UNITED STATES – LAWS, REGULATIONS AND METHODOLOGY FOR CALCULATING DUMPING MARGINS ("ZEROING")
Document: Recourse to Article 21.5 of the DSU by the European Communities Communication from the United States: Request by the United States for a Corrigendum to the Appellate Body Report
Date: 10 June 2009
Document codes: WT/DS294/32
Complainant: EU
Respondent: U.S.
Third parties: Argentina, Brazil, China, Taiwan, Hong Kong, India, Japan, South Korea, Mexico, Norway, Thailand, Turkey
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2.1, 2.4, 5.8, 9.1, 9.3, 9.5, 11  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade OrganizationArt. 3  Anti-dumping

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

Recourse to Article 21.5 of the DSU by the European Communities

Communication from the United States:
Request by the United States for a Corrigendum to the Appellate Body Report

 The following communication, dated 22 May 2009, from the delegation of the United States
to the Appellate Body is circulated at the request of the United States.

 The United States thanks the Appellate Body for its report
1 in the appeal in the above-
referenced proceeding. My authorities have instru cted me to call your attention to an unfortunate
factual and legal error in this report and to request respectfully that the Appellate Body issue a
corrigendum to correct this error.

 This error relates to "Case 31", related to imports of antifriction ball bearings from the
United Kingdom. The Appellate Body report ad dresses and makes findings with respect to a
supposed US administrative determination in this Case that, in fact, the United States did not make.
The report erroneously assumes that this determin ation was made, in part based on the assumption
that no administrative review of a company was re quested in May 2007, but the evidence before the
Appellate Body shows that a review was requ ested and initiated. Because this supposed
determination was not identified or addressed by an y participant during the panel or Appellate Body
proceedings, the participants did not have an opportunity to bring to the Appellate Body's attention the
evidence on the record demonstrating that this supposed determination did not take place.

 In the original proceeding, the Appellate Body found that the 2000-2001 administrative
review determination in Case 31 was in consistent with Article 9.3 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and Article VI:2 of
the General Agreement on Tariffs and Trade 1994 .
2 The compliance Panel found that the
United States continues to apply the cash deposit ra te established in that administrative review
determination to one exporter, NSK Bearings Europe Ltd. ("NSK"). 3 The United States did not
appeal this finding.

1 Appellate Body report, (Recourse to Article 21.5 of the DSU by the European Communities), WT/DS294/AB/RW,
circulated 14 May 2009, para. 345 ("Appellate Body report").
2 Appellate Body report, , WT/DS294/AB/R, adopted 9 May 2006, para. 263(a)(i).
3 Panel Report, (Recourse to Article 21.5 of the DSU by the European Communities) , WT/DS294/RW, circulated

 At issue in the present request is what the A ppellate Body report has called the "duty liability
determination on 31 May 2007", d escribed in paragraphs 156(d)(iii), 345, 346, and 469(f) of the
report, with respect to NSK. The Appellate Body report states that the United States assessed
definitive anti-dumping duties at the cash deposit rate on imports from NSK on 31 May 2007, when
the deadline for requesting an administrative review for certain imports from NSK expired.
4 No such
supposed determination was ever raised or discussed at the compliance panel stage or on appeal. In
fact, the factual material before the compliance Pane l – and thus the record before the Appellate Body
– makes clear that this "determination" did not occur and was not made.

 It appears that the Appellate Body repor t deduced the existence of this supposed
determination
5 by reasoning that, if an interested party wi shed to request an administrative review in
Case 31 in 2007, the request had to be made no later than 31 May 2007, 6 and that, according to the
provisions of "19 C.F.R. § 353.53a" [ sic]7, if no review was requested by that date, the United States
would mechanically assess final duties at the cash deposit rate. 8 The Appellate Body report also says
that no such review was requested. 9 From this, the report concludes that the United States
mechanically assessed final duties on NSK at the cash deposit rate on 31 May 2007.10

 This reasoning thus depends on the premise that no interested party requested the initiation of
an administrative review of NSK in Case 31 by 31 Ma y 2007. In fact, this premise is incorrect, as the
following review of the materials before the compliance Panel and Appellate Body shows.
11

 First, the Appellate Body report cites to the request for establishment of the compliance panel
by the European Communities ("EC") as support for the proposition that no review was requested. 12
To be sure, that panel request does not identify an y administrative reviews of NSK in Case 31 as a
"subsequent review" being challenged in this proceeding. However, the fact that the panel request
challenges no administrative review results with respect to NSK as of the date of the request provides
no evidence with respect to any administative reviews ongoing as of that date. 13 The absence of any
mention of the 2007 review in the EC panel request fails to show that no administrative review was
requested.

 Further, the existence of the ongoing review is demonstrated by evidence on the record before
the compliance Panel. Exhibit EC-21 contains a letter from NSK's counsel to Commerce, dated
12 July 2007, requesting guidance as to Commerce's in tentions with respect to the implementation of

4 Appellate Body report, para. 345.
5 No party made any reference to a "31 May 2007 determination", or to any other specific assessment
of duties in Case 31 after the end of the reasonable period of time, in any submission to the compliance Panel,
and no participant made any reference to such a measure in a submission to the Appellate Body.
6 Appellate Body report, para. 345.
7 We note in passing that Part 353 of Title 19 of the US Code of Federal Regulations was superseded
and removed from the Code of Federal Regulations on 19 May 1997. See Notification of Laws and Regulations
under Articles 18.5 and 32.6 of the Agreements: United States (Supplement) , G/ADP/N/1/USA/1/Suppl.2,
circulated 25 August 1997.
8 Appellate Body report, para. 345.
9 Appellate Body report, para. 345.
10 Appellate Body report, para. 345.
11 Separately from the discussion that follows, by drawing on publicly available materials extraneous to
the materials presented to the compliance Panel (and thus extraneous to the record before the Appellate Body),
the United States can confirm that NSK did request a review ; the review was initiated; and as of the date of the
establishment of the compliance Panel on 25 September 2007, the review was still ongoing. The United States
would be happy to supply those materials if requested to do so.
12 Appellate Body report, para. 341.
13 Indeed, the panel request identifies no administrative reviews for any period of review ending later
than mid-2005.

the rulings and recommendations in the original dispute and stating that Commerce's reply "will
directly affect whether NSK Bearings Europe will continue its participation in the current [Case 31]
review".14 This evidence, which was before the comp liance Panel and the Appe llate Body, confirms
that an administrative review covering NSK had been initiated and was "current" on 12 July 2007.

 Accordingly, the evidence before the comp liance Panel and the Appellate Body does not
support the proposition that there was any determin ation concerning anti-dumping duties in Case 31
with respect to NSK on 31 May 2007. Consequen tly, the analysis in paragraph 345, the factual
statement in the first sentence of paragraph 341, the reference in paragraph 156(d)(iii), and the finding
in paragraphs 346 and 469(f) of the Appellate Body report are based on an incorrect premise. For
these reasons, the United States requests that the A ppellate Body issue a corrigendum removing that
discussion.

 The United States considers that the foregoing fo rms a sufficient basis fo r the issuance of the
requested corrigendum. The United States would, ho wever, like to mention two other considerations
that support the US request. First, the EC did not identify any assessment of duties on NSK in its
request for the establishment of a compliance panel.
15 More specifically, the "31 May 2007
assessment determination" with respect to NSK that is referred to in the Appellate Body report is not
mentioned anywhere in the EC panel request. As a result, in accordance with Articles 6.2 and 7.1 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), no such
determination fell within the terms of reference of the compliance Panel – and therefore of the
Appellate Body. While the EC asserted, in a genera l way, in its submissions to the compliance Panel
that the United States "still issues assessment instructions and estab lishes cash deposits" with respect
to NSK16, the compliance Panel found, in paragraph 8.217 of its report, that the EC did not make any
"identification of a precise US action" with resp ect to duty assessment determinations in Case 31, and
accordingly refrained from making "a specific fi nding with respect to any duty assessment with
respect to imports of NSK under Case 31 after the end of the reasonable period of time". 17 T h i s
finding by the compliance Panel reflects what was ou tlined above: the EC never identified, in its
panel request or thereafter, any measure – neith er the supposed 31 May 20 07 determination nor any
other measure – in which the United States allegedl y "issues assessment instructions" with respect to
NSK.

 Second , the EC did not appeal this finding in paragraph 8.217 of the compliance Panel
report.18 Further, the EC did not identify any "precise US action" (to use the compliance Panel's term)

14 Exhibit EC-21 at 2 (emphasis added).
15 With respect to Case 31, the EC panel request merely states that there were "[n]o subsequent
administrative reviews" for NSK. See the Annex to the Request for the Establishment of a Panel by the
European Communities, WT/DS294/25, circulated 14 September 2007.
16 EC first written submission to the compliance Panel, 11 January 2008, para. 95.
17 Compliance Panel report, para. 8.217.
18 None of the appeal grounds identified in the EC Notice of Appeal related to Case 31 refer, directly or
indirectly, to this finding:
– The EC appealed, with respect to 12 Cases, th e findings of the compliance Panel in paragraph
8.202 of its report, but these findings expressly relate to Cases other than Cases 1, 6, and 31.
– The EC requested that the Appellate Body uphold the findings of the compliance Panel in the
final two sentences of paragraph 8.218 of its report, but these findings expressly relate to cash
deposits rather than assessments.
– The EC requested that the Appellate Body find that the compliance Panel acted inconsistently
with Article 11 of the DSU and complete the analysis by finding that the United States
"continu[es] to maintain in pl ace duty or cash deposit rates" with respect to 12 Cases,

– neither the alleged 31 May 2007 de termination nor any other measure – in its submissions to the
Appellate Body. The Appellate Body report states that the EC stated in response to questioning at the
oral hearing that it "appeals the analysis of Case 31 made by the [compliance] Panel,"
19 but does not
say that the EC appealed the compliance Pane l's findings about the absence of any identified
assessment measure in Case 31 with respect to NS K. The United States does not recall the EC
making any such assertion during the oral hearing; but even if the EC had asserted for the first time at
the oral hearing that it was appealing this panel finding, we would have significant concern with the
Appellate Body considering an issue raised for the first time in that manner.

 For the foregoing reasons, the United States re spectfully requests that the Appellate Body
issue a corrigendum to its report to eliminate all discussion of and findings relating to the supposed
"duty liability determination on 31 May 2007" other related errors, including those in
paragraphs 156(d)(iii), 341, 345, 346, and 469(f) of its report.

 The United States thanks the Appellate Body for its consideration of this request. The United
States is providing a copy of this letter to the Eur opean Communities and the third participants in this
proceeding.

including Case 31, but the EC never suggested during the proceedings before the Appellate
Body that "the relevant measures" for this point of its appeal were anything other than the
subsequent reviews identified in the EC panel request, which – as set forth above – did not
include the alleged 31 May 2007 determination. ( See E C o r a l s t a t e m e n t , 2 3 M a r c h 2 0 0 9 ,
para. 31.)
19 Appellate Body report, para. 343 (emphasis added).