, US－ Carbon Steel (India), paras. 4.52-4.54.
8 See First Written Submission of the United States, paras. 97, 100.

II. MEASURE OF BENEFITS UNDER ARTICLES 1.1(B) AND 14(D) OF THE
SCM AGREEMENT
6. Turkey alleges that the USDOC improperly determined that Erdemir and Isdemir provided
hot rolled steel to the respondents for less than adequate remuneration under Article 14(d),
thereby conferring a benefit under Article 1.1(b) , because the USDOC erroneously rejected
in-country prices as potential benchmarks based solely on evidence of government ownership or
control of domestic producers. 9 Turkey’s claim raises the question of the weight that should be
placed on the role of the government in the market in determining whether market prices are
distorted, thus permitting an investigating authority to reject in-country prices.
7. Article 14(d) establishes that the adequacy of remuneration is to be determined "in relation
to prevailing market c onditions for the good or service in question in the country of provision or
purchase." What an investigating authority must do in assessing the proper benchmark "will vary
depending upon the circumstances of the case, the characteristics of the market bei ng examined,
and the nature, quantity, and quality of the information supplied by petitioners and
respondents."10 In-country prices are the primary benchmark for the calculation of benefit under
Article 14(d),11 but "an investigating authority may use a benc hmark other than private prices of
the goods in the country of provision, when it has been established that private prices of the goods
in question in that country are distorted, because of the predominant role of the government in the
market as a provider of the same or similar goods."12
8. The weight that should be placed on the government’s role in the market may differ
depending on whether the government’s role is "predominant" or " significant". When the
government is a predominant supplier, the Appella te Body has found that the government would
likely have the market power to affect the pricing by private providers through its own pricing,
inducing them to align with government prices. 13 In these circumstances, "evidence of factors
other than government market share will have less weight in the determination of price distortion
than in a situation where the government has only a ‘significant’ presence in the market ."14 Price
distortion may also be established where the government is a significant supplier, but there must
be evidence pertaining to factors other than government market share, 15 such as the structure of
the relevant market, including the type of entities operating in that market, their respective
market share, as well as any entry barriers.16
9. Whether the government is a "predominant" or "significant" supplier, Japan considers that
the investigating authority must consider all of the evidence that is put on the record. 17 Thus, the
determination of an appropriate benchmark requires an assessment of the specific facts of the
case, taking into consideration the characteristics, structures, and participants of the market, as
well as the role of the government in the relevant market. The weight that the investigating
authority places on each of these facts may depend on the predominance or significance of the
government in the supplier market.
10. Having said that, as the Panel pointed out in its question to the third parties, the US DOC
issued an amended determination which relied on in -country prices prior to panel establishment.18
Japan recalls that "as a general rule, the measures included in a panel’s term of reference must be
measures that are in existence at the time of the establishment of the panel" pursuant to
Article 6.2 of the DSU ,19 and that "panels are allowed to examine a measure ‘whose legislative
basis has expired, but whose effects are alleged to be impairing the benefits accruing to the

9 First Written Submission of Turkey, paras. 181-183.
10 Appellate Body Report, US – Carbon Steel (India), para. 4.153.
11 Appellate Body Report, US – Softwood Lumber IV, para. 97.
12 Appellate Body Report, US – Softwood Lumber IV, para. 119.
13 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 455.
14 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 455.
15 Appellate Body Report, US – Anti-Dumping and Countervailing Duties (China), para. 443.
16 Appellate Body Report, US－ Carbon Steel (India), para. 4.157, fn. 754.
17 First Written Submission of Turkey, para. 185, fn. 446 (citing Appellate Body Report, US –
Anti-Dumping and Countervailing Duties (China), para. 453).
18 Panel’s Questions to Third Parties, question 4.
19 Appellate Body Report, EC － Chicken Cuts, para. 156.

requesting Member under a covered agreement’ at the time of the establishment of the panel." 20
Therefore, Japan considers that if the original determination had already been superseded by an
amended determination and had ceased to have legal effect when the Panel was established, the
original determination would fall outside the Panel’s terms of ref erence and should not be
examined.
III. DETERMINATION OF SPECIFICITY UNDER ARTICLE 2.1 OF THE SCM AGREEMENT
11. Turkey challenges the USDOC ’s determination that the provision of hot rolled steel for less
than adequate remuneration was de facto specific wi thin the meaning of Article 2.1 of the
SCM Agreement because the number of industries or enterprises using the program was limited to
eight industries identified by the GOT.21
12. Assuming that the use of the subsidy program was strictly limited to the spe cific industries
identified by the GOT, Japan believes that the USDOC could properly find the provision of hot
rolled steel to be "limited" under Article 2.1(c). However, Japan notes that there may be instances
where an entity outside of the enumerated ind ustries may also benefit from the provision of hot
rolled steel for less than adequate remuneration. Thus, it is Japan’s view that the investigating
authority cannot rest its finding of specificity only on the identification of a limited number of
industries or entities, if it is found that the provision of the good or service in question for less than
adequate remuneration can benefit an entity that is outside of the enumerated industries or
enterprises.
13. Japan also notes the Panel’s questions to third parties on what must be shown to
demonstrate a "series of systematic actions" that constitute a subsidy programme under
Article 2.1(c) when the subsidy programme consists of a list of transactions. 22 Japan notes the
Appellate Body’s guidance in US – Countervailing Measures (China) that "[t]he mere fact that
financial contributions have been provided to certain enterprises is not sufficient … to
demonstrate … a plan or scheme for purposes of Article 2 .1(c)."23 Rather, "an investigating
authority must have adequate evidence of the existence of a systematic series of actions pursuant
to which financial contributions that confer a benefit are provided to certain enterprises." 24 Japan
considers that this determination must be made on a case -by-case basis, and that there is not a
bright-line rule to determine how much, or what kind of, evidence is "adequate" to determine the
existence of a "systematic series of actions." Japan does not consider that the requirement to have
"adequate evidence" means that each individual transaction must be lower than the benchmark to
demonstrate the existence of a subsidy programme . Such rigid construct could potentially permit
circumvention of countervailing duties, and would go against the objective of Article 2.1(c), which
is to cover de facto specific subsidies, including through the use of a subsidy programme, which
may appear non-specific on its face.
IV. APPLICATION OF FACTS AVAILABLE UNDER ARTICLE 12.7 OF THE SCM AGREEMENT
14. Turkey challenges the USDOC’s application of adverse inferences with respect to the
respondents’ reported data in several countervailing duty investigations.25 In particular, Turkey
challenges the USDOC’s use of facts available under Article 12.7 of the SCM Agreement, in part
because the USDOC drew adverse inferences in selecting among facts available, in order to punish
the respondent for its alleged non-cooperation.26
15. Japan agrees that Article 12.7 does not permit the application of "facts available" in a
punitive manner. Article 12.7 states that, "[i]n cases in which any interested Member or interested
party refuses access to, or otherwise does not provide, necessary information within a reasonable
period or significantly impedes the investigation, preliminary and final determinations, affirmative
or negative, may be made on the basis of the facts available." The Appellate Body has explained

20 Appellate Body Report, EC – Selected Customs Matters, para. 184, referring to Appellate Body Report,
US – Upland Cotton, para. 263.
21 First Written Submission of Turkey, paras. 213-220.
22 Panel’s Questions to Third Parties, question 5.
23 Appellate Body Report, US – Countervailing Measures (China), para. 4.143.
24 Appellate Body Report, US – Countervailing Measures (China), para. 4.143.
25 First Written Submission of Turkey, paras. 195-196, 323-325, and 434-436.
26 First Written Submission of Turkey, paras. 196, 326, 437.

that "Article 12.7 is intended to ensure that the failure of an interested party to provide necessary
information does not hinder an agency’s investigation. Thus, the provision permits the use of facts
on record solely for the purpose of replacing information that may be missing, in order to arrive at
an accurate subsidization or injury determination."27
16. The Appellate Body has also explained that "Article 12.7 requires an investigating authority
to use ‘facts available’ that reasonably replace the missing ‘necessary information,’ with a view to
arriving at an accurate determination, " and that this "calls for a process of evaluation of available
evidence, the extent and nature of which depends on the particular circumstances of a given
case."28 Thus, the determination of what information constitutes a "reasonable replacement" must
be made on a case -by-case basis, in light of the available evidence. The circumstances of a case
that may be taken into consideration may include procedural circumstances relating to the missing
information, such as any difficulties experienced by interested parties that have not provided the
"necessary information,"29 and the knowledge of a non -cooperating party of the consequences of
failing to provide information.30
17. Japan recognizes that the Appellate Body has found in US – Carbon Steel (India) that the
grant of authorization to use adverse inferences under the S CM Agreement was not in itself "as
such" inconsistent with Article 12.7, insofar as it was possible to apply the U.S. statute in a
manner that comports with Article 12.7. 31 However, Japan does not understand the Appellate
Body’s ruling as allowing Members t o apply adverse inferences in a manner intended to punish a
non-cooperating respondent. In fact, while recognizing that an investigating authority may use
inferences and may consider the procedural circumstances of the missing information in
determining which "facts available" constitute reas onable replacements, the Appellate Body noted
that "the use of inferences in order to select adverse facts that punish non -cooperation would lead
to an inaccurate determination and thus not accord with Article 12.7."32
18. That Article 12.7 does not permit Members to apply adverse inferences in a punitive manner
is further supported by Article 6.8 and Annex II of the Anti -Dumping Agreement, which sets out
several conditions that the investigating authority must meet in o rder to apply "facts available."
While the SCM Agreement does not include a reference to Article 6.8 or Annex II, the
Appellate Body has confirmed that these provisions of the Anti -Dumping Agreement provides
guidance in interpreting the SCM Agreement . According to the Appellate Body, "it would be
anomalous if Article 12.7 of the SCM Agreement were to permit the use of ‘facts available’ in
countervailing duty investigations in a manner markedly different from that in anti -dumping
investigations."33
19. Annex II is titled "Best Information Available in Terms of Paragraph 8 of Article 6." By the
very terms of its title, the Annex makes clear that the purpose of using "facts available" is to use
the "best information available." A WTO panel has further state d that Article 6.8 and Annex II are
meant to ensure that "even where the investigating authority is unable to obtain the ‘first -best’
information as the basis of its decision, it will nonetheless base its decision on facts, albeit perhaps
‘second-best’ facts."34
20. Paragraph 3 of Annex II states that "[a]ll information which is verifiable, which is
appropriately submitted so that it can be used in the investigation without undue difficulties, which
is supplied in a timely fashion … should be taken into acc ount when determinations are made."
Paragraph 5 also states that "[e]ven though the information provided may not be ideal in all
respects, this should not justify the authorities from disregarding it, provided the interested party
has acted to the best of its ability." Pursuant to paragraphs 3 and 5, even if an investigating
authority uses "facts available," it is nonetheless required to take into account all substantiated
facts provided by an interested party, even if those facts may not constitute the com plete
information requested of the party.

27 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 293.
28 Appellate Body Report, US – Carbon Steel (India), para. 4.435.
29 Appellate Body Report, US – Carbon Steel (India), para. 4.422.
30 Appellate Body Report, US – Carbon Steel (India), para. 4.426.
31 Appellate Body Report, US – Carbon Steel (India), para. 4.483.
32 Appellate Body Report, US – Carbon Steel (India), para. 4.468.
33 Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 295.
34 Panel Report, US – Hot-Rolled Steel, para. 7.55.

21. Finally, neither Article 12.7 of the SCM Agreement nor Article 6.8 (incorporating Annex II) of
the Anti-Dumping Agreement refers to the use of "adverse facts available" or "adverse inferences."
Rather, paragraph 7 of Annex II states that "if an interested party does not cooperate and thus
relevant information is being withheld from the authorities, this situation could lead to a result
which is less favourable to the party than if the party did cooperate." In Ja pan’s view, this
language acknowledges that the "best information available" may be less favorable than the
interested parties’ own data, but does not grant permission for the investigating authority to bring
about an outcome that is punitive and that does not reasonably reflect an accurate margin
calculation based on the available facts.
22. In sum, the authority to use "facts available" under Article 12.7 of the SCM Agreement does
not permit the investigating authority to apply adverse inferences in a manner that runs counter to
the authority’s overarching obligation to make an accurate determination. Thus, it is Japan’s view
that an investigating authority must select among "facts available" a "reasonable replacement" for
missing information that seeks to achieve an "accurate determination." Article 12.7 does not
permit Members to apply adverse inferences in a ma nner that would punish non -cooperating
respondents.
V. CROSS-CUMULATION UNDER ARTICLE 15.3 OF THE SCM AGREEMENT
23. Turkey challenges the U.S. International Trade Commission ’s ("ITC") "cross-cumulation" of
imports from countries that were subject to both anti -dumping and countervailing duty
investigations with imports from countries that were subject only to anti -dumping investigations.35
As Turkey notes, the Appellate Body in US – Carbon Steel (India) found that "the effects of
imports other than such subsidized imports must not be incorporated in a cumulative assessment
pursuant to Article 15.3."36 Thus, the ITC’s practice of cross-cumulating imports that are subject to
only anti-dumping investigations with those that are subject to countervailing duty investigations
would appear to be inconsistent with the Appellate Body’s guidance.
24. That said, Japan notes that the Appellate Body’s ruling, if taken at face value, would appear
to leave a logical gap with regards to the principal objective of Article 15.3 of the SCM Agreement,
as well as the parallel provisions under Article 3.3 of the Anti -Dumping Agreement. In Japan’s
view, the purpose of Article 15.3 is to capture circumstances where the causal relations hip
between the injury and subsidized imports may escape scrutiny simply because it would be difficult
to identify, individually, the injurious effects of subsidized imports that originate from multiple
countries. In other words, just as the effects of sub sidized (or dumped) imports originating from
several countries may not be adequately taken into account in a country -specific analysis, Japan
considers that the combined effects of subsidized and dumped imports from several countries may
not be adequately taken into account if cross-cumulation is prohibited.

35 For example, First Written Submission of Turkey, paras. 221-232.
36 First Written Submission of Turkey, para. 227 (citing Appellate Body Report, US – Carbon Steel
(India), paras. 4.579, 4.593).

ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF MEXICO
1. Mexico is grateful for this opportunity to present its views on this dispute, and notes that it s
oral statement will be confined to the complaints regarding cross-cumulation raised by Turkey in
its first written submission.

2. With respect to this issue, Turkey maintains that the United States' practice of
cross-cumulating, which consists in cumula ting the harmful effects of the subsidized imports with
those caused by non -subsidized imports, is inconsistent "as such" with Article 15.3 of the
Agreement on Subsidies and Countervailing Measures (SCM Agreement). Turkey also affirms that
cross-cumulation is inconsistent with that same article as applied to the proceedings regarding
Oil Country Tubular Goods (OCTG), Welded Line Pipe (WLP) , Heavy Walled Rectangular Welded
Carbon Steel Pipes and Tubes (HWRP), and Circular Welded Carbon Steel Pipes and Tubes (CWP).

3. As can be seen from Turkey's first written submission, the Appellate Body's findings in
US – Carbon Steel (India) on cross-cumulation are the key to resolving this issue because, as
Turkey rightly points out, in that dispute the Appellate Body expressly ruled that cumulatively
assessing the effects of subsidized imports with the effects of non -subsidized imports was
inconsistent with Article 15.3 of the SCM Agreement.

4. Mexico notes in this connection that the facts examined in US – Carbon Steel (India) , in
particular those pertaining to cross-cumulation, are unquestionably similar to the facts pertaining
to the practice in dispute in this case. In both cases: (i) simultaneous applications were submitted
for the initiation of anti-subsidy and anti-dumping proceedings, and the United States investigating
authority performed a cumulative assessment of the effects of the subsidized imports with the
effects of the dumped imports; and (ii) the authority that applied the cross -cumulation was the
International Trade Commission (ITC).

5. Similarly, Mexico notes that the practice of cross -cumulation was grounded on
Section 1677(7)(G)(i) of the United States Tariff Act. While Mexico is aware that the Appellate
Body Report in US – Carbon Steel (India) states that it is unclear whether this Section requires the
USITC to carry out the cross -cumulation, paragraphs 223, 224, 343 and 456 of Turkey's first
written submission apparently provide verbatim quotes of the relevant ITC rulings in which the ITC
itself expressly states that Section 1677(7)(G)(i) of the US Tariff Act requires the Commission to
cumulate. Mexico has no reason to suppose that the ITC is not required to cumulate when the ITC
itself expressly states that it is required to do so.

6. It is cle ar to Mexico that the text of Article 15.3 of the SCM Agreement permits the
cumulation of imports from several countries only where they are simultaneously subject to
countervailing duty investigations, and points (a) and (b) of the said Article are complied with.

7. At the same time Mexico notes that, contrary to what the United States claims, the text of
Article 15.3 of the SCM Agreement is not silent with respect to the possibility of cumulating
imports subject to countervailing duty investigations with imports that are not subject to
countervailing duty investigations. On the contrary, Mexico believes that Article 15.3 expressly
conditions the cumulation of imports on their being subject to countervailing duty investigations. It
is clear that if that condition is not met, cumulative assessment is plainly and simply not
permitted.

8. This interpretation is perfectly consistent with the rulings of the Panel and the
Appellate Body in US – Carbon Steel (India) . In that dispute, the Appellate Body ruled that to
assess cumulatively the effects of imports, Article 15.3 of the SCM Agreement requires, in
principle, that those imports be "subject to countervailing duty investigations". In the words of the
Appellate Body, "[t]he provision that investigating authori ties may, if the conditions set out in the

last clause of Article 15.3 are fulfilled, cumulatively assess the effects of 'such' imports thus
requires that the imports be 'subject to countervailing duty investigations1'".

9. Moreover, the Appellate Body un dertook a contextual interpretation of Article 15.3 of the
SCM Agreement and reached the conclusion that paragraphs 1, 2, 4 and 5 of Article 15 as well as
other provisions throughout Part V of the Agreement require d that the injury analysis in the
context of a countervailing duty procedure be limited to consideration of the effects of subsidized
imports.2 It is therefore clear that where there is cumulation of imports in the assessment of
injury, that cumulation must be limited to subsidized imports.

10. Both the Panel and the Appellate Body in US – Carbon Steel (India) reached similar
conclusions with respect to the causation analysis. In that dispute, they ruled that under
Article 15.5 of the SCM Agreement, non -subsidized imports come within the scope of "any known
factors other than the subsidized imports which at the same time are injuring the domestic
industry", so that the injuries caused by non -subsidized imports must not be attributed to the
subsidized imports, because they are "other factors".

11. Mexico notes that in its first written submission, the United States puts forward a number of
arguments in defence of cross -cumulation that are identical to the arguments it presented in
US – Carbon Steel (India) that were ruled by the Appellate Body to be without foundation . For
example, it repeats the argument that Article 15.3 is silent on whether the cumulation of the
effects of subsidized imports with the effects of dumped imports is permitted , in spite of the fact
that the Appellate Body expressly s tates, in paragraph 4.589, that "Article 15 is not silent on the
question of cumulation of the effects of subsidized imports with the effects of non -subsidized
imports" since, as the Appellate Body also mentions in the same paragraph, from the requirement
that the imports must simultaneously be subject to countervailing duty investigations, " it follows
that a cumulative assessment pursuant to Article 15.3 must not encompass the effects of
non-subsidized imports."

12. In another example of this reiteration of the same arguments, the United States repeats, in
this dispute, that an analysis that focuses solely on subsidized imports or dumped imports would
prevent the investigating authority from taking account of the injurious effects of all unfairly
traded im ports. However, this issue was clearly settled by the Panel in paragraph 7.343 of its
report and confirmed by the Appellate Body in paragraph 4.596 of its report with the statement
that the object of the analysis to be made under Article 15 is injury caused by subsidized imports,
and not injury caused by unfairly traded imports.

13. The United States also reiterates that Article VI:6 (a) of the General Agreement on Tariffs
and Trade (GATT) 1994 supports its interpretation of cross-cumulation as being consistent with the
provisions of Article 15 of the SCM Agreement, since the expression "as the case may be" suggests
that there are situations in which the determination of injury may involve dumping, subsidization,
or both. However, in paragraphs 4.598 and 4.5 99 of its report, the Appellate Body ruled that
Article VI.6(a) of the GATT referred to two separate elements, dumping and subsidization, so that
the expression "as the case may be" clarifies that injury may be caused by either the effect of the
subsidy or, in another case, the effect of dumping. Accordingly, the Appellate Body ruled that the
United States' interpretation simply did not apply to Article VI:6(a) of the GATT.

14. At the same time, since the cross -cumulation used by the ITC has already been s ubject to
dispute settlement and the Appellate Body upheld the Panel's findings of inconsistency with
paragraphs 1, 2, 3, 4 and 5 of Article 15 of the SCM Agreement, it is a source of concern to Mexico
that the United States should continue to apply this i njury analysis methodology which, in addition
to infringing Members' rights, prevents the dispute settlement system from meeting its objectives
of providing the multilateral trading system with security and predictability . Thus, regardless of
whether cross-cumulation constitutes a practice, we are struck by the fact that this is the second
dispute against the same Member in which we are assessing the same methodology that was
already found to be inconsistent with that Member's WTO obligations.

15. In other words, the fact that the United States persists in applying a measure in the full
knowledge that it is inconsistent with its multilateral obligations, and that it has not provided a

1 Appellate Body Report, US – Carbon Steel (India), para 4.579.
2 Appellate Body Report, US – Carbon Steel (India), para 4.586.

defence that is any different from the defence it presented in the case i n which cross-cumulation
was found to be inconsistent with Article 15 of the SCM Agreement, means that although the
United States is aware of the Appellate Body's legal interpretation and ultimately of its multilateral
obligations, it has decided to continue to act in a manner inconsistent with those obligations.

16. However, leaving aside the concern that this attitude inspires, we believe that the Panel
should bear in mind, as the Appellate Body has stressed, that "ensuring 'security and predictability'
in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implies that, absent
cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a
subsequent case." 3 Consequently, the Panel must "[follow] the A ppellate Body's conclusions in
earlier disputes", since doing so " is not only appropriate, but is what would be expected from
panels, especially where the issues are the same".4

17. Finally, Mexico thanks you for your attention and the interpreters for t heir work. We look
forward to any questions you may have.