UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN OIL COUNTRY TUBULAR GOODS FROM KOREA REPORT OF THE PANEL
Document: Addendum BCI deleted, as indicated [[***]]
Date: 14 November 2017
Document codes: WT/DS488/R/Add.1; WT/DS488/R.
Complainant: South Korea
Respondent: U.S.
Third parties: Canada, China, EU, India, Russia, Turkey, Mexico
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.2.2, 2.2.2(i), 2.2.2(iii), 2.4, 2.3, 2.2.1.1, 6.2, 6.4, 6.9, 6.10, 6.10.1, 6.10.2, 12.2.2  Anti-dumpingArt. I, X:3  GATT 1994Art. 1, 9.3  Anti-dumpingArt. VI  GATT 1994Art. XVI:4  Agreement Establishing the World Trade OrganizationArt. 18.4  Anti-dumping

UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN OIL
COUNTRY TUBULAR GOODS FROM KOREA
REPORT OF THE PANEL
Addendum
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This addendum contains Annexes A to F to the Report of the Panel to be found in document

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LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures of the Panel concerning business confidential
information A-7

ANNEX B
ARGUMENTS OF KOREA
Contents Page
Annex B-1 Executive Summary of the First Written Submission of Korea B-2
Annex B-2 Executive Summary of the Oral Statements of Korea at the First Panel Meeting B-10
Annex B-3 Executive Summary of the Second Written Submission of Korea B-14
Annex B-4 Executive Summary of the Oral Statements of Korea at the Second Panel
Meeting B-22

ANNEX C
ARGUMENTS OF THE UNITED STATES
Contents Page
Annex C-1 Executive Summary of the First Written Submission of the United States C-2
Annex C-2 Executive Summary of the Oral Statements of the United States at the
First Panel Meeting C-10
Annex C-3 Executive Summary of the Second Written Submission of the United States C-14
Annex C-4 Executive Summary of the Oral Statements of the United States at the
Second Panel Meeting C-22

ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive Summary of the Arguments of China D-2
Annex D-2 Integrated Executive Summary of the Arguments of the European Union D-4
Annex D-3 Executive Summary of the Arguments of Turkey D-8

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ANNEX E
PROCEDURAL RULING
Contents Page
Annex E-1 Procedural ruling on the United States' request to partially open the
substantive meetings for public observation E-2

ANNEX F
INTERIM REVIEW
Contents Page
Annex F-1 Interim Review F-2

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures of the Panel concerning business confidential
information A-7

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ANNEX A-1
WORKING PROCEDURES OF THE PANEL
Adopted on 30 October 2015
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 shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own po sitions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel , it shall also, upon request of a Member, provide a non -confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. The parties and third parties shall treat business confidential information in accordance with the
procedures set forth in the Additional Working Procedures o f the Panel Concerning
Business Confidential Information adopted by the Panel.
4. The Panel may open its meetings with the parties and third parties to the public, either in
whole or in part, subject to appropriate procedures to be adopted by the Panel after consulting
with the parties and third parties. 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.
5. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure that each member of such delegation acts in
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

6. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance with
the timetable adopted by th e 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.
7. A party shall submit any request for a preliminary ruling at the earli est possible opportunity
and in any event no later than in its first written submission to the Panel. If Korea 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, Korea 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.
8. Each party shall submit all factual evidence to the Panel no later than during the
first substantive meeting, except with respect to evidence necessary for purposes of rebuttal,
answers to questions or comments on answers provided by the other party. Exceptions to this
procedure shall be granted upon a showing of good cause. Where such exception has been
granted, the Panel shall accord the other party a period of time for comment, as appropriate, on
any new factual evidence submitted after the first substantive meeting.

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9. Where the original language of exhibits is not a WTO working language, the submitting party or
third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable e xtensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
promptly in writing, preferably no later than the next filing or meeting (whichever occurs earlier)
following the submission which contains the translation in question. Any objection shall be
accompanied by a detailed explanation of the grounds of objection and an alternative translation.
10. To facilitate the maintenance of the record of the dispute and m aximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute, indicating the submitting Member and the number of each exhibit on its
cover page. For example, exhibits submitted b y Korea could be numbered KOR -1, KOR-2, etc. If
the last exhibit in connection with the first submission was numbered KOR -5, the first exhibit of
the next submission thus would be numbered KOR-6.
Questions

11. 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

12. 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 5.00 p.m. the previous working day.
13. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Korea 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 and other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is needed, e ach party shall provide additional copies for the interpreters,
through the Panel Secretary. Each party shall make available to the Panel and the other
party a final written version of its opening statement, as well as of its closing statement
if possible, preferably at the end of the meeting, and in any event no later than
5.00 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make c omments, 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 Korea presenting its statement first.

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14. 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 present its
case first. If so, the Panel shall invite the United States to present its opening statement,
followed by Korea. If the United States chooses not to avail itself of that right, the Panel
shall invite Korea to present its opening statement first. Before each party takes the
floor, it shall provide the Panel and other participants at the meeting w ith 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 available to the Panel and the other party a final written version of its
opening statement, as well as of its closing statement if possible, preferably at the end
of the meeting, and in any event no later than 5.00 p.m. 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 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 wishe s 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 br ief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

15. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substant ive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
16. 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 5.00 p.m. the
previous working day.
17. 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 Pan el, 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, preferabl y at the end of the session, and in any event no later than
5.00 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third part ies 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.

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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 timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

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

22. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Pan el, 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.
23. 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.
24. 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

25. The following procedures regarding service of documents shall apply:
a. Each party and third p arty 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 2 paper copies of all documents it submits to the
Panel. Two paper copies of all exhibits shall be filed. If Exhib its are submitted on
CD-ROM or DVD, 2 copies shall be filed. The DS Registrar shall stamp the documents
with the date and time of the filing. The paper version shall constitute the official version
for the purposes of the record of the dispute.
c. Each party and third party shall also provide one electronic copy of all documents, other
than exhibits submitted on CD-ROM or DVD, it submits to the Panel at the same time as

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the paper versions, preferably in Microsoft Word format, either on a CD -ROM, a DVD or
as an e -mail attachment. If the electronic copy is provided by e -mail, it should be
addressed to DSRegistry@wto.org, with a copy to xxxxx@wto.org and xxxxx@wto.org. If
a CD-ROM or DVD is provided, it shall be filed with the DS Registry.
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance
of the 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 5.00 p.m. (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 electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purp oses of the
record of the dispute.
26. The Panel reserves the right to modify these procedures as necessary, after consultation with
the parties.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING
BUSINESS CONFIDENTIAL INFORMATION
Adopted 30 October 2015
These procedures apply to any business confidential information (BCI) that a party wishes to
submit to the Panel in the course of the Panel proceedings in DS488.

1. For the purposes of these Panel proceedings, BCI is any information that ha s been
designated as such by the party submitting the information and that was previously treated as
confidential within the meaning of Article 6.5 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 by the U .S. Department of Commerce in the
course of the anti-dumping proceeding at issue in this dispute, entitled Certain Oil Country Tubular
Goods from the Republic of Korea (A -580-870). However, these procedures do not apply to any
information that is available in the public domain. In addition, these procedures do not apply to
any BCI if the entity which provided the information in the course of the aforementioned
investigation agrees in writing to make the information publicly available.
2. If a party considers it necessary to submit to the Panel BCI as defined above from an entity
that submitted that information in the investigation at issue, the party shall, at the earliest
possible date, obtain an authorizing letter from the entity and provide such authoriz ing letter to
the Panel, with a copy to the other party. The authorizing letter from the entity shall authorize
both Korea 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 investigation.
3. No person may have access to BCI except a member of the Secretariat or the Panel, an
employee of a party or third party, and an outside advisor for the purposes of this dispute to a
party or third party. Howev er, an outside advisor 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 investigation at issue in this dispute or an of ficer or
employee of an association of such enterprises. All third party access to BCI shall be subject to the
terms of these working procedures.
4. Each party shall, at the request of the other party, facilitate the communication to an entity
in its terr itory of any request to provide an authorization letter referred to in paragraph 2. Each
party shall encourage any entity in its territory that is requested to grant the authorization
referred to in paragraph 2 to grant such authorization. If an entity ref uses to grant the
authorization referred to in paragraph 2, a party may bring the situation to the attention of the
Panel.

5. A party or third party having access to BCI shall treat it as confidential, i.e., shall not
disclose that information other than to those persons authorized to receive it pursuant to these
procedures. Each party and third party shall have responsibility in this regard for its employees as
well as any outside advisors used for the purposes of this dispute. 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.
6. The party submitting BCI shall mark the cover and/or first page of the document containing
BCI, and each page of the documen t, 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", and
each page of the document shall contain the notice "Contains Business Confidential Information" at
the top of the page.
7. Where a party submits a document containing BCI to the Panel, the other party or any third
party referring to that BCI in its docume nts, including written submissions and oral statements,
shall clearly identify all such information in those documents. All such documents shall be marked

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as described in paragraph 6. In the case of an oral statement containing BCI, the party or third
party making such a statement shall inform the Panel before making it that the statement will
contain BCI, and the Panel will ensure that only persons authorized to have access to BCI pursuant
to these procedures are in the room to hear that statement. The wri tten versions of any such oral
statements submitted to the Panel shall be marked as provided for in paragraph 6.

8. Any BCI that is submitted in binary -encoded form shall be clearly marked with the
statement "Contains Business Confidential Information" o n a label of the storage medium, and be
clearly marked with the statement "Contains Business Confidential Information" in the binary -
encoded files.
9. If a party or third party considers that information submitted by the other party or a
third party contains information which should have been designated as BCI and objects to such
submission without BCI designation, it shall forthwith bring this objection to the attention of the
Panel, the other party, and, where relevant, the third parties. The Panel shall deal with the
objection as appropriate. Similarly, if a party or third party considers that the other party or a third
party submitted information designated as BCI which should not be so designated, it shall
forthwith bring this objection to the attentio n of the Panel, the other party, and, where relevant,
the third parties, and the Panel shall deal with the objection as appropriate.

10. Any person authorized to have access to BCI under the terms of these procedures shall treat
it as confidential and sh all not disclose that information other than to those persons authorized to
receive it pursuant to these procedures. All documents and electronic storage media containing
BCI shall be stored in such a manner as to prevent unauthorized access to such information.

11. The Panel will not disclose BCI, in its report or in any other way, to persons not authorized
under these procedures to have access to BCI. The Panel may, however, make statements of
conclusion drawn from such information. Before the Panel cir culates its final report to the
Members, the Panel will give each party an opportunity to review the report to ensure that it does
not contain any information that the party has designated as BCI.
12. Submissions containing BCI will be included in the record forwarded to the Appellate Body in
the event of an appeal of the Panel's Report.

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ANNEX B
ARGUMENTS OF KOREA
Contents Page
Annex B-1 Executive Summary of the First Written Submission of Korea B-2
Annex B-2 Executive Summary of the Oral Statements of Korea at the First Panel Meeting B-10
Annex B-3 Executive Summary of the Second Written Submission of Korea B-14
Annex B-4 Executive Summary of the Oral Statements of Korea at the Second Panel
Meeting B-22

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ANNEX B-1
EXECUTIVE SUMMARY OF THE FIRST WRITTEN
SUBMISSION OF KOREA
I. INTRODUCTION
1. This dispute concerns anti -dumping measures imposed by the United States on oil country
tubular goods ("OCTG") imported from the Republic of Korea ("Korea"). The U.S. Department of
Commerce ("USDOC") found in its Preliminary Determination that no dumping margin existed for
the Korean exporters of OCTG. However, the USDOC ultimately reversed its finding in the Final
Determination, having completely shifted its approach on calculating construc ted normal value,
and, in particular, the constructed value profit rate of the two Korean respondents. The USDOC's
determination and its conduct in the investigation are inconsistent with a number of provisions of
the Agreement on Implementation of Article IV of the General Agreement on Tariffs and
Trade 1994 (the "Anti -Dumping Agreement"), the General Agreement on Tariffs and Trade 1994
(the "GATT 1994"), and the Marrakesh Agreement Establishing the World Trade Organization (the
"WTO Agreement").
2. During the course of the investigation, the USDOC did not allow the Korean respondents to
present data on their sales of the merchandise under investigation to third countries, because
these sales did not meet the so-called "viability test" under the relevant U.S. law. This viability test
violates Article 2.2 of the Anti-Dumping Agreement "as such" and "as applied", because Article 2.2
does not contemplate such a rigid quantitative test for determining the appropriateness of third -
country sales.
3. The USDOC's use of constructed value ("CV") in the investigation was also inconsistent with
the Anti -Dumping Agreement. First, the USDOC disregarded actual data regarding Korean
respondents' home market and third -country market profit rates in violation of the chap eau of
Article 2.2.2. Second, the USDOC applied an impermissibly narrow interpretation and application of
"same general category of products" . Third, the USDOC failed to calculate a "profit cap" as it was
required to do under Article 2.2.2(iii). Fourth, th e USDOC's use of financial data from Tenaris S.A.
("Tenaris") was not "reasonable" under Article 2.2.2(iii) given that Tenaris had no sales or
production in Korea. Fifth, the USDOC's use of Tenaris' financial data violated Article 2.4, as the
USDOC failed to make due allowances for differences between Tenaris and the Korean producers
that affected price comparability.
4. The USDOC also improperly found an association between NEXTEEL and its raw material
supplier, POSCO, based on an erroneous interpretation of Article 2.3, and impermissibly
disregarded NEXTEEL's export price to its customer. This erroneous finding of association led the
USDOC to improperly disregard POSCO's price of raw materials to NEXTEEL in violation of
Article 2.2.1.1.
5. In addition, the USDOC failed to protect the Korean respondents' due process rights in the
course of the investigation. In failing to make a ruling regarding the placement of Tenaris' Annual
Report on the record despite objections by Korean respondents, the USDOC did not provide Korean
respondents a full and ample opportunity to defend their interests before the issuance of the Final
Determination, in violation of Articles 6.2, 6.4, and 6.9. Its failure to place records of ex parte
communications on the administrative record in a timely manner also violates Articles 6.4 and 6.9.
Furthermore, the USDOC did not include in its Final Determination and Final Decision Memo all
relevant information leading to its imposition of anti -dumping duties as required in Article 12.2.2.
The USDOC also failed to protect the interests of other Korean producers by improperly limiting
the number of mandatory respondents and failing to examine data submitted by voluntary
respondents in violation of Article 6.10.
6. These violations give rise to consequential violations of Articles 1, 9.3, and 18.4 of the Anti -
Dumping Agreement, as well as Article VI of the GATT 19 94 and Article XVI:4 of the
WTO Agreement. Moreover, the USDOC's less favorable treatmen t of Korean OCTG as compared
to OCTG from oth er Members subject to parallel anti -dumping investigations is inconsistent with

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Article I:1 of the GATT 1994. Finally, the USDOC did not administer its laws and regulations in a
uniform, impartial, and reasonable manner as required under Article X:3(a) of the GATT 1994 as
its decisions were influenced by extreme political pressure, and it failed to provide any other
rationale for its sudden change in practice.
II. STATEMENT OF FACTS
7. On 22 July 2014, the USDOC initiated an anti -dumping duty investigation on OCTG from
Korea based on a petition filed by petitioners representing the U.S. domestic steel industry, and
subsequently selected NEXTEEL and HYSCO as the two mandatory respondents in the
investigation. Because the USDOC considered that neither NEXTEEL nor HYSCO had sufficient sales
of the merchandise under consideration in the country of expor t ("home market") or in a
third country to use in the calculation of normal value, the USDOC resorted to the calculation of a
"constructed value" ("CV").
8. On February 14, 2014, the USDOC issued its Preliminary Determination, in which it
determined that OCTG from Korea was not being, and was not lik ely to be, dumped in the
United States. In particular, the USDOC declined to use profit information for Tenaris as argued by
petitioners, as the report submitted by petitioners on Tenaris showed that it was a non -Korean
corporation that had "neither production nor sales in the market under consideration". Instead, the
USDOC calculated HYSCO's CV profit rate based on HY SCO's own sales of the same general
category of products – i.e., line pipe and standard pipe – in Korea. For NEXTEEL, the USDOC used
the weighted average profit rate of all Korean respondents for home market sales of the same
general category of products. The USDOC also addressed allegations by petitioners that NEXTEEL
was associated with its raw materials supplier, POSCO, and that a Korean trading company was
involved in most of NEXTEEL's sales of OCTG in the United States. Acknowledging that it had not
yet reached a decision on the issue of affiliation, the USDOC stated that it would be seeking
additional clarification from NEXTEEL about its relationships with these companies.
9. The USDOC issued supplemental questionnaires to the Korean respondents, incl uding a
supplemental questionnaire to NEXTEEL relating to its cost of production. Petitioner U.S. Steel
submitted as "rebuttal" information the 2012 Annual Report of Tenaris. U.S. Steel's submission,
however, did not bear any relation to the factual inform ation submitted by NEXTEEL in the
questionnaire response. NEXTEEL immediately requested that the USDOC reject U.S. Steel's
untimely submission, as it did not rebut, clarify, or correct NEXTEEL's questionnaire response, but
rather, was clearly intended to o ffer unsolicited CV profit source data past the USDOC's deadline.
The USDOC did not rule on, or even acknowledge, NEXTEEL's objection to the placement of the
Annual Report on the record until the Final Determination, where it concluded that the petitioner
had properly submitted Tenaris' Annual Report.

10. After the Preliminary Determination's negative findings, the U.S. industry and its allies
escalated their political activities to unprecedented levels. Notably, among the numerous records
of meetings and phone calls by lawmakers and industry representatives to the U.S. Secretary of
Commerce on behalf of the U.S. industry, 57 U.S. Senators signed a letter addressed to the
Secretary complaining specifically of the USDOC's calculation of profit in i ts Prelimi nary
Determination.

11. In its Final Determination, the USDOC drastically departed from its Preliminary
Determination, calculating a dumping margin of 9.89% for NEXTEEL and 15.75 for HYSCO. To
reach this result, the USDOC reversed course and recalculate d CV profit for both NEXTEEL and
HYSCO, improperly using the 26.11% profit rate of Tenaris as depicted in the financial statements
that U.S. Steel had untimely submitted.

III. ARGUMENTS
A. The U.S. Viability Test is Inconsistent with Article 2.2 of the Anti-Dumping
Agreement
12. When there are no sales or low volume sales in the ordinary course of trade in the domestic
market of the exporting country, or when such sales do not permit a proper comparison because
of the particular market situation, Articl e 2.2 of the Anti -Dumping Agreement permits an

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investigating authority to calculate normal value based on third country sales, "provided that this
price is representative".
13. The conditions for using third -country sales to calculate normal value under United States
law is embodied in the "viability test" pursuant to which the USDOC may use sales prices in a third
country to calculate normal value when it is unable to use sales in the country of export, provided
three separate and cumulative criteria are met: (1) the price is "representative"; (2) the quantity
or value of sales to the third country meets or exceeds five percent of the company's sales to the
United States; and (3) no "particular market situation" exists that would make third country
market sales prices inappropriate.
14. As explained above, Article 2.2 requires that the price to the third country market be
"representative", but does not contemplate a mechanistic minimum threshold as applied by the
United States. In particular, Article 2.2 provides "low volume sales" as a factor for excluding the
domestic market sales as the basis of normal value, but it does not apply such a standard to third -
country sales, demonstrating that the drafters of the Agreement did not intend for the quantitativ e
threshold that may be applied to domestic market sales to be applied to third-country sales.
15. Thus, the U.S. viability test as it applies to third -country market sales is "as such"
inconsistent with Article 2.2, as it applies a rigid quantitative te st not permitted under the Article.
It is also "as applied" inconsistent with Article 2.2, insofar as the Korean respondents were
precluded from presenting third -country market data pursuant to the USDOC's application of the
viability test in the underlying investigation.
B. The USDOC's Use of Constructed Value in the OCTG Investigation is Inconsistent
with the Anti-Dumping Agreement
16. First, the USDOC failed to comply with the Article 2.2.2 requirement to use "actual data" as
a CV profit source when ava ilable. Article 2.2.2 provides in its chapeau that, when calculating
normal value using constructed value, "the amounts for administrative, selling and general costs
and for profits shall be based on actual data pertaining to production and sales in the or dinary
course of trade of the like product by the exporter or producer under investigation" . The
Appellate Body in EC – Tube or Pipe Fittings confirmed that it is only when SG&A and profits
cannot be calculated based on "actual data" that an investigating authority is permitted to proceed
to employ one of the other three methods provided in subparagraphs (i) -(iii). The Appellate Body
further confirmed that "low -volume sales" that have failed to meet the five percent threshold for
the purposes of determining the viability of the domestic market as a comparison market are not
excluded from the "actual data" that must be used to calculate th e profit rate under the
Article 2.2.2 chapeau.
17. In the underlying investigation, the USDOC refused to use HYSCO's or N EXTEEL's actual
data to calculate profit rate, simply stating that it was unable to use the "preferred method" , i.e.,
use of actual data, "absent a viable home or third -country market" . Based on requirements of
Article 2.2.2 and the guidance provided by th e Appellate Body, even if the USDOC had properly
disregarded the respondents' sales in the country of export for the purpose of determining an
appropriate comparison market due to their "low volume" , it was nonetheless obligated to use the
actual profit ra tes for these sales for the purpose of calculating CV profit. The chapeau of
Article 2.2.2 does not require that the "actual data" must derive from sales of the like product in
the home market. HYSCO and NEXTEEL indicated early in the investigation in thei r initial
questionnaire responses that they both had sales of the like product to third -country markets, and
the USDOC had on the record actual profit data for both respondents' OCTG sales in the home
market and third -country markets. Because the USDOC dis regarded NEXTEEL's and HYSCO's
"actual data" pertaining to the respondents' profit rates in the home market and third -country
market based on the determination that sales to these markets were of "low volume" , the USDOC
failed to act consistently with its obligations under the chapeau of Article 2.2.2.
18. Second, the USDOC's decision to rely on Article 2.2.2(iii) and reject other viable options was
premised on an impermissibly narrow interpretation and application of the "same general category
of products ". As the Thailand – H-Beams panel clarified, using information from "same general
category of products" is meant to provide for the "database to be broadened" in instances where
actual data pertaining to "like products" is not available.

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19. Rather than broadening the database, the USDOC's Final Determination rested on an overly -
narrow interpretation of the "same general category" of products. In its Final Determination, the
USDOC reversed course from its Preliminary Determination and found that OCTG was n ot in the
"same general category" of products as non -OCTG pipe products manufactured by the Korean
producers, such as line pipe and standard pipe. The USDOC stated that the same general category
of OCTG would only include "subject OCTG, non -scope OCTG such as stainless steel tubular
products, and drill pipes."
20. Having found in its Final Determination that OCTG was not in the "same general category" of
products as non-OCTG pipe products, the USDOC determined that it did not have data to calculate
the CV p rofit rate using actual amounts incurred by the producer in the country of origin for the
production and sale of the "same general category of merchandise" under Article 2.2.2(i). The
USDOC further found that, it was also unable to calculate "the profit no rmally realized by other
exporters or producers on sales of products of the same general category in the domestic market
of the country of origin", i.e., a "profit cap", as required under Article 2.2.2(iii).
21. By including only one product outside of OCT G – i.e., drill pipe – within the "same general
category of products" , the USDOC applied a definition of "same general category" that was
effectively limited to the "like product" . In fact, the USDOC has considered drill pipe to be a "like
product" in defining the product scope of OCTG in both the underlying investigation as well as its
previous investigations involving OCTG. At the same time, the USDOC has recognized non -OCTG
pipe products such as line pipe and standard pipe to be within the "same general category of
products" as OCTG in its previous investigations involving OCTG.
22. In sum, the USDOC's definition of the "same general category" in this case resulted in a
database that was identical to that containing only "like products" , and also contrave ned its own
prior determinations that non -OCTG pipe products such as line pipe and standard pipe fell within
the "same general category of products" as OCTG. Thus, the USDOC violated Article 2.2.2 by
applying an incorrect standard in its analysis of CV pro fit calculation methods under the
subparagraphs of Article 2.2.2.
23. Third, the USDOC's failure to apply a profit cap is inconsistent with Article 2.2.2(iii).
Article 2.2.2(iii) permits the investigating authority to calculate CV profit based on "any othe r
reasonable method, provided that the amount for profit so established shall not exceed the profit
normally realized by other exporters or producers on sales of products of the same general
category in the domestic market of the country of origin", i.e., the "profit cap".
24. The obligation in Article 2.2.2(iii) to calculate a profit cap is unqualified, and there is no
indication in the text to suggest that there may be circumst ances in which an
investigating authority is excused from calculating and app lying a profit cap. Indeed, the panel in
Thailand H – Beams found that the profit cap is in effect a separate reasonability test. The
obligatory nature of calculating a profit cap was further confirmed in EU – Footwear, where the
panel held that the unavai lability of relevant data did not excuse a Member from complying with
the requirements of Article 2.2.2(iii). Thus, calculation and application of a profit cap is a
mandatory requirement when an investigation authority opts to rely on Article 2.2.2(iii), a nd
failure to calculate and apply a profit cap constitutes a per se violation of Article 2.2.2(iii).
25. Moreover, Article 2.2 requires that, when relying on constructed value to calculate normal
value, the constructed value is to comprise of the cost of production in the country of origin plus a
"reasonable" amount for profit. Because the USDOC did not ensure that its calculation of CV profit
was "reasonable" by failing to calculate a profit cap, the USDOC also failed to calculate a
"reasonable" amount for profit under Article 2.2.
26. In addition, as discussed above, the USDOC determined that it was unable to calculate a
profit cap based on an erroneous determination that the administrative record did not contain data
regarding the "same general category of products". Thus, because the USDOC did not calculate a
profit cap based on an erroneous interpretation of "same general category" , the USDOC violated
Article 2.2.2(iii).
27. Fourth, the USDOC's construction of profit on the basis of Tenaris' financial statement is
inconsistent with the "reasonable method" requirement of Article 2.2.2(iii). While the Anti -

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Dumping Agreement does not delineate the exact ambit of what constitutes a "reasonable method"
for purposes of Article 2.2.2(iii), if a specific method of constructing SG&A and CV profit is to
satisfy this "reasonableness test" , it must, at the minimum, be consistent with the central
principles of the anti -dumping mechanism enshrined in the Anti -Dumping Agre ement, including
Article 2.1.
28. According to Article 2.1, "dumping" means introduction of a product "into the commerce of
another country " at less than the "comparable price" for the like product "when destined for
consumption in the exporting country ". Therefore, in calculating a normal value under the
alternative methods, the investigating authority must approximate the actual data that companies
under investigation would achieve in the domestic country of manufacture.
29. The USDOC relied on the profit rate of Tenaris, despite the existence on t he record of
various CV profit sources that originated from the country of export, Korea. Tenaris is a
multinational company based in Argentina and incorporated under the laws of Luxembourg that
has no record of sales of production in Korea. No reasonable basis exists to conclude that Tenaris'
profit rate is reflective of the profit rate that the Korean producers would have achieved if they had
sold OCTG in the country of export. Indeed, the only rationale the USDOC provided in its Final
Determination to justify its reliance on Tenaris' profit is that Tenaris realizes profit primarily on the
basis of OCTG sales from across the globe. Yet, the USDOC never explained why the profits of
Tenaris in other geographic market would reasonably reflect the level of pro fits obtained by
producers or exporters in the Korean market. Because the profit used by the USDOC to construct
the normal value in the underlying investigation was not representative of the profits obtained by
producers or exporters in the Korean market a nd not comparable with the export prices of the
Korean exporters, the method used by the USDOC's use of Tenaris' financial data to calculate CV
for the Korean exporters does not constitute a "reasonable method" under Article 2.2.2(iii).
30. Fifth, the USD OC failed to make a fair comparison as required by Article 2.4 of the Anti -
Dumping Agreement. Article 2.4 requires an investigating authority to conduct a "fair comparison"
between the export price and normal price. In doing so, "{d}ue allowance shall be made in
each case, on its merits, for differences which affect price comparability" . The Appellate Body in
US – Hot-Rolled Steel interpreted these "differences" broadly, stating that "Article 2.4 expressly
requires that allowances be made for any other dif ferences that are demonstrated to affect price
comparability, and that there are no differences affecting price comparability that would be
precluded, as such from being the object of an 'allowance'."
31. The USDOC failed to make a fair comparison because it did not take into account substantial
differences between Tenaris and the Korean respondents that affected the price comparability
between the Korean respondents' export price and the normal values derived using the profit rate
of Tenaris. For example, Tenaris focused on specialized and premium products designed to
generate a high profit margin, compared to the low -end products manufactured by Korean
respondents. The scale of Tenaris' business operations grossly overshadowed that of Korean
respondents, as demonstrated by its production and sales volume, as well as its workforce and
facilities. Importantly, because Tenaris sold directly to end users, it was able to retain the entirety
of the profits generated between manufacture and retail sale. The Korean respondents, on the
other hand, sold OCTG products through resellers at wholesale prices. These factors directly
impacted the calculation of the normal value using Tenaris' financial data, and therefore, also
affected the comparability between the normal value and the Korean respondents' export price.
Because USDOC did not ensure the price comparability between the export price and normal value
despite several differentiating factors identified by the Korean respondents, the USDOC failed to
comply with Article 2.4.
C. The USDOC's Finding of Association is Inconsistent with Article 2.3 of the Anti -
Dumping Agreement
32. As a general rule, an investigating authority must make a dumping determination based on
the normal value and the export price of the product exported from one country to another.
Article 2.3 permits the investigating authority to disregard export prices when: (i) an association
or compensatory arrangement exists between the exporter and the importer/third party; and (ii) it
appears to the inve stigating authority that the export prices are unreliable because of that
association or compensatory arrangement.

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33. The USDOC improperly disregarded NEXTEEL's sales prices to its customer, a Korean trading
company ("Customer"), and instead constructed an export price based on the Customer's price to
its own U.S. customer. The USDOC's decision was based on an erroneous determination that
NEXTEEL was "associated" with its supplier, POSCO, because it was reliant on POSCO, giving
POSCO "control" over NEXTE EL. The USDOC found that POSCO was "operationally in a position to
exercise restraint or direction over NEXTEEL in a manner that affects the pricing, production, and
sale of OCTG" . However, in conducting its analysis, the USDOC replaced the requirement to find
"control" based on "restraint or direction" with a much less stringent standard. Furthermore,
realizing that POSCO, as a raw materials supplier, could only affect NEXTEEL's costs and not its
sales prices, the USDOC reasoned that POSCO exercised control over NEXTEEL's sales prices based
on the "combination of {POSCO's} involvement on both the production and sales side" by virtue of
POSCO's affiliation with the Customer. However, the USDOC did not find that NEXTEEL was
"reliant" on the Customer for its U .S. sales. Rather, the USDOC simply noted that a majority of
NEXTEEL's sales were made to the Customer, and automatically assumed that POSCO and the
Customer were in a position to control NEXTEEL's export price based on the Customer's
relationship with POS CO. Thus, the USDOC's conclusion that POSCO controlled NEXTEEL's export
price was not based on an objective assessment of whether either POSCO or the Customer was in
fact in a position to control NEXTEEL's pricing.
34. Finally, the USDOC ignored evidence on the record demonstrating that NEXTEEL was not
reliant on POSCO for its raw material supply, and did not even conduct any meaningful analysis of
whether NEXTEEL's sales price to the Customer was "unreliable," as it was required to do before it
could disregard NEXTEEL's export prices under Article 2.3. Rather, the USDOC assumed that the
export price was unreliable simply by virtue of the Customer's relationship with POSCO. Therefore,
the USDOC's disregard of NEXTEEL's export price is inconsistent with Arti cle 2.3 of the Anti -
Dumping Agreement.
D. The USDOC Improperly Disregarded NEXTEEL's Costs in Violation of Article 2.2.1.1
of the Anti-Dumping Agreement
35. Article 2.2.1.1 requires that, in calculating a producer's cost of production, "costs shall
normally be calculated on the basis of records kept by the exporter or producer under
investigation", provided that: (1) such records are in accordance with the generally accepted
accounting principles of the exporting country; and (2) reasonably reflect the costs associated with
the production and sale of the product under consideration.
36. Having improperly found that NEXTEEL was affiliated with POSCO, the USDOC disregarded
NEXTEEL's own records with respect to the price it paid POSCO for raw materials and ap plied
calculated prices for these raw materials. However, the record demonstrates that NEXTEEL kept its
records in accordance with the generally accepted accounting principles of Korea. Moreover, the
USDOC's decision to disregard NEXTEEL's own cost data wa s based on an erroneous determination
that NEXTEEL was affiliated with POSCO, as explained above.
37. Because the USDOC's determination of affiliation was improper and such determination was
the sole basis provided by the USDOC to disregard NEXTEEL's cos ts, it follows that the USDOC
acted inconsistently with its obligation under Article 2.2.1.1.
E. Procedural Claims
38. Article 6.2 of the Anti -Dumping Agreement requires investigating authorities to ensure that
"all interested parties shall have a full o pportunity for the defence of their interests," while
Article 6.4 requires investigating authorities to provide "timely opportunities for all interested
parties to see all information that is relevant to the presentation of their cases … and to prepare
presentations on the basis of this information" . The Appellate Body in EC – Tube or Pipe Fittings
clarified that whether certain information is "relevant" is not determined by the investigating
authority. Moreover, the panel in EC – Salmon (Norway) explained that information that the
investigating authority considers during the course of the anti -dumping investigation
presumptively falls within the scope of Article 6.4. Finally, Article 6.9 requires investigating
authorities to, "before a final determination i s made, inform all interested parties of the essential
facts under consideration which form the basis for the decision whether to apply definitive
measures".

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39. Tenaris' Annual Report constituted "relevant" information under Article 6.4 as the USDOC
did, in fact, use the data to calculate the Korean respondents' dumping margins. By failing to
address the Korean respondents' objections and delaying a ruling on the matter until the Final
Determination, the USDOC failed to provide respondents with a full op portunity to defend their
interests and prepare presentations based on relevant information, as required under Articles 6.2
and 6.4. Furthermore, whether the USDOC would accept the placement of the Tenaris financial
statements on the record constituted an "essential fact" under Article 6.9. The financial statements
were clearly "under consideration" and an "essential fact" that formed the basis of the USDOC's
determination, as evidenced by the USDOC's decision to rely on the financial data to impose anti -
dumping duties on Korean respondents. Therefore, the USDOC was obligated to disclose the fact
that it was accepting Tenaris' Annual Report on the record before the Final Determination, in
accordance with Article 6.9.
40. The USDOC also failed to comply with its obligations under Articles 6.4 and 6.9 with respect
to the disclosure of several ex parte communications on the administrative record. It was not until
the Korean respondents demanded that USDOC provide the corr espondence that USDOC
disclosed a large amount of correspondence between USDOC officials and representatives from the
U.S. government and domestic industry on behalf of petitioners. These documents included a
letter addressed to the Secretary of Commerce signed by 57 U.S. Senators, and a separat e letter
addressed to the Secretary signed by 155 House Representatives, evidencing extreme political
pressure focusing specifically on the issue of CV profit.
41. The various letters sent to the Secretary of Commerce by prominent members of the U.S.
Congress and by industry leaders constituted "relevant" information used by the investigating
authorities under Article 6.4, as well as "essential facts under consideration" that formed the basis
for the USDOC's decisions under Article 6.9. Because the USDO C did not disclose these ex parte
communications in sufficient time before the Final Determination for respondents to defend their
interests, it violated Articles 6.4 and 6.9.
42. Finally, the USDOC failed to comply with its obligations under Article 12. 2.2, which requires
public notices of the conclusion of an investigation to contain "all relevant information on the
matters of fact and law and reasons which have led to the imposition of final measures" . These
public notices must include "the reasons for the acceptance or rejection of relevant arguments or
claims made by the exporters and importers" . As described above, the USDOC failed to address
the Korean respondents' arguments regarding the inappropriateness of using Tenaris' financial
data to calcula te the Korean respondents CV profit rate in light of the substantial differences
between the companies. In addition, the USDOC's determination regarding the "same general
category of products" focused only on the differences in physical characteristics bet ween OCTG,
line pipe, and standard pipe, and failed to address the arguments raised by the Korean
respondents. Finally, the USDOC analysis regarding the alleged association between NEXTEEL and
POSCO simply ignored extensive arguments presented by NEXTEEL c ontradicting allegations by
petitioners, in violation of Article 12.2.2.
F. The USDOC's Limitation of Mandatory Respondents and Failure to Consider
Information Submitted by Voluntary Respondents is Inconsistent with Article 6.10 of the
Anti-Dumping Agreement
43. Article 6.10 requires that investigating authorities determine an individual dumping margin
for each known exporter or producer of the subject merchandise, and only permits deviation from
this rule when the number of exporters/producers is so larg e that individual determination would
be "impracticable". Even when limiting its investigation, Article 6.10.2 obligates the investigating
authority to determine individual dumping margins for voluntary respondents that provide timely
information. The inve stigating authority is relieved of this obligation only when "the number of
exporters or producers is so large that individual examinations would be unduly burdensome to the
authorities and prevent the timely completion of the investigation".
44. Although the USDOC discussed at length its limitations in examining all identified exports, it
failed to provide any explanation of why it considered only two respondents to be a "reasonable
number", or why it would not be reasonable to examine any additional r espondents. Moreover,
although Husteel, ILJIN, and SeAH timely submitted voluntary responses to the USDOC's
questionnaire, the USDOC declined to consider these responses citing to various resource
constraints not limited to the immediate investigation. Because the USDOC did not adequately

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explain why it could not consider additional mandatory or voluntary responses, it failed to comply
with its obligations under Article 6.10.
G. The United States' Measures are Inconsistent with Articles 1, 9.3, and 18.4 of the
Anti-Dumping Agreement
45. As discussed above, the anti -dumping duties calculated by the USDOC in this case derived
from an erroneous and impermissible application of Article 2 that resulted in an artificially high
dumping margin, in violation of Article 9 .3. Moreover, the panel in China – HP-SSST
(Japan)/China – HP-SSST (EU) confirmed that a violation of a substantive claim will
consequentially result in a violation of Article 1. Finally, the U.S. viability test constitutes a law or
regulation that is not in conformity with the Anti -Dumping Agreement, demonstrating that the
United States has failed to take all necessary measures to ensure conformity of its measures with
the Antidumping Agreement, thereby acting inconsistently with Article 18.4.
H. The United States' Measures are Inconsistent with Article VI of the GATT 1994 and
Article XVI:4 of the WTO Agreement
46. The panel in China – HP-SSST (Japan)/China – HP-SSST (EU) likewise found that violation
of other provisions of the Anti -Dumping Agreement conse quentially res ulted in a violation of
Article VI. Accordingly, this Panel should find that, in violating its obligations under the Anti -
Dumping Agreement, the USDOC also failed to comply with its obligations under Article VI of the
GATT 1994. Furthermore, to the extent the challenged measures are inconsistent with the Anti -
Dumping Agreement and Article VI of the GATT 1994, the United States has failed to comply with
Article XVI:4 of the WTO Agreement.
I. The United States Failed to Comply with Fund amental O bligations of the
GATT 1994
47. Article I:1 of the GATT 1994 requires that "any advantage, favor, privilege or immunity
granted by any contracting party to any product originating in or destined for any other country
shall be accorded immediately and unconditionally to the like product originating in or destined for
the territories of all other contracting parties" . The USDOC's relatively lenient treatment of the
products from other country respondents in parallel investigations of OCTG imports compared to
its treatment of products from Korean respondents resulted in an "advantage, favour, privilege, or
immunity" that was not granted to OCTG products originating in Korea. Moreover, the USDOC
discriminated against the products from Korean respondents in the u nderlying investigation by
providing an opportunity for respondents in the Turkey investigation to provide comments on the
Tenaris financial statements, while no such opportunity was afforded to Korean respondents.
48. The USDOC's conduct is also inconsi stent with Article X:3(a) of the GATT 1994, which
requires WTO Members to administer laws, regulations, decisions, and rulings in a "uniform,
impartial, and reasonable manner" . The USDOC's administration of its laws and regulations was
not uniform because it reversed decades of past practice with no justification for its departure, and
also afforded inconsistent treatment of the Tenaris Annual Report between its anti -dumping
investigations of Korea and Turkey. In its Final Determination, the USDOC dramatica lly and
inexplicably changed its approach to CV from past practice as well as the Preliminary
Determination after unprecedented political pressure from the U.S. domestic industry and U.S.
Congress that specifically focused on the use CV profit, thereby sug gesting that the USDOC's
administration of its laws and regulations was not impartial. Finally, the use of Tenaris' financial
data as a CV profit source required a drastic departure from USDOC's past practices and no
rational justification was provided for the sudden change in practice, which indicates that the
USDOC's administration of its laws and regulations was not reasonable.
IV. CONCLUSION
49. For the reasons set forth above, Korea requests that the Panel recommend that the
United States bring its me asures into compliance with the A nti-Dumping Agreement, the
GATT 1994, and the WTO Agreement.

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ANNEX B-2
EXECUTIVE SUMMARY OF THE ORAL STATEMENTS OF KOREA
AT THE FIRST PANEL MEETING
EXECUTIVE SUMMARY OF KOREA'S OPENING STATEMENT

I. INTRODUCTION

1. There was no basis in this case to apply anti -dumping duties on imports of oil country
tubular goods, or "OCTG," from Korea. This was indeed the conclusion of the United States
Department of Commerce ( "USDOC") in its Preliminary Determination, before it was put under
tremendous political pressure from members of the U.S. Congress and the domestic industry to
change its conclusion in its Final Determination.

2. What followed after the Preliminary Determination was a politically -motivated, results -
oriented investigation, in which USDOC deviated from its own practices, violated respondents ' due
process rights, and ignored the obligations of the AD Agreement, in an effort to find the positive
dumping margin required to impose anti-dumping measures.

3. The USDOC achieved the result demanded by members of the U.S. Congress and the
domestic industry by relying on an improperly high constructed value profit rate, or "CV profit".
The CV profit source that the USDOC used did not reflect profits in the exporting country and was
derived from a company —Tenaris—that sells premium products with a profit margin three times
higher than the profit margin initially alleged by petitioners.

4. However, the USDOC could not simply use the Tenaris data. Instead, it had to reason
backward and first lay the groundwork to use such data. USDOC did so by adopting an excessively
narrow definition of the "same general category of products " that precluded from consideration
other data source on the record. The USDOC 's overly narrow definiti on of the "same general
category of products" in this case, its improper dismissal of other data, and its ultimate use of the
Tenaris data are all actions that were inconsistent with the United States ' obligations under the
AD Agreement.

5. Korea also challenges, in these proceedings, the "U.S. Viability Test ", which imposes an
overly rigid threshold that is not permissible under Article 2.2 of the AD Agreement.

II. THE U.S. VIABILITY TEST IS INCONSIS TENT WITH ARTICLE 2.2 OF THE
AD AGREEMENT

6. The U.S. Viability Test for third -country markets is "as such" inconsistent with Article 2.2 of
the AD Agreement. Article 2.2 sets out the circumstances under which the sales price in the home
market may not be an appropriate option for normal value. When these circumstances are met,
the AD Agreement permits an investigating authority to calculate normal value based on either:
(1) the comparable price of the like product exported to an appropriate third country, provided
that this price is representative, or (2) the constructed normal value.

7. Under U.S. law, the USDOC may use third -country sales only where three cumulative
requirements are met: (i) the third -country sales price is representative; (ii) the quantity or value
of sales to the third-country market meets a five percent threshold; and (iii) no "particular market
situation" exists.

8. As should be immediately apparent, the requirement in U.S. law that the quantity or value
of sales to the third -country market must meet a five percent threshold is not found in Article 2.2
or elsewhere in the AD Agreement. The establishment in U.S. law of this additional requirement is
inconsistent with Article 2.2 of the AD Agreement, which does not contemplate such a rigid
quantitative rule to determine whether third -country sales should be used to cal culate normal
value.

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9. Korea also challenges the U.S. Viability Test for third -country markets "as applied " in the
OCTG investigation. The application of the Viability Test in the underlying antidumping proceeding
is s hown clearly in the Section A questionnaire that the USDOC issued to the mandatory
respondents. The Section A questionnaire specifically instructed the Korean respondents not to
report third-country market sales if those sales were "less than five percent of the volume of your
sales to the United States ". Thus, the USDOC applied the rigid U.S. Viability Test through its
questionnaire and precluded respondents from submitting third -country market data that did not
meet the strict five percent threshold..

III. THE OCTG INVESTIGATION

A. The USDOC's Use of Constructed Value in the OCTG Investigation is Inconsistent
with the Anti-Dumping Agreement

10. In its Final Determination, the USDOC used the profit rate of Tenaris to calculate the
CV profit rate applica ble to the Korean respondents. This was inconsistent with the United States '
obligations because the USDOC: (1) impermissibly disregarded the respondents ' actual data for
calculating profits under the preferred method provided in the chapeau of Article 2.2.2; (2) applied
an overly narrow definition of "same general category " of products under Articles 2.2.2(i)
and 2.2.2(iii); (3) disregarded its obligation to calculate a "profit cap " under Article 2.2.2(iii);
(4) failed to comply with the "reasonable method" requirement of Article 2.2.2(iii); and (5) ignored
the differences between Tenaris and the Korean respondents, thereby failing to ensure a fair
comparison between the export price and constructed normal value under Article 2.4.

B. The USDOC 's Finding of Association is Inconsis tent with Article 2.3 of the
AD Agreement

11. Article 2.3 permits the investigating authority to disregard export prices if the investigating
authority finds an "association" between the exporter and importer or a third party. Al though the
AD Agreement does not directly define the term "association," the definition of "relationship"
enshrined in footnote 11 of the Agreement provides interpretive guidance. An examination of the
U.S. statute shows that the United States itself has a dopted the definition of "relationship"
contained in footnote 11 to define "affiliation" in the context of an anti-dumping proceeding.

12. The USDOC's determination of affiliation in its Final Determination was erroneous because
the USDOC did not examin e whether POSCO was in a position to "exercise restraint " over
NEXTEEL, but rather determined only that POSCO was in a position to [[***]] NEXTEEL. Because
the USDOC used an erroneous standard for determining association, its decision must be rejected.

13. The USDOC 's assessment of the facts was also flawed. While the USDOC relied on
arguments that NEXTEEL maintained a robust business relationship with POSCO, and that
NEXTEEL purchased a large portion of its raw material input from POSCO, these facts do n ot
establish that POSCO was in a position, legally or operationally, to exercise restraint or direction
over NEXTEEL's pricing of exported OCTG as required to find an "association" under Article 2.3.
Rather, they demonstrate relationships that are common among suppliers and customers that seek
to maintain positive business relations.

14. Moreover, even assuming that footnote 11 did not apply under Article 2.3, the USDOC 's
decision to disregard NEXTEEL 's export price to its Customer is still inconsistent w ith the
requirements of the latter provision. In this case, the USDOC's analysis of "association" focused on
the relationship between NEXTEEL and its supplier, POSCO. The USDOC then automatically
deemed the export price to be unreliable, not because of NEX TEEL's association with "the importer
or a third party, " but based on POSCO's relationship with NEXTEEL 's Customer. Finally, Korea
notes that the USDOC's determinations were based on a static analysis.

C. The USDOC Improperly Disregarded NEXTEEL's Costs in Violation of Article 2.2.1.1

15. The USDOC also acted inconsistently with Article 2.2.1.1 of the AD Agreement by improperly
disregarding NEXTEEL 's own cost data and relying, instead, on POSCO 's cost data to calculate
constructed value. The record demonstrates that NEXTEEL kept its records in accordance with the
generally accepted accounting principles of Korea, as required under Article 2.2.1.1. Moreover, the

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USDOC did not make any finding that NEXTEEL 's costs did not reasonably reflect the costs
associated with the production and sale of the product under consideration.

D. Procedural Claims

16. The USDOC only accepted Tenaris's financial statements into the administrative record when
it issued its Final Determination, thereby denying respondents an am ple and full opportunity to
defend their interests contrary to Article 6.2 of the AD Agreement. Second, in contravention of
Article 6.4, the USDOC failed to "provide timely opportunities to … see the information … that is
used by the authorities … and to prepare presentations on the basis of this information". Third, the
USDOC did not comply with the requirements of Article 6.9. Whether the Tenaris financial
statements were properly on the record was an "essential fact" in that it defined the universe of
sources that the USDOC was considering for its determination of CV profit. Because the USDOC did
not disclose this fact until the Final Determination, the respondents did not have a complete view
of the "facts" that the USDOC considered relevant in its CV pr ofit determination, and were unable
to fully formulate arguments against its use.

17. The USDOC also improperly withheld from the Korean respondents various ex parte
communications received between the Preliminary and the Final Determinations in violati on of
Articles 6.4 and 6.9. In addition, several aspects of the USDOC 's determinations and disclosures
did not meet the AD Agreement 's requirement for disclosure of all relevant information leading to
the imposition of final measures, as required under Article 12.2.2.

E. The USDOC 's Limitation of Mandatory Respondents and Failure to Consider
Information Submitted by Voluntary Respondents is Inconsistent with Article 6.10

18. The USDOC's Respondent Selection Memo did not establish why it would be imprac ticable to
examine all known producers and exporters or to consider any of the voluntary responses on the
record submitted by non -selected respondents. Also, the USDOC failed to explain why selecting
only two mandatory respondents was "reasonable".

F. The USDOC's Conduct is Inconsistent with Article X:3(a) of the GATT 1994

19. The USDOC acted inconsistently with Article X:3(a) of the GATT 1994 because it failed to
administer its laws and regulations in a uniform, impartial, and reasonable manner.

EXECUTIVE SUMMARY OF KOREA'S CLOSING STATEMENT

20. The United States has failed both in its written submission and in its presentations over the
last two days to demonstrate that its laws allow the USDOC to do anything other than
automatically apply a 5 per cent threshold, the so -called Viability Test, to third country sales. U.S.
law only permits the USDOC to use third -country sales prices to calculate normal value when the
aggregate quantity or value of the foreign like product sold by the exporter or producer in the third
country is 5% or more of the aggregate quantity or value of the subject merchandise sold to the
United States. Therefore, as a rule, U.S. law requires the USDOC to disregard third country sales
when they do not meet the Viability Test.

21. Turning now to the USDOC 's use of constructed value, the United States ' interpretation
applies a viability test that does not exist in the first sentence of Article 2.2.2, as a precondition to
using actual data under the preferred method. Further, the Un ited States argues that the Korean
exporters did not sell any OCTG in their home market. This statement is contradicted by the
record, which clearly shows that the Korean exporters sold non-prime OCTG.

22. The USDOC adopted an overly narrow definition of "same general category of products". The
USDOC defined the "same general category of products" more narrowly than even the scope of the
investigation, which includes products that cannot be used for down -hole applications. As the
United States has admitted, this is not permissible – the "same general category" must be broader
than the like product.

23. Despite the plain text of Article 2.2.2(iii) of the AD Agreement, which states that "the
amount for profit so established shall not exceed the profit normally realized by other exporters or

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producers on sales of products of the same general category in the domestic market of the country
of origin ", the United States argues that the USDOC 's decision not to apply a profit cap was
consistent with Article 2.2 .2(iii). However, the United States again is effectively deleting an entire
phrase from the Agreement. The United States admits that the USDOC failed to apply a profit cap,
but claims that it was justified in doing so because the necessary data to calculat e a profit cap was
not on the record. This is factually incorrect, as the Korean exporters provided all the necessary
data with which USDOC could calculate the profit cap.

24. The USDOC's reliance on the Tenaris financial statement was inconsistent with Article 6.9.
The USDOC 's actual use of the Tenaris financial statements as a CV profit source was also
inconsistent with the purpose of the subparagraphs of Article 2.2.2 because the Tenaris financial
statements do not reflect products in the same general category of the "domestic market of the
country of origin". The United States cannot point to any evidence that Tenaris had any meaningful
activity in Korea, nor does it consider whether Tenaris had any connection with Korea as relevant.

25. Article 2. 3 prescribes two separate requirements, namely, a finding of association and a
finding of unreliability of the export price. Meeting the first requirement does not automatically
satisfy the second requirement, as the United States argues. In this case, the USDOC did not
conduct any assessment of whether th e export price was unreliable. Second, Article 2.2.1.1 is
concerned with the reliability of the records examined, not the appropriateness of the costs that
those records reflect. There is nothing on the re cord to indicate that NEXTEEL 's actual records
associated with raw materials used to produce OCTG were inaccurate or unreliable.

26. Finally, Korea respectfully requests that the Panel rule on the Remand Redetermination as
part of this dispute, as the US DOC's Remand Redetermination is inconsistent with the
United States' obligations under the AD Agreement. Korea notes that a WTO panel has previously
found it appropriate to include in its examination the USDOC's remand redetermination.

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ANNEX B-3
EXECUTIVE SUMMARY OF THE SECOND WRITTEN
SUBMISSION OF KOREA
I. INTRODUCTION
1. By adopting the Anti-Dumping Agreement, the United States made a commitment to refrain
from imposing anti -dumping measures except when the existence of dumping and its injurious
effects are properly demonstrated after an unbiased investigation in which the due process rights
of exporters are respected. In this case, the United States did not abide by this commitment. After
the negative preliminary determination, the investigation turned into a politically -motivated,
results-driven process in which the obligations of the Anti -Dumping Agreement were set aside in
the interest of arriving at an affirmative dumping determination and the highest margins possible.

2. In its submissions, Kore a has demonstrated that the USDOC made a 180 degree turn as to
the usefulness of Tenaris's profit rate and how it withheld this decision from the respondents until
the very end of its investigation. Moreover, the USDOC reasoned backwards using an arbitrary
definition of "same general category of products" in order to improperly discard other sources of
constructed value ("CV") profit. Remarkably, the USDOC went so far as to define the "same
general category of products" more narrowly than the product scope of the investigation.

3. Article 2.1 of the Anti -Dumping Agreement provides that a product is "dumped" when it is
"introduced into the commerce of another country at less than its normal value," that is, "if the
export price of the product exported from one country to another is less than the comparable
price, in the ordinary course of trade, for the like product when destined for consu mption in the
exporting country ". This definition of dumping is unrecognizable in the USDOC's final
determination in thi s case. Rather than comparing prices in the United States to prices in Korea,
the USDOC compared prices in the United States to the prices of Tenaris, a producer organized
under the laws of Luxembourg, with no demonstrated production or sales of OCTG in Ko rea, and
with ties to one of the U.S. petitioners. The determination made by the USDOC therefore is not a
determination of "dumping", at least as this concept is defined in the Anti-Dumping Agreement.

II. THE U.S. VIABILITY TEST IS INCONSISTENT "AS SUCH" AND "AS APPLIED" WITH
ARTICLE 2.2 OF THE ANTI-DUMPING AGREEMENT
4. U.S. law -particularly, Title 19, section 1677b(a)(1)(B) of the United States Code -only
permits the USDOC to use third -country sales to calculate normal value if the aggregate quantity
or value of the foreign like product sold by the exporter or producer in the third country is 5% or
more of the aggregate quantity (or value) of the subject merchandise sold in the United States or
for export to the United States. This five percent threshold , which Korea has referred to as the
"U.S. Viability Test" , is "as such" inconsistent with Article 2.2 of the Anti -Dumping Agreement,
because no such rigid, quantitative threshold is contemplated for third -country sales in the Anti -
Dumping Agreement.
5. The United States does not dispute that its statute imposes a strict five percent threshold for
third party sales. Instead, the United States has argued that the use of the term "normally" in the
regulations implementing the statute overrides the statute and permits the USDOC to use third -
country sales that do not meet the five percent threshold.
6. Under U.S. law, however, statutes are hierarchically superior to regulations adopted by
administering agencies. Moreover, the term "normally" in the regulations only pertain to the use of
home market sales. In contrast, the regulations pertaining to the use of third -country sales
reference the statute, confirming that the regulations are subject to the strict five percent
threshold established by the statute.
7. The United States also fails in its attempt to rely on the Statement of Administrative Action
("SAA"). The SAA is an interpretive tool that cannot change the meaning of, or override, the
statute. Moreover, the text of the SAA confirms that sales to the th ird country must not be less

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than five percent of sales to the United States, and it distinguishes the viability requirements for
the home market from the viability requirement for third-country markets.
8. Korea has further demonstrated that the USDOC's practice confirms its own understanding
that third-country sales must meet a five percent threshold. The USDOC has never deviated from
the five percent threshold in the past sixteen years, and the instructions contained in the USDOC's
standard questionnair e template do not permit respondents to submit third -country sales data
unless these sales meet the strict five percent threshold.
9. The United States has also suggested that Article 2.2 does not prohibit Members from
considering the volume of sales in as sessing the appropriateness of third -country sales.
Nonetheless, the term "appropriate" in Article 2.2 qualifies the third country to which a like
product is exported, not the volume of exports to that third country. Thus, the volume of sales to a
third country does not determine whether the third country itself is an "appropriate" comparison
market.
10. Nor is the United States correct in that the U.S. Viability Test is justified by the fact that
Article 2.2 does not require the use of third -country sales, but rather, presents the use of third -
country sales as one of two options. Under the United States' theory, statutes or regulations
implementing alternative approaches set out in the Anti -Dumping Agreement could never be
challenged "as such" regardless o f how far they deviate from a Member's obligations under the
Anti-Dumping Agreement. Such a situation cannot be reconciled with the obligation in Article 18.4
of the Anti-Dumping Agreement that "[e]ach Member shall take all necessary steps, of a general or
particular character, to ensure … the conformity of its laws, regulations and administrative
procedures". Korea's "as such" claim in this case is no different than earlier challenges to the use
of zeroing under Article 2.4.2 of the Anti -Dumping Agreement. Like Article 2.2, Article 2.4.2 does
not establish a hierarchy between the first two options. Despite the existence of a choice of
methodologies and the absence of a hierarchy between the first two options, the use of zeroing
has been found to be "as such" inconsistent with Article 2.4.2.1

11. For these reasons, the U.S. Viability Test is "as such" inconsistent with Article 2.2 of the
Anti-Dumping Agreement. Korea has demonstrated that the U.S. Viability Test was applied in the
investigation of OCTG from Korea. As a result, its application by the USDOC in the investigation of
OCTG from Korea also violates Article 2.2 of the Anti-Dumping Agreement.

III. THE USDOC'S FAILURE TO USE ACTUAL DATA IN THE CALCULATION OF
CONSTRUCTED VALUE IS INCONSISTENT WITH THE CHAPEAU OF ARTICLE 2.2.2
12. The use of the term "shall" in the chapeau of Article 2.2.2 makes clear that, when
constructing normal value, authorities must use the producer/exporter's actual data for SG&A and
profit, whenever such data is available. The United States does not dispute that the USDOC did not
use actual profit data, but it argues that the USDOC was not required to do so.
13. First, the United States incorrectly argues that the chapeau only applies in situations where
the home market is vi able but does not contain "like" products that are identical or similar to the
exporter merchandise. However, the Appellate Body in EC – Tube or Pipe Fittings confirmed that
low-volume sales that are dismissed as a basis for calculating normal value under Article 2.2
cannot be dismissed as a source of actual data for the purposes of calculating constructed value
under the chapeau of Article 2.2.2. Moreover, the United States is not permitted to unilaterally
limit the utility of the chapeau to an arbitrarily defined subset of a "like product" that is neither
identical nor similar to the product under consideration.
14. Second, the United States erroneously argues that it did not have information on the record
from which it could derive actual profit data for the Korean respondents, because the home market
profit data provided by both respondents derived from non -prime OCTG, which the United States
argues is not a "like product" . The United States' position is undermined by the USDOC's
determination in its par allel investigation of OCTG from Ukraine that "rejects" , which are
equivalent to "non-prime" OCTG, were "like" products as defined by the scope of the investigation.

1 See Appellate Body Report, US – Zeroing (EC), para. 222; Appellate Body Report, US – Zeroing (Japan),
paras. 137-138.

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As scope definitions apply equally to all investigations initiated based on the same petit ion
(application), the USDOC's scope determination in the Ukraine case applies to the Korea case.
15. Third, the United States mistakenly claims that the Article 2.2.2 chapeau does not
contemplate the use of third -country profit data, as this would render the "preferred" method
under the chapeau broader than the "alternative" methods under Article 2.2.2(i) and (ii). However,
the subparagraphs of Article 2.2.2 operate to encompass certain data sources in addition to the
data source available under the prefe rred method, not to substitute for the chapeau's data scope.
Therefore, the use of the alternative methods inevitably results in a broadening of the data in
comparison to the preferred method of the chapeau.

16. The United States' also grossly exaggerates the administrative burden of using third-country
data. In any event, the USDOC in the underlying investigation did not decline to use the chapeau
because it would be too burdensome but because it found that no viable home or third -country
market was avail able. Moreover, an investigating authority cannot be discharged of its duties
under the Anti-Dumping Agreement simply because it is faced with certain practical difficulties.

17. Fourth, the United States' claim that [[***]] profit rates cannot be used as a source of CV
profit under the Article 2.2.2 chapeau is incorrect. Constructed value calculated under Article 2.2.2
is intended to approximate sales of the like product in the domestic market or third country
market under Article 2.2. There may be situations where actual sales data in a domestic market or
third country market show that the exporter has sold products at a [[***]]. Article 2.2.1, on
which the United States relies to support its argument, does not stand for the proposition that
[[***]] sales should be disregarded. Rather, Article 2.2.1 provides that [[***]] sales may only
be disregarded in limited instances where several other requirements are met.

18. Fifth, the United States fails to explain the basis for using the Korean respondents' actual
data for SG&A while declining to use actual data to calculate profit. Article 2.2.2 does not provide
for differential treatment between SG&A and profit, but rather, requires that the investigating
authority use actual data with respect to both. Furt hermore, even though certain aspects of SG&A
may appear not to be specific to a particular product, such non -specific costs must eventually be
allocated to a particular product for the purpose of calculating the amount of constructed value for
that specific product. In this sense, all SG&A, as well as profit, are specific to particular products.
IV. THE USDOC'S USE OF CV PROFIT IS INCONSISTENT WITH ARTICLE 2.2.2
BECAUSE ITS DEFINITION OF THE "SAME GENERAL CATEGORY OF PRODUCTS"
WAS IMPERMISSIBLY NARROW
19. Korea has demonstrated that the USDOC's decision to use Tenaris's financial statements as
a CV profit source was based on an impermissibly narrow interpretation of the "same general
category of products" under Article 2.2.2. The United States tries to defe nd the USDOC's
determination by interpreting the "same general category of products" to mean that products must
have the same characteristics as those of the subject merchandise. However, the term "same"
modifies "general category" and not "products," requ iring two products to both belong to a
"general category," but not requiring these products to be the "same" . Thus, the USDOC applied
an incorrect standard in defining the scope of the "same general category" of products.
20. The USDOC's decision to excl ude line and standard pipe from OCTG's "same general
category" also relies on its misplaced distinction between the purposes of OCTG pipes and non -
OCTG pipes. The USDOC improperly found that non -OCTG pipes such as line and standard pipes
cannot fall within the "same general category" as OCTG because line and standard pipes are
"primarily intended for the conveyance of fluids and gases" , whereas OCTG is intended for "down
hole application". However, "conveyance of fluids and gases" is the purpose of not only line pipe
and standard pipe, but also of OCTG.
21. The USDOC's determination is also flawed because the definition of the "same general
category of products" in this case is even narrower than the definition of "like products" used in
the scope language . In defining the "same general category of products" , the USDOC improperly
focused on whether the products could be used for down hole applications. However, as described
above, the "like product" also included "rejects," i.e., pipes that could not be use d for down hole
applications.

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22. Furthermore, even under the United States' overly-narrow definition (which includes "limited
service" OCTG that can be used in some down hole applications), line pipe should be included in
the same general category of products as OCTG as it can be used for some down hole applications.
23. Finally, the United States refers to the panel report in Thailand – H-Beams, which allegedly
relied on Article 3.6 of the Anti-Dumping Agreement for contextual support to conclude that use of
a narrower rather than a broader category is permitted. Article 3.6 states that, when "like product"
data is not available, the authority may assess the effects of the dumped imports by an
examination of "the narrowest group or range of products, wh ich includes the like product, for
which the necessary information can be provided ". Thus, even under the "narrowest group or
range of products" standard, the database must still be broadened so that "the necessary
information can be provided" . By expandin g the "same general category" to include only non -
subject OCTG and drill pipe, the USDOC did not expand the database at all.
V. THE USDOC'S USE OF TENARIS'S FINANCIAL STATEMENTS TO CALCULATE CV
PROFIT IS INCONSISTENT WITH ARTICLE 2.2.2(iii)
24. Article 2 .2.2(iii) permits the investigating authority to calculate CV profit based on "any
other reasonable method, provided that the amount for profit so established shall not exceed the
profit normally realized by other exporters or producers on sales of product s of the same general
category in the domestic market of the country of origin, i.e., "the profit cap" . The United States
acted inconsistently with its obligations under Article 2.2.2(iii) because the USDOC did not
calculate a profit cap and did not ensure the reasonableness of its method of calculating CV profit.
25. First, as confirmed by the panel in EU – Footwear, the calculation of a profit cap is
mandatory. The USDOC acted inconsistently with Article 2.2.2(iii) in the underlying investigation
by failing to calculate a profit cap.
26. Second, in using Tenaris's financial statements, the USDOC failed to ensure that its method
for calculating CV profit was reasonable under Article 2.2.2(iii). As the Korean respondents pointed
out in the underlying inves tigation, there are various differences between Tenaris and the Korean
respondents that render the profit rates incomparable, including differences in products and
business model, scale of production, and position in the distribution chain. In addition, Te naris's
profit rates reflected revenue generated from its sale of services, as opposed to goods, as well as
Tenaris's sales of non-tubular products.
27. Third, the USDOC's use of Tenaris's financial statements was not rationally directed at
approximating what the Korean respondents' profit margin for the like product would have been in
Korea, as required to constitute a "reasonable method" according to the panel in EU – Biodiesel.
Rather, the USDOC chose to only satisfy the requirement to approximate the "l ike product", while
disregarding the requirement to approximate the profit margin as if the products had been sold in
the ordinary course of trade in Korea.
28. In addition, Korea requests that this Panel find that the remand redetermination issued by
the USDOC in the underlying investigation is inconsistent with the United States' WTO obligations
not only because it did not rectify the inconsistencies identified above by Korea, but also because it
calculates and applies a profit cap that is in itself inc onsistent with Articles 2.2 and 2.2.2(iii) of the
Anti-Dumping Agreement.
VI. THE USDOC FAILED TO CONDUCT A FAIR COMPARISON UNDER ARTICLE 2.4
29. Korea has provided extensive explanations of the differences between Tenaris and the
Korean respondents that a ffected price comparability between the normal value incorporating
Tenaris's profit rate and the export price incorporating the Korean respondents' own data. The
USDOC did not make due allowances for these differences, thus failing to conduct a "fair
comparison" under Article 2.4. The USDOC simply dismissed these differences once it determined
that "the merchandise produced and sold by Tenaris is predominantly the same as the
merchandise under consideration". Thus, rather than examining price comparability in light of the
differences raised by the Korean respondents, the USDOC found it unnecessary to do so once it
had reached its erroneous determination that approximating the "like product" was sufficient to
fulfill its obligations in selecting a CV profit source.

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VII. THE USDOC'S FINDING OF ASSOCIATION UNDER ARTICLE 2.3 WAS IMPROPER
30. The USDOC's determination that NEXTEEL and POSCO were affiliated was not in accordance
with Article 2.3 because it was not based on a proper assessment of whether POSCO was in a
position to control, i.e., exercise restraint or direction over, NEXTEEL. Rather, the USDOC applied
an incorrect, looser standard to determine whether NEXT EEL and POSCO were associated.
Moreover, based on an erroneous finding that NEXTEEL was affilia ted with POSCO (and with the
Customer through POSCO's relationship with the Customer), the USDOC automatically disregarded
NEXTEEL's export price without conducting a separate assessment of the reliability of NEXTEEL's
export price to the Customer.
31. The United States incorrectly argues that Article 2.3 only requires a finding of association,
and does not require a separate assessment as to the reliability of the export price in order for an
authority to construct export price. The United States' interp retation reads out an explicit
requirement in Article 2.3 that the "export price is unreliable because of association … between the
exporter and the importer or a third party" . The term "appear" in Article 2.3 does not leave the
determination of unreliabil ity completely up to the subjective perception of the authority. Such
unfettered discretion would be contrary to the requirement stemming from Article 17.6(i) of the
Anti-Dumping Agreement that investigating authorities' determination be based on positive
evidence and a reasoned and adequate explanation.
32. Furthermore, contrary to the United States' assertion that "NEXTEEL did not present
evidence in support of an argument that NEXTEEL's export prices were reliable despite the
existence of an association ", NEXTEEL submitted abundant evidence that its export prices to the
Customer were, in fact reliable, and simply a continuation of a pre -existing business relationship
between NEXTEEL and the Customer that pre -dated any affiliation be tween POSCO and the
Customer.
VIII. THE USDOC DID NOT EXAMINE THE RELIABILITY OF NEXTEEL'S COST RECORDS
AS REQUIRED UNDER ARTICLE 2.2.1.1
33. Article 2.2.1.1 of the Anti-Dumping Agreement requires investigating authorities to calculate
costs on the basis of records kept by the exporter or producer under investigation, where such
records: (1) are in accordance with the generally accepted accounting principles of the exporting
country; and (2) reasonably reflect the costs associated with the production and sale of the
product under consideration. The two conditions set forth in Article 2.2.1.1 are modified by the
term "such records," demonstrating that the purpose of the Article is to ensure the reliability of the
cost records, and not the reliability of the cost data.
34. The USDOC's decision to disregard NEXTEEL's cost data is inconsistent with Article 2.2.1.1
because it is premised on an improper finding of affiliation between NEXTEEL and POSCO.
Furthermore, even setting aside the USDOC's affiliation determination, the USDOC's d ecision to
disregard NEXTEEL's actual cost data is impermissible under Article 2.2.1.1 because NEXTEEL kept
its records in accordance with generally accepted accounting practices, and NEXTEEL provided the
actual costs that it paid to POSCO for its purchase s of raw materials used in the production of
OCTG, ensuring that its cost records reflected the costs associated with the production and sale of
the product under consideration. While the United States argues that the use of the term
"normally" in Article 2.2.1.1 permits the investigating authority to deviate from the use of actual
costs under circumstances beyond those described in Article 2.2.1.1, the panel in EU – Biodiesel
has already rejected the approach proposed by the United States.
IX. THE USDOC' S LIMITED EXAMINATION OF MANDATORY AND VOLUNTARY
RESPONDENTS IS INCONSISTENT WITH ARTICLE 6.10
35. Article 6.10 requires the authority to examine all known exporters and producers of the
merchandise under investigation and only permits the authority to li mit its investigation when the
number of exporters/producers is "so large" that individual determination would be
"impracticable". Moreover, Article 6.10 affords the authority only two methods of limiting its
examination: (1) a reasonable number of interested parties or producers using statistically valid
samples, or (2) the largest percentage of the volume of exports from the country in question

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which can reasonably be investigated. In the underlying investigation, the USDOC improperly
limited its investigation and improperly declined to examine voluntary responses.
36. In defending the USDOC's determination to limit its investigation, the United States relies on
the USDOC's Respondent Selection Memorandum, which simply concludes that the number of
potential respondents (ten) is "large relative to the resources available" , but does not explain why
the number is "so large" as to render individual examination impracticable. In particular, the
USDOC's Respondent Selection Memorandum does not provide a reasonab le explanation for its
decision that it could only examine two mandatory respondents.
37. The USDOC's determination is flawed also because it applied an impermissible method in
limiting its examination. While the United States claims that the USDOC limit ed its examination to
the "largest percentage of the volume of the exports from Korea" , the USDOC arbitrarily
determined that it was only able to examine two respondents that accounted for the largest
volume of imports of the subject merchandise. Thus, the USDOC selected what it determined to be
the appropriate number of respondents that it was able to examine and selected these
respondents in the order of import volume, rather than determining what the largest percentage of
volume of exports that can reasonably be investigated would be.
38. Even when it justifiably limits its examination of mandatory respondents, Article 6.10.2
requires the investigating authority to calculate individual dumping margins for respondents not
initially selected, as long as the respondents provide the necessary information to do so in a timely
manner. The USDOC acted inconsistently with Article 6.10.2 by failing to examine any of the
voluntary responses.
X. PROCEDURAL CLAIMS
A. The USDOC's Failure to Render a Decision on the Placement of Tenaris's Financial
Statements on the Record Until the Final Determination Violated Articles 6.2, 6.4,
and 6.9
39. The USDOC failed to protect the Korean respondents' due process rights under Articles 6.2,
6.4, and 6.9 because it did not ren der a decision on the placement of Tenaris's financial
statements on the record until its final determination. The Korean respondents were not "on
notice" that the USDOC could use Tenaris's financial data to calculate CV profit based on a
separate student report about Tenaris submitted earlier by a petitioner. The Tenaris financial
statements were submitted as a separate submission that petitioners did not claim had any
relation to the student report, but rather, purported to rebut NEXTEEL's supplemental
questionnaire response. Moreover, the financial statements were untimely, and therefore, not
properly placed on the record.
40. The USDOC's failure to render a decision regarding the placement of Tenaris's financial
statements on the record denied the Korean respondents an opportunity to submit information
rebutting the contents of the Tenaris financial statements. The USDOC has strict deadlines for the
submission of factual information, and absent an affirmative decision by the USDOC, the Korean
respondents were not permitted to submit information upon which they could rely to defend their
position.
41. In addition, the Tenaris profit data constitutes "essential facts" that the USDOC failed to
disclose under Article 6.9. The United States errs in suggesting that it constitutes "reasoning or
conclusion", because the acceptance of Tenaris's profit data defined the universe of sources that
the USDOC was considering for its determination of CV profit.
B. The USDOC Failed to Protect the Korean Respondents' Due P rocess Rights Under
Article 6.4 and 6.9 by Withholding Various Ex Parte Communications
42. The USDOC also failed to protect Korean respondents' due process rights under Articles 6.4
and 6.9 because it withheld numerous ex parte phone calls and meeting mem os until long after
the meetings and phone calls took place. The United States does not dispute that the memos were
not disclosed in a timely manner, but questions why the letters were "relevant" to the presentation
of the respondents' cases, and how they would have been "used" by the Department under

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Article 6.4. The ex parte letters reflect the political pressure that the USDOC faced after calculating
negative margins for the Korean respondents in the Preliminary Determination, and they also
constitute the only factual element that has changed between the Preliminary Determination and
the Final Determination that could explain the USDOC's about -face. The ex parte communications
urged the USDOC to reconsider its decision on CV profit, the single issue that could convert the
negative preliminary margin into a positive margin. Therefore, the ex parte memos constituted
information that was relevant to the presentation of the respondents' cases and that would have
been "used" by the USDOC under Article 6.4. The ex parte memos also constituted "essential
facts" that the USDOC failed to disclose under Article 6.9, because they constituted information on
the record that the USDOC considered in its decision to reverse its Preliminary Determination and
find high affirmative margins in the Final Determination.
C. The USDOC's Final Determination Failed to Include All Relevant Information As
Required Under Article 12.2.2
43. Article 12.2.2 of the Anti -Dumping Agreement requires an investigating authority to provide
in a public notice all relevant information on the matters of fact and law and reasons which have
led to the imposition of final measures, including the reasons why it accepted or rejected
arguments and claims made by the exporters in the investigation. Korea has demonstrated that
the USDOC failed to comply with Article 12.2.2 because it did not provide the reasons for rejecting
the Korean respondents' arguments regarding the inappropriateness of using Tenaris's financial
statements as a CV profit source, and N EXTEEL's arguments that it was not affiliated with POSCO
or the Customer. The United States points to two documents to argue that the USDOC did provide
reasons for rejecting these arguments – the USDOC's Issues and Decision Memorandum and
Affiliation Memo. However, the United States does not identify where in these documents it
addressed the specific arguments advanced by the Korean respondents.
XI. VIOLATIONS OF THE GATT 1994
A. The USDOC Acted Inconsistently With Article I:1 of the GATT 1994
44. The USDOC treated OCTG from Korea less favorably than OCTG products from the territory
of other Members subject to its parallel investigations, contrary to Article I:1 of the GATT. The
United States does not contest that Korean OCTG products were treated different ly by the USDOC.
Rather, the United States attempts to relegate such differential treatment to simple "procedural
differences between the parallel OCTG investigations" based on "different facts that arise in
antidumping proceedings...". The United States' response is insufficient to rebut the prima facie
case established by Korea. Specifically, the United States has failed to point to a single factual
difference that explains the different treatment. Instead, the United States merely speculates that
"several factors may have contributed to the treatment accorded to Korean companies and other
foreign companies, which resulted in their particular antidumping rates" . Such speculation is
insufficient to meet the United States' burden to establish any "factual di fferences" that explained
the differential treatment.
B. The USDOC Administered its Laws, Regulations, Decisions, and Rulings In a
Manner that was Inconsistent with Article X:3(a) of the GATT 1994
45. The USDOC's conduct is also inconsistent with Article X:3(a) of the GATT 1994.
Article X:3(a) seeks to ensure transparency and procedural fairness by requiring WTO Members to
"administer in a uniform, impartial, and reasonable manner all its laws, regulations, decisions and
rulings of the kind described in pa ragraph 1 of this Article" . Article X:1, in turn, covers "[l]aws,
regulations, judicial decisions and administrative rulings of general application ...". Korea has
established a prima facie case that the USDOC failed to meet the requirements of Article X:3(a).
46. The United States does not rebut Korea's claim that the USDOC's application of its laws and
regulations with respect to the Korean and Turkish respondents was not uni form, impartial or
reasonable. Rather, the United States incorrectly argues that Korea's claim falls outside the scope
of Article X:3(a) because Korea challenges the contents of the USDOC's determinations and
because Korea allegedly did not identify the specific measures being administered. However,
Korea's claim concerns the way that the USDOC has administered its anti -dumping laws and
regulations, which are of general application. Korea has also identified the specific laws and

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regulations that were improperly administered by the USDOC including the regulations relating to
the submission and acceptance of new factual information, the laws and regulations governing the
calculation of an anti -dumping duty margin, and the laws and regulations relating to the
calculation of CV profit.
XII. CONSEQUENTIAL CLAIMS
47. The USDOC's failure to comply with the substantive and procedural requirements of the
Anti-Dumping Agreement discussed above gives rise to consequ ential violations of the
United States' obligations under Articles 1, 9.3, and 18.4 of the Anti -Dumping Agreement. The
United States' violations of the Anti -Dumping Agreement also result in a violation of Article VI of
the GATT 1994 and Article XVI:4 of the WTO Agreement. The United States does not dispute that
these consequential findings would flow directly from the Panel's findings of inconsistency with
respect to Korea's other claims.
XIII. CONCLUSION
48. For the reasons set out in this submission and in previous submissions, Korea respectfully
requests that the Panel recommend that the United States bring its measures, including t he
USDOC's remand redetermination, into compliance with the A nti-Dumping Agreement, the
GATT 1994, and the WTO Agreement.

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ANNEX B-4
EXECUTIVE SUMMARY OF THE ORAL STATEMENTS OF
KOREA AT THE SECOND PANEL MEETING
EXECUTIVE SUMMARY OF KOREA’S OPENING STATEMENT

I. INTRODUCTION
1. In its previous submissions, Korea demonstrated that the U.S. Viability Test and the
USDOC's imposition of anti-dumping duties with respect to OCTG from Korea are inconsistent with
the United States ' WTO obligations. In its Second Written Submission, the United States repeats
many of the same arguments that it presented in its previous submissions, but fails to rebut
Korea's arguments.
II. THE U.S. VIABILITY T EST IS "AS SUCH" AND "AS APPLIED" INCONSISTENT WITH
ARTICLE 2.2 OF THE AD AGREEMENT
2. The U.S. Viability Test is inconsistent "as such" because it imposes a condition on the use of
third-country sales as a basis for calculating normal value that is not allowed under Article 2.2 of
the AD Agreement . It is also inconsistent "as a pplied" with Article 2.2 insofar as the USDOC
applied the U.S. Viability Test in the underlying investigation.
3. The term "appropriate" in Article 2.2 does not justify the rigid volume test, as the term
directly qualifies the "third country". Thus, Article 2.2 requires that the third country market itself
be appropriate, which is distinct from the reference in Article 2.2 to the "volume of sales " as the
relevant factor for determining whether to use the "sales" in the home market to calculate normal
value. Article 2.2.1 of the AD Agreement also does not support the United States ' argument
because it does not relate to the appropriateness of a market, but addresses whether specific sales
within a market may be excluded from the calculation of normal value . Similarly, any indices used
to determine appropriateness of a market would have to relate to the market itself . In any event,
the term "appropriate" implies a balancing test, and requires an assessment to be made on a case-
by-case basis, as opposed to a rigid bright line rule.
4. The case at hand is analogous to Mexico – Anti-Dumping Duties on Rice and to previous
challenges to the use of zeroing . Just as the authority imposed additional conditions on a
respondent's right to an administrative review in Mexico – Anti-Dumping Measures on Rice , the
U.S. Viability Test infringes on a respondent 's right under Article 18.1 of the AD Agreement to be
subject only to measures that are consistent with the AD Agreement. Also, as in the zeroing cases,
the authority had a choice between two methodologies that were not subject to any hierarchy.
5. The United States also argues that the U.S. Viability Test is not mandatory . However, the
plain language of the U.S. statute forbids the use of third -country sales to calcula te normal value
when these sales do not meet the five percent threshold . The USDOC's regulations cross-reference
the statute, and the requirements contained therein for using sales in the "exporting country" are
distinct from the requirements for using sales to the "third country".
6. Finally, the application of the U.S. Viability Test by the USDOC in the investigation of OCTG
from Korea also violates Article 2.2.
III. THE USDOC'S FAILURE TO USE ACTUAL DATA IN THE CALCULATION OF CV PROFIT
IS INCONSISTENT WITH THE ARTICLE 2.2.2 CHAPEAU
7. The USDOC's failure to use actual data in the calculation of constructed value is inconsistent
with the chapeau of Article 2.2.2 of the AD Agreement . The use of the term "shall" in the chapeau
of Article 2.2.2 makes clear that, when constructing normal value, authorities must use the
producer or exporter's actual data for SG&A and profit, whenever such data is available.

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8. The United States insists that Article 2.2.2 is primarily intended for situations where normal
value is based on home market sales, but where a certain subset of those sales cannot be used
because they are outside the ordinary course of trade or do not include sales of products that are
identical or similar to those sold in the relevant export market . The United States provides no
support for its assertion and fails to explain how products that are neither "identical" nor "similar"
could constitute "like products " under Article 2.6 of the AD Agreement . In any case, these
scenarios present at most only on e possible situation where Article 2.2.2 may apply . With respect
to the situation at hand, the Appellate Body has confirmed that "low volume" sales rejected under
Article 2.2 can be an appropriate source of CV profit.
9. Furthermore, the Article 2.2.2 chapeau does not preclude the use of third country profit data
to construct normal value . As a textual matter, the chapeau contains no prohibition on the use of
actual data from third -country sales. As a practical matter, the USDOC had readily available to it
actual profit data for each market, and did not even attempt to examine whether the respondents '
third country sales were made in the ordinary course of trade.
10. The United States is incorrect that Article 2.2.2 prohibits the use of negative profit marg ins.
The purpose of Article 2.2.2 is to approximate the profit rates that would have been achieved
through the sale of like product in the home market . If evidence shows that the profit margin in
the home market would have been negative, the CV profit must reflect such profit experience
unless the authorities specifically determine that the sales were outside the ordinary course of
trade. Finally, the use of the term "plus" in Article 2.2.2 merely instructs the inclusion of SG&A and
profit and does not indicate the actual values of these factors.
IV. THE USDOC 'S DEFINITION OF THE "SAME GENERAL CATEGORY OF PRODUCTS "
WAS IMPERMISSIBLY NARROW UNDER ARTICLE 2.2.2
11. The USDOC's use of CV profit is inconsistent with Article 2.2.2 because its definition of the
"same general category of products " was impermissibly narrow and, in many respects, even
narrower than its definition of the "like product". The "same general category" of products should
be broader than the "like product ". While the USDOC concluded in the Korea investigation that
products that fall within the "same general category of products " as OCTG must have the ability
for use in down -hole applications, the USDOC itself confirmed in its concurrent investigation of
OCTG from Ukraine that the like produc t includes products that cannot be used in such
applications, including non -prime and "reject" pipes used for structural purposes or to transport
water – the same purposes for which line pipe and standard pipe are used . The USDOC's scope
definitions apply equally in all investigations subject to the same petition, including its
investigations of Ukraine and Korea.
V. THE USDOC 'S CALCULATION OF CV PROFIT IS INCO NSISTENT WITH
ARTICLE 2.2.2(iii)
12. The USDOC 's use of Tenaris 's profit data to calculate the CV profit for the Korean
respondents is inconsistent with Article 2.2.2(iii) of the AD Agreement. The purpose of Article 2.2.2
is to approximate what the profit of a producer of the like product would have been if the like
product had been sold in the ordinary course of trade in the country of export. The use of Tenaris's
financial statements to calculate CV profit was not "reasonable" under Article 2.2.2(iii) because the
USDOC did not even attempt to approximate the profit rate in the home market, finding it
sufficient to only approximate the "like product ". Moreover, the USDOC even failed to properly
approximate the like product in calculating the CV profit because Tenaris 's profit rate included
revenues generated from Tenaris's sales of non-tubular products and Tenaris's sales of services.
13. The USDOC also violated Article 2.2.2(iii) because it disregarded the requirement to
calculate a profit cap. The plain text confirms that the application of a profit cap is mandatory, and
several WTO panels have confi rmed the same . The USDOC 's failure to calculate a profit cap
renders its use of Tenaris 's financial data to calculate CV profit per se inconsistent with
Article 2.2.2(iii).

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VI. THE USDOC 'S REMAND REDETERMINA TION IS ALSO INCONSI STENT WITH THE
ANTI-DUMPING AGREEMENT
14. Korea reiterates its request that the Panel find that the USDOC's Remand Redetermination is
inconsistent with the United States ' WTO obligations because: (1) the USDOC failed to use the
Korean respondents' actual profit data as required under Article 2.2.2; (2) the USDOC's calculation
of CV profit was unreasonable under Article 2.2.2(iii) because it continued to adhere to its
impermissibly narrow definition of the "same general category of products " and calculated the
CV profit as an average of profit rates of Tenaris and OAO TMK, a company that bears many of the
same flaws as Tenaris as a CV profit source; and (3) the USDOC continued to find that it was not
able to calculate a profit cap and that it was not required to calculate a profit cap based on the
home market profit data, in contravention of Article 2.2.2(iii).
VII. THE USDOC FAILED TO MAKE A FAIR COMPARISON BETWEEN EXPORT PRICE AND
NORMAL VALUE UNDER ARTICLE 2.4
15. The United States also violated Article 2.4 of the AD Agreement becau se the USDOC did not
conduct a "fair comparison" between the export price and normal value by making due allowances
for differences that affect price comparability, despite extensive evidence on the record regarding
the differences between Tenaris and the Korean respondents. Furthermore, the USDOC continued
to commit the same error in its Remand Redetermination by failing to make due allowances for
differences that affected price comparability between the normal value based on Tenaris and TMK's
profit rates and the Korean respondents' export prices.
VIII. THE USDOC'S FINDING OF ASSOCIATION UNDER ARTICLE 2.3 WAS IMPROPER
16. The USDOC 's findings of association, or affiliation, between NEXTEEL and POSCO, and
NEXTEEL and its customer, were inconsistent with Ar ticle 2.3 of the AD Agreement . The United
States has incorporated footnote 11 of the AD Agreement into its own laws, requiring a finding of
"control" among parties in order to find that affiliation, or association, exists . In the underlying
investigation, however, the USDOC arbitrarily replaced its statutory requirement of "control" with a
much less rigid standard. The USDOC also did not make a separate assessment as to the reliability
of the export price as required under Article 2.3.
IX. THE USDOC DID NOT EXAMINE THE RELIABILITY OF NEXTEEL'S COST RECORDS AS
REQUIRED UNDER ARTICLE 2.2.1.1
17. Article 2.2.1.1 of the AD Agreement requires investigating authorities to calculate costs on
the basis of records kept by the exporter or producer under investigation when certain conditions
are met . NEXTEEL kept its records in accordance with GAAP, and its cost records reasonably
reflected its actual costs of purchases of hot -rolled coil, as required under Article 2.2.1.1 .
However, after improperly finding that NEXTEEL was affiliated with POSCO, the USDOC
disregarded NEXTEEL's actual cost records, and instead, relied on POSCO's sales price of hot-rolled
coil to its other customers.
X. THE USDOC'S DECISION TO LIMIT ITS EXAMINATION WAS INCONSISTENT WITH
ARTICLE 6.10
18. The United States concedes that the USDOC 's examination was limited to a "certain number
of respondents". However, it did not use statistically valid samples as required under Article 6.10
of the AD Agreement when limiting its examination by the number of respondents. The
United States also claims that, in deciding it could not examine any voluntary respondents, the
USDOC conducted a separate analysis of its available resources . However, the USDOC did not
conduct a separate analysis, but instead relied on the same set of circumstances upon which it
relied in order to limit its examination of mandatory respondents.
XI. ADDITIONAL CLAIMS
19. The United States failed to protect the due process rights of the Korean respondents as
required under Article 6 of t he AD Agreement and failed to comply w ith the requirements of
Article 12 of the AD Agreement . The USDOC also failed to administer its regulations in a uniform,

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impartial, and reasonable manner in accordance with Article X:3(a) of the GATT 1994, and failed
to provide non -discriminatory treatment to OCTG from Korea as required under Article I:1 of the
GATT 1994. Finally, the USDOC's failure to comply with Articles 2, 6, and 12 of the AD Agreement
results in consequential violations of Articles 1 and 18.4 of t he AD Agreement, as well as Article VI
of the GATT 1994 and Article XVI:4 of the WTO Agreement.
EXECUTIVE SUMMARY OF KOREA'S CLOSING STATEMENT
20. The administrative record in this case shows that the Korean respondents have not engaged
in dumping. After making a negative dumping determination for both Korean respondents in the
preliminary determination, the USDOC was bombarded with letters and communications from the
U.S. Congress and industry representatives calling for a reconsideration of its calculat ion, and in
particular, its decision on CV profit . Faced with political pressure, the USDOC accepted and used
Tenaris's financial statements to calculate CV profit even though the financial statements had been
submitted two months past the deadline . This w as the only way for the USDOC to revise its
analysis in a way that would increase the Korean respondents ' dumping margins . The results -
oriented approach adopted by the USDOC has led to inconsistencies and illogical results that go
against United States' WTO obligations.
21. The USDOC ignored its obligations under the chapeau of Article 2.2.2 of the AD Agreement
to use the Korean respondents ' actual profit data as a CV profit source, arguing that these profit
data are derived from "low volume" sales. However, the Appellate Body has already confirmed that
profit data derived from low volume sales are an appropriate CV profit source under the Article
2.2.2 chapeau. With respect to the use of actual third country market profit data, the "doomsday"
scenario presented by the United States in which the authority would have to collect and examine
large amounts of data simply did not exist here.
22. The USDOC adopted an overly narrow interpretation of "same general category of products "
that is narrower than its de finition of "like product." The United States does not dispute that such
narrow interpretation would be impermissible under Article 2.2.2 of the AD Agreement, but claims
that the USDOC 's own scope definition, as clarified in the OCTG from Ukraine investigation, does
not extend to the Korea investigation . Korea has shown that scope definitions apply to all
concurrent investigations covered under the same petition.
23. The United States agrees with Korea that the purpose of Article 2.2.2 is to approximate what
the profit rate of the like product would have been had the product been sold in the domestic
market of the exporter, but it argues that USDOC's use of Tenaris's financial data was "reasonable"
under Article 2.2.2(iii) because the data approximated th e "like product". Even setting aside the
fact that the USDOC did not even attempt to approximate the home market, it even failed to
properly approximate the "like product."
24. The United States also continues to ignore the plain text of Article 2.2.2(iii ) and argues that
it was not required to calculate or apply a profit cap . However, this alleged inability to calculate a
profit cap was brought about by the USDOC 's own impermissible interpretation of the "same
general category of products". Also, even accepting the USDOC's definition, this does not provide a
valid justification for circumventing the explicit requirement of calculating a profit cap that the
drafters included in Article 2.2.2(iii).
25. The United States concedes that there was substantial e vidence on the record addressing
the differences between Tenaris and the Korean respondents that affected their profitability and,
as a result, the price comparability between the constructed normal value using Tenaris 's profit
and the export price. Nonetheless, the USDOC failed to fulfill its obligation to make due allowances
for such differences, as required under Article 2.4.
26. The United States infringed on the Korean respondents ' due process rights and prevented
the Korean respondents from defending their interests under Article 6 by accepting the untimely
submission of Tenaris's financial statements and failing to inform interested parties of its decision
to accept the submission until its final determination.
27. The USDOC could have calculated n ormal value based on the Korean respondents ' sales to
an appropriate third -country market under the alternative method of Article 2.2 . However, it was

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precluded from doing so because the U.S. Viability Test imposes a strict quantitative threshold for
the use of third-country markets that is not contemplated under Article 2.2 . To be clear, Korea is
not requesting that the Panel determine whether the U.S. regulation is in accordance with U.S.
domestic law but rather that the U.S. law is inconsistent with Article 2.2.
28. In disregarding NEXTEEL 's sales price to its customer, the United States reads out a key
requirement of Article 2.3 by failing to determine or examine the reliability of the sales price . The
USDOC also failed to properly determine the existen ce of an "association" between NEXTEEL and
its customer. The USDOC did not find that NEXTEEL was affiliated with POSCO based on the
absence of an arm 's-length relationship . It was only after the USDOC had concluded that the
parties were affiliated that it even conducted the major input test . Based on this erroneous
affiliation finding, the USDOC also disregarded NEXTEEL 's actual cost data for raw material input,
despite the fact that NEXTEEL 's cost records were maintained in accordance with GAAP and
reasonably reflected its actual cost of production of the merchandise under investigation as
required under Article 2.2.1.1.
29. Korea reiterates its request that the Panel find that the USDOC's Remand Redetermination is
also inconsistent with the United States ' obligations under A rticles 2.2.2 and 2.4 of the
AD Agreement. The United States now claims that the Korea should have raised a claim under
Article 6.8 with respect to its arguments relating to the calculation of CV profit in the Remand
Redetermination. It is not for the United States to decide the provision under which Korea should
bring a claim . Rather, Korea 's claim continues to be premised on the requirements of
Article 2.2.2(iii), which require that the method employed by the authority must be "reasonable",
and subject to a profit cap, however calculated.

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ANNEX C
ARGUMENTS OF THE UNITED STATES
Contents Page
Annex C-1 Executive Summary of the First Written Submission of the United States C-2
Annex C-2 Executive Summary of the Ora l Statements of the United States at the
First Panel Meeting C-10
Annex C-3 Executive Summary of the Second Written Submission of the United States C-14
Annex C-4 Executive Summary of the Oral Statements of the United States at the
Second Panel Meeting C-22

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ANNEX C-1
EXECUTIVE SUMMARY OF THE FIRST WRITTEN
SUBMISSION OF THE UNITED STATES
1. The Republic of Korea challenges U.S. antidumping (AD) duties imposed on oil country
tubular goods (OCTG) from Korea. Korea 's claims are without merit. As the record establishes and
this submission explains, USDOC provided a reasoned and adequate explanation as to how the
evidence on the record supported its factual findings and how those factual findings support its
overall determination. And as this submission demonstrates, the arguments advanced by Korea
otherwise fail to provide plausible alternative explanations of the record evidence before USDOC.
I. Korea's "As Such" Claim Regarding the "Viability Test" is Without Merit
A. Article 2.2 of the AD Agreement D oes Not Prohibit an Investigating Authority from
Considering the Volume of Third-Country Market Sales
2. Korea's claim rests on a fundamental misunderstanding of the applicable obligations. First,
as acknowledged by Korea, Article 2.2 does not state a pref erred alternative method to calculate
normal value. Rather, the provision 's use of "or" makes clear that an authority may choose to use
either of the two available methods.
3. Second, the text of Article 2.2 does not impose an obligation on an authority to consider or
analyze both of the two alternative methods before choosing one. Therefore, there is no basis for
Korea to contend that application of a "viability test" could lead to an impermissible prohibition on
consideration of third-country sales.
4. Third, Article 2.2 uses the qualifier "appropriate" in regard to the potential "third country"
sales. This term indicates that, even were an investigating authority to consider third country sales
in a particular instance, the authority would not breach Article 2.2 if it disregards third -country
sales found not to be appropriate.
5. Based on the foregoing, Korea has failed to demonstrate that consideration of quantitative
factors when analyzing the use of third -country sales is inconsistent with Article 2.2. On this basis
alone, Korea's claim that an alleged "viability test" guiding the use of third -country sales is "as
such" inconsistent with Article 2.2 of the AD Agreement must be rejected.
B. Korea's Claim Must Fail Because U.S. Law Does Not Impose a "Viability Test" As
Argued by Korea
6. The focus of the examination in evaluating an "as such " challenge is to ascertain the
meaning of the measure itself, and not whether any particular instance of application was
inconsistent with the provision. To make such a demonstration, Korea therefore must present to
the Panel evidence and legal argument sufficient to show that application of U.S. law necessarily
results in an inconsistency with Article 2.2 of the AD Agreement – that is, that the measure
necessarily requires WTO-inconsistent action or precludes WTO-consistent action.
7. The U.S. regulation at issue states that USDOC will consider the home market or third -
country to be a "viable market " if sales are of a "sufficient quantity ". The regulation 's use o f
"normally" indicates that USDOC may define "sufficient quantity" based on the facts of a particular
proceeding. The dictionary definition of "normally" is "under normal or ordinary conditions; as a
rule, ordinarily". This definition suggests a preference , not a requirement, as distinguished from
the use of "shall" or "in all cases".
8. Korea has failed to demonstrate that the U.S. regulation requires USDOC to make its
decision whether to use third -country sales on the basis of a "viability test". Korea has therefore
not shown that U.S. law necessarily results in a breach of Article 2.2, even on Korea 's
understanding of Article 2.2.

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II. Korea's "As Applied" Claim Regarding the "Viability Test" is Also Without Merit
9. Korea's claim that USDOC's final determination in the OCTG investigation is inconsistent with
Article 2.2 of the AD Agreement fails for the first reason its claim on the "viability test" "as such"
fails: when the conditions are met for employing an alternative to home market sales for
determining normal value, Article 2.2 does not require the use of third -country sales or limit the
basis on which an investigating authority could choose to use constructed normal value. Therefore,
USDOC's decision in the investigation at issue to use third -country sales data only if a sufficient
volume of sales existed does not breach Article 2.2.
III. Korea's Claim Regarding the Calculation of CV Profit is Without Merit
A. Korea Has Failed to Establish that USDOC Acted Inconsistently with the Chapeau of
Article 2.2.2
10. Notwithstanding the obligations established by Article 2.2, Korea argues that the preferred
method for calculating profit necessitates that an investigating authority always use actual data
pertaining to sales of the like product in the ordi nary course of trade, regardless of the volume of
sales represented by such data. Korea 's proposed interpretation does not reflect the text or
context of Article 2.2.2.
11. The chapeau of Article 2.2.2 does not require that an investigating authority "use" actual
data from the production and sale of the like product. Rather, the chapeau requires that the
amount for profits "shall be based on" actual data. An obligation that something be "based on"
something else does not create an obligation to "use" something else. Thus the obligation of
Article 2.2.2 that "profit shall be based on actual data " cannot be read as a strict requirement to
use actual data in every circumstance.
12. The text of Article 2.2.2, understood in its context, does not require an invest igating
authority to use data from low -volume domestic sales to calculate CV profit. Therefore, Korea has
failed to show that the United States acted inconsistently with Article 2.2.2 of the AD Agreement
when USDOC determined that CV profit could not be ca lculated based on the chapeau because
neither HYSCO nor NEXTEEL had sufficient home market sales during the period of investigation.
In addition, contrary to Korea 's assertion, USDOC did not have access to actual data pertaining to
production and sales in the ordinary course of trade of the like product by HYSCO or by NEXTEEL
in the home market during the period of investigation.
B. USDOC's Definition of the "Same General Category of Products " Is Consistent with
Article 2.2.2(i) of the AD Agreement
13. Article 2.2.2 uses both the terms the "same general category " of products and "like
product". The term "like product" is used with respect to the preferred method under Article 2.2.2
and alternative (ii), which may be employed when the preferred method is una vailable. The term
"same general category " is used with respect to alternatives (i) and (iii), albeit in the latter
alternative the term is only used with respect to the profit cap, not the method itself. By their
terms, and given their juxtaposition in th e same provision, "like product " and "same general
category" of products are distinct terms.
14. The term "category" is generally defined as "A class, a division ". The term "general" when
used as an adjective is defined as "Including, involving, or affec ting all or nearly all the parts of
a ... whole," and the term "same" when used as an adjective is defined as "Identical with what is
indicated in the following context ". The double adjective combination "same general" modifies the
noun "category", with each adjective naming separate attributes for the products that fall within
the category. In the context of alternative (i), which is looking for actual profit amounts realized in
domestic sales of the "same general category of products," and of alternative (iii), which is looking
for a profit cap that does not exceed profit normally realized in domestic sales of "products of the
same general category", the category thus encompasses products that fall within the definition of
the "like product" plus other products that share many of the "same" fundamental characteristics
of the "like product" without, of course, being the "like product".

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15. USDOC defined the "same general category of products " more broadly than it did "like
product" as including "subject OCTG , non-scope OCTG such as stainless steel tubular products,
and drill pipes ". USDOC's definition of "same general category of products " includes the "like
product" plus "other tubular products that go into the exploration and production of oil and gas.
These would be products that would exhibit the same fundamental characteristics for down hole
applications". Therefore, in the Korea OCTG investigation, USDOC defined "same general category
of products" more broadly than "like product".
16. USDOC set out in it s final determination a reasoned and adequate explanation as to why it
decided to exclude line, structural and standard, and downgraded pipe products from the definition
of "same general category of products ". USDOC found that "[t]he record shows that OCTG and
non-OCTG are sold to different end users for use in different applications, and that these different
end users have distinct forces which drive prices, demand, and profitability ". The evidence in the
record thus supports USDOC 's final determination th at "[t]he performance measures, production
processes, alloys, and physical and mechanical characteristics of OCTG casing and tubing products
differ in such significant ways from those of standard pipe and line pipe that these products should
not be considered to be of the same general category of products as OCTG. The United States thus
provided a reasoned and adequate explanation for its findings on the definition of the "same
general category of products " as it employed a "reasonable method " consistent wi th
Article 2.2.2(iii).

17. Because the record evidence contradicts Korea 's contentions, Korea finds itself in the
tenuous position of advocating that calculations concerning normal value of OCTG should be based
on profit from non -OCTG products instead of the OCTG-specific data that USDOC used. Korea has
failed to show any support in the AD Agreement for its position. Most important, Korea has failed
to show that USDOC's interpretation and application in the OCTG investigation is inconsistent with
Article 2.2.2.
18. In the instant case, the record and decision memoranda demonstrate that that USDOC
engaged in an extensive analysis of the like product and general category of products. Korea,
meanwhile, fails to engage the substantive issue, but instead implie s that USDOC must be held to
the scope definitions for other AD proceedings, preliminary statements in initial questionnaires, or
different decisions made in other AD proceedings pursuant to unrelated evidentiary records. The
arguments advanced by Korea wi th respect to the definition of "same general category " of
products as understood for the purpose of alternatives (i) and (iii) thus do not provide plausible
alternative explanations of the record evidence before USDOC. Therefore, the United States
respectfully requests that the Panel find USDOC 's definition of the "general category of products "
in the Korea OCTG investigation was not inconsistent with Articles 2. 2.2(i) and 2.2.2(iii) of the
AD Agreement.
C. USDOC's Calculation of CV Profit Was Consistent with Article 2.2.2(iii) of the AD
Agreement
19. Korea argues that USDOC otherwise had "abundant data " to calculate a profit cap from
allegedly dumped OCTG in the United States or sales of non -OCTG products in Korea, but this
argument serves to further co nfirm the soundness of USDOC 's decision. First, there is no support
in alternative (iii), or anywhere else in the AD Agreement, for the proposition that normal value
should be determined on the basis of profit from the allegedly dumped sales. Indeed, the u se of
allegedly dumped sales in the export market to calculate normal value runs contrary to the
concept of determining a dumping margin, which under Article 2.1 is a comparison of normal value
with the export price.
20. Korea's other argument, that "the unavailability of data does not excuse a Member from
complying with the requirements of the Anti -Dumping Agreement", simply does not address the
fact that its proffered information is not relevant to the calculation of a cap under alternative (iii).
Korea has failed to demonstrate that USDOC 's calculation of amounts of profit for constructed
value is inconsistent with the positive obligation imposed by Articles 2.2 and 2.2.2 to determine
amounts for profit on the basis of another "reasonable method ". The e vidence proffered by the
Korean companies was not relevant to the profit cap calculation, and there was no other evidence
in the record that would permit USDOC to calculate a profit cap. I n that circumstance, the
United States used a "reasonable method " as the basis to determine the amounts of profit and
therefore did not act inconsistently with Articles 2.2 and 2.2.2.

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D. USDOC's Calculation of the CV Profit on the Basis of Audited Profit of an OCTG
Producer is Consistent with Article 2.2.2(iii)
21. USDOC's use of Tenaris's financial statement to calculate CV profit resulted from a reasoned
consideration of the evidence before it, rationally directed at approximating what the Korean
respondents' profit margin for the like product would have been if the like product had been sold in
the ordinary course of trade in Korea. USDOC thus provided a reasoned and adequate explanation
for why the use of Tenaris 's financial statement constitutes a reasonable method to calculate CV
profit.
22. Korea does not identify an y flaw, mistake, or inaccuracy in Tenaris 's audited financial
statement. Nor does Korea explain why profit from sales of OCTG does not reasonably reflect
constructed profit for the same product.
23. Instead, according to Korea, Article 2.1 defines dumpin g in a manner that prohibits an
investigating authority from calculating a dumping margin "by comparing an export price to a
normal value that, for the most part, represents the international market (as opposed to the single
domestic market of the exportin g country)". Korea's interpretation is flawed. As an initial matter,
Article 2.1 is a definitional provision that, "read in isolation, do[es] not impose independent
obligations". Although the Article 2.1 provides when "a product is to be considered as bein g
dumped", it does not specify how the normal value is to be determined. The determination of
normal value is governed by Article 2.2 instead.
24. Also, in this investigation, USDOC had to select one of the two alternatives for determining
normal value: (1 ) data that is specific to the product under consideration from global sales of a
company that operates in many countries, including Korea, but not specific solely to Korea; or (2)
data that is not specific to the product under consideration or the general category of products,
albeit specific to the exporting country. Korea has provided no basis in Article 2.2.2 to conclude
that only home market sales and production data for products falling outside the same general
category of products would provide a rea sonable method for calculating CV profit, much less that
global market (including Korea) profit data for a producer of the like product , OCTG, is not a
reasonable method. Given the record evidence concerning the differences between OCTG and non -
OCTG products, USDOC reasonably selected the data that it considered more accurately reflected
the profit amount for the product under consideration.
25. Korea asserts that "no reasonable basis exists to conclude that Tenaris 's profit rate is
reflective of the profit rate that the Korean producers would have achieved if they had sold OCTG
in the country of export ", but Korea itself acknowledges that Tenaris produces and sells a broad
range of OCTG products around the world. As such, Korea has not demonstrated any flaw or
inaccuracy in the audited financial statements of Tenaris, nor has it demonstrated that the global
prices of OCTG are unrepresentative. Absent evidence to the contrary, there is nothing
unreasonable about using the average profit from a broad range of OCTG products sold by a
company that operates around the globe, including in Korea, as a reasonable proxy for the profit
expected to be made from a sale of OCTG in a specific market.
26. The arguments advanced by Korea do not provide plausible alternativ e explanations as to
why the use of Tenaris 's financial statement does not constitute a reasonable method by which to
calculate CV profit. Therefore, Korea has failed to establish that the United States acted
inconsistently with Article 2.2.2 of the AD Agreement in its determination of CV profit.
E. USDOC's Acted Consistently with Article 2.4 of the Antidumping Agreement
27. Article 2.4 obligates an investigating authority to make a "fair comparison " between the
export price and the normal value when deter mining the existence of dumping and calculating a
dumping margin. The essential requirement for any adjustment under Article 2.4 is that a factor
for which adjustment is requested must affect price comparability. The use of constructed normal
value does not preclude the need for due allowances or adjustments between the export price and
the normal value. However, the construction of normal value through the selection of costs
pursuant to Article 2.2.1, or profit pursuant to Article 2.2.2, is not a relevant difference between
the export value and the normal value, because these selections do not relate to a difference
between the export and domestic transactions being compared.

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28. Korea challenges the calculation of a component of constructed normal value, n amely CV
profit. Korea's Article 2.4 claim thus is entirely derivative of its claim under Article 2.2.2. If USDOC
determined CV profit consistently with Article 2.2.2, the profit amount for purpose of normal value
is reasonable. The profit component of normal value does not constitute a difference affecting price
comparability between the export price and the normal value, and thus is not relevant to the fair
comparison obligation between the export price and the normal value set forth under Article 2.4 of
the AD Agreement.
IV. USDOC's Decision to Disregard NEXTEEL 's Export Price Was Not Inconsistent with
Article 2.3 of the AD Agreement
29. Article 2.3 permits an authority to disregard export prices based on "association". The term
"association" does not indicate a limitation to only those entities that may be "related" to the
exporter. The nature of the relationship between the exporter and the importer, rather than actual
pricing information, are what inform an authority 's consideration of whether prices "appear" to be
unreliable under Article 2.3.
30. Korea attempts to equate the term "association" with the term "related", as defined in
footnote 11, and Korea devotes considerable discussion to interpreting footnote 11. However,
footnote 11 defines a di fferent term in a different article of the AD Agreement. Because Korea 's
claim is premised on its erroneous understanding of "association" in Article 2.3, its claim can be
rejected on this basis alone.
31. USDOC properly found NEXTEEL to be associated with the Customer, and therefore did not
act inconsistently with Article 2.3 in disregarding export price. USDOC 's analysis considered
two relationships: (1) POSCO and NEXTEEL and (2) NEXTEEL and Customer. USDOC 's finding of
association between NEXTEEL and POS CO was based on the unique and remarkably close
relationship in which POSCO was positioned to "affect[] the pricing, production, and sale of OCTG "
by NEXTEEL. As USDOC concluded in its final determination, NEXTEEL and POSCO coordinated
closely in the production, marketing, and sale of OCTG.
32. During the relevant period, USDOC found that POSCO supplied NEXTEEL HRC used for the
production of OCTG. HRC accounts for an overwhelming percentage of the cost of producing OCTG.
The volume of HRC purchased and cons umed by NEXTEEL from POSCO was a key basis of
USDOC's finding of association. USDOC concluded that the nature of this supplier relationship
extended beyond that of an independent buyer-seller transaction.
33. USDOC's final determination referred to publi c acknowledgements by POSCO that it "took
charge of NEXTEEL 's overseas {public relations} campaign for its global launch ". USDOC found
that the two companies shared technology and market information pertaining to OCTG.
34. USDOC concluded that NEXTEEL wo rked closely with POSCO at every step of the process:
production, marketing, and sale of OCTG. USDOC explained that POSCO has a history of working
closely with on -sight NEXTEEL departments and providing marketing assistance and other
promotional activities for the benefit of NEXTEEL. USDOC 's final determination demonstrates
NEXTEEL's close association with POSCO. Accordingly, so too must NEXTEEL be associated with
Customer.
35. USDOC concluded that NEXTEEL was associated with Customer, a relationship that , by its
very nature, prevented an arm's length transaction of OCTG. USDOC appropriately utilized the first
sale to an independent buyer of OCTG in the United States. Accordingly, Korea 's claim fails
because, in these circumstances, USDOC 's use of a constr ucted export price was not inconsistent
with Article 2.3.
V. USDOC's Use of Calculated Costs Based on NEXTEEL 's Supplier's Records Was Not
Inconsistent with Article 2.2.1.1 of the AD Agreement
36. Korea's argument would appear to accept that a proper fi nding of association justifies
deviation from a respondent 's books and records in the cost calculation. As demonstrated above,
USDOC's final determination properly found an association to exist between NEXTEEL and POSCO.
Accordingly, Korea's claim is without merit.

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37. Article 2.2.1.1 of the AD Agreement permits an authority to depart from a respondent 's
books and records in calculating constructed value where the authority provides a rationale for
doing so. Where an authority provides a reasoned explanat ion for why it was required to use
market prices for a cost calculation – as here – the authority has not acted inconsistently with
Article 2.2.1.1. The obligation of Article 2.2.1.1 to use the books and records of the exporter under
investigation is qualified by the use of "normally". The term 'normally' in conjunction with the two
conditions ('provided that') in Article 2.2.1.1 indicates that use of a producer 's or exporter's books
or records is not necessary in every case and the investigating authority has the ability to consider
other available evidence in limited instances.
38. USDOC's final determination explained the reasons justifying deviation from NEXTEEL 's
reported costs. This decision was based on the interconnected business relationship between
NEXTEEL and POSCO. USDOC provided a thorough and reasoned explanation for its decision to
deviate from NEXTEEL 's books and records. USDOC 's actions ar e not inconsistent with
Article 2.2.1.1 of the AD Agreement.
VI. Korea's Claims Regarding Respondent Selection Are Without Merit
39. As with several claims already discussed, Korea appears to acknowledge that the
AD Agreement allows for the action taken by USDOC – that is, to limit the examination of
respondents – but argues that the action was not appropriat e under the circumstances of the
proceeding at issue. Korea 's argument is without merit. USDOC provided detailed explanations of
its reasoning for limiting the number of respondents individually examined and for not individually
examining voluntary respond ents, and those explanations comport w ith the obligations of
Articles 6.10 and 6.10.2 of the AD Agreement.
40. Article 6.10 of the AD Agreement allows Members to determine individual margins of
dumping for a reasonable number of exporters and producers, an d does not require the
determination of an individual margin of dumping for all exporters and producers where a large
number of exporters and producers is involved. The authority may limit its examination where the
number of exporters or producers is so la rge as to make a determination of individual margins of
dumping for all exporters or producers "impracticable". USDOC's decision to limits its examination
to two mandatory respondents fully complied with this requirement. Korea has presented no
evidence to argue that USDOC's actions were unreasonable, and the Panel therefore should reject
Korea's claims that the United States breached Article 6.10.
41. Korea claims that the United States breached Article 6.10.2 of the AD Agreement in failing
to individually examine voluntary responses submitted by three Korean companies. Korea has not
reconciled how USDOC 's finding that resource constraints precluded investigation of the three
companies is somehow inconsistent with the exception in Article 6.10.2 that an aut hority need not
individually examine a voluntary response "where the number of exporters or producers is so large
that individual examinations would be unduly burdensome to the authorities and prevent the
timely completion of the investigation".
VII. The P rocedural and Due Process Safeguards of the Korea OCTG Investigation
Complied with Articles 6.2, 6.4, 6.9, and 12.2.2 of the AD Agreement
A. USDOC Provided Respondents with a Full Opportunity To Defend Their Interests
42. Throughout the Korea OCTG investi gation, USDOC provided Korean respondents ample
opportunity for the defense of their interests. Before the preliminary determination, respondents
were on notice that USDOC might rely on Tenaris 's financial data for its dumping calculations.
Respondents arg ued against the use of the Tenaris profit margin through several written
submissions before the preliminary determination. Subsequently, after petitioners submitted
comments arguing that USDOC should base its calculations on Tenaris 's profit information,
respondents addressed the Tenaris profit margin extensively in their pre-preliminary determination
rebuttal comments.
43. Following the preliminary determination, NEXTEEL and HYSCO had the opportunity to
provide views on the Tenaris financial statements th at U.S. Steel placed on the record in response
to NEXTEEL's Section D Questionnaire. NEXTEEL did so at least three times in writing – once in its

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request that USDOC reject the document, and twice more in its brief and rebuttal brief. Similarly,
HYSCO, AJU Besteel, and Husteel used the opportunity to challenge Tenaris 's profit data, including
the data in the financial statements, by providing written arguments against the use of the
underlying data.
44. Korea's submission fails to acknowledge that in their w ritten submissions made before and
after the preliminary determination, as well as during oral arguments at USDOC 's hearing, Korean
respondents extensively argued that the information in Tenaris 's financial data was not a proper
CV profit source. Korea has failed to establish that USDOC did not provide Korean respondents a
full opportunity to defend their interests. Therefore, the panel should reject Korea 's claim under
Article 6.2 of the AD Agreement.
45. Korea also does not explain why the opportunities p rovided to respondents in the Korea
OCTG investigation did not comply with Article 6.4. The Korean respondents were aware that the
evidence had been submitted by petitioners, respondents did "see" that information which was
evidently relevant to the presen tation of their case, and they not only had but utilized numerous
opportunities to prepare presentations responding to the evidence. Therefore, Korea has failed to
establish that USDOC did not provide Korean respondents timely opportunities to see the Tena ris
financial statements and to provide presentations on the basis of information in those statements.
Accordingly, Korea's claims that the United States acted inconsistently with Article 6.4 of the AD
Agreement must fail.
46. Finally, Korea 's claim under Article 6.9 is without merit because Korea fails to correctly
identify the "essential facts" that are subject to the disclosure obligation of that provision. As is
clear from the record, all interested parties to the investigation had access to Tenaris 's financial
data and were aware that USDOC was considering that data in its investigation. Korea has failed to
establish otherwise. Therefore, Korea has failed to establish that the information contained in the
Tenaris financial statements was not disclosed t o all interested parties in a manner consistent with
Article 6.9 of the AD Agreement.
B. Korea Fails to Establish that the U.S. Breached Articles 6.4 and 6.9 of the
AD Agreement with Respect to Ex Parte Communications
47. Korea argues that the United State s breached Articles 6.4 and 6.9 because USDOC
"delay[ed] in disclosing " certain ex parte communications, particularly several letters, to Korean
respondents. Korea fails to explain why the communications referenced constituted information
that was "relevant" to the presentation of the respondents ' cases, or how the information would
have been "used" by USDOC in its investigation. Korea also fails to demonstrate that the relevant
correspondences were "essential facts " under consideration that formed the basi s for USDOC 's
decision to apply definitive measures. Further, the record demonstrates that the Korean
respondents had ample opportunity to respond to the relevant communications. Therefore, Korea
has failed to make a prima facie case under Articles 6.4 and 6.9 of the AD Agreement because
USDOC was not required to disclose the referenced communications under Articles 6.4 and 6.9 and
because USDOC made the letters available to Korean respondents in a timely manner.
C. USDOC's Public Notice Was Consistent with Article 12.2.2 of the AD Agreement
48. Korea asserts that USDOC 's public notice and explanation of its final determination did not
satisfy the requirements of Article 12.2.2 of the AD Agreement. Once again, Korea fails to make
out its claim. In its public notice, USDOC set forth in sufficient detail all the relevant information
and reasons underlying the final determination.
49. USDOC's Issues and Decision Memorandum set forth a detailed analysis of the reasoning
behind USDOC's determination to use the T enaris financial data in the final determination. As the
public notice explains, after USDOC considered all arguments on the CV profit issue, it determined
that it was not appropriate to use profit information derived from the Korean respondents because
of the physical characteristics of the products sold by those respondents in the home market.
USDOC determined that using information pertaining to the same product as that under
consideration in the OCTG investigation was appropriate for purposes of its CV profit calculation.
Based on these considerations, USDOC provided a thorough explanation as to why Tenaris ' profit

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data was the best available option, in light of Tenaris 's OCTG production, volume of sales, and
customer base.
50. USDOC's final determination explained the underlying facts and rationale that led USDOC to
find the existence of an association between NEXTEEL, POSCO, and the Customer. Korea has failed
to establish that USDOC did not provide all relevant information and reasons underlying its fin al
determination, including relevant arguments presented by NEXTEEL. Therefore, the United States
did not act inconsistently with the obligations of Article 12.2.2.
VIII. Korea's Claim Under Article I:1 of the GATT 1994 is Flawed
51. Korea argues that pro cedural differences constitute an "advantage". But Korea's argument
fails to take into account that differences do exist in antidumping proceedings – even
investigations involving like products – including differences among the companies under
investigation.
52. USDOC made procedural decisions through the course of these proceedings that were based
on the specific circumstances of the Korea OCTG investigation and the other OCTG investigations.
Unlike in EU – Footwear, in which the measure at issue granted an advantage based solely on the
country of origin of the products, several factors may have contributed to the treatment accorded
to Korean companies and other foreign companies, which resulted in their particular antidumping
rates. Korea has failed to demonstrate that any different treatment was not explained by the facts
immediately before the investigating authority, here, including the characteristics of the companies
participating in the investigation.
IX. Korea Fails To Establish That the United Sta tes Administered Its Laws,
Regulations, Decisions, and Rulings in a Manner Inconsistent With Article X:3(a)
53. All of Korea 's claims under Article X:3(a) of the GATT 1994 must fail because Korea
challenges the substance of USDOC 's final determination, rat her than the United States '
administration of relevant laws, regulations, rulings or decisions. Even aside from the fact that
Korea has not identified any measure of general application for its claim to fall within the scope of
Article X:3(a), Korea has failed to demonstrate that the United States did not administer any laws,
regulations, decisions or rulings in a uniform, impartial, and reasonable manner, inconsistent with
Article X:3(a).
54. With respect to uniformity, Korea has not shown, nor could it, that the factual circumstances
underlying an investigation regarding imports of OCTG produced in Korea required the same
procedures as an investigation regarding the imports of OCTG produced in Turkey. Therefore,
Korea has failed to establish that the Uni ted States did not administer its anti -dumping laws and
regulations in a uniform manner.
55. With respect to impartiality, Korea merely concludes that "in the absence of any other
reasonable explanation", these letters and meetings "suggest" that "political pressure" impacted
the final determination. However, as demonstrated at length, the USDOC provided a reasoned and
adequate explanation for its calculation of CV profit, consis tent the requirements of the
AD Agreement. Therefore, Korea cannot succeed in its claim that USDOC failed to act in an
impartial manner as required under Article X:3(a).
56. Finally, with respect to reasonableness, the United States has already established that
USDOC had a reasonable basis for its reliance on the Tenaris financia l statements in calculating CV
profit. Therefore, Korea has not satisfied the high burden of establishing that the United States '
administration of its laws, regulations, decisions, and rulings with respect to the Tenaris financial
statements was unreasonable.
X. CONCLUSION
57. The United States respectfully requests that the Panel reject Korea 's claims that the
United States has acted inconsistently with the covered agreements.

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ANNEX C-2
EXECUTIVE SUMMARY OF THE ORAL STATEMENTS OF THE UNITED STATES
AT THE FIRST PANEL MEETING
EXECUTIVE SUMMARY OF U.S. OPENING STATEMENT

I. Korea's Claims Regarding the So-Called "Viability Test" are Without Merit
1. Korea's challenges of what it refers to as a "viability test " are based on a flawed
interpretation of Article 2.2 and a misunderstanding of U.S. law . Where the preferred home -
market sales cannot be used, Article 2.2 sets no hierarchy as between the secondary sources for
calculating normal value: third -country sales or constructed normal valu e. Indeed, under
Article 2.2, an authority is not required to consider an alternative it will not employ . Rather,
because Article 2.2 permits an authority to choose between the alternative methodologies, an
investigating authority could simply choose to us e constructed normal value to calculate normal
value in a given investigation . In such a case, the authority need not even collect third -country
sales data.
2. Where an authority considers the use of third -country sales, Article 2.2 permits their use
only where the sale is made "to an appropriate third country, provided that the price is
representative". An authority would not breach Article 2.2 if it disregards sales to a third country
found not to be "appropriate", and the text does not require an author ity to consider any one
factor.
3. Footnote 2 of the AD Agreement provides relevant context to the phrase "appropriate third
country". The general rule of footnote 2 is intended to ensure that sales prices used for normal
value are representative, and not an aberration . The reference in footnote 2 to volume thus
provides useful guidance to an authority if it is evaluating what constitutes an "appropriate third
country". The arguments raised in Korea 's submission confuse the relevance of footnote 2 in
interpreting Article 2.2. Under Korea's logic, under the general rule of Article 2, an authority would
be required not to use the preferred home -market sales if those sales constitute less than 5 % of
total sales, but the authority would be required to use third-country market sales of less than 5 %.
Korea's interpretation is supported by neither logic nor the AD Agreement . Just as the volume of
sales may be considered pursuant to footnote 2 to determine whether to use the preferred data
source of home -market sales, volume can be considered when evaluating whether third -country
sales are "appropriate" within the meaning of Article 2.2.
4. Even aside from Korea 's flawed interpretation of Article 2.2, its "as such" claim also fails
because it is premised on a misint erpretation of U.S. law . Contrary to Korea 's argument, through
the use of the term "normally", the regulation does not require Commerce to disqualify third -
country sales that constitute less than five percent of sales to the United States . Commerce under
its regulation is free to consider the complete factual record when determining whether a third
country is appropriate for the calculation of normal value, even where third -country sales
constitute less than 5 % of sales to the United States . Korea has not e stablished that U.S. law
requires action that would, even under its theory, result in a breach of Article 2.2.

II. Korea's Claim Regarding the Calculation of CV Profit is Without Merit
5. Article 2.2.2 lists four methods for the calculation of constructe d value ( "CV") profit – a
preferred method and three alternative methods . The preferred method is to calculate CV profit
based on actual data pertaining to production and sales in the ordinary course of trade of the like
product by a respondent . When CV pr ofit cannot be calculated using the preferred method, an
investigating authority may use one of three alternative methods.
6. In this investigation, Commerce found that, "absent a viable home or third-country market",
it could not calculate CV profit based on the preferred method and had to determine CV profit
based on an alternative method.

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7. Commerce's conclusion was consistent with the requirements of Article 2.2, including
Article 2.2.2, because when sales data do not permit a proper comparison under Article 2.2 for
purposes of calculating normal value, such data should not be considered under Article 2.2.2 for
purposes of calculating profit for constructed normal value.
8. For this reason, the United States did not act inconsistently w ith the obligati ons of
Articles 2.2 and 2.2.2 when Commerce determined that CV profit could not be calculated based on
the preferred method given neither HYSCO nor NEXTEEL had a viable domestic or third -country
market during the period of investigation.
9. When an invest igating authority cannot calculate CV profit based on the preferred method,
the alternative method for CV profit provided for in Article 2.2.2, subparagraph (i), indicates that
profit may be determined on the basis of the actual amounts incurred and realiz ed by respondents
in respect of production and sales in the domestic market of the "same general category of
products".
10. Commerce in its final determination provided an extensive explanation of the reasons why it
defined the "same general category of products" in this manner as well as a reasoned and
adequate explanation as to why it decided to exclude line pipe and standard pipe, the pipe that
Korea believes should be included in this definition.
11. Because Korea has failed to make out its claims, the Panel should find that the United States
did not act inconsistently with Article 2.2.2, subparagraph (i), with respect to Commerce 's
definition of the "general category of products" in the Korea OCTG investigation.
12. Since the information in this inve stigation did not otherwise permit Commerce to calculate
CV profit on the basis of the preferred method, or the alternative methods provided for in
Article 2.2.2, subparagraphs (i) or (ii), Commerce had just one option left: It had to calculate CV
profit on the basis of an alternative method as provided for in Article 2.2.2, subparagraph (iii), or
"any other reasonable method".
13. Korea argues that when an investigating authority opts to base CV profit on "any other
reasonable method", it must calculate and apply a profit cap . But there did not exist in the record
of this investigation information that would allow Commerce to calculate and apply such a cap.
14. Korea argues that the lack of necessary information does not matter; Commerce still has to
cap any profit amounts it calculates pursuant to subparagraph (iii) . But Korea does not explain
how Commerce should calculate this cap other than to assert that Commerce should have used
profit data for products not included in the "products of the same general category".
15. In point of fact, the answer lies in the ordinary meaning of Article 2.2.2, subparagraph (iii),
when read in context with the obligations in Article 2.2; namely, when an investigating authority
constructs normal value, it shall include "a reasonable amount for ... profits".
16. When the only alternative method available is the "other reasonable method " provided for
under subparagraph (iii), the inability to separately calculate a profit cap because of an absence of
information does not, as a consequence, lead to the conclusion that a reasonable method cannot
be used. Where data exists to calculate the cap, the amount determined by a reasonable method
is limited. But where data does not exist to calculate the cap, the proviso is simply no t operative;
the investigating authority is still bound to use a reasonable method to calculate a reasonable
amount for profits.
17. In the underlying investigation, Commerce reviewed the information in the record and
correctly concluded that it did not i nclude data that would allow the calculation of a profit cap . On
that basis, Commerce correctly calculated the amounts for profit based on the information before
it.
18. After an extensive analysis of this information, Commerce chose to calculate CV profi t based
on Tenaris's financial statement . Commerce provided a reasoned and adequate explanation why
the use of the profit margin from Tenaris 's financial statement constituted the most reasonable

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method for the calculation of CV profit, as well as the most appropriate of the three options
available.
19. The arguments advanced by Korea simply do not provide plausible alternative explanations
as to why the use of the Tenaris information does not constitute a reasonable method by which to
calculate CV profit . Given Commerce provided a reasoned and adequate explanation for why the
use of the Tenaris information constitutes a reasonable method to calculate CV profit, the Panel
should find that Korea has failed to establish that the United States acted inconsisten tly with
Article 2.2.2 in its determination of CV profit.
III. Commerce's Decision to Disregard NEXTEEL's Export Price
20. We turn next to Korea 's claim with respect to Article 2.3 . The meaning of "association" is
"the action of joining or uniting for a co mmon purpose; the state of being so joined ", a definition
that could include a broad range of commercial relationships . Article 2.3 permits an authority to
disregard prices from a transaction that involves two companies that have joined together for a
common purpose.
21. Further interpretive guidance is provided by the term "independent buyer ". Under
Article 2.3, where a price is unreliable "because of association, " an authority may construct an
export price based on the price to an "independent buyer". An associated buyer is thus informed
by what it is not: an independent buyer . An independent buyer has an objective of maximizing
profits, a fundamentally different objective than exists in a transaction between two associated
entities working towards a "common purpose".
22. Korea's interpretive arguments are unavailing . First, Korea's interpretation of "association"
relies heavily on the definition of the term "related" found in footnote 11 . Article 2.3 refers to an
"association" between the exporter and i mporter, while footnote 11 defines the term "related",
which does not appear in Article 2.3 . Second, Article 2.3 does not require an independent
assessment or determination of price reliability . Rather, the article requires only that such prices
appear to be unreliable on the basis of the nature of the relationship . The phrase "unreliable
because of association" draws a direct link between the relationship of the entities and the
reliability of the prices. The authority can understand the prices to be unrel iable as a consequence
of the relationship; under Article 2.3, it is the relationship that provides the appearance of the
unreliable nature of the prices.
IV. Commerce's Use of Calculated Costs Based on NEXTEEL's Supplier's Records
23. We turn next to Korea's claim that Commerce's use of calculated costs was inconsistent with
Article 2.2.1.1. Article 2.2.1.1 contains a general rule that costs are to be calculated on the basis
of the records kept by the producer, but the obligation is qualified by the use o f "normally". The
inclusion of "normally" allows an authority to depart from costs based on the producer 's records
where the authority provides a reasoned explanation. The panel in China – Broiler Products applied
this interpretation to Article 2.2.1.1, properly recognizing that an authority may derogate from the
general rule to use a respondent 's books and records if the authority justifies its decision on the
record of the investigation.

24. Commerce's final determination satisfied the requirements of A rticle 2.2.1.1 . Commerce's
final determination and accompanying memos explained in great detail the interconnected
relationship between NEXTEEL and its supplier POSCO . Having made a determination of affiliation,
Commerce then undertook a comparison between POSCO's transfer prices to NEXTEEL and both
POSCO's cost of production and POSCO 's prices sold to unaffiliated customers . Based on that
analysis, Commerce determined it was appropriate to utilize the weighted average market price of
POSCO's sales to unaffiliated customers. Korea has not demonstrated that Commerce's decision to
depart from the general rule, which is permissible under the plain language of Article 2.2.1.1, was
inconsistent with that provision.
V. Commerce Met All Disclosure and Participatory Requirements
25. Korea argues that Commerce did not do enough to ensure that respondents had ample
opportunity to defend their interests; that Commerce did not disclose all the essential facts

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forming the basis for its decision to apply definitive measur es; or that Commerce 's notice did not
contain all relevant information on matters of fact and law and the reasons that lead to the
imposition of final measures.
26. Contrary to Korea 's arguments, the respondents were on notice that Commerce might rely
on T enaris's profit margin before Commerce's preliminary determination . Specifically, before
Commerce published its preliminary determination, U.S. petitioners placed information concerning
Tenaris's profit margin on the record, and both HYSCO and NEXTEEL had the opportunity to, and
did, argue against the use of this information.
27. So every argument that the Korean respondents could have made about Tenaris after
Commerce's preliminary determination, they could have made before that determination.
28. It is b eyond dispute that the Korean respondents had seen all information concerning
Tenaris in a timely manner, made multiple presentations regarding it, and understood that
Commerce was considering this information in its investigation.
29. Korea's claims under Articles 6.2, 6.4, 6.9, and 12.2.2 regarding the Tenaris information and
Commerce's public notice, which included the reasons for its acceptance of this information and its
rejection of the Korean respondents' arguments to the contrary, are without merit.
30. The Panel should also dismiss Korea 's claims regarding certain communications received by
Commerce during the investigation . The United States does not dispute that Commerce added
letters it received from politicians, labor unions, and members of the public to the record of the
Korea OCTG investigation. Nor do we dispute that interested parties received some of these letters
after a delay.
31. But to suggest, as Korea does, that this delay means that the United States failed to comply
with Articles 6 .4 and 6.9 does not reflect a proper interpretation of the requirements of these
provisions, especially since the Korean respondents had an oppor tunity to address these
letters and did so by submitting new information and argument on 18 June 2014, and agai n on
26 June 2014.
32. In sum, Korea fails to explain why the letters that it complains about in its First Written
Submission constituted information that was "relevant" to the presentation of the respondents '
cases, or how the information would have been "used" by Commerce in its investigation . Korea
also fails to demonstrate that the letters it complains about were "essential facts " under
consideration that formed the basis for Commerce 's decision to apply definitive measures . Korea
thus has failed to es tablish that the actions of the United States with respect to the identified
letters were inconsistent with Articles 6.4 and 6.9.
EXECUTIVE SUMMARY OF U.S. CLOSING STATEMENT
33. While a panel is required to "'undertake an in -depth examination of whether th e
explanations given disclose how the investigating authority treated the facts and evidence in the
record and whether there was positive evidence before it to support the inferences made and
conclusions reached by it,'" the standard of review applicable t o a panel reviewing an antidumping
duty determination "precludes a panel from engaging in a de novo review of the facts of the case
'or substitut[ing] its judgement for that of the competent authorities'".
34. The arguments advanced by Korea with respect to these issues do not support a finding that
Commerce failed to base its determinations on positive evidence or to provide a reasoned and
adequate explanation for those determinations. Korea asks the Panel to draw different conclusions
from those of Comme rce. For example, with respect to the identification of the "same general
category of products", Korea asks the Panel to second -guess Commerce's findings with respect to
the "performance requirements" and "use and testing requirements " as they relate to OC TG and
non-OCTG products. It is not the task of a panel to second -guess the findings of an investigating
authority, so this Panel should decline Korea's invitation to engage in such de novo review.

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ANNEX C-3
EXECUTIVE SUMMARY OF THE SECOND WRITTEN
SUBMISSION OF THE UNITED STATES
I. KOREA HAS FAILED TO ESTABLISH THAT THE U .S. VIABILITY REGULATION IS "AS
SUCH" OR "AS APPLIED " INCONSISTENT WITH ARTICLE 2. 2 OF THE
AD AGREEMENT
A. Article 2.2 Does Not Preclude the Consideration of Volume When Determining an
"Appropriate Third-Country"
1. Korea's Opening Statement and answers to questions highlight two additional arguments
regarding the proper interpretation of Article 2.2: that Article 2.2 precludes an authority from
imposing additional criteria when selecting the normal value calculation methodology; and that the
United States' interpretation of "appropriate" is not consistent with the plain meaning read in the
context of Article 2.2. We address each argument below.
2. First, Korea argues that a Member may not impose "additional criteria" in selecting one of
the listed methodologies for calculating normal value . But Korea 's assertion is premised on the
fallacy that an authority is required to consider both methodologies and that an interested party is
entitled to a particular methodology, an error that is exposed by the plain text of Article 2.2 and,
indeed, Korea 's own acknowledgment that Article 2.2 imposes no hierarchy . Under Korea 's
interpretation, it is unclear how an authority would be expected to choose b etween two WTO -
consistent alternatives.
3. Korea's reference to the zeroing cases to support this interpretation is similarly misplaced .
In the zeroing cases, the issue dealt with the application of the price comparison methodologies
specified in Article 2.4.2, and not with the selection of the price comparison methodology chosen,
as can be seen in the Appellate Body reports cited by Korea in its Responses to Questions . In
contrast, Article 2.2 concerns the selection of the methodology to be used to calcul ate normal
value. This being the case, the absence of a hierarchy – or even an obligation to consider the
two methodologies – is critical to the analysis . The U.S. Department of Commerce ( "USDOC")
determined the appropriate methodology as between two WTO-consistent methodologies.
4. Second, Korea also contests the U.S. interpretation of "appropriate" within the meaning of
Article 2.2. In doing so, Korea simply asserts without textual support that "the volume of sales to a
third country does not determine whether the third country is 'appropriate' for purposes of serving
as a comparison market ". Korea provides no evidence or argumentation to support its
interpretation, and its bald assertion does nothing to undermine the interpretation provided in the
United States' submissions.
5. Perhaps recognizing the weakness of that interpretive argument, Korea also now argues
that, even assuming that the volume of exports could be considered in determining whether a
third country is appropriate, "the term 'appropriate' inherently implies a flexible test ". But Korea
misinterprets the meaning of "appropriate" and fails to consider the context in which the term
appears in Article 2.2 . Under Article 2.2, in each distinct antidumping proceeding, the authority
may be required to determine whether a particular third country is "appropriate" for the calculation
of normal value . The relevant dictionary definition of "appropriate" is "specially suitable (for, to);
proper, fitting", and the Appellate Body has observed that the "dictionary definitions of the term
'appropriate'… suggest that what is appropriate must be assessed by reference or in relation to
something else ". As it is used in Article 2.2, the definition of "appropriate" suggests that the
appropriateness of a third count ry may be assessed by reference to indices – such as volume of
sales – that are considered with the aim of identifying a "suitable" or "fitting" comparison market.
Thus, "appropriate" within the context of Article 2.2 confers on an authority the ability to consider
and determine what constitutes a suitable third country for the determination of normal value in a
particular proceeding.

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B. Even Under Korea's Interpretation of Article 2.2, Korea Has Not Demonstrated that
the Challenged Measure Requires WTO-Inconsistent Action
6. Even under Korea 's interpretation that Article 2.2 precludes an authority from rejecting
third-country market sales below a specified volume, Korea nonetheless has failed to show that
the U.S. regulation would necessarily lead to conduct that is inconsistent with that obligation.
7. First, Korea argues that the Panel should disregard the plain text of the U.S. regulation
because it is allegedly in violation of U.S. law . That is, Korea suggests that the Panel may
determine, in the conte xt of a WTO dispute, whether 19 CFR § 351.404(b)(2) is legal or illegal
under U.S. law. However, it is not the role of a panel to review the legality of a Member 's law as
within that legal system . Rather, a panel 's role is to determine, as a matter of fact , the content
and meaning of municipal law and to evaluate its consistency with WTO – not municipal – law. As
explained in the U.S. Responses to Questions, USDOC 's interpretation of the U.S. antidumping law
in the form of an implementing regulation is the governing interpretation unless and until a U.S.
court finds that USDOC's interpretation is unreasonable or contrary to the plain text of the statute
in a final and binding decision . The United States recalls the panel 's recognition in US –
Countervailing and Anti-Dumping Measures that, in light of the fact that an administering agency is
charged with interpreting law in order to administer it and the specific standard of review
elaborated by the U.S. Supreme Court for review of agency interpretations of th e law they
administer, "in the absence of a United States court decision that would govern the practice of
USDOC, it is the USDOC 's own practice or interpretation that governs under United States law ".
Therefore, there is neither a factual nor a legal basis for the Panel to find otherwise in this dispute.
8. Korea also seeks to sidestep the plain language of the regulation by citing to past
antidumping proceedings, arguing that "this evidence further confirms that the U.S. viability test
constitutes a rule or norm of general and prospective application that can be challenged 'as such'".
Korea has not challenged U.S. practice separate from the U.S. statute and regulation as set out in
its panel request. Therefore, to the extent that Korea argues that a USDOC practice itself breaches
Article 2.2, the Panel should reject that claim as outside the terms of reference in this dispute.
9. Korea has challenged 19 U.S.C. § 1677b(a)(1)(B)(ii) and 19 C.F.R. § 351.404(b)(2), and as
explained in this and prior U.S. submi ssions, the regulation provides a general rule that sales are
not of a sufficient quantity to use for normal value if those sales constitute five percent or less of
sales to the United States . The regulation's use of "normally" then permits USDOC to depart from
the general rule of a five percent threshold where appropriate.
10. Korea has failed to demonstrate that the U.S. regulation requires USDOC to make its
decision whether to use third-country sales on the basis of a so-called "viability test".
II. KOREA'S CLAIMS REGARDING T HE CALCULATION OF CV PROFIT CONTINUE TO B E
WITHOUT MERIT
A. Contrary to Korea 's Arguments, the Term "Profit" Means a Financial Gain, Not a
Financial Loss
11. In its responses to Panel Questions, Korea introduces the oxymoron "negative profit" in an
effort to argue that a loss recorded in a company 's books should be considered acceptable for the
determination of CV profit under the chapeau of Article 2.2.2 . In doing so, Korea argues that "the
term 'profit' in this context can encompass situations in which a loss is recorded in the company 's
books" because, according to the online Oxford Dictionaries, "[t]he ordinary meaning of profit
includes 'the difference between the amount earned and the amount spent in buying, operating, or
producing something'".
12. In actuality, the online dictionary from which Korea quotes defines the term "profit" in full as
"[a] financial gain, especially the difference between the amount earned and the amount spent in
buying, operating, or producing somethin g". It is thus disingenuous for Korea to argue that the
"difference between the amount earned and the amount spent " as provided for in this definition
means anything other than a financial gain.
13. Paragraphs 51-57 of the U.S. Responses to Questions demon strate that the term "profit" as
provided for in Articles 2.2 and 2.2.2 refers to a financial gain, not a financial loss . The dictionary

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definition of "profit" put forward by Korea confirms that the term "profit", by definition, refers to a
financial gain, not a financial loss. Therefore, for the reasons provided for in the U.S. Responses to
Questions, the Panel should find that the term "profit" for purposes of Articles 2.2 and 2.2.2
encompasses just those situations in which there is a financial gain reco rded in a company 's
books.
B. The Chapeau of Article 2.2.2 Does Not Require the Use of Third-Country Sales Data
14. In an attempt to explain why third -country market sales must be used under the preferred
method, Korea argues in response to Panel Question s that "Article 2.2.2 only applies if the
investigating authority has already found that sales in the domestic country of export do not
permit a proper comparison for certain specified reasons, including 'low volume'". Korea is not only
wrong in arguing th at third -country sales are required under the chapeau of Article 2.2.2, but
Korea is wrong in arguing that Article 2.2.2 applies only when no domestic market sales are
available under Article 2.2.
15. As explained in the U.S. Responses to Questions, Article 2.2.2 most commonly applies in the
circumstance in which an investigating authority bases normal value on sales of the like product in
the domestic market, but where certain of those sales cannot be used because they are outside
the ordinary course of t rade, or because the group of domestic sales does not include sales of
products identical or similar to those sold in the relevant export market . In that situation, an
investigating authority would compare the specific export price of the product under con sideration
to a constructed normal value based on the cost of production plus a reasonable amount for SG&A
costs and for profits, which triggers the application of Article 2.2.2.
16. But again, in the situation just described, the information in the recor d nonetheless would
include domestic sales for other like products, including data with respect to profit for those
domestic sales . It thus would not make sense to interpret Article 2.2.2 as requiring an
investigating authority to go out and collect, as Ko rea suggests, third -country sales data for
purposes of a CV profit determination. As Korea acknowledges in its response to Panel Question 2,
subparagraph 1 of Article 2.2 applies only "when the investigating authority has already decided to
use the market in which those sales took place as the comparison market ... Article 2.2.1 does not
address whether a third-country market is appropriate for the determination of normal value". The
same is true for the chapeau of subparagraph 2 of Article 2.2, which also applies only after an
investigating authority has decided which market shall be used as the comparison market.
17. In this way, Article 2.2.2 reflects the preference for domestic market sales set out in
Article 2.2, and in fact assumes that the investigat ing authority may be using domestic market
sales for normal value, constructing normal value only when domestic market sales do not exist
for purposes of a comparison with specific export sales . Specifically, when an investigating
authority has already dec ided under Article 2 to base normal value on domestic market sales, the
chapeau of Article 2.2.2 directs that, if available, CV profit must be based on profit data from the
remainder of domestic market sales (i.e., the preferred method), and if not availab le, may be
based on an alternative method provided for under subparagraphs (i) -(iii). But when an
investigating authority has already decided under Article 2 not to base normal value on domestic
market sales, Article 2.2.2 permits the investigating authori ty to base CV profit on an alternative
method. The chapeau of Article 2.2.2 does not require an investigating authority to reconsider
whether the domestic market is appropriate, nor does it require an investigating authority to
consider whether CV profit should be based on third-country market sales.
C. USDOC's Decision to Exclude Line, Structural, Standard, and Downgraded Pipe
Products from its Definition of the "Same General Category of Products " Was
Supported By a Reasoned and Adequate Explanation
18. In its responses to Panel questions, Korea raises several arguments regarding USDOC 's
determination of the "same general category of products ". Specifically, Korea argues that the
rebuttal briefs filed by HYSCO and NEXTEEL before USDOC demonstrate "the similarities between
OCTG and line pipe/standard pipe ". According to Korea, respondents demonstrated that "OCTG
and non -OCTG products such as line and standard pipes are the same general category of
products because they: (1) share the same general purpose o f 'conveying fluids and gases ' in

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addition to all other similarities in terms of raw materials, production processes and facilities,
outward appearances, and physical characteristics"; and (2) fall within the same tariff headings.
19. USDOC in its final d etermination provided an extensive explanation of the reasons why it
defined the "same general category of products " to include only those pipe products that exhibit
the same fundamental characteristics for down hole applications, i.e., "subject OCTG, non -scope
OCTG such as stainless steel tubular products, and drill pipes", as well as a reasoned and adequate
explanation as to why it decided to exclude line pipe and standard pipe . Korea counters that
USDOC should have included line pipe or standard pipe pro ducts as part of the "same general
category of products " as OCTG because non -OCTG pipes look like OCTG pipes, sometimes are
manufactured in the same building, sometimes are handled by the same export department or
marketed like every other steel pipe, and undergo "the same basic production processes ". But
USDOC considered all of these points and still found "that line, structural and standard and
downgraded pipe products are not in the same general category of products as OCTG " because
OCTG differs significantly from non-OCTG.
20. Therefore, even if Korea 's statements are true, the Panel should reject Korea 's invitation to
conduct a de novo review because, as explained in the U.S. First Written Submission, USDOC
provided a reasoned and adequate explanation o f how the information in the record supports its
definition of the "same general category of products".
21. Korea's reliance on the overlap in HTSUS subheadings applicable for OCTG and those
applicable for certain line or standard pipe products is simila rly unavailing. The overlap in HTSUS
subheadings is inconsequential because USDOC 's definition of the scope of the investigation
stipulates that the HTSUS subheadings provided therein are "for convenience and customs
purposes only. The written description of the scope of the investigation is dispositive ". Thus that
the HTSUS subheadings for line or standard pipe products overlap with those for OCTG does not
mean that these products fall within USDOC 's definition of the like product, nor does it mean that
these products have the physical characteristics or functionality that require them to be
incorporated into USDOC's definition of the "same general category of products".
22. Finally, contrary to Korea 's claims, USDOC did not define the "same general catego ry of
products" more narrowly than the definition of the scope of the Korea OCTG investigation . As
previously explained, the pipe products that were the subject of the USDOC determination in OCTG
from Ukraine were sold to the U.S. market as OCTG . The Ukraine pipe product, at the point of
sale, fell squarely within the scope of the investigation, because the respondent sold these pipe
products as OCTG, and thus USDOC 's determination in OCTG from Ukraine did not expand the
definition of the like product to in clude products sold as non -OCTG pipe . In contrast, the
downgraded Korea pipe product, at the point of sale, fell squarely outside the scope of the
investigation, because the Korean respondents sold these pipe products in the Korean market as
something othe r than OCTG, and thus USDOC excluded this downgraded pipe product from its
definition of "same general category of merchandise ". Therefore, Korea's reliance on OCTG from
Ukraine to argue that USDOC 's definition of the "same general category of products " is narrower
than its definition of the like product is unavailing.
23. Korea has failed to show that USDOC 's definition of "same general category of products " as
including the "like product " plus other pipe products that share the same fundamental
characteristics for down hole applications is inconsistent with Article 2.2.2.
D. Article 2.2.2 Does Not Require an Investigating Authority to Restrict its Selection
of "Any Other Reasonable Method" to Domestic Market Data
24. Korea argues that the Panel should in terpret the text of Article 2.2.2, specifically the terms
"any other reasonable method", so that it is restricted to domestic market data, because "none of
the options under the subparagraphs [of Article 2.2.2] allows the investigating authority to deviate
from the domestic country of export ". According to Korea, "[t]he obligation that the 'any other
reasonable method' under Article 2.2.2(iii) must reflect the profit realized in the domestic market
of the exporting country is embedded in the very structure of the subparagraphs of Article 2.2.2 ".
Based on these statements, Korea concludes that since the information in the record does not
indicate that Tenaris produced or sold OCTG pipe in Korea during the period of investigation, "[n]o

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reasonable basis exists to conclude that Tenaris's profit rate is reflective of the profit rate that the
Korean producers would have achieved if they had sold OCTG in the country of export".
25. To the contrary, Article 2.2.2 specifically contemplates that there may not exist information
in the record of an investigation that would allow an investigating authority to base CV profit on
profits associated with sales in the domestic market of the exporting country and provides an
alternative method on which to base CV profit when this situation occurs.
26. As discussed above, the chapeau of Article 2.2.2 sets out a preferred method that calculates
CV profit narrowly based on actual domestic market data in respect of the like product, sold in the
ordinary course of trade, as manufactured by the producer or exporter in question. If such data do
not exist, subparagraphs (i) and (ii) of Article 2.2.2 provide for two alternatives that draw on
broader domestic market data sets, either in respect of the same general category of products as
manufactured by the producer or exporter in question, or in respect of the like product as
manufactured by other producers or exporters subject to investigation . Subparagraph (iii) of
Article 2.2.2 provides for a third alternative that is broader still, "any other reasonable method ".
As the panel in EU – Biodiesel noted, "[t]his context, together with absence of any additional
guidance in Article 2.2.2(iii) on what the 'method' chosen should entail in terms of either the
source or scope of the data or proce dures, suggests . .. a broad and non -prescriptive
understanding of the term".
27. It is not uncommon to find situations in which products are manufactured just for export. In
such situations, it makes sense, both legally and factually under t he third alt ernative in
Article 2.2.2, for an investigating authority to be able to calculate CV profit based on "any other
reasonable method". The Korea OCTG investigation is such a situation.
28. Further, the information in the record of this investigation indicate s that the respondents did
not sell OCTG in Korea during the period of investigation, not surprising since, as Korea notes in its
First Written Submission, "there is limited oil and gas exploration in Korea ". Thus an absence of
conclusive evidence as to wh ether Tenaris may have sold OCTG in Korea during the period of
investigation also should not be surprising, nor a sufficient reason to dismiss USDOC 's reasoned
and adequate explanation for why it decided to base CV profit on the Tenaris financial statement.
29. If an investigating authority selects pursuant to Article 2.2.2(iii) a CV profit margin that is
based on a reasoned consideration of the evidence before it, rationally directed at approximating
what the profit of a producer of the like product would have been if the like product had been sold
in the ordinary course of trade in the domestic market of the exporting country – as USDOC did
here – the use of such a profit margin by an investigating authority is consistent with the
obligations set out in Article 2.2.2 of the AD Agreement. Therefore, even though the record did not
include information that Tenaris sold OCTG in Korea during the period of investigation, this fact
does not render USDOC 's decision to base CV profit on the Tenaris financial stateme nt not
"reasonable" within the meaning of Article 2.2.2 of the AD Agreement.
E. Article 2.2.2 Does Not Require an Investigating Authority to Broaden its Definition
of the "Same General Category of Products " When Information in the Record Does
Not Otherwise Allow for Calculation of a Profit Cap
30. Korea also argues "that the investigating authorities are not permitted to deviate from
Article 2.2.2(iii), which unequivocally requires the calculation and application of a profit cap ".
According to Korea, "to the extent that an investigating authority is faced with practical difficulties
in calculating a profit cap, it has flexibility to adjust the scope of products considered ". In other
words, Article 2.2.2 should be interpreted to obligate an investigating au thority to disregard its
reasoned and adequate explanation for the definition of "products of the same general category "
and to artificially broaden that definition until it finds profit data for a dissimilar product.
31. When an investigating authority c onstructs normal value, it is required by Article 2.2 to
include "a reasonable amount for ... profits ". In this regard, the panel in Thailand – H-Beams
understood that, under Article 2.2.2(i),
[t]he broader the [same general] category [of products], the m ore products other
than the like product will be included, and thus in our view the more potential there

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will be for the constructed normal value to be unrepresentative of the price of the like
product.
Thus Korea's suggestion that an investigating author ity should disregard its otherwise reasoned
and adequate explanation for defining the "same general category of products " as it did, simply
because there is no information in the record that would allow it to calculate a profit cap, inevitably
will result in a contrived constructed normal value.
32. For example, in paragraph 33 of its Responses to Questions, Korea argues that USDOC
should have broadened its definition of the same general category of products because HYSCO
marketed OCTG "as part of its gene ral 'Steel Pipes ' that include other carbon steel pipes for
ordinary piping, boiler and heat exchange, pressure service, and structural purposes, as well as
line pipe, other casing and tubing products, offshore structural pipe, conduits, fencing tubing, an d
boiler tube". A broadening of the definition of "same general category of products " in the Korea
OCTG investigation to include pipes for ordinary piping or for boiler and heat exchange, or even
fencing tubing, would necessarily result in a constructed no rmal value unrepresentative of the
price of the subject merchandise.
F. An Investigating Authority is Not Required to M ake an Adjustment Under
Article 2.4 of the AD Agreement When an Interested Party Fails to Request such an
Adjustment
33. Korea argues tha t the Korean respondents should be excused for their failure to request
USDOC to make an allowance within the meaning of Article 2.4 because they purportedly were
limited in their ability to do so . Korea argues in the alternative that since the Korean resp ondents
had pointed out differences between themselves and Tenaris for purposes of the CV profit
determination, they had otherwise fulfilled their responsibilities regarding adjustments under
Article 2.4.
34. Korea's argument distorts the record in the inv estigation. Information about Tenaris's profit
margin, and other company-specific information, was placed in the record before USDOC published
its preliminary determination . USDOC decided not to calculate CV profit based on Tenaris's profit
rate for purpos es of its preliminary determination, but this decision did not mean that USDOC
could not decide to calculate CV profit based on Tenaris 's profit rate for purposes of the final
determination. Indeed, both HYSCO and NEXTEEL argued before the final determinat ion that
USDOC should not base CV profit on the Tenaris data for multiple reasons, including the alleged
differences in products and operating structure . Thus the fact that respondents knew to make
arguments about the Tenaris data before USDOC's final determination shows that they understood
that USDOC could base CV profit on this data . But again, neither respondent argued that due
allowance should be made under Article 2.4.
35. In addition, as HYSCO and NEXTEEL never asked USDOC to make due allowances unde r
Article 2.4, the suggestion that they unwittingly fulfilled their responsibility for doing so, or that
USDOC should have recognized that they had done so, does not follow . According to the Appellate
Body, "exporters bear the burden of substantiating, 'as constructively as possible ', their requests
for adjustments reflecting the 'due allowance' within the meaning of Article 2.4". The additional
arguments advanced by Korea in its responses to questions do not change the fact that Korea has
not established t hat the United States acted inconsistently with the obligations provided for in
Article 2.4 in failing to make an adjustment that was never requested . Therefore, the Panel should
find that Korea's claim with respect to Article 2.4 lacks merit.
III. USDOC'S USE OF CONSTRUCTED E XPORT PRICE WAS NOT INCONSISTENT WITH
ARTICLE 2.3 OF THE AD AGREEMENT
36. Korea has failed to establish that USDOC improperly relied on constructed export price
("CEP") after making the factual determination that NEXTEEL is affiliated with the Customer . The
United States recalls that Article 2.3 permits an authority to disregard a producer 's export price
"where it appears to the authorities concerned that the export price is unreliable because of
association or a compensatory arrangement between the exporter and the importer". Korea argues
that inclusion of the term "appears" in Article 2.3 does not affect the substantive obligation, and
that an authority is to determine whether export prices are – in fact – unreliable. Korea now relies

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on Article 17.6(i) of the AD Agreement as additional support for this proposition, stating that
Article 17.6(i) requires that "each of the USDOC 's findings and determinations must be based on
an unbiased and objective assessment of facts that are properly established". Korea's argument
conflates two distinct issues . Article 17.6(i) concerns a panel 's standard of review, and more
specifically its "assessment of the facts, " and does not alter the sub stantive obligations of
Article 2.3 or any other provision of the AD Agreement.
37. Korea also continues to assert that the legal interpretation of "association" within the
meaning of Article 2.3 should be informed by the definition of "related" in footnote 11 of the
AD Agreement because the United States "incorporated the definitions contained in footnote 11 in
its domestic legislation corresponding to the application of Article 2.3 ". Despite Korea 's claims,
however, USDOC's definition of "affiliation" in U.S. domestic law does not alter the United States '
legal obligations under Article 2.3, such that a finding of "affiliation" and not "association" would be
required. Under the customary rules of treaty interpretation, and consistent with the findings of
WTO panels and the Appellate Body, the U.S. domestic legal pr ovisions are not relevant to the
legal interpretation of Article 2.3.
38. With respect to the facts underlying USDOC 's finding of affiliation, Korea highlighted two
arguments in its answers to the Panel 's questions. First, Korea contends that "USDOC disregarded
the fact that … a larger portion of [hot -rolled coil] actually used in producing OCTG during the
period of investigation was purchased from other sources prior to the period of investigation ".
Korea's statement implies that a substantial percentage o f the HRC that NEXTEEL consumed to
produce OCTG during the period was from a source other than NEXTEEL . However, Korea 's
assertion does not demonstrate that USDOC 's finding was not based on positive evidence, and is,
in any event, contradicted by the record.
39. Second, Korea now argues that NEXTEEL 's relationship with both POSCO and Customer
predated the relationship between POSCO and Customer, thus undermining USDOC 's conclusion
that export prices appeared unreliable . As an initial matter, it is importan t to recognize that the
information referenced in Korea's response was not, as the Panel's question asks, "provided by the
interested parties to the USDOC in support of an argument that NEXTEEL 's export price was not
unreliable despite the USDOC 's finding of affiliation ". Rather, the information was provided by
NEXTEEL in response to a standard question from USDOC regarding corporate structure, and was
not included as part of any argument to USDOC regarding affiliation or price reliability .
Furthermore, the information referenced by Korea does not undermine USDOC 's conclusion of
affiliation.
IV. USDOC'S DECISION TO DEPART FROM NEXTEEL 'S BOOKS AND RECORDS TO
CALCULATE COSTS WAS NOT INCONSISTENT WITH ARTICLE 2.2.1.1 OF THE
AD AGREEMENT
40. Korea has failed to demonstrate that USDOC's decision to depart from NEXTEEL's books and
records to calculate certain of NEXTEEL 's input costs was inconsistent with Article 2.2.1.1 . In this
submission, the United States will address Korea's argument in response to Panel question 26 that
"USDOC disregarded NEXTEEL 's own records … without examining the accuracy or reliability of
NEXTEEL's records". Korea's argument is not supported by the text of Article 2.2.1.1 or the factual
record of the Korea OCTG investigation.
41. The Uni ted States recalls that, in the NEXTEEL CV Memo, USDOC analyzed NEXTEEL 's
transaction prices for HRC from POSCO to evaluate whether the prices were reflective of market
prices, or transactions made at an arms -length. For each grade of HRC – the input at issue here –
USDOC compared POSCO's transfer prices to NEXTEEL with (1) POSCO's cost of production and (2)
POSCO's arms -length transaction prices . If the transfer prices were lower than the cost of
production or not consistent with an arms -length transaction price, then USDOC departed from
NEXTEEL's books and records, and instead used POSCO 's sales prices to unaffiliated purchasers .
Based on its analysis of the record data, USDOC properly concluded that certain transaction prices
did not reasonably reflect the costs associated with the production of OCTG.
42. Korea also now cites to the panel report in EU – Biodiesel to suggest that Article 2.2.1.1 is
concerned only with whether the records reflect the actual costs incurred by the producer under
investigation. In that case, the panel considered the European Union 's treatment of certain

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distortions it determined to exist in Argentina 's economy that had the effect of reducing the
exporter's costs of certain inputs . Under that circumstance, the pa nel concluded tha t the
European Union did not have a basis under Article 2.2.1.1 to depart from the producer's books and
records because the books and records did reflect the actual costs incurred by the producer . The
circumstances of this investigation are not similar, and these findings are thus of limited relevance.
43. Moreover, the panel in EU – Biodiesel went on to expressly recognize that transactions
between companies that are not at arms -length would provide a basis to depart from the
producer's books and records . The panel observed that, where a producer and supplier are
affiliated, "the actual costs of production of particular inputs is spread across different companies '
records, or [] transactions between such companies are not at arms -length or indicative of the
actual costs involved in the production of the product under consideration ". It is this finding that is
relevant to the circumstances of this case. Here, based on the record evidence, USDOC determined
an affiliation relationship to exist between NEXTEEL a nd its supplier of HRC, POSCO . Having made
that determination, USDOC then analyzed the prices charged by POSCO to NEXTEEL against the
prices charged by POSCO to unaffiliated purchasers . Based on that analysis, USDOC determined
the appropriate costs to use for the constructed normal value . Therefore, contrary to Korea 's
argument, EU – Biodiesel supports the U.S. argument that USDOC properly rejected respondents '
data under Article 2.2.1.1.
V. USDOC'S DECISION TO LIMIT THE EXAMINATION WAS NOT INCONSISTENT WIT H
ARTICLE 6.10 OF THE AD AGREEMENT
44. Contrary to Korea 's statements, USDOC clearly indicated that it limited its examination to
the largest percentage of the volume of exports that could reasonably be examined, and provided
a reasoned explanation for its decision to limit the number of respondents individually examined,
consistent with the obligations of Article 6.10 of the AD Agreement.
45. The authority may limit its examination where the number of exporters or producers is so
large as to make a determi nation of individual margins of dumping for all exporters or producers
"impracticable". Once the authority determines that it would be "impracticable" to examine all
exporters or producers, and determines to limit its examination under the second methodolo gy,
the authority must determine "the largest percentage of the volume of the exports from the
country in question which can reasonably be investigated".
46. USDOC's determination that it "would not be practicable " to examine all possible
respondents comp lied with Article 6.10 . Data indicated that more than ten Korean companies
exported or produced OCTG that was imported into the United States during the period of
investigation. USDOC carefully considered "its resources, including its current and anticipat ed
workload and deadlines coinciding with the proceeding in question".
47. USDOC accordingly limited its examination to a certain number of respondents . Specifically,
USDOC's Respondent Selection Memorandum states that USDOC determined it "most appropriate
to select the exporters or producers accounting for the largest volume of the subject merchandise
that can reasonably be examined". In addition to USDOC's consideration of its available resources,
USDOC determined that HYSCO and NEXTEEL accounted for the largest volume of U.S. imports of
subject merchandise during the period of investigation . Korea has presented no evidence to argue
that USDOC's actions were unreasonable, and the Panel should therefore reject Korea's claim.

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ANNEX C-4
EXECUTIVE SUMMARY OF THE ORAL STATEMENTS OF THE UNITED STATES
AT THE SECOND PANEL MEETING
I. Korea's "As Such" and "As Applied" Claims Regarding the So-Called "Viability Test"
are Without Merit
1. The customary rules of treaty interpretation support the U.S. understanding t hat Article 2.2
permits an authority to consider the volume of sales when determining an "appropriate" third-
country. The parties agree that, where home -market sales cannot be used to calculate normal
value, Article 2.2 imposes no hierarchy as between the two alternative methods. Under Article 2.2,
an interested party is not entitled to direct the use of a particular method . Rather, the authority
may determine to use constructed normal value or sales to "an appropriate third country, provided
that this pric e is representative " to calculate normal value . The text of Article 2.2 does not
prescribe how an authority is to identify an "appropriate third country ", nor does it preclude the
consideration of volume . Moreover, relevant context supports an understandin g that volume may
be a relevant consideration.
2. We turn next to Korea's contention that the challenged measure is contrary to U.S. domestic
law. It is not the role of a panel to review the legality of a Member 's law as within that municipal
legal system. Rather, it is the role of the panel to determine, as a matter of fact, the content and
meaning of municipal law, and to evaluate its consistency with WTO law . Despite Korea 's
contentions, Commerce is required to adhere to its regulations . As reflected in the plain language
of Commerce's current regulation, the United States has shown that Commerce has the flexibility
to consider the use of third-country sales that are less than 5 percent of sales to the United States.
II. Korea's Claims Regarding the Calculation of CV Profit are Without Merit
3. Korea contends that "[t]he fundamental problem with the United States ' argument is that
the chapeau of Article 2.2.2 is intended to apply precisely in circumstances in which there is no
'viable' home or third -country market under Article 2.2 ". Korea has it backwards . This is the
fundamental problem with Korea's argument because Article 2.2.2 does not just apply when there
is no viable home or third -country market. Article 2.2.2 frequently applies when there is a viable
home or third -country market and yet, for various reasons, an investigating authority must
construct normal value for comparison purposes.
4. For example, an authority using home market sales may nevertheless need to construct
normal value for certain sales where the home market data set does not contain contemporaneous
sales, or does not contain sales of identical or similar like products . This also may occur where the
identical or similar like products in the home market data set have to be rejected because they fall
below the cost of production or are outside the ordinary course of trade.
5. Recently, the Appellate Body in EU – Biodiesel discussed how the introductory phrase "[f]or
the purpose of paragraph 2 " impacted the interpretation of Article 2 .2.1.1, finding that
Article 2.2.1.1 must be interpreted in a manner consistent with Article 2.2 . The phrase "[f]or the
purpose of paragraph 2 " also appears at the beginning of Article 2.2.2 . The language of the
chapeau of Article 2.2.2 thus should also be interpreted in a manner consistent with Article 2.2.
6. The context provided by Article 2.2 suggests that, where an investigating authority
determines that sales in the home market are viable, the chapeau of Article 2.2.2 reflects a similar
preference and indicates that those same sales should be used for calculating profit amounts.
7. But where an investigating authority determines under Article 2.2 that sales in the home
market are not viable, and determines instead to construct normal value, nothing in the chapeau
of Article 2.2.2 suggests that an investigating authority must nevertheless collect home market
sales that it purposely did not collect under Article 2.2 or third -country sales that it did not collect
under Article 2.2 . In such a case, Article 2.2.2 provides three alternative methodologies that can
be employed instead.

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8. Korea persists with the notion that because HYSCO or NEXTEEL may have produced so -
called "non-prime" OCTG, sales of this product in Korea constituted sales of the like produc t.
Korea's argument ignores the key determinant in whether a product falls within the scope of the
"like product " definition: whether the product in question was sold on the date of sale as "like
product". The record here is clear: NEXTEEL said the pipes i n question "were sold to customers as
standard pipes". HYSCO said the pipes in question were "not marketed to the customer as OCTG "
but sold "for structural purposes". Thus, as of the date of sale, the relevant pipes were not sold in
Korea as "like products".
9. Finally, the so -called domestic market "profit" figures put forward by Korea do not satisfy
the definition of profit . The definitions put forward in this dispute, including the one advocated by
Korea, define profit as a "financial gain" or a "positive difference". The "profit" figures in question
do not correlate with these definitions of profit.
10. Korea argues that the United States has offered no basis under the chapeau of Article 2.2.2
to justify its differential treatment of SG&A and profit . At the outset, we note that the language in
Article 2.2.2 does not require an investigating authority to base its calculation of SG&A and profit
on the same methodology, or even the same database . SG&A and profit are completely different
factors, so it is acceptable for an authority to base the calculation of SG&A on one method and the
calculation of profit on another . Furthermore, contrary to Korea 's argument, the record indicates
that Commerce did not base its calculation of SG&A on the preferred method p rovided for under
the chapeau of Article 2.2.2. It based its calculation of SG&A on an alternative method provided for
under the subparagraphs of that article.
11. Contrary to Korea's argument, Article 2.2.2(iii) does not require an investigating authority to
impose a profit cap whenever the authority calculates CV profit based on "any other reasonable
method." By linking the profit cap to "profit normally realized", Article 2.2.2(iii) foresees situations
when there may be no information about the profits in question, because there are no other
exporters or producers of sales of products of the same general category in the domestic market,
or because this information simply does not appear in the record of the proceeding.
12. Article 2.2.2(iii) should be a pplied as the word "normally" suggests: If information exists to
calculate the profit cap, the proviso is operative . If such a calculation is not possible because
information does not exist, then the proviso is not operative . In either case, an investigati ng
authority remains bound under Article 2.2 to calculate "a reasonable amount ... for profits".
13. Korea argues that it was unreasonable for Commerce to base CV profit on the Tenaris
financial statement because this profit figure ignores the "'domestic market' requirement" of
Article 2.2.2. Consistent with the interpretation set out by the United States in this dispute, the
panel in EU – Biodiesel found that "the structure of Article 2.2.2 indicates a preference for the
actual data of the exporter and li ke product in question, with an incremental progression away
from these principles before reaching 'any other reasonable method ' in Article 2.2.2(iii) ". In this
regard, the panel concluded that "[t]his context, together with absence of any additional guida nce
in Article 2.2.2(iii) on what the 'method' chosen should entail in terms of either the source or
scope of the data or procedures, suggests ... a broad and non -prescriptive understanding of the
term". So while the chapeau of Article 2.2.2 and subparagra phs (i) and (ii) have a "domestic
market requirement", Article 2.2.2(iii) clearly does not contain a similar requirement.
14. Korea requests that the Panel expand the scope of its examination to include Commerce 's
Final Redetermination Pursuant to Court Re mand, issued on February 22, 2016, and find those
results inconsistent with the obligations of the United States under Articles 2.2 and 2.2.2 .
Commerce's redetermination was not the subject of consultations and did not exist at the time the
Panel was estab lished. Commerce's redetermination thus is not a measure before the Panel and
falls outside its terms of reference . Furthermore, Korea failed to invoke Commerce 's
redetermination in this dispute in a timely manner, prejudicing the U.S. ability to respond t o
Korea's claims regarding that redetermination.

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III. Commerce's Decision to Construct NEXTEEL 's Export Price Was Not Inconsistent
with Article 2.3 of the AD Agreement
15. We turn next to Korea 's claims regarding Commerce 's use of NEXTEEL 's constructed export
price. The customary rules of treaty interpretation require that a treaty be interpreted based on
the ordinary meaning of the terms in their context . Here, the relevant term is "association," which
is defined as "the action of joining or uniting for a common purpose", a definition that captures a
broad range of commercial relationships . We recall that guidance on the meaning of this term can
be drawn from the parallel treatment in Article 2.3 of "association" and "compensatory
arrangement". Neither an "association" nor a "compensatory arrangement" relationship conveys an
aspect of control within the relationship . Instead, both terms concern relationships in which
transactions may not be made on an arm's length basis. It is the nature of these relationships that
gives the appearance of unreliable prices, and in turn permits an authority, under Article 2.3, to
construct export price.
16. Korea's Second Written Submission asserts that Article 2.3 requires an authority to
separately assess the reliability of prices before deciding to use constructed export price . Again,
however, Korea has not explained how its interpretation gives meaning to the terms used in the
text of Article 2.3, in this case, "appear". As the United States has explained, the word "appear" is
defined as "seem to the mind, be perceived as, be considered ". Thus, if the relationship between
the exporter and the importer is "perceived [by the authority] as " resulting in a price that cannot
be trusted, the authority can resort to the use of a constructed export price. The United States has
acknowledged that there may be circumstances in which two companies may meet the broad
definition of association, yet the nature of the relationship does not give rise to the perception that
the prices canno t be trusted . In such cases, there may not be a basis for the authority to reject
actual sales prices.
17. That is not the situation here . As we have explained, the nature of the relationship between
NEXTEEL and POSCO, in which POSCO was involved in both t he production and sale of NEXTEEL 's
OCTG, called into question the reliability of NEXTEEL 's prices . We refer the Panel to the final
affiliation memorandum, which demonstrates that Commerce 's inquiry considered the nature of
the relationship and its potential effect on the pricing, production, and sale of OCTG.
IV. Commerce's Use of Calculated Costs Based on NEXTEEL 's Supplier's Records Was
Not Inconsistent with Article 2.2.1.1 of the AD Agreement
18. Korea has failed to establish that the decision to depar t from NEXTEEL's books and records
to calculate costs was inconsistent with Article 2.2.1.1 . In the recently issued Appellate Body
report in EU – Biodiesel, the Appellate Body recognized that Article 2.2.1.1 permits an authority to
depart from a producer's books and records where transactions were not made on an arm 's length
basis. The Appellate Body observed that records may "not be found to reasonably reflect the costs
associated with the production and sale of the product under consideration " under Article 2.2.1.1
"where transactions involving such inputs are not at arm's length".
19. Here, after concluding that an affiliation existed between the producer and supplier,
Commerce undertook a line -by-line comparison of prices charged by POSCO to NEXTEEL wit h
prices charged by POSCO to unaffiliated purchasers . This analysis established that the costs
recorded in NEXTEEL's books and records for certain grades of hot-rolled coil did not reflect the full
"costs associated with the production of" OCTG.
V. Commerce in the Korea OCTG Investigation Met All Disclosure and Participatory
Requirements under the AD Agreement
20. Korea argues under Articles 6.2 and 6.4 that once Commerce decided in its preliminary
determination not to base CV profit on the Tenaris data, "there was no reason for the Korean
respondents to concern themselves" that Commerce may subsequently change its mind in its final
determination. Korea also argues that Commerce denied the Korean respondents an opportunity to
submit information rebutting th e Tenaris data and that the United States failed to protect
respondents' procedural rights.

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21. As we have said before, a preliminary determination is just that: preliminary. It is not
credible for any interested party to suggest they need not concern them selves with the fact that a
final determination might differ from a preliminary determination, especially in this matter given
that Commerce specifically indicated in its preliminary determination that it "intend[ed] to continue
to explore other possible options for CV profit for both respondents".
22. The Korean respondents were informed of the additional Tenaris financial data at the same
time as Commerce – when the data was placed on the record . As the United States has explained
in its prior submissions , respondents had an opportunity to submit factual information rebutting
the Tenaris data but declined to do so . The respondents also made multiple arguments before and
after Commerce 's preliminary determination, through written submissions and at the hear ing,
regarding whether and how Commerce should use the Tenaris financial data . It is thus clear from
the record that the Korean respondents had ample opportunity to defend their interests and to see
all information that was used in Commerce's final determination.
VI. Korea Has Failed to Establish that the Korea OCTG Investigation was Inconsistent
with Article I:1 and Article X:3(a) of the GATT 1994
23. We turn now to address claims raised by Korea under Article I:1 and Article X:3(a) of the
GATT 1994 . First, Korea 's claim under Article I:1 must fail because the measure does not fall
within the scope of Article I:1 . In Korea 's Second Written Submission, for the first time, Korea
asserts that the challenged measure is within the scope of Article I:1 because "'the method of
levying such duties and charges ' must cover antidumping investigations ". But contrary to Korea 's
argument, "method of levying " duties relates to the administration of duty collection, not the
conduct of a single antidumping investigation . Indeed, an investigating authority necessarily must
conduct investigations based on the particular circumstances of eac h case, as reflected in
Article VI:1 of the GATT 1994.
24. Second, Korea 's Article X:3(a) argument does not state a claim within the scope of that
provision. To establish a breach of Article X:3(a), the complainant must: (1) identify a law,
regulation, decision or ruling of general application of the responding Member, and (2)
demonstrate that the respondent does not administer that law, reg ulation, decision or ruling in a
uniform, impartial, and reasonable manner . Korea has failed to sufficiently identify either the
specific measure at issue, or the nature and scope of its claim regarding the administration of that
measure.
EXECUTIVE SUMMARY OF U.S. CLOSING STATEMENT
25. Under Article 7.1 of the DSU, the DSB gives a panel authority to examine a matter through
the panel 's terms of reference . The "matter" is comprised of the measure and claims (i.e., the
legal basis of the complaint) identifie d in the complainant 's panel request . As such, a panel can
only consider those measures and claims identified in the complainant 's request for the
establishment of a panel, consistent with Article 6.2 of the DSU . Korea has argued that the Panel's
terms of reference include Commerce's remand redetermination. The redetermination, however, is
not identified in Korea's Panel Request, and the redetermination therefore falls outside the Panel 's
terms of reference. Moreover, Korea has failed to claim in its Panel Request that the United States
acted inconsistently with Article 6.8 or Annex II . Therefore, the correct basis for the claim Korea
now raises with respect to Commerce's calculation of a profit cap in its redetermination would also
fall outside the Panel's terms of reference.
26. As noted in Question 16 of the Panel, Korea also failed to include in its Panel Request a claim
that Commerce 's determination to base CV profit on the Tenaris financial statement did not
constitute an "other reasonable method " within the meaning of Article 2.2.2(iii) . Therefore, the
Panel should find that its terms of reference do not extend to Korea 's claim regarding Commerce's
determination to base CV profit on the Tenaris financial statement under Article 2.2.2(iii).

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ANNEX D
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex D-1 Executive Summary of the Arguments of China D-2
Annex D-2 Integrated Executive Summary of the Arguments of the European Union D-4
Annex D-3 Executive Summary of the Arguments of Turkey D-8

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ANNEX D-1
EXECUTIVE SUMMARY OF THE ARGUMENTS OF CHINA
I. INTRODUCTION
1. Mr. Chair, Members of the Panel. China welcomes the opportunity to address you today.
2. China wishes to highlight some of the critical issues that arise in relation t o the claims made
by Korea regarding USDOC's use of the "viability test" and use of constructed normal value in anti-
dumping proceedings. China believes that these issues are of systemic importance and should be
underscored.
II. ISSUES ARISING IN CONNECTION WITH KOREA'S CLAIMS AGAINST USDOC'S USE
OF THE "VIABILITY TEST"
3. Article 2.2 of the Anti-Dumping Agreement is the provision governing how an investigating
authority may depart from the domestic sales to determine the normal value for fair price
comparisons. The departure may arise from three circumstances: when there are no sales in the
ordinary course of trade in the domestic market of the exporting country, or particular market
situation, or the low volume of the sales in the domestic market of the e xporting country, under
which the normal value could be determined by either based on third country sales (like product
exported to an appropriate third country) or constructed normal value.
4. The only condition provided explicitly in Article 2. 2 of the AD Agreement when the normal
value is determined on the basis of the third country sales is "the price is representative ", while
one of the three criteria to pass the "viability test" that United States uses third country sales to
calculate normal value i s the quantity or value of the sales to the third country shall meet 5% or
more of the company's sales to the Unites States.
5. China is of the view that Article 2.2 does not set up or implies any minimum threshold as
applied by the United States in the "viability test". There is no text or context basis to support this
"5% or more " criteria in "viability test" and this additional quantitative threshold, besides
"representative" requirement, shall not be permitted and its application is per se inconsistent with
Article 2.2 of Anti-Dumping Agreement.
III. ARTICLE 2.2.2 (III) REQUIRES THE PROFIT CONSTRUCTION BASED ON A
REASONABLE METHOD
6. The foundational concept of "dumping", as embodied in the d efinition of dumping in
Article VI:1 of the GATT 1994 and Arti cle 2.1 of the Anti -Dumping Agreement and reflected
throughout the Anti-Dumping Agreement, is endowed with producer or exporter-specific character.
This foundational concept of dumping requires the normal value to be calculated on the basis of
the sources can reasonably reflect the pricing behavior of an individual exporter or producer in the
domestic market of exporting country.
7. Article 2.2.2 (iii) of Anti-Dumping Agreement requires that any alternative calculation
method used must be "reasonable" that could represent domestic market of the exporting country.
The general rules provided in the chapeau of Article 2.2.2 and its paragraphs (i)-(iii) guarantee the
normal value reflects the actual SG&A and profit in a reasonable way, especially if the investigating
authority chooses to depart from the relevant data provided by the exporter or producer under
investigation.
8. With respect to the calculation of profit as one of the important elements for the constructed
normal value, the structure and content o f Article 2.2.2 clearly shows its preference for a profit
source representing the domestic market of the exporting country

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IV. ARTICLE 2.4 REQUESTS DUE ALLOWANCE BE MADE FOR ANY OTHER DIFFERENCES
AFFECTING PRICE COMPARABILITY
9. China now goes to the issue of due allowance needed for the differences affecting price
comparability. Article 2.4 requires that a fair comparison shall be made between the export prices
and the normal value, and provides that due allowance shall be made in each case, on its merits,
for differences which affect price comparability . The "fair comparison" requirement in Article 2.4
obliges the investigating authority to take into account substantial differences that may affect the
price comparability.
10. Appellate Body in EC -Fasteners states that when differences affecting price comparability
between the normal value and export price exist, the authorities must make an adjustment.1 China
believes that the interpretation developed and continuously affirmed by the Appellate Body has
clarified the obligation that the investigating authorities shall make due allowance accordingly.
11. In the underlying investigation, the factors cause differences presented by Korean
enterprises include the types of products sole, scale of business operati ons, and position in the
distribution chain, may substantially affect the proper calculation of profit rate and thus eventually
affect the price comparison, and should be adjusted according to Article 2.4 of Anti -
Dumping Agreement.
12. Thus, China shares the same view with Korea that USDOC is obliged to take into account the
differences that may affect price comparability and make adjustment for the profit rate. Refusing
to do so would amount to denying a fair comparison between the normal value and the ex port
price and ultimately is inconsistent with Article 2.4 of the Anti-Dumping Agreement.
V. CONCLUSION
13. This concludes China's remarks . China wishes to thank you, and the Secretariat team
supporting you, for the work that has been undertaken to date.

1 Appellate Body Report, EC – Fasteners (Article 21.5), para. 5.163.

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ANNEX D-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS
OF THE EUROPEAN UNION
1. THE U.S. VIABILITY TEST FOR THIRD-COUNTRY MARKET SALES UNDER ARTICLE 2.2
OF THE ANTI-DUMPING AGREEMENT
1. Where the domestic price in the exporting country market may not represent an appropriate
normal value for the purposes of comparison with the exporting price, the second part of
Article 2.2 of the Anti-Dumping Agreement provides that an importing Member may select one of
two alternative methods: "third-country sales" and "constructed normal value ". No preference or
hierarchy between these alternatives is expressed in the Agreement. Article 2.2 allows
investigating authorities to opt for one of the two alternatives. The scope of this discretion is
contextually informed by footnote 2. Thus, investigating authorities should meet the requirements
laid down for the use of each alternative: (1) third -country sales may be used provided that their
price is "representative" (taking into account the context of footnote 2); and (2) constructed
normal value is based on the cost of production in the country of origin plus a reasonable amount
for administrative, selling and general costs and for profits, calculated in accordance with the
relevant provisions of Articles 2.2.1.1 and 2.2.2.

2. Accordingly, the European Union considers that the absence of a sufficient volume of exports
of the like product to an appropriate third country could justify a finding that the price of those
exports was not representative in the circumstances of t he specific proceedings, particularly, as
the United States points out, in circumstances where the evidence does not "demonstrate
otherwise". Article 2.2 states that it may be "because of … the low volume of sales " that "such
sales do not permit a proper c omparison". Thus, conceptually, a link is established between the
notion of comparability and relatively low volume. Article 2.2 also uses the term "comparable" in
connection with the price of the like product when exported to an appropriate third country. The
existence of the low volume test reflects the overarching requirement that the export price is to be
compared with a proxy or benchmark that is a value that is normal. The Anti -Dumping Agreement
expresses that metric in relative terms, by reference to the volume of export sales.
2. THE USDOC'S USE OF CONSTRUCTED VALUE IN THE OCTG INVESTIGATION UNDER
ARTICLES 2.2.2 AND 2.4 OF THE ANTI-DUMPING AGREEMENT
3. The European Union recalls that the Appellate Body in EC — Tube or Pipe Fittings has
clarified that Article 2.2.2 imposes a general obligation on an investigating authority to use "actual
data pertaining to production and sales in the ordinary course of trade when determining amounts
for administrative, selling and general costs ( "SG&A") and profits". The European Union considers
that, to the extent that USDOC first ascertained that actual SG&A and profit data for sales in the
ordinary course of trade did not exist for the exporters and the like product under investigation, it
was entitled to employ one of the other three methods provided in sub -paragraphs (i) -(iii) of
Article 2.2.2 of the Anti-Dumping Agreement.

4. In a situation where domestic sales are rejected as a basis for normal value because they
are not in the ordinary course of trade by reason of price, it seems that, by definition, there will be
no "actual" profit margin that could be used in the construction of normal value. Furthermore, the
European Union agrees with the United States that the first sen tence of the chapeau of
Article 2.2.2 refers to data that pertains, in principle, to the domestic market of the investigated
firm. These words do not appear in the first sentence of the chapeau of Article 2.2.2. However,
Article 2.2.2 begins with the phrase "For the purpose of paragraph 2". That purpose is to elaborate
rules for the determination of a value that is normal, in principle, in the domestic market or in the
country of origin. Furthermore, we would point out that the first and second sentences of the
chapeau of Article 2.2.2 are closely related. In short, for the purposes of resolving this dispute, the
relevant terms of the treaty (as opposed to the context) actually co nsist of the whole of
paragraph 2 and the whole of Article 2.2.2. This is significant because sub -paragraphs (i)-(iii) each
also refer to the domestic market of the country of origin.

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5. The European Union notes that, while the text of Article 2.2.2 does not provide any
elaboration as to the definition of "the same general category of products," its chapeau and overall
structure provide certain guidance about "the same general category of products ". We agree with
both parties that this refers to something broader than "like product". On the other hand, we do
not think that the phrase refers to all products capable of bein g covered by the Anti -Dumping
Agreement. Rather, in order to give some reasonable meaning to the phrase, we would tend to
think of products where there may be some substitutability on the supply side.

6. While taking no position on the merits, the Europea n Union considers that the application of
"profit cap " is a mandatory requirement whenever an investigation authority determines to use
"any other reasonable method" under subparagraph (iii) of Article 2.2.2. The presence of the profit
cap in subparagraph (iii) and the absence of any cap in subparagraphs (i) and (ii) demonstrate
that there is an additional element in subparagraph (iii) that needs to be satisfied.

7. The European Union notes that the Anti -Dumping Agreement does not define the exact
scope of what constitutes a "reasonable method" for the purposes of Article 2.2.2 (iii). The panel in
Thailand — H-Beams held that the intention of subparagraphs under Article 2.2.2 is to obtain
results that approximate as closely as possible the price of the lik e product in the ordinary course
of trade in the domestic market of the exporting country. We do not find it easy to envisage a
situation in which it is impossible to obtain data about the profit normally realised by producers of
products of the same gener al category in the domestic market of the country of origin. It would
only be in a truly exceptional situation, in which, despite its best efforts, the investigating
authority had been unable to obtain the necessary data, that it would appear justified to fall back
on the use of another reasonable method, without the determination or application of the profit
cap.

8. The European Union notes that Article 2.4 requires due allowances to be made not only for
the differences explicitly mentioned in that Articl e (i.e. differences in conditions and terms of sale,
taxation, levels of trade, etc.) but for any other differences which are also demonstrated to affect
price comparability.

9. While taking no position on the merits, the European Union is of the view th at, if there were
differences between the Korean respondents and Tenaris (i.e. the types of products sold, scale of
business operations and position in the distribution chain) that affected price comparability, the
failure to make due allowance for these e lements is inconsistent with the "fair comparison "
requirement under Article 2.4 of the Anti -Dumping Agreement. We agree with the parties that the
rules in Article 2.4 of the Anti -Dumping Agreement apply also in the situation in which normal
value has been constructed on the basis of costs. However, we would point out that Korea is not
comparing a cost item taken from a third country with a cost item pertaining in Korea (and also
reflected in the export price). Rather, Korea 's complaint is about the amount for profit used in the
constructed normal value.
3. CONSTRUCTED EXPORT PRICES IN CASES OF ASSOCIATION UNDER ARTICLE 2.3 OF
THE ANTI-DUMPING AGREEMENT
10. Association, for purposes of Article 2.3, may be established directly (that is, between the
exporter a nd the importer) or indirectly, via a third party. Unlike Article 4.1, which permits
investigating authorities to entirely exclude a "related" producer from the definition of the
domestic industry, Article 2.3 merely permits investigating authorities to co nstruct a reliable
export price. Therefore, it appears that the requirement of "association" need not be limited to
cases of direct or indirect control. Association between the exporter and importer does not
necessarily make the export price unreliable. Th ere could, for example, be cases where the price
charged to an associated importer is the same as the price charged to independent importers. In
such cases, it should be open to the investigating authority to find that the export price is reliable
despite the association. Nevertheless, Article 2.3 allows the investigating authority to construct the
export price where the actual export price appears to be unreliable because of association, i.e.
relying solely on the nature of the association.

11. The factu al assessment underlying the investigating authority 's decision to construct the
export price is subject to Article 17.6: it must be unbiased and objective, and the establishment of
facts must be proper. The investigating authority should, for example, pro perly take into account

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any evidence on the record that speaks against a finding of association or shows the export price
to be reliable despite association.
4. DETERMINATION OF COSTS UNDER ARTICLE 2.2.1.1. OF THE ANTI-
DUMPING AGREEMENT
12. Under Article 2.2.1.1, when the records kept by an investigated party (i) are consistent with
the generally accepted accounting principles of the exporting country; and (ii) reasonably reflect
the costs associated with the production and sale of the product under consid eration, an
investigating authority will "normally" be required to use them in the calculation of cost of
production. The investigating authority may depart from the norm, but is bound to explain why it
did so. The calculation of costs in any given investigation must be determined based on the merits,
in the light of the particular facts. Assuming that the USDOC departed from the "norm" of using
NEXTEEL's own records because of its association with POSCO, the European Union considers that
it could have done so as long as it properly and objectively explained and justified this departure
from the norm. Naturally, if the finding of association between NEXTEEL and POSCO was itself
improper, then there would also be no basis for the USDOC to decline to consider the records of
transactions between those enterprises.
5. PROCEDURAL CLAIMS UNDER ARTICLES 6.2, 6.4, 6.9 AND 12.2.2 OF THE ANTI-
DUMPING AGREEMENT
5.1. THE PLACEMENT OF TENARIS' ANNUAL REPORT ON THE RECORD
13. Article 6.2 requires liberal opportunities for respondents to defend their interests, but it does
not enable respondents to submit relevant evidence or participate in the inquiry as and when they
choose, nor does it require the investigating authority to warn an interested party that it intends to
use a submission of another interested party in a certain way. A violation of Article 6.2 would take
place if an interested party was prevented from commenting on requests made by other interested
parties. The right of interested parties to "defend their inte rests" would not be sufficiently
protected if they were only able to procedurally object to the acceptance of other parties '
submissions, and unable to substantively comment on or rebut the newly submitted information.

14. A submission by an interested pa rty could constitute relevant information under Article 6.4,
but it is questionable whether an investigating authority 's decision to accept that submission into
the record could, in itself, be considered as "information" under Article 6.4. The fact that th e
respondents were able to "see" certain information does not yet necessarily show that Article 6.4
was complied with. Whether the investigating authority provided timely opportunities for the
interested parties to prepare presentations on the basis of the information depends on whether, on
the facts, the opportunities to respond to the substance of newly submitted information were
sufficient.

15. With respect to Article 6.9, it is questionable whether an investigating authority 's decisions
pertaining to the formation of the record could, in themselves, be considered as "essential facts".
On the other hand, it seems clear that a document which served as a basis for the calculation of
the profit rate sets out "essential facts". The pertinent question under Article 6.9 therefore appears
to be whether the USDOC should have not only made the Tenaris Annual Report available, but also
separately, prior to the final determination, disclosed its decision to rely on it in the calculation of
normal value. The Appella te Body in China – GOES found that Article 6.9 requires that "before a
final determination is made, the authority explains, in the light of the substantive obligations of the
Anti-Dumping Agreement […] how the essential facts serve as the basis for the decision whether to
apply definitive measures ". On the other hand, Article 6.9 may be complied with in a number of
ways, not necessarily by providing all essential facts in a single document entitled "preliminary
determination".

16. All essential facts must be disclosed in good time for the interested parties to properly
defend their interests. In some circumstances, it may not suffice that an essential fact is on the
record of the investigation, but the investigating authority 's reliance on that fact may ne ed to be
additionally disclosed.

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5.2. EX PARTE COMMUNICATIONS
17. The European Union considers that the Panel should tackle Korea 's claim by first considering
whether the letters at issue fall within the scope of Article 6.4: notably, whether they contain
"relevant information … used by the authorities ". Information is relevant if it would in fact have
been relevant for the presentation of an interested party's case. Whether it has been "used" by the
authority should, in turn, be examined by assessing whet her it is of a nature and type that relates
to a required step in the investigation, such as to the determination of normal value. The next
issue is whether the investigating authority allowed "timely opportunities" for the respondents to
see the information and prepare presentations.

18. Regarding Korea's parallel claim under Article 6.9, the threshold issue is whether or not the
information contained in the letters constitutes "essential facts under consideration which form the
basis for the decision to apply definitive measures". In the European Union's view, Article 6.9 could
only be relevant if such a letter provided new essential facts which formed the basis of the final
determination, but were not disclosed to interested parties in sufficient time.
5.3. THE ADEQUACY OF THE PUBLIC NOTICE
19. The main thrust of Korea 's challenge to the use of Tenaris ' profit rate and to the finding of
association concerns the obligations in Article 2 of the AD Agreement. Both the information used to
establish a profit rate, and the determinations on affiliation, seem to be "relevant information" and
"material" in the meaning of Article 12.2.2. The crux of the issue is whether the USDOC 's reasons
for rejecting or accepting the arguments Korea mentions were "set forth in sufficient detail " to
allow the Korean respondents to understand why their arguments or claims were treated as they
were, and to assess whether or not the investigating authority 's treatment of the relevant issue
was consistent with domestic law and/or the WTO Agreement."
6. SAMPLING AND INDIVIDUAL DUMPING MARGINS UNDER ARTICLES 6.10 AND 6.10.2
OF THE ANTI-DUMPING AGREEMENT
20. The second sentence of Article 6.10 provides for an exception to the rule that individual
dumping margins must be determined. The i ssue raised by Korea is whether two producers
constitute a "reasonable number ", i.e. whether USDOC 's sample was too small. Whether the
number of selected producers is "reasonable" is, in the European Union 's view, closely connected
to whether samples are "statistically valid ". The term "largest percentage of the volume of the
exports from the country in question which can reasonably be investigated ", is also relevant
context. In that context, the EC – Salmon (Norway) panel found that "the volume of export s ales
that may be reasonable for an investigating authority to investigate is a question that must be
assessed on a case -by-case basis, taking into account all relevant facts that are before the
investigating authority, including the nature and type of inte rested parties, the products involved
and the investigating authority 's own inves tigating capacity and resources". In addition, the
Article 17.6 requirement of an unbiased and objective evaluation of the facts would require the
investigating authority to p rovide reasons for its decision to limit the analysis, and for its
methodology in doing so.

21. With regard to Article 6.10.2, the European Union considers that the decision not to
determine individual dumping margins for voluntary respondents cannot be arbitrary; the authority
must explain why the number of voluntary respondents would make it unduly burdensome and
prevent the timely completion of the investigation.
7. ARTICLES I AND ARTICLE X:3(A) OF THE GATT 1994
22. Korea appears to claim that a breach of Article I of the GATT 1994 must be preceded by a
finding of a breach of Article VI of the GATT 1994, which it argues to have demonstrated. The
European Union anticipates that the matters raised by Korea will be resolved, first and foremost,
under the p rovisions of Article VI of the GATT 1994 and the Anti -Dumping Agreement. Similarly,
the European Union considers that the position with respect to Tenaris ' financial statements will be
resolved in the light of the specific provisions of the Anti -Dumping Agreement cited by Korea, and
not determinatively on the basis of Article X:3(a) of the GATT 1994.

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ANNEX D-3
EXECUTIVE SUMMARY OF THE ARGUMENTS OF TURKEY
I. INTRODUCTION

1. The Republic of Turkey (hereinafter referred to as "Turkey") welcomes the opportun ity to
present its views as a third party in this case. Turkey is participating in this case because of its
systemic interest in correct and consistent interpretation and implementation of the Agreement on
the Implementation of Article VI of GATT 1994 (her einafter referred to as "Anti-Dumping
Agreement" or "AD Agreement").

2. Turkey will not elaborate on the particular facts presented by the Parties, rather, underlining
its interest, Turkey will share its views on issues addressed by the United States of America
(hereinafter referred to as US) and the Republic of Korea (hereinafter referred to as Korea) in their
first written submissions pertaining to Article 2.2.2 and Article 2.3 of the AD Agreement.

II. CLAIMS UNDER ARTICLE 2.2.2 OF THE ANTI-DUMPING AGREEMENT

3. The definitive anti -dumping duty on Oil Country Tubular Goods (hereinafter referred to
"OCTG") originating in Korea was imposed on July 18, 2014, following the final determination of
the U.S. Department of Commerce (hereinafter referred to as "USDOC").1

4. Regarding the assessment on the level of profit under the provi sion of Article 2.2.2 of the
AD Agreement, the USDOC determined that the profit calculation is subject to one of the three
alternative methods stipulated in Article 2.2.2 of the AD Agreement.

5. USDOC concluded that Article 2.2.2(i) of the AD Agreement was not applicable since the
non-OCTG pipe products were not in the "same general category of products " with the OCTG
products and that profit rate incurred by the producers in qu estion for the production and sale of
the same general category of merchandise cannot be used.

6. The USDOC was equally unable to use profit for other exporters or producers subject to the
investigation in line with the Article 2.2.2 (ii) of the AD Agree ment, due to the absence of any
other respondent subject to the investigation in respect of production and sales of the like product
in ordinary course of trade in the domestic market of the country of origin.

7. Consequently, USDOC resorted to any "other reasonable method " under Article 2.2.2(iii) to
calculate the level of profit of the product under consideration. Since USDOC determined that
Korea does not have a domestic market for merchandise that is in the same general category of
products as the sub ject merchandise, it was not possible for the USDOC to calculate the profit
normally realized by Korean OCTG producers.2 Accordingly, the USDOC reached the decision to use
the profit rate of Tenaris, a non -Korean corporation that had neither production nor sales in the
Korean market.

8. Considering the facts of the case, Turkey understands that, even though there is no explicit
definition of the word "reasonable", Article 2.2.2, nevertheless, expects the investigating
authorities to determine the "reasonable amount " for profit in light o f the rules stressed in
Article 2.2 of the AD Agreement which can be considered as a "chapeau" to be used in
interpretation of Article 2.2.2 of the AD Agreement.

9. The drafters highlighted the importance of "reasonability" while evaluating the profit of the
product under consideration pursuant to Article 2.2.2(iii) by explicitly including phrase "any other
reasonable method" in the text of Article 2.2.2(iii). In this context, the "profit cap" is deemed as
one of the important instruments to test reasonability of the method.

1 79 Federal Register 41983, Certain Oil Country Tubular Goods From the Republic of Korea: Final
Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances.
2 Final Issues and Decision Memorandum for the Final Affirmative Determination in the Less than Fair
Value Investigation of Certain Oil Country Tubular Goods From the Republic of Korea, page 21.

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10. In Turkey's view, setting a profit cap based on the actual experience of other exporters or
producers under Article 2.2.2(iii) intends to prevent the investigating authorities to calculate the
profit subjectively which would have reflections on the normal value and an impact on the fair
comparison requirement of Article 2.4 of the AD Agreement.

11. Turkey understands that, by stipulating this legal discipline, the drafters of the
AD Agreement have a imed to keep the calculation basis of the profit of the merchandise in
question as close as possible to the home market experience of exporters or producers subject to
investigation. Thus, the context of the adjective "reasonable" as used Article 2.2.2 of the
AD Agreement displays this very rationale.

12. In light of these explanations Turkey doubts whether the use of a non -Korean corporation's
profit amount, that had neither production nor sales in the Korean market, satisfies the primary
legal expectation of Article 2.2.2(iii) of the AD Agreement which requires the presence of a profit
cap based initially on the home market experience of exporters or producers subject to
investigation.

III. CONCLUSION

13. With these comments, Turkey expects to contrib ute to the legal debate in this case, and
would like to express again its appreciation for this opportunity to share its points of views.

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ANNEX E
PROCEDURAL RULING
Contents Page
Annex E-1 Procedural Ruling on the United States' Request to partially open the
substantive meetings for public observation E-2

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ANNEX E-1
PROCEDURAL RULING ON THE UNITED STATES' REQUEST TO PARTIALLY OPEN THE
SUBSTANTIVE MEETINGS FOR PUBLIC OBSERVATION
1 INTRODUCTION
1.1. In our communication of 30 Oc tober 2015 to the parties we noted that Korea and the
United States were not in agreement on whether to make the substantive meetings in this dispute
open to public observation. We stated that in no case would we require a party or a third party to
make it s statements in public should it choose not to do so. However, we said that we would
consider adopting procedures that would allow a party or third party that wished to make its
statements in public to do so, without impinging on the rights of a party or t hird party that wished
to make its statements in closed session.
1.2. On 14 July 2016, we received a letter from the United States requesting that we adopt such
additional procedures before the first substantive meeting scheduled for 21 -22 July 2016, so t hat
the United States and third parties who chose to do so could make their statements in public.
Korea opposed this request.
1.3. Among the third parties, the European Union agreed to make its statements in public at the
third party session while Canada indicated that if it did decide t o make a statement at the
third party session, it would make it in public. India, China, the Russian Federation, and Mexico did
not wish to make their statements in this dispute in public. In addition, India and Mexico submitted
comments opposing the United States' request.
1.4. After considering the parties' and third parties' submissions on this matter, we informed them
on 19 July 2016 that we were denying the United States' request, and would not make the
substantive meetings open to public observation. We provide, through this ruling, our reasons for
denying this request.
2 MAIN SUBMISSIONS OF THE PARTIES AND THIRD PARTIES
2.1. The United States argues that it has a right under Article 18.2 of the DSU to disclose its
statements to the public, and Korea's choice to maintain the confidentiality of its own statements
should not be a basis for denying the United States its right under this provision. In terms of
modalities, the United States submits that the Panel could arr ange for the public viewing of the
meeting through closed-circuit television (CCTV). This would allow the Panel to switch off the CCTV
signal when statements are made by Korea or third parties who choose not to make their
statements in public, thereby prot ecting their wish not to make their statements in public while at
the same time, allowing the United States and third parties willing to make their statements in
public to do so. The United States also suggests that if this is not feasible, the Panel could record
the statements and play them back at a later date to the public.
2.2. Korea insists that the Panel does not have the authority to open the meeting to the public in
the absence of agreement between the parties to do so, arguing tha t Articles 14.1 and 18.2 of
the DSU require confidentiality of the panel proceedings. Korea note s that when open panel
meetings have been held in the past, it has been with the consent of all parties to the dispute.
Korea asserts that allowing public observation of the p anel meeting without Korea's consent
creates a substantial risk that information considered to be confidential by Korea, including
business confidential information, will be publicly disclosed. Korea argues that opening of panel
meetings without the consen t of the disputing parties raises serious systemic issues, and notes
that the issue of open hearings is a matter of debate and di sagreement among Members in
the DSU reform negotiations. In Korea's opinion, the Panel cannot make a decision that modifies
the DSU.

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2.3. India submits that considering one of the parties, namely, Korea opposes the request to
make the substantive meetings open to public observation, it would be inconsistent with the DSU
to do so. Noting that opening substantive meetings to the public is a matter of systemic concern
for the WTO Members, Mexico submits that the United States has the right to disclose its own
positions and statements to the public but that right does not have to be exercised through a
public hearing.
3 RULING
3.1. In this dispute, we have decided not to partially open the substantive meetings to the public,
as requested by the United States. We have reached this decision based on a number of
considerations.
3.2. We note first that the United States made its reque st only one week before the scheduled
dates of the first substantive meeting. Thus, there was very limited time available to address the
request, and make necessary logistical arrangements. We were informed that there was limited
experience and in -house ca pacity for recording partially open panel meetings for later public
observation.1
3.3. In addition, we share Korea's concern that making the substantive meetings partially open to
public observation creates a substantial risk that information that is conf idential, whether because
it is business confidential, or because it is considered confidential to the dispute by a party, may
be publicly disclosed. We consider that this concern is even greater in this particular case in view
of the large amount of recor d evidence that has been designated as business confidential by the
parties. In order to ensure that business confidential information or arguments or statements of
Korea and the third parties who choose not to make their statements in public are not
inadvertently disclosed, either by the Panel, or by the United States or third parties who make
their statements in public, extreme vigilance would be needed. Adequate time was not available to
make the necessary logistical arrangements for cutting the video feed in real time, or arranging for
video-recording and review by the parties, to ensure that no information was wrongly disclosed.
3.4. Moreover, we are concerned in principle with the prospect of public observation of the
statements and responses of the U nited States and certain third parties to Panel questions in a
case where the statements and responses of Korea and other third parties are not made in public.
In our view, such partially public proceedings affect the ability of the viewing public to under stand
the substance being discussed by the Panel, parties and third parties, given that some statements,
as well as some questions and answers, would not be public, while others would. In addition, the
very fact that some statements and responses were not made in public might raise unwarranted
implications as to reasons why some parties or third parties did not make statements or responses
in public, as well as regarding the merits of their positions. 2 We recall that no third party to this
dispute expressly supported the United States' position that the substantive meetings may be
partially opened to public observation when one party objects to it. Further, as Korea and some
third parties observed, Article 18.2 of the DSU provides that nothing in that agreement precludes a
party to a dispute from disclosing statements of its own positions to the public. Thus, the
United States, and any third party who so wishes, may disclose their oral statements and
responses to Panel questions to the public should they choo se to do so. Indeed, we understand
that is routinely done by the United States.

1 WTO panels, with one exception at the time of our decision, had conducted open hearings only with
the consent of all the parties. The exception is the simultaneous compliance panels in DS381 – US – Tuna II
(Mexico) (Article 21.5 – Mexico II) and US – Tuna II (Mexico) (Article 21.5 – US), which decided to partially
open their substantive meetings to the public. As we understand it, the procedures adopted allowed the
United States and third parties who chose to make their statements in public to do so by video-recording their
statements and screening the recording at a later date, after ensuring that the statements did not disclose the
statements of Mexico and third parties, who chose not to make their statements in public. We understand that
an outside contractor was used for the recording. As the proceedings in this dispute are still on-going, the
reasons for the panels' decision in this regard are not available to us.
2 One panelist does not share the views expressed in the first two sentences of this paragraph.
However, he considers that the Panel's conclusion is fully supported and adequately explained by the views set
forth in paragraphs 3.2 and 3.3, and therefore joins in that conclusion.

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3.5. Based on the foregoing, we denied the United States' request to allow the United States, and
the third parties who choose to make their statements in public , to do so at the substantive
meetings in this dispute.

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ANNEX F
INTERIM REVIEW
Contents Page
Annex F-1 Interim Review F-2

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ANNEX F-1
INTERIM REVIEW
1 INTRODUCTION
1.1. In accordance with Article 15.3 of the DSU, this Annex sets out the Pan el's discussion of the
arguments made at the interim review stage. We have revised certain aspects of the Report in
light of the parties' comments, where we found it appropriate. We have also made a number of
changes of an editorial nature to improve the c larity and accuracy of this Report, or to correct
typographical and non -substantive errors, including those suggested by the parties. Due to
changes made in the Report, the numbering of footnotes in the Final Report has changed from the
Interim Report. References to footnotes pertain to that in the Final Report.
2 SPECIFIC REQUESTS FOR REVIEW SUBMITTED BY THE PARTIES
2.1 Paragraph 1.8
2.1. Korea requests the Panel to make certain modifications to reflect the summary of events
leading to the adoption of the timetable, as well as the parties' correspondence on this matter. 1
Opposing this request, the United States submits that the modifications proposed are not an
accurate reflection of the events, and other panel reports it is aware of do not provide such a
summary.2
2.2. Korea presents no reasons in support of its request to modify this descriptive section of the
Report, and we find no rationale for making them. Therefore, we deny Korea's request. We also
observe that this descriptive section was issued to the parties prior to the issuance of the Interim
Report, and Korea did not provide these comments at that stage.
2.2 Paragraph 7.8
2.3. Korea asks the Panel to revise this paragraph to more closely reflect its arguments. 3 The
United States does not comment on Korea's request.
2.4. We consider that the language used in this paragraph represents Korea's position accurately.
We therefore decline Korea's request.
2.3 Paragraph 7.11
2.5. Korea makes two requests in regard to this paragraph. First, Korea asks the Panel to revise
this paragraph to more fully reflect its arguments. Second, Korea asks the Panel to include certain
additional arguments it has made. 4 The United States objects to Korea's request, noting the
Panel's express focus on the "main" ar guments of the parties and suggesting that to the extent
these ancillary arguments are not pertinent to the Panel's analysis, they are better made in the
sections of the Report summarizing Korea's arguments. The United States also maintains that the
final sentence of Korea's proposed addition to paragraph 7.11 is already summarized in the first
sentence of that paragraph.5
2.6. As regards Korea's first request, we consider that this paragraph already references the
arguments that Korea asks us to include. 6 We therefore decline Korea's request. We also decline
Korea's second request, because the additional arguments that Korea asks us to include are not
integral to our evaluation and findings.

1 Korea's request for interim review, para. 3.
2 United States' comments on Korea's request for interim review, para. 4.
3 Korea's request for interim review, para. 4.
4 Korea's request for interim review, para. 5.
5 United States' comments on Korea's request for interim review, para. 6.
6 See para. 7.11 and fn 35.

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2.4 Paragraph 7.14
2.7. Korea asks the Panel to add certain l anguage to this paragraph to improve clarity. 7 The
United States objects to Korea's request arguing that the additional language proposed by Korea
would inappropriately insert an interpretive argument made by Korea into the paragraph.8
2.8. Korea's reque st is, in our view, unwarranted, as the change it asks us to make to this
paragraph is itself contested in this dispute. We therefore decline Korea's request.
2.5 Paragraph 7.17
2.9. Korea asks the Panel to revise this paragraph to more accurately refle ct its arguments.9 The
United States objects to Korea's request, arguing that Korea's proposed modification does not
accurately reflect the interpretive arguments made by Korea in these proceedings. Further the
United States contends that the argument that Korea asks the Panel to add to this paragraph is
unrelated to the issues of treaty interpretation that are relevant to the Panel's discussion in this
section.10
2.10. We consider that Korea's arguments have been accurately reflected in this paragraph. 11 We
therefore, decline Korea's request.
2.11. Korea also asks the Panel to delete certain language from a footnote to this paragraph,
contending that it did make the arguments which the footnote states it did not. 12 The
United States opposes Korea's request arguing that Korea's request has no basis as it does not
offer any citations to such arguments.13
2.12. We have decided to accommodate Korea's request.
2.6 Paragraph 7.27
2.13. Korea requests the Panel to make certain additions and revisions to more ac curately
describe the USDOC's remand determination. 14 The United States agrees to Korea's request to
specify the date on which this determination was affirmed by the USCIT, but suggests editing the
language proposed by Korea.15 The United States opposes othe r additions and revisions requested
by Korea.16
2.14. We have clarified that the remand determination was affirmed in August 2016, albeit not in
the language proposed by Korea. We reject Korea's request that we not use the term
"methodology" for the reasons set out in paragraph 2.40 below. We also reject Korea's request to
add a description of how the USDOC calculated CV profit in the remand determination because it is
already reflected in other parts of the Report.
2.7 Paragraph 7.32
2.15. The United S tates requests the Panel to replace "s urrogate company" in the
second sentence of paragraph 7.32 with "an OCTG producer" as "surrogate company" could be
confused with the term "surrogate values". 17 Korea objects to the United States' request,
contending that there is no basis to believe that the Panel's use of the term "surrogate company"

7 Korea's request for interim review, para. 6.
8 United States' comments on Korea's request for interim review, para. 7.
9 Korea's request for interim review, para. 7.
10 United States' comments on Korea's request for interim review, paras. 8-10.
11 Para. 7.17 and fn 43.
12 Korea's request for interim review, para. 8.
13 United States' comments on Korea's request for interim review, para. 11.
14 Korea's request for interim review, para. 9.
15 United States' comments on Korea's request for interim review, para. 9.
16 United States' comments on Korea's request for interim review, para. 9.
17 United States' request for interim review, para. 4.

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could be confused with the term "surrogate values" and the United States provides no reasons why
such confusion should arise.18
2.16. We agree with Korea, and therefore decline the United States' request.
2.8 Paragraph 7.34
2.17. Korea asks the Panel to revise this paragraph to more fully reflect its arguments, and to add
a footnote to this paragraph referencing certain exhibits.19 The United States does not comment on
Korea's request.
2.18. We have decided to accommodate Korea's request. However, the exhibits that Korea asks
us to reference are already cited in the footnote to this paragraph. We therefore decline this aspect
of Korea's request.
2.9 Paragraph 7.55
2.19. Korea asks the Panel to add a footnote to this paragraph, setting out certain additional
arguments it had made.20 The United States does not comment on Korea's request.
2.20. We consider that the arguments that Korea asks us to include are not relevant to our
evaluation and findings and therefore, decline Korea's request.
2.10 Paragraph 7.65
2.21. Korea asks the Panel to revise this paragraph to more accurately reflect its arguments. 21
The United States does not comment on Korea's request.
2.22. We have decided to accommodate Korea's request.
2.11 Paragraphs 7.69, 7.72, 7.74, 7.75
2.23. The United States submits that the Panel's statement in paragraph 7.72 that " pipe products
not used for down hole application … fell within the definition of the like p roduct" incorrectly
includes non -OCTG pipe products within the definition of the like product. 22 Korea does not
comment on this aspect of the United States' request.
2.24. While we disagree with the United States' reading of the last sentence of paragraph 7.72,
we have modified that sentence to more clearly express our conclusion.
2.25. The United States further requests that the Panel make two changes to paragraph 7.69.
First, it requests that the Panel replace "pipe products" with "OCTG" in the second sentence of
paragraph 7.69. Second, it requests that instead of concluding that the same general category of
products was subject to the limitation that such products be used for down hole applications, the
Panel change its conclusion to state that the sam e general category of products, as defined by the
USDOC, was expanded to incorporate only drill pipe and those non -scope OCTG pipe products that
exhibit such a limitation. 23 Korea objects to the United States' req uest, contending that
paragraph 7.69 accurately describes the USDOC's definition of the like product.24
2.26. We decline the United States' request to replace "pipe products" with "OCTG" because we
consider that it follows from the use of the term "pipe products in question" in paragraph 7.69 that
the reference to pipe products in that paragraph does not include all pipe products but only the
pipe products covered under the product scope of the underlying investigation. We also decline the

18 Korea's comments on the United States' request for interim review, para. 2.
19 Korea's request for interim review, para. 10.
20 Korea's request for interim review, para. 11.
21 Korea's request for interim review, para. 12.
22 United States' request for interim review, para. 6. (emphasis original)
23 United States' request for interim review, paras. 5-8.
24 Korea's comments on the United States' request for interim review, paras. 4-10.

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United States' second request because it is not consistent w ith arguments that the United States
has made in these proceedings.25
2.27. The United States requests that the Panel reconsider the co nclusions reached in
paragraphs 7.72, 7.74, and 7.75 that the same general category of products identified by the
USDOC was narrower than the like product. It requests that, based on this reconsideration, the
Panel find that Korea has failed to demonstrate that the USDOC's definition of the "general
category of products" in the underlying investigation was inconsis tent with Articles 2.2.2(i)
and 2.2.2(iii) of the Anti -Dumping Agreement. 26 Korea agrees with the Panel's conclusions and
therefore objects to the United States' request.27
2.28. We decline the United States' request because the reasons the United States presents f or
this request are not consistent with its arguments in these proceedings. 28 We have, however,
added a citation to paragraph 7.69 to further clarify the basis for the Panel's conclusions.
2.12 Paragraph 7.76
2.29. Korea makes two requests in regard to t his paragraph. First, Korea asks the Panel to revise
paragraph 7.76(d) to more fully reflect its arguments. Second, it asks the Panel to add a
sub-paragraph "e" to this paragraph to reflect certain additional arguments. 29 The United States
considers that Ko rea has a basis for its request to add a new sub -paragraph 'e' but not for its
request to modify paragraph 7.76(d).30
2.30. We consider that paragraph 7.76(d) and its footnote already cites the arguments that Korea
asks us to include. We also note that par agraph 7.76(a) already reflects the argument that Korea
asks us to include in a new sub-paragraph "e". We therefore decline both requests.
2.13 Paragraphs 7.101, 7.102, and 7.108(a)
2.31. The United States requests the Panel to revise the first sentence of paragraph 7.101 of the
Report to state that the text of Article 2.2.2(iii) makes it clear that the determination of the profit
cap is mandatory when data pertaining to sales of products of the same general category in the
domestic market exist in the r ecord of the proceeding. The United States further requests that
paragraphs 7.102 and 7.108(a) be deleted in their entirety. 31 Korea objects to the
United States' requests, contending that the Panel's reasoning does not provide any basis to
conclude that th e mandatory requirement to calculate a profit cap would be removed if data is
lacking.32
2.32. We agree with Korea and decline the United States' requests.
2.14 Paragraphs 7.104, 7.107, 7.108(b), and 7.109
2.33. The United States makes two requests: Fir st, the Panel should reconsider its findings in
paragraphs 7.104, 7.107, and 7.108(b) regarding the USDOC's ability to calculate a profit cap to
the extent they rely on the Panel's conclusions with respect to the same general category of
products. Second, the Panel should reconsider its finding under paragraph 7.109 regarding
whether the USDOC's inability to calculate a profit cap was inconsistent with its obligations under
Article 2.2 of the Anti -Dumping Agreement. 33 Korea opposes the United States' first r equest,
contending that it is premised on the erroneous view that the Panel incorrectly found that the
USDOC's definition of the "same general category of products" is improper. 34 Korea also objects to
the United States' second request, arguing that the USD OC had before it ample information with

25 United States' response to Panel question No. 49, para. 22.
26 United States' request for interim review, para. 9.
27 Korea's comments on the United States' request for interim review, para. 11.
28 United States' response to Panel question No. 49, para. 22.
29 Korea's request for interim review, para. 13.
30 United States' comments on Korea's request for interim review, para. 15.
31 United States' request for interim review, para. 10.
32 Korea's comments on the United States' request for interim review, paras. 13 and 14.
33 United States' request for interim review, para. 11.
34 Korea's comments on the United States' request for interim review, para. 17.

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which it could have calculated a profit cap as required under Article 2.2.2(iii) and that, in any case,
the Panel recognized the mandatory nature of the obligation to calculate a profit cap under that
provision.35
2.34. As we have decided to decline the United States' request to reconsider our conclusions with
respect to the same general category of products, we have no reason to reconsider our findings in
paragraphs 7.104, 7.107, and 7.108(b), which are premised on those conclusions. We therefore
decline the United States' first request. Given that we have decided not to modify our conclusions
with respect to the USDOC's failure to calculate and apply a profit cap, we have no reason to
reconsider our finding in paragraph 7.109. We therefore reject the United States' second request.
2.15 Paragraph 7.121
2.35. Korea requests certain revisions as well as additions to more accurately and fully reflect its
arguments with respect to the USDOC's remand determination. 36 The United States opposes this
request.37
2.36. We have made the revisions requested by Korea to more accurately reflect its arguments,
and made changes in paragraph 7.133 to ensure consistency with this paragraph. We decline to
make the additions proposed by Korea, because they affect the clarity of the Report. The parties
are free to reflect their arguments in their executive summaries, annexed to the Final Report, as
they deem fit. We see no need to specify these particular arguments in the Report itself.
2.16 Paragraph 7.122
2.37. The United States requests certain revisions to more accurately characterize the
US proceedings at issue. 38 Korea does not oppose this request. 39 We have made the revisions
requested by the United States but for consistency purpose s, replaced the reference to
"underlying" investigation with "final determination".
2.17 Footnote 161 to paragraph 7.125
2.38. Korea requests the Panel to add certain references to its submissions. 40 The United States
opposes this request.41 In the sentence referred to by Korea, we were setting out the issues that
we considered in our analysis, and not reflecting the parties' arguments. The additions requested
may create confusion between our understanding of the issues and the parties' arguments, and we
decline to make them.
2.18 Paragraph 7.130(a)
2.39. Noting the panel's comment that the USDOC used a different "methodology" to determine
the CV profit in the remand determination, Korea states that neither the remand determination,
nor the United States, uses the term "methodology" and argues that the USDOC did not, in fact,
use a different methodology in this determination.42 Thus, Korea opposes the use of this term, and
asks the Panel to revise this paragraph. The United States opposes this request, comme nting that
the USDOC did use a different method to determine CV profit in the remand determination.43
2.40. The Report makes it clear that we used the term "methodology" here to describe the
manner in which the USDOC determined the CV profit in the final d etermination, and in the
remand determination. Thus, we reject Korea's request, and do not revise this paragraph.

35 Korea's comments on the United States' request for interim review, para. 18.
36 Korea's request for interim review, para. 14.
37 United States' comments on Korea's request for interim review, para. 16.
38 United States' request for interim review, para. 12.
39 Korea's comments on the United States' request for interim review, para. 19.
40 Korea's request for interim review, para. 16
41 United States' comments on Korea's request for interim review, para. 17.
42 Korea's request for interim review, paras. 17 and 17(a).
43 United States' comments on Korea's request for interim review, para. 18.

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2.19 Paragraph 7.130(b)
2.41. Korea asks the Panel to provide additional explanation on the USDOC's alleged application
of a profit cap.44 The United States opposes this request.45
2.42. We reject Korea's request, as we consider the requested additions affect the clarity of the
Report, and are unnecessary.
2.20 Paragraph 7.130(c)
2.43. Korea asks the Panel to make certain changes to precise ly reflect what was done by
the USDOC in the remand determination. 46 The United States does not comment on this request.
We have made the changes requested by Korea.
2.21 Paragraphs 7.131(b) and (c)
2.44. Korea asks the Panel to make certain revisions in th is paragraph consistent with the
changes it proposes in paragraphs 7.130(b) and (c). 47 The United States takes no position on
Korea's request.48
2.45. We have modified paragraph 7.131(c) to reflect the changes made in paragraph 7.130(c).
Since we rejected Korea's request with respect to paragraph 7.130(b), we do not make changes in
paragraph 7.131(b).
2.22 Footnote 178 to paragraph 7.134
2.46. Korea requests several revisions and additions in this footnote, which the United States
opposes.49
2.47. Korea asks the Panel to specify the claims that it presented in its second written submission.
Considering that these are already set out in paragraph 7.119, we decline Korea's request. Korea
also asks us to modify this footnote to state that the opening statemen t at the second substantive
meeting was the "first opportunity" Korea had to make specific claims challenging the remand
determination, as this determination was affirmed by the USCIT in August 2016. Korea raised
some of these specific claims in its second written submission that was filed before Korea made its
opening statement. We do not understand how this opening statement could be considered the
"first opportunity" to present these claims when Korea did avail itself of an opportunity to make
such claim s prior to this statement. Hence, we deny Korea's request. Korea asks us to delete
certain observations. Considering this request is based on Korea's view, with which we disagree,
that the opening statement was the first opportunity to present specific cla ims, we reject this
request.
2.23 Paragraph 7.136
2.48. Korea disagrees that it accepted that through its conclusion o f affiliation under US law,
the USDOC in effect found "association" within the meaning of Article 2.3 of the Anti -Dumping
Agreement.50 Rather, it agreed that the USDOC "sought to find" association on this basis. The
United States does not comment on Korea's statement. We have modified this paragraph to more
accurately reflect Korea's position.

44 Korea's request for interim review, paras. 17 and 17(b).
45 United States' comments on Korea's request for interim review, para. 19.
46 Korea's request for interim review, paras. 17 and 17(c).
47 Korea's request for interim review, para. 18.
48 United States' comments on Korea's request for interim review, para. 21.
49 Korea's request for interim review, para. 19; and United States' comments on Korea's request for
interim review, para. 22.
50 Korea's request for interim review, para. 20.

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2.24 Paragraph 7.137
2.49. Korea requests several revisions in this paragraph to more accurately reflect its arguments
under Article 2.3 of the Anti -Dumping Agreement.51 The United States does not comment on this
request.
2.50. In our view, this paragraph accurately and adequately reflects Korea's ar guments in these
proceedings. However, we have added an additional citation to this paragraph.
2.25 Paragraph 7.150
2.51. Korea asks the Panel to add a citation to a sentence setting out our understanding of
"association", based on the dictionary definit ions.52 The United States does not comment on this
request. Considering that the sentence at issue sets out our own understanding, we do not add a
citation in this regard.
2.26 Paragraph 7.158
2.52. The United States requests certain modifications to avoi d conveying the impression that the
Panel reviewed the USDOC's actions under US law, rather than under the Anti -Dumping
Agreement, including replacing the reference to "decisions of" the USDOC, with "factual
determinations made by" the USDOC. 53 Korea oppose s the use of the word "factual" here to
modify "determinations", but does not object to other aspects of the United States' request. 54
Considering the United States has not explained why the use of the word "factual" is necessary in
this context, while accommodating other aspects of its request in order to clarify that the Panel did
not review the USDOC's actions under US law, we have not added the word "factual".
2.27 Footnote 219 to paragraph 7.159
2.53. Korea asks the Panel to make certain additions to more accurately reflect its arguments. 55
The United States does not comment on this request. The additions requested by Korea are
already reflected in paragraph 7.157. Hence, we deny its request.
2.28 Paragraph 7.165
2.54. Korea states that the Panel misc haracterizes its argument that evidence of marketing and
technology collaboration between NEXTEEL and POSCO had little probative value considering
POSCO engaged in the same types of activities with hundreds of companies, by stating that Korea
essentially argues that evidence of such types of collaboration would have probative value only if
they were exclusive between NEXTEEL and POSCO. 56 Korea asks the Panel to make changes to
correctly reflect its argument. The United States does not comment on this request.
2.55. We note that contrary to its comment here, Korea did repeatedly emphasize the lack of an
exclusive relationship between NEXTEEL and POSCO. 57 Therefore, we disagree that we
mischaracterized its arguments in this regard. In any case, the first senten ce of this paragraph
reflects the Panel's understanding of Korea's argument, and we do not consider any revisions to be
necessary in this regard.
2.29 Paragraph 7.175
2.56. Noting the Panel's statement that "the USDOC's conclusions of affiliation based on control
under US law were supported by evidence", the United States asks us to modify this statement so

51 Korea's request for interim review, para. 21.
52 Korea's request for interim review, para. 22.
53 United States' request for interim review, para. 13.
54 Korea's comments on the United States' request for interim review, para. 20.
55 Korea's request for interim review, para. 23.
56 Korea's request for interim review, para. 24.
57 Korea's first written submission, para. 180; response to Panel question No. 64, para. 71.

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as to not convey the impression that the Panel was making substantive findings under US law. 58
Korea opposes this request.59
2.57. The Interim Report, including paragraphs 7.158 and 7.159, makes it clear that the Panel
was reviewing the USDOC's overall conclusion regarding affiliation under Article 2.3 of the Anti -
Dumping Agreement, and not US law. Nonetheless, to avoid confusion, we have decided to
accommodate the United States' request.
2.30 Footnote 244 to paragraph 7.179
2.58. Korea requests the Panel to make certain revisions to more accurately reflect Korea's
arguments under Article 2.3 of the Anti -Dumping Agreement. 60 The United States does not
comment on this request. We have made the revisions requested by Korea.
2.31 Paragraph 7.191
2.59. Korea requests certain modifications to better reflect Korea's arguments under
Article 2.2.1.1 of the Anti -Dumping Agreement. 61 The United States does not co mment on this
request. We have made the revisions requested by Korea, albeit not in the precise language
suggested.
2.32 Paragraph 7.192
2.60. Korea requests certain modifications to better reflect Korea's arguments u nder
Article 2.2.1.1 of the Anti -Dumping Agreement. 62 The United States does not comment on this
request. We have made the modifications requested by Korea.
2.33 Paragraph 7.198
2.61. Korea requests the Panel to make certain additions to better reflect Korea's overall
argumentation under Article 2.2.1.1 of the Anti -Dumping Agreement.63 The United States opposes
this request.64
2.62. The additions requested by Korea pertain to our analysis rather than the main arguments of
the parties, and Korea does not explain how inclusion of this argument e nhances the analysis. In
our view, the additions requested would affect the clarity of the analysis presented in this
paragraph, and hence, we deny Korea's request.
2.34 Paragraph 7.207
2.63. Korea asks the Panel to revise paragraph 7.207(a) to more full y reflect its arguments. The
United States opposes this request, arguing that Korea fails to identify which of its written or oral
submissions support its contention that the changes it requests reflect the arguments it made
during this dispute. Korea also asks the Panel to delete Korea's argument in the last sentence of
paragraph 7.207(c).65 The United States does not comment on this request.
2.64. We have decided to accommodate Korea's request wi th regard to revising
paragraph 7.207(a), albeit with certa in modifications. As regards Korea's request to delete its
argument in the last sentence of paragraph 7.207(c), considering that Korea made this argument
in its first written submission, and that the Panel has addressed it in its evaluation, we decline thi s
request.66

58 United States' request for interim review, para. 14.
59 Korea's comments on the United States' request for interim review, paras. 21-23.
60 Korea's request for interim review, para. 24.
61 Korea's request for interim review, para. 26.
62 Korea's request for interim review, para. 27.
63 Korea's request for interim review, para. 28.
64 United States' comments on Korea's request for interim review, para. 23.
65 Korea's request for interim review, para. 29.
66 Korea's first written submission, para. 212.

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2.35 Paragraph 7.213
2.65. Korea asks the Panel to revise this paragraph to more accurately reflect its arguments. 67 In
particular, Korea asks us to replace the reference in this paragraph to the USDOC's failure to
"notify its acceptance" of the Tenaris financial statements on the record with a reference to the
USDOC's failure to "resolve the question of whether" the Tenaris financial statements "were
properly" on the record. The United States opposes this request, arguing that Korea fails to
identify which of its written or oral submissions support its contention that the changes it requests
reflect the arguments it made during this dispute. The United States further contends that Korea's
request misrepresents its arguments during these procee dings because it did make the arguments
that it asks the Panel to modify.68
2.66. We note that Korea argues in these proceedings that the USDOC violated several
requirements under the Anti-Dumping Agreement by failing to resolve the question of whether the
Tenaris financial statements were properly on the record until its final determination. 69 Korea also
argues that by failing to render a decision regarding the placement of the Tenaris financial
statements on the record until its final determination, the U SDOC denied the Korean respondents
an opportunity to submit information rebutting the contents of the Tenaris financial statements. 70
However, Korea also argues that "without knowing that the USDOC had actually accepted the
Tenaris financial statements, the respondents could not reasonably launch a full -scale argument
against the use of Tenaris's financial statements, including the submission of rebuttal or
clarification information against the information contained in the financial statements submitted by
the petitioner". 71 We therefore understand Korea to argue that the Korean respondents were
prevented from making rebuttal submissions because they did not know , until the final
determination, that the USDOC had actually accepted those statements on the recor d. Considering
that the Korean respondents could not formally know about the USDOC's decision to accept the
Tenaris financial statements on the record unless the USDOC notified them of it, we understand
Korea to effectively argue that it was the USDOC's fa ilure to notify them of its acceptance of the
Tenaris financial statements on the record that prevented them from making rebuttal submissions.
This understanding is in keeping with the formulation of Korea's claim in its panel request which, in
relevant part, states that the USDOC acted inconsistently with Articles 6.2, 6.4, and 6.9 because it
did not inform interested parties of its decision to accept the petitioners' submission of the Tenaris
financial statements on the record. This understanding is also consistent with Korea's argument
that "without any guidance from the USDOC, the Korean respondents were unable to protect their
interests as there was no reason to believe that information submitted by petitioners two months
past the statutory deadline was properly on the record". 72 We th erefore consider that
paragraph 7.213 accurately reflects Korea's arguments and decline Korea's request to modify this
paragraph. We have, however, included additional references in this paragraph to more fully
reflect Korea's arguments.
2.36 Paragraph 7.221
2.67. Korea asks the Panel to revise this paragraph to more fully reflect its arguments. 73 The
United States does not comment on Korea's request.
2.68. We have decided to accommodate Korea's request.
2.37 Paragraph 7.222
2.69. Korea asks the Panel to revise this paragraph to more closely reflect its arguments. 74 The
United States opposes this request, arguing that Korea fails to identify which of its written or oral
submissions support its contention that the changes it requests reflect the arguments it made

67 Korea's request for interim review, para. 30.
68 United States' comments on Korea's request for interim review, para. 24.
69 Korea's opening statement at the first meeting of the Panel, para. 115.
70 Korea's second written submission, para. 293.
71 Korea's second written submission, para. 285; opening statement at the first meeting of the Panel,
para. 115.
72 Korea's first written submission, para. 204.
73 Korea's request for interim review, para. 31.
74 Korea's request for interim review, para. 32.

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during this dispute. The United States further notes that Korea's request misrepresents its
arguments during these proceedings.75
2.70. We decline Korea's request to modify this paragraph for the same reason that we rejected
its request to amend paragraph 7.213.
2.38 Paragraph 7.227
2.71. Korea asks the Panel to revise this paragraph to more closely reflect its arguments. 76 The
United States opposes this request, arguing that Korea fails to identify which of its written or oral
submissions support its contention that the changes it requests reflect the arguments it made
during this dispute. The United States further notes that Korea's request misrepresents its
arguments during these proceedings.77
2.72. We decline Korea's request to modify this paragraph for the same reason that we rejected
its request to amend paragraph 7.213.
2.39 Paragraph 7.236
2.73. Korea asks the Panel to revise this paragraph to more closely reflect its arguments. 78 The
United States opposes this request, arguing that Korea fails to identify which of its written or oral
submissions support its contention that the changes it requests reflect the arguments it made
during this dispute.79
2.74. We have decided to accommodate Korea's request, albeit with certain modifications.
2.40 Paragraph 7.253
2.75. Korea asks the Panel to revise this paragraph to more closely reflect its arguments. 80 The
United States opposes this request, arguing that Korea fails to identify which of its written or oral
submissions support its contention that the changes it requests reflect the arguments it made
during these proceedings.81
2.76. We have decided to accommodate Korea's request.
2.41 Paragraph 7.259
2.77. Korea requests certain revisions to provide a more comprehensive summary of the relevant
facts at issue under Article 6.10.2 of the Anti -Dumping Agreement.82 The United States does not
comment on this request.
2.78. The factual background section of the Interim Report presents the necessary facts, and the
additions proposed by Korea are more detailed than is necessary in this regard. Hence, we reject
Korea's request.
2.42 Paragraph 7.268
2.79. Korea requests certain revisions to more accurately reflect its arguments. 83 The
United States opposes Korea's request.84 The revisions requested pertain to the section containing
the Panel's analysis rather than the parties' arguments, would affect the clarity of our analysis,
and delete some of our conclusions. Hence, we deny Korea's request.

75 United States' comments on Korea's request for interim review, para. 24.
76 Korea's request for interim review, para. 33.
77 United States' comments on Korea's request for interim review, para. 24.
78 Korea's request for interim review, para. 34.
79 United States' comments on Korea's request for interim review, para. 24.
80 Korea's request for interim review, para. 35.
81 United States' comments on Korea's request for interim review, para. 24.
82 Korea's request for interim review, para. 36.
83 Korea's request for interim review, para. 37.
84 United States' comments on Korea's request for interim review, para. 25.

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2.43 Paragraph 7.283
2.80. Korea requests that the Panel reflect two of its arguments in this paragraph. 85 The
United States does not comment on this request.
2.81. We have modified this paragraph to reflect the first argument made by Korea, albeit in
different language from that proposed by Korea. We have also ma de certain changes in
paragraph 7.284. The second argument is already reflected in paragraph 7.284 of our Report, and
thus we do not find it necessary to reflect it in this paragraph as well.
2.44 Paragraph 7.293(b)
2.82. Korea requests the Panel to make a revision to more accurately reflect the facts of the
underlying investigation. 86 The United States does not comment on Korea's request. We have
made the revision requested by Korea.
2.45 Paragraph 7.313(a)
2.83. Korea requests the Panel to make certain additions to more accurately reflect Korea's
arguments under Article X:3(a) of the GATT 1994. 87 The United States opposes this request.88 The
additions requested by Korea are set out in paragraph 260 of its first writt en submission, and do
add clarity on Korea's position on this issue. Hence, we have made the additions requested by
Korea, citing this paragraph of its first written submission.
2.46 Paragraph 7.326
2.84. Korea requests certain additions in the first sen tence of this paragraph to more accurately
reflect Korea's arguments under Article X:3(a) of the GATT 1994. 89 The United States opposes this
request.90
2.85. The first sentence accurately reflects Korea's view that since Tenaris's financial statements
were not on the record of the underlying investigation, the Korean respondents could not avail
themselves of the opportunity to submit rebuttal facts. 91 The second and third sentences of this
paragraph already reflect the additions requested by Korea where we note its view that the Korean
respondents were prohibited from submitting rebuttal facts until the USDOC "conveyed a formal
decision" placing the Tenaris's financial statement on the record of the underlying investigation,
and that the USDOC denied these res pondents an opportunity to submit such facts. The additions
requested would be repetitive, and hence, we reject Korea's request.
2.47 Paragraph 7.330
2.86. Korea requests the Panel to add a summary of Korea's argument under Article X:3(a) of the
GATT 1994 in a footnote to paragraph 7.330. 92 The United States opposes this request.93 We have
added a sentence in paragraph 7.331 to reflect Korea's submission in this regard, along with our
views regarding this submission.
2.48 USDOC's remand determination
2.87. Korea requests the Panel to reconsider its conclusion that the USDOC's remand
determination is outside the terms of reference. In support of its view, Korea presents new
evidence (Exhibits KOR-98 and KOR-99), relating to the first administrative review initiated by the
USDOC on imports of OCTG from Korea, which allegedly shows the high degree of political

85 Korea's request for interim review, para. 38.
86 Korea's request for interim review, para. 39.
87 Korea's request for interim review, para. 40.
88 United States' comments on Korea's request for interim review, para. 26.
89 Korea's request for interim review, para. 41.
90 United States' comments on Korea's request for interim review, para. 26.
91 Korea's comments on United States' response to Panel question No. 70(a), para. 102.
92 Korea's request for interim review, para. 31.
93 United States' comments on Korea's request for interim review, para. 27.

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intervention in this domestic proceeding. 94 These allegedly show how the USDOC can circumvent
its implementation obligations in the future.95 The United States opposes Korea's request, noting in
particular that Korea's submission of new evidence is untimely and must be rejected.96
2.88. Article 15.2 of the DSU permits parties to submit a written request for the panel to review
"precise aspects of the interim report" before issuance of the Final Report. The Appellate Body and
past panels have held that Article 15.2 does not permit parties to introduce new evidence during
this review process. 97 Consistent with these findings, we decline to accept the new evide nce filed
by Korea, and do not consider it in our interim review. Insofar as Korea raises due process
concerns regarding our conclusion on our terms of reference, the Report already addresses those
concerns. Thus, we have not changed our conclusion that th e USDOC's remand determination falls
outside our terms of reference.