UNITED STATES – ANTI-DUMPING MEASURES ON CERTAIN OIL COUNTRY TUBULAR GOODS FROM KOREA REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 14 November 2017
Document codes: 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
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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 Statement s 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
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 F
INTERIM REVIEW
Contents Page
Annex F-1 Interim Review F-2

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CASES CITED IN THIS REPORT
Short title Full case title and citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015
Argentina – Poultry
Anti-Dumping Duties
Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from
Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, p. 1727
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010,
DSR 2010:V, p. 2175
Canada – Welded Pipe Panel Report, Canada – Anti-Dumping Measures on Imports of Certain
Carbon Steel Welded Pipe from the Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu, WT/DS482/R and Add.1, adopted
25 January 2017
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
China – Broiler Products Panel Report, China  Anti-Dumping and Countervailing Duty Measures on
Broiler Products from the United States, WT/DS427/R and Add.1, adopted
25 September 2013, DSR 2013:IV, p. 1041
China – GOES Appellate Body Report, China – Countervailing and Anti-Dumping Duties on
Grain Oriented Flat-Rolled Electrical Steel from the United States,
WT/DS414/AB/R, adopted 16 November 2012, DSR 2012:XII, p. 6251
China – GOES Panel Report, China – Countervailing and Anti-Dumping Duties on Grain
Oriented Flat-Rolled Electrical Steel from the United States, WT/DS414/R
and Add.1, adopted 16 November 2012, upheld by Appellate Body Report
WT/DS414/AB/R, DSR 2012:XII, p. 6369
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Appellate Body Reports, China – Measures Imposing Anti-Dumping Duties on
High-Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance
Stainless Steel Seamless Tubes ("HP-SSST") from the European Union,
WT/DS454/AB/R and Add.1 / WT/DS460/AB/R and Add.1, adopted
28 October 2015
China – HP-SSST (Japan) /
China – HP-SSST (EU)
Panel Reports, China – Measures Imposing Anti-Dumping Duties on High-
Performance Stainless Steel Seamless Tubes ("HP-SSST") from Japan /
China – Measures Imposing Anti-Dumping Duties on High-Performance
Stainless Steel Seamless Tubes ("HP-SSST") from the European Union,
WT/DS454/R and Add.1 / WT/DS460/R, Add.1 and Corr.1, adopted
28 October 2015, as modified by Appellate Body Reports WT/DS454/AB/R /

China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, adopted 22 February 2012, DSR 2012:VII, p. 3295
China – Raw Materials Panel Reports, China – Measures Related to the Exportation of Various Raw
Materials, WT/DS394/R, Add.1 and Corr.1 / WT/DS395/R, Add.1 and Corr.1 /
WT/DS398/R, Add.1 and Corr.1, adopted 22 February 2012, as modified by
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB/R /
WT/DS398/AB/R, DSR 2012:VII, p. 3501
China – X-Ray Equipment Panel Report, China – Definitive Anti-Dumping Duties on X-Ray Security
Inspection Equipment from the European Union, WT/DS425/R and Add.1,
adopted 24 April 2013, DSR 2013:III, p. 659
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of
Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001, as
modified by Appellate Body Report WT/DS141/AB/R, DSR 2001:VI, p. 2077
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995

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Short title Full case title and citation
EC – Fasteners (China)
(Article 21.5 – China)
Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China – Recourse to
Article 21.5 of the DSU by China, WT/DS397/AB/RW and Add.1, adopted
12 February 2016
EC – Fasteners (China)
(Article 21.5 – China)
Panel Report, European Communities – Definitive Anti-Dumping Measures on
Certain Iron or Steel Fasteners from China – Recourse to Article 21.5 of the
DSU by China, WT/DS397/RW and Add.1, adopted 12 February 2016, as
modified by Appellate Body Report WT/DS397/AB/RW
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, p. 135
EC – IT Products Panel Reports, European Communities and its member States – Tariff
Treatment of Certain Information Technology Products, WT/DS375/R /
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III,
p. 933
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed
Salmon from Norway, WT/DS337/R, adopted 15 January 2008, and Corr.1,
DSR 2008:I, p. 3
EC – Selected Customs Matters Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
EC – Tube or Pipe Fittings Panel Report, European Communities – Anti-Dumping Duties on Malleable
Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/R, adopted
18 August 2003, as modified by Appellate Body Report WT/DS219/AB/R,
DSR 2003:VII, p. 2701
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from
Turkey, WT/DS211/R, adopted 1 October 2002, DSR 2002:VII, p. 2667
EU – Biodiesel (Argentina) Appellate Body Report, European Union – Anti-Dumping Measures on
Biodiesel from Argentina, WT/DS473/AB/R and Add.1, adopted
26 October 2016
EU – Biodiesel (Argentina) Panel Report, European Union – Anti-Dumping Measures on Biodiesel from
Argentina, WT/DS473/R and Add.1, adopted 26 October 2016, as modified
by Appellate Body Report WT/DS473/AB/R
EU – Footwear (China) Panel Report, European Union – Anti-Dumping Measures on Certain Footwear
from China, WT/DS405/R, adopted 22 February 2012, DSR 2012:IX, p. 4585
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, p. 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey
Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000,
DSR 2000:XI, p. 5295
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, p. 9
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
Mexico – Anti-Dumping
Measures on Rice
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef
and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, p. 10853
Mexico – Anti-Dumping
Measures on Rice
Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice,
Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005,
as modified by Appellate Body Report WT/DS295/AB/R, DSR 2005:XXIII,
p. 11007
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High
Fructose Corn Syrup (HFCS) from the United States – Recourse to
Article 21.5 of the DSU by the United States, WT/DS132/AB/RW, adopted
21 November 2001, DSR 2001:XIII, p. 6675

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Short title Full case title and citation
Mexico – Olive Oil Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from
the European Communities, WT/DS341/R, adopted 21 October 2008,
DSR 2008:IX, p. 3179
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and
Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R,
adopted 5 April 2001, as modified by Appellate Body Report
WT/DS122/AB/R, DSR 2001:VII, p. 2741
US – Anti-Dumping and
Countervailing Duties (China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China, WT/DS379/AB/R,
adopted 25 March 2011, DSR 2011:V, p. 2869
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Carbon Steel (India) Appellate Body Report, United States – Countervailing Measures on Certain
Hot-Rolled Carbon Steel Flat Products from India, WT/DS436/AB/R, adopted
19 December 2014, DSR 2014:V, p. 1727
US – Carbon Steel (India) Panel Report, United States – Countervailing Measures on Certain Hot-Rolled
Carbon Steel Flat Products from India, WT/DS436/R and Add.1, adopted
19 December 2014, as modified by Appellate Body Report WT/DS436/AB/R,
DSR 2014:VI, p. 2189
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application
of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291
US – Countervailing Duty
Investigation on DRAMS
Appellate Body Report, United States – Countervailing Duty Investigation on
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea,
WT/DS296/AB/R, adopted 20 July 2005, DSR 2005:XVI, p. 8131
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted
23 August 2001, DSR 2001:X, p. 4697
US – Lamb Appellate Body Report, United States – Safeguard Measures on Imports of
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia,
WT/DS177/AB/R, WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX,
p. 4051
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Oil Country Tubular
Goods Sunset Reviews
(Article 21.5 – Argentina)
Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on
Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the
DSU by Argentina, WT/DS268/RW, adopted 11 May 2007, as modified by
Appellate Body Report WT/DS268/AB/RW, DSR 2007:IX, p. 3609
US – Softwood Lumber VI
(Article 21.5 – Canada)
Appellate Body Report, United States – Investigation of the International
Trade Commission in Softwood Lumber from Canada – Recourse to
Article 21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006,
and Corr.1, DSR 2006:XI, p. 4865
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R,
Add.1 to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate
Body Report WT/DS267/AB/R, DSR 2005:II, p. 299
US – Washing Machines Panel Report, United States – Anti-Dumping and Countervailing Measures on
Large Residential Washers from Korea, WT/DS464/R and Add.1, adopted
26 September 2016, as modified by Appellate Body Report WT/DS464/AB/R
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, p. 323
US – Zeroing (Japan)
(Article 21.5 – Japan)
Appellate Body Report, United States – Measures Relating to Zeroing and
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan,
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441

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ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
Anti-Dumping Agreement Agreement on Implementation of Article VI of the GATT 1994
BCI Business Confidential Information
CV Constructed value
CV profit The amount for profit used in constructed normal value
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
OCTG Oil country tubular goods
POI Period of investigation
SG&A Sales, general, and administrative expenses
USCIT United States Court of International Trade
USDOC United States Department of Commerce
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969,
1155 UNTS 331; 8 International Legal Materials 679
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

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1 INTRODUCTION
1.1 Complaint by Korea
1.1. On 22 December 2014 , Korea requested consultations with the United States pursuant to
Article 4 of the Understanding on Rules and Procedures Gover ning the Settlement of
Disputes (DSU), Article XXII of the General Agreement on Tariffs and Trade 1994 (GATT 1994),
and Article 17 of the Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping
Agreement) with respect to the measures and claims set out below.1
1.2. Consultations were held on 21 January 2015, but failed to resolve the dispute.
1.2 Panel establishment and composition
1.3. On 23 February 2015, Korea requested the establishment of a panel pursuant to Article s 4.7
and 6 of the DSU, Article XXIII of the GATT 1994, and Article 17.4 of the Anti-Dumping Agreement
with standard terms of reference. 2 At its meeting on 25 March 2015 , the Dispute Settlement
Body (DSB) established a panel pursuant to the request of Korea, in accordance with Article 6 of
the DSU.3
1.4. The Panel's terms of reference are the following:
To examine, in the light of the relevant provisions of the covered agreements cited by
the parties to the dispute, the matter referred to the DSB by Korea in document
WT/DS488/5 and to make such findings as will assist the DSB in making th e
recommendations or in giving the rulings provided for in those agreements.4
1.5. Following the agreement of the parties, the Panel was composed on 13 July 2015 as follows5:
Chairperson: Mr John Adank

 Mr Gustav Brink

1.6. On 5 September 2016, the Chairperson informed the Chairman of the DSB that, in light of his
appointment as Director of the Legal Affairs Division of the WTO Secretariat, he had decided to
resign forthwith from the Panel. Following the resignation of the Chairperson, the parties on
15 September 2016 agreed on the appointment of a new Chairperson. Accordingly, the
composition of the Panel is as follows6:
Chairperson: Mr Crawford Falconer

 Mr Gustav Brink

1.7. Canada, China, the European Union, India, Mexico, the Russian Federation , and Turkey
notified their interest in participating in the Panel proceedings as third parties.7

1 Korea's request for consultations, WT/DS488/1 (Korea's consultations request).
2 Korea's request for the establishment of a panel, WT/DS488/5 (Korea's panel request).
3 DSB, Minutes of meeting held on 25 March 2015, circulated on 1 May 2015, WT/DSB/M/359.
4 Constitution note of the Panel, WT/DS488/6.
5 Constitution note of the Panel, WT/DS488/6.
6 Note by the Secretariat, WT/DS488/8.
7 Constitution note of the Panel, WT/DS488/6.

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1.3 Panel proceedings
1.3.1 General
1.8. After consultation with the parties, the Panel adopted its Wo rking Procedures8 and timetable
on 30 October 2015. The timetable was revised during the course of the panel proceeding in light
of subsequent developments.9
1.9. The Panel began its work on this dispute later than it would have wished due to staff
constraints in the WTO Secretariat. The Panel held a first substant ive meeting with the parties
on 20-21 July 2016. A session with the third parties took place on 21 July 2016. Following a delay
as a result of the need to appoint a new Chairperson, t he Panel held a second substantive meeting
with the parties on 2-3 November 2016 . On 16 December 2016 , the Panel issued the descriptive
part of its Report to the parties. The Panel issued its Interim Report to the parties on 5 April 2017.
The Panel issued its Final Report to the parties on 10 May 2017.
1.3.2 Additional working procedures on Business Confidential Information (BCI)
1.10. After consultation with the parties, the Panel adopted, on 30 October 2015, additional
working procedures for the protection of BCI.10
2 FACTUAL ASPECTS
2.1 The measures at issue
2.1. Korea challenges the "laws, regulations, administrative procedures and other measures "11
through which the United States maintains a "viability test" in anti -dumping investigations,
administrative reviews, and other segments of anti -dumping proceedings as such, and as applied
in the investigation initiated on 29 July 2013 which is at issue in this dispute (underlying
investigation).12
2.2. Further, Korea challenges certain aspects of the final anti-dumping measure imposed by the
United States o n imports of oil country tubular goods (OCTG) from Korea following a final
determination of dumping by the United States Department of Commerce ( USDOC) in the
underlying investigation.13 Korea also challenges certain conduct of the USDOC during the course
of the underlying investigation.
2.3. In addition, Korea challenges the USDOC 's determination dated 22 February 2016 in a
remand proceeding (remand determination) , which was issued while this dispute was pending
before the Panel.14 The remand proceeding was undertaken by the USDOC following a decision by

8 Working Procedures, Annex A-1.
9 The timetable was revised on 12 November 2015, 8 April 2016, 16 September 2016, 13 October 2016,
and 15 December 2016.
10 Additional Working Procedures Concerning Business Confidential Information, Annex A-2.
11 Korea asserts that these "other measures" include any other related or subsequent measures that
enable or implement the so-called "viability test" in anti-dumping investigations, administrative reviews, and
other segments of anti-dumping proceedings. (Korea's first written submission, para. 33 and fn 58).
12 Korea's first written submission, paras. 33-40.
13 Korea's first written submission, para. 42. In particular, Korea challenges the imposition of
anti-dumping duties on OCTG pursuant to the following instruments: (a) USDOC, 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, United States Federal Register, Vol. 79, No. 138 (18 July 2014),
p. 41983 (Final Determination), (Exhibit KOR-24); (b) USDOC, Issues and Final 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, 10 July 2014 (Final Decision Memorandum), (Exhibit KOR-21); and (c) USDOC,
Certain Oil Country Tubular Goods from certain countries: Antidumping Duty Orders; and Certain Oil Country
Tubular Goods From the Socialist Republic of Vietnam: Amended Final Determination of sales at less than fair
value, United States Federal Register, Vol. 79, No. 175 (10 September 2014), p. 53691 (Anti-Dumping Duty
Order), (Exhibit KOR-59).
14 Korea's second written submission, para. 357; opening statement at the second meeting of the Panel,
para. 89.

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the United States Court of International Trade (USCIT) on review of the same USDOC final
determination of dumping challenged by Korea in this dispute. The USCIT found certain aspects of
that determination to be contrary to US laws and regulations, and remanded that determination to
the USDOC, directing it to reconsider those aspects of the determination that were found to be
contrary to US laws and regulations.
3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Korea requests the Panel to find as follows15:
a. With respect to the "viability test":
i. the "viability test" is inconsistent with Article 2.2 of the Anti -Dumping Agreement as
such because it imposes a rigid quantitative test under which a third -country market
is automatically disqualified as a comparison market for determining normal value if
the respondents' sales to that market are less than 5% of its export sales volume to
the United States; and
ii. the USDOC acted inconsistently with Article 2.2 of the Anti -Dumping Agreement by
applying the "viability test" in the underlying investigation and disqualifying the
respondents' sales to third -country markets in determining the normal value only
because the volume of these sales constituted less than 5% of the volume of
respondents' export sales to the United States.
b. With respect to the USDOC's determination of dumping in the underlying investigation:
i. the USDOC acted inconsistently with the chapeau of Article 2.2.2 of the
Anti-Dumping Agreement because it did not use act ual data of the respondents to
calculate the respondents' constructed value (CV) profit rate 16, although the
respondents' actual home market and third -country market profit data was available
on the record of the investigation;
ii. the USDOC acted inconsistentl y with Article s 2.2.2(i) and (iii) of the Anti -Dumping
Agreement because it interpreted and applied "same general category of products" in
an impermissibly narrow manner such that it was not broader than its definition of
"like products";
iii. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti-Dumping Agreement
because it failed to calculate a "profit cap" as required by that Article. By failing to
calculate a profit cap, the USDOC also failed to ensure that the CV profit was
"reasonable" as required under Article 2.2;
iv. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti-Dumping Agreement
because the use of Tenaris as a source of CV profit data did not constitute a
"reasonable method " and did not reflect the profit normally realized by other
exporters or producers on sales of products in the domestic market of the country of
origin;
v. the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping Agreement
because it did not make a fair comparison between the export price and the normal
value as a result of the failure to make due allowances for significant differences
between the Korean respondents and Tenaris that affected price comparability;
vi. the USDOC acted inconsistently with Article 2.3 of the Anti -Dumping Agreement by
improperly disregarding NEXTEEL's export prices to the Customer17 without a proper

15 Korea's first written submission, paras. 277-280; response to Panel question No. 40, para. 13.
16 Article 2.2.2 refers to the methodologies that an investigating authority shall use in determining the
amount for profit in constructed normal value. We refer to this profit amount as "CV profit" in this Report.
17 The parties refer to [[***]] and/or [[***]] as the "Customer". As indicated in paragraph 7.135 we
refer to them as Company A and Company B.

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finding of "association" or "compensatory agreement", and without conducting any
assessment of whether those prices were "unreliable";
vii. the USDOC acted inconsistently with Article 2.2.1.1 of the Anti-Dumping Agreement
because it did not calculate NEXTEEL 's costs on the basis of the records kept by
NEXTEEL, based on an erroneous determination that NEXTEEL was associated with
its supplier , when NEXTEEL's cost records satisfied the req uirements of this
provision; and
viii. the USDOC acted inconsistently with Article 12.2.2 of the Anti -Dumping Agreement
because the final determination in the underlying investigation did not contain all
relevant information on the reasons that led to the imposi tion of anti-dumping
duties. In particular, the final determination did not provide sufficient or reasoned
explanations regarding the USDOC 's improperly narrow definition of "same general
category", its selection of the Tenaris financial statements as a CV profit data source,
and its finding of affiliation between NEXTEEL and its supplier and customer,
especially in light of opposing evidence presented by the Korean respondents.
c. With respect to the proceedings in the underlying investigation:
i. the USDOC acted inconsistently with Articles 6.2, 6.4, and 6.9 of the Anti -Dumping
Agreement by failing to make a determination regarding the placement of the
Tenaris financial data on the record until its final determination, when it was too late
for the Korean respond ents to prepare presentations based on th at data and to
defend their interests regarding an issue that was relevant to the USDOC 's dumping
margin determinations for the Korean respondents;
ii. the USDOC acted inconsistently with Articles 6.4 and 6.9 of the An ti-Dumping
Agreement by failing to disclose several letters that it had received from various
government and industry representatives until immediately before the deadline for
interested parties to submit their final presentations to the USDOC, depriving t he
Korean respondents of sufficient opportunity to defend their interests; and
iii. the USDOC acted inconsistently with Articles 6.10 and 6.10.2 of the Anti -Dumping
Agreement because the USDOC provided no reasonable basis to conclude that it only
had resources to examine two mandatory respondents and provided no reasoned
explanation for why it was unable to examine any voluntary respondents.
d. In addition, Korea requests the Panel to find that the United States failed to comply with
its obligations under Article I of the GATT 1994 because the USDOC 's treatment of
Korean respondents vis-à-vis respondents in other parallel OCTG investigations resulted
in an advantage to OCTG products from other countries that was not extended
immediately and unconditionally to OCTG p roduced in Korea . Furthermore, Korea
requests the Panel to find that the USDOC's conduct was inconsistent with Article X:3(a)
of the GATT 1994 because the USDOC's administration of laws, regulations, decisions ,
and rulings was not uniform, impartial, or reasonable.
e. Korea requests that, as a consequence of the findings requested above, the Panel find
that the United States has acted inconsistently with Articles 1, 9.3, and 18.4 of the
Anti-Dumping Agreement, Article VI of the GATT 1994, and Article XVI:4 of the
Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement).
f. With respect to the USDOC's remand determination, Korea requests the Panel to find
that:
i. the USDOC acted inconsistently with the chapeau of Article 2.2.2 of the
Anti-Dumping Agreement because it did not use actual data pertaining to the sales of
the like product in the ordinary course of trade;

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ii. the USDOC acted inconsistently with Article 2.2.2(i) and (iii) of the Anti -Dumping
Agreement because it relied on an impermissibly na rrow definition of the "same
general category of products";
iii. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti-Dumping Agreement
because by determining the profit rates of the Korean respondents on the basis of
the profits earned by Tenaris and OAO TMK, which had no production or sales of
OCTG in Korea, it failed to use a "reasonable" method to calculate the profit rates of
the Korean respondents;
iv. the USDOC acted inconsistently with Article 2.2.2(iii) of the Anti-Dumping Agreement
because it calculated a profit cap based on the average of the profit rates in the 2012
financial statement of Tenaris and the profit rates of OAO TMK; and
v. the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping Agreement
because instead of rejecting the Tenaris financial data or accounting for the
differences between Tenaris and the Korean respondents, the USDOC averaged the
Tenaris profit rate with that of another foreign producer that suffered from the same
flaws as Tenaris.
3.2. Korea further requests, pur suant to Article 19.1 of the DSU that the Panel recommend that
the United States bring its measures into conformity with the A nti-Dumping Agreement, the
GATT 1994, and the WTO Agreement.
3.3. The United States asserts that the USDOC remand determination challen ged by Korea is
outside the Panel's terms of reference. The United States requests the Panel to reject Korea's
claims in this dispute in their entirety.
4 ARGUMENTS OF THE PARTIES
4.1. The arguments of the parties are reflected in their executive summaries, provi ded to the
Panel in accordance with paragraph 19 of the Working Procedures adopted by the Pan el (see
Annexes B-1 to B-4 and C-1 to C-4).
5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of China, the European Union , and Turkey are reflected in their executive
summaries, provided in accordance with paragraph 20 of the Working Procedures adopted by the
Panel (see Annexes D-1 to D-3). Canada, India, Mexico, and the Russian Federation did not submit
written or oral arguments to the Panel.
6 INTERIM REVIEW
6.1. On 5 April 2017, the Panel issued its Interim Report to the parties. On 19 April 2017, Korea
and the United States each submitted written requests for the Panel to review precise aspects of
the Interim Report. Neither party requested an interim review meeting. On 27 April 2017, both
parties submitted comments on the other party's requests for review.
6.2. The parties' requests made at the interim review stage as well as the Panel's discussion and
disposition of those requests are set out in Annex F-1.
7 FINDINGS
7.1 General pr inciples regarding treaty interpretation, the standard of review, and
burden of proof
7.1.1 Treaty interpretation
7.1. Article 3.2 of the DSU provides that the WTO dispute settlement system serves to clarify the
existing provisions of the covered agreements "in accor dance with customary rules of
interpretation of public international law". Article 17.6(ii) of the Anti-Dumping Agreement similarly

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requires panels to interpret that Agreement's provisions in accordance with the customary rules of
interpretation of public international law.18 It is generally accepted that the principles codified in
Articles 31 and 32 of the Vienna Convention on the Law of Treaties are such customary rules.
7.1.2 Standard of review
7.2. Article 11 of the DSU provides, in relevant part, that:
[A] panel should make an objective assessment of the matter before it, including an
objective assessment of the facts of the case and the applicability of and conformity
with the relevant covered agreements.
In addition, Article 17.6 of the Anti -Dumping Agreement sets forth the special standard of review
applicable to disputes under the Anti-Dumping Agreement:

(i) in its assessment of the facts of the matter, the panel shall determine whether
the authorities' establishment of the facts was proper and whether their e valuation of
those facts was unbiased and objective. If the establishment of the facts was proper
and the evaluation was unbiased and objective, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance
with customary rules of interpretation of public international law. Where the panel
finds that a relevant provision of the Agreement admits of more than one permissible
interpretation, the panel shall find the authorities' measure to be in conformity with
the Agreement if it rests upon one of those permissible interpretations.
Thus, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement together establish the
standard of review we will apply with respect to both the factual and the legal aspects of the
present dispute.

7.3. The Appellate Body has explained that where a panel is reviewing an investigating authority's
determination, the "objective assessment" standard in Article 11 of the DSU requires a panel to
review whether the authorit y has provided a reasoned and adequate explanation as to : (a) how
the evidence on the record supported their factual findings; and ( b) how those factual findings
support the overall dete rmination.19 In the context of Article 17.6(i) of the
Anti-Dumping Agreement, the Appellate Body has explained that while the text of this provision is
couched in terms of an obligation on a panel, in effect it defines when an investigating authority
can be considered to have acted inconsistently with the Anti -Dumping Agreement in the course of
its "establishment" and "evaluation" of the relevant facts. 20 Therefore, a panel must assess if the
establishment of the facts by the investigating authority was prope r and if the evaluation of those
facts by that authority was unbiased and objective. 21 If these broad standards have not been met,
a panel must hold the investigating authority's establishment or evaluation of the facts to be
inconsistent with the Anti-Dumping Agreement.22
7.4. In reviewing an investigating authority's determination, a panel should not conduct a de novo
review of the evidence, nor substitute its judgment for that of the investigating authority. A panel
must limit its examination to the evidence th at was before the investigating authority during the
course of the investigation23 and must take into account all such evidence submitted by the parties
to the dispute. 24 At the same time, a panel must not simply defer to the conclusions of the

18 Article 17.6(ii) of the Anti-Dumping Agreement also provides that if a panel finds that a provision of
the Anti-Dumping Agreement admits of more than one permissible interpretation, it shall uphold a measure
that rests upon one of those interpretations.
19 Appellate Body Reports, US – Countervailing Duty Investigation on DRAMS, para. 186; and US –
Lamb, para. 103.
20 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
21 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
22 Appellate Body Report, US – Hot-Rolled Steel, para. 56.
23 Article 17.5(ii) requires a panel to examine the matter based on the facts made available to the
authorities.
24 Appellate Body Report, US – Countervailing Duty Investigation on DRAMS, paras. 187 and 188.

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investigating authority; a panel's examination of those conclusions must be "in-depth" and "critical
and searching".25
7.5. The Appellate Body has clarified a panel's standard of review of the facts pursuant to the
above provisions in the following terms:
It is well establi shed that a panel must neither conduct a de novo review nor simply
defer to the conclusions of the national authority. A panel's examination of those
conclusions must be critical and searching, and be based on the information contained
in the record and th e explanations given by the authority in its published report. A
panel must examine whether, in the light of the evidence on the record, the
conclusions reached by the investigating authority are reasoned and adequate. What
is "adequate" will inevitably de pend on the facts and circumstances of the case and
the particular claims made, but several general lines of inquiry are likely to be
relevant. The panel's scrutiny should test whether the reasoning of the authority is
coherent and internally consistent. The panel must undertake an in-depth examination
of whether the 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 con clusions reached by it. The panel must examine
whether the explanations provided demonstrate that the investigating authority took
proper account of the complexities of the data before it, and that it explained why it
rejected or discounted alternative exp lanations and interpretations of the record
evidence. A panel must be open to the possibility that the explanations given by the
authority are not reasoned or adequate in the light of other plausible alternative
explanations, and must take care not to assu me itself the role of initial trier of facts,
nor to be passive by "simply accept[ing] the conclusions of the competent
authorities".26
7.1.3 Burden of proof
7.6. The general principles applicable to the allocation of the burden of proof in WTO dispute
settlement require that a party claiming a violation of a provision of a WTO Agreement must assert
and prove its claim. 27 Therefore, as the complaining party in this proceeding, Korea bears the
burden of demonstrating that the challenged aspects of the measures at issue a re inconsistent
with the Anti -Dumping Agreement. The Appellate Body has stated that a complaining party will
satisfy its burden when it establishes a prima facie case, namely a case which, in the absence of
effective refutation by the defending party, requ ires a panel, as a matter of law, to rule in favour
of the complaining party. 28 Finally, it is generally for each party asserting a fact to provide proof
thereof.29
7.2 Whether the "viability test " is inconsistent with Article 2.2 of the Anti -Dumping
Agreement
7.7. US law provides that where domestic market sales cannot be used to determine normal
value, third-country export sales of the foreign like product can be used for this purpose, subject
to certain conditions.30 One of these conditions, which we refer to as the "viability test", is set out
in 19 U.S.C. §1677b(a)(1)(B)(ii), and provides that third-country export sales of the foreign like
product can be used for determining normal value if such sales are 5% or more of the quantity or

25 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93.
26 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada), para. 93 (quoting
Appellate Body Report, US – Lamb, para. 106). (emphasis from the original quote; fn omitted)
27 Appellate Body Report, US – Wool Shirts and Blouses, p. 16.
28 Appellate Body Report, EC – Hormones, paras. 98 and 104.
29 Appellate Body Report, US – Wool Shirts and Blouses, p. 16.
30 Under 19 U.S.C. § 1677b(a)(1)(B)(ii), the USDOC is permitted to use third-country sales for normal
value determination where three conditions are fulfilled: (a) the third-country sales price is representative;
(b) the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold by the
exporter or producer in such 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; and (c) the USDOC does not
determine that the particular market situation in such other third country prevents a proper comparison with
the export price or constructed export price.

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value of sales of the subject merchandise to or in the United States. 31 Korea refers to this
requirement under the "viability test" as the "minimum quantitative threshold".
7.8. Korea brings two claims regarding the "viability test" under Article 2.2 of the Anti -Dumping
Agreement. First, it contends that Article 2.2 of the Anti -Dumping Agreement, unlike the "viability
test" provided for under US law, does not stipulate that an investigating authority may use
third-country export sales to determine the normal value only when such a minimum qua ntitative
threshold is met. Korea claims that the existence of such a threshold in US law under the "viability
test", which is not found in the Anti-Dumping Agreement, renders the "viability test " "as such"
inconsistent with Article 2.2. Second, Korea clai ms that the "viability test" was inconsistent with
Article 2.2 "as applied" in the underlying investigation.
7.9. In the underlying investigation, the USDOC, after concluding that neither HYSCO nor
NEXTEEL had a viable home market32, found in its final determina tion, on the basis of application
of the "viability test", that neither HYSCO nor NEXTEEL had a viable third -country market during
the period of investigation (POI), and therefore proceeded to determine normal value on the basis
of constructed normal value.33
7.2.1 Provision at issue
7.10. Article 2.2 reads:
When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular market
situation or the low volume of the sales in the d omestic market of the exporting
country[*], such sales do not permit a proper comparison, the margin of dumping
shall be determined by comparison with a comparable price of the like product when
exported to an appropriate third country, provided that this price is representative, or
with the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits.
[*fn original] Sales of the like product destined for consumption in the domestic marke t of the
exporting country shall normally be considered a sufficient quantity for the determination of the
normal value if such sales constitute 5 per cent or more of the sales of the product under
consideration to the importing Member, provided that a low er ratio should be acceptable where
the evidence demonstrates that domestic sales at such lower ratio are nonetheless of sufficient
magnitude to provide for a proper comparison.
7.2.2 Whether the "viability test " is as such inconsistent with Article 2.2 of the
Anti-Dumping Agreement
7.2.2.1 Main arguments of the parties
7.11. Korea argues that the minimum quantitative threshold for use of third -country sales in
determining normal value in US law is an additional requirement not contemplated in the
Anti-Dumping Agreement and is therefore inconsistent with Article 2.2. 34 According to Korea, the
existence of a choice between the use of constructed normal value and third -country sales to

31 The USDOC regulations implementing the statute provide that:
In general. The Secretary [of the USDOC] will c onsider the exporting country or a
third country as constituting a viable market if the Secretary is satisfied that the
sales of the foreign like product in that country are of sufficient quantity to form
the basis of normal value.
(19 C.F.R. § 351.404(b)(1) (emphasis original))
The regulations further explain that sufficient quantity "normally" means that the aggregate quantity (or
if quantity is not appropriate, value) of the foreign like product sold by an exporter or producer in a country is
5% or more of the aggregate quantity (or value) of its sales of the subject merchandise to the United States.
(19 C.F.R. § 351.404(b)(2)).
32 This conclusion is not at issue in this dispute.
33 Final Decision Memorandum, (Exhibit KOR-21), p. 14.
34 Korea's first written submission, paras. 57-59 (referring to Appellate Body Reports, India –
Patents (US), para. 45; and Mexico – Anti-Dumping Measures on Rice, para. 315).

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determine normal value does not absolve the United States of its obligation to ensure that its laws,
regulations, and administrative procedures relating to each of these methods are consistent with
Article 2.2.35
7.12. The United States contends that because the use of third -country sales as a method to
determine normal value is itself optional, Article 2. 2 permits Members to use their own internal
criteria to decide whether to use that method or not. 36 The United States submits that even if
Article 2.2 did not permit an investigating authority to set its own criteria, the term "appropriate
third country" in the provision allows the authority to select a suitable third country for purposes of
normal value determination by reference to indices such as volume of sales.37
7.2.2.2 Main arguments of third parties
7.13. The European Union submits that an investigating authority' s discretion to opt for either
third-country sales prices or constructed normal value in determining normal value under
Article 2.2 is contextually informed by footnote 2. Further, the absence of a sufficient volume of
exports of the like product to an app ropriate third country could justify a finding that the price of
those exports was not "representative".38
7.2.2.3 Evaluation by the Panel
7.14. The main issue before us is whether the fulfilment of a minimum quantitative threshold as a
condition for use of third-country sales to determine normal value is inconsistent with Article 2.2 of
the Anti-Dumping Agreement.
7.15. We begin our analysis by considering the requirements of Article 2.2. The text of Article 2.2
makes it clear that a choice exists between the use of third -country sales and constructed normal
value for the determination of normal value. Article 2.2 provides that where certain circumstances
set out in the provision preclude the use of home market sales in determining normal value, "the
margin of dumping shall be determined by comparison with a comparable price of the like product
when exported to an appropriate third country, provided that this price is representative or with
the cost of production in the country of origin plus a reasonable amount for administra tive, selling
and general costs and for profits" .39 The use of the word "or", in the relevant part of Article 2.2,
implies that Members have a choice between third-country export prices and the constructed
normal value for purposes of normal value determina tion. The dictionary meaning of "or" is
"introducing the second of two, or all but the first or only the last of several, alternatives". 40
Article 2.2 is therefore clearly intended to provide Members with alternatives to home market sales
prices for normal value determination to ensure that an anti -dumping investigation can be
completed. In this regard, the Appellate Body has stated that where normal value cannot be
determined on the basis of home market sales, Article 2.2 specifies two "alternative bases" f or
calculation of normal value.41
7.16. That there is a free choice between the two methods is confirmed by the language of
Article VI:1(b) of the GATT 1994, which provides an option between "either" the highest
comparable price for the like product for export to any third country in the ordinary course of trade
"or" the cost of production of the product in the country of origin plus a reasonable addition for
selling cost and profit. We note that the parties agree that Article 2.2 allows Members a choice
between the two alternate methods and that there is no hierarchy between the two options.42

35 Korea's opening statement at the first meeting of the Panel, paras. 25-27.
36 United States' first written submission, para. 45.
37 United States' second written submission, para. 9 (referring to Appellate Body Report, US –
Anti-Dumping and Countervailing Duties (China), para. 552).
38 European Union's third-party submission, para. 9.
39 Emphasis added.
40 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 2,
p. 2016.
41 Appellate Body Report, EC – Tube or Pipe Fittings, paras. 93-95.
42 Korea's first written submission, para. 54; response to Panel question No. 42, para. 21; and
United States' first written submission, paras. 44 and 45.

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7.17. While Korea agrees that Members have a choice between the two methods and that no
hierarchy exists between them, it contends that the criteria for making that choice are alr eady set
out in Article 2.2 and cannot be altered or added to. 43 The United States argues, on the other
hand, that even if Article 2.2 did not permit a Member to set its own criteria, the term "appropriate
third country" in the provision allows it to select a suitable third country for purposes of normal
value determination.44
7.18. We disagree with Korea that the criteria for choosing between the two methods are set out
in Article 2.2. Article 2.2 sets out the criteria for use of either of the two method s. However,
criteria for the use of the two methods are not the same as criteria for choosing between those
two methods. In the process of arriving at a choice between the two methods, an investigating
authority will assess the criteria for use of the methods to se e if they can be satisfied. That will
show whether either or both of the two methods can be used, but will not necessarily determine
which to use. In providing for a choice, Article 2.2 neither expressly limits nor directs how the
authority should reach th at choice. Thus , the authority is free to choose which method to use
based on its own criteria , should it choose to have them. Therefore, we consider that Article 2.2
does not preclude an investigating authority from establishing its own criteria for choosing which
method to use.
7.19. Should a Member decide to use third -country export prices as normal value , the criteria for
use of third-country sales in Article 2.2, requir ing use of a "comparable" price of the like product
exported to an "appropriate" third co untry, which price must be "representative" , must be
satisfied. However, this does not affect an investigating authority's freedom to choose whether or
not to use third-country sales as a basis for determining normal valu e. Moreover, Article 2.2 does
not require that Members explain the basis of their choice between the two methods.
7.20. We therefore find that Article 2.2 does not impose any limitation on criteria that a Member
may establish for deciding whether to use one or the other of the alternative method s and that the
imposition of the 5% threshold as a criterion for use of third -country sales in US law is thus not
inconsistent "as such" with Article 2.2 of the Anti-Dumping Agreement.45
7.2.3 Whether the "viability test" as applied in the underlying investigati on is
inconsistent with Article 2.2 of the Anti-Dumping Agreement
7.2.3.1 Main arguments of the parties
7.21. Korea's principal arguments are set out below:
a. The USDOC automatically excluded from consideration the Korean respondents'
third-country market sales that did n ot meet the 5% threshold without any regard to
whether the prices of these sales were representative in accordance with Article 2.2 of
the Anti-Dumping Agreement.46
b. Moreover, the USDOC's questionnaire deprived Korean respondents of the opportunity to
submit third -country sales data or describe its third -country market sales based on a
rigid application of the "viability test".47
7.22. The United States contends that Article 2.2 does not require the use of third -country sales
where the conditions for use of constr ucted normal value as a method for determining normal
value are satisfied . It further argues that Article 2.2 does not require that an investigating
authority use or seek third -country sales data. In any event, the USDOC did not prohibit

43 Korea's response to Panel question No. 1, paras. 2 and 3.
44 United States' second written submission, para. 9 (referring to Appellate Body Report, US –
Anti-Dumping and Countervailing Duties (China), para. 552).
45 We do not consider it necessary to assess whether there are grounds to maintain an "as such" claim
because the measure at issue does not appear, in any instance, to be inconsistent with Article 2.2.
46 Korea's first written submission, para. 66.
47 Korea's first written submission, para. 66.

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respondents from s ubmitting data and no evidence exists that the USDOC would have refused
third-country sales data had it been submitted.48
7.2.3.2 Evaluation by the Panel
7.23. Article 2.2 does not impose any obligation on a Member to examine whether a respondent's
third-country export p rices are representative if it has opted to use constructed normal value to
determine normal value. If a Member has decided not to use third -country exports to determine
normal value for a particular reason, including because it does not consider that mark et to be
viable, nothing in Article 2.2 requires it to nonetheless assess whether all the conditions for use of
that method set out in the provision are fulfilled.
7.24. As discussed under paragraphs 7.15-7.19 above, the use of third-country sales as a method
to determine normal value is optional and a Member may choose, for its own reasons, to not use
it. We have found that the "viability test" is not, as such, inconsistent with Article 2.2. Therefore,
we find that the USDOC in applying that test in the underlying investigation and concluding on the
basis of that application that it would not use third-country sales for determining normal value, did
not act inconsistently with Article 2.2.
7.2.4 Conclusion
7.25. For the foregoing reasons, we find that Korea has not established that the "viability test" is
inconsistent with Article 2.2 of the Anti -Dumping Agreement, either as such, or as applied in the
underlying investigation.
7.3 Whether the USDOC's determination of profit rates for the Korean respondents in
the final and remand determination s is inconsistent with Articles 2.2.2 and 2.4 of the
Anti-Dumping Agreement
7.26. In its first written submission, Korea claimed that the USDOC's profit rate determination in
the final determination in the underlying investigation was inconsistent with the chapeau of
Articles 2.2.2, 2.2.2(i), and 2.2.2(iii) of the Anti -Dumping Agreement. Korea also claimed that the
USDOC's failure to make adjustments to the pr ofit rates of the Korean respondents in this
determination resulted in a violation of Article 2.4 of the Anti-Dumping Agreement.
7.27. This final determination was challenged before the US Court of International Trade (USCIT),
which issued a remand order direct ing the USDOC to, inter alia, reconsider certain aspects of its
profit rate determination in the underlying investigation. 49 The USDOC initiated a remand
investigation pursuant to this order, and on 22 February 2016 (that is, after Korea had already
filed i ts panel request and its first written submission in these proceedings ) issued its remand
determination.50 This determination was affirmed by the USCIT in August 2016. The profit rate for
the Korean respondents was reduced from 26.11% in the final determina tion to 16.24% in the
remand determination due to revisions in the methodology used to determine this profit rate.51
7.28. Korea considers this remand determination to be within o ur terms of reference, and
the USDOC's profit rate determination therein to be inconsistent with the chapeau of Articles 2.2.2,
2.2.2(i), 2.2.2(iii) , and 2.4 of the Anti -Dumping Agreement. The United States argues, for the
reasons set out below, that the remand determination is outside our terms of reference, and asks
us to make no rulings in this regard.

48 United States' first written submission, para. 61.
49 US Court of International Trade, Husteel Co. Ltd., Nexteel Co. Ltd., and Hyundai Hysco v.
United States, Commerce's final determination in antidumping investigation sustained in part and remanded in
part to reconsider selection of mandatory respondents and constructed value profit margin, Slip Op. 15-100,
(Exhibit KOR-25), p. 84.
50 USDOC, Final Determination pursuant to court remand, Husteel Co. Ltd., et al., v. United States,
Ct. No. 14-215, Slip Op. 15-100 (USDOC's Remand Determination), (Exhibit KOR-69), p. 85.
51 USDOC's Remand Determination, (Exhibit KOR-69), p. 85. The United States confirmed during the
second substantive meeting that a new anti-dumping order specifying new anti-dumping duty rates, which had
changed as result of the remand determination, has been published in the US Federal Register.

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7.29. In our evaluation of Korea's claims regarding the USDOC's final and remand determinations
of profit rates , we will first address Korea's claims with respect to the final determination. Then,
we will examine whether the remand determinatio n falls within our terms of reference. Only if we
find that it does will we proceed to address Korea's claims regarding this determination.
7.3.1 Provisions at issue
7.30. Article 2.2.2 of the Anti-Dumping Agreement provides:
For the purpose of paragraph 2, the amoun ts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales
in the ordinary course of trade of the like product by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, the amounts
may be determined on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer in
question in respect of production and sales in the domestic market of the
country of origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realized by other
exporters or producers subject to investigation in respect of production and
sales of the like product in the domestic market of the country of origin;
(iii) 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 products of the same general category in the domestic
market of the country of origin.
7.31. Article 2.4 of the Anti-Dumping Agreement provides:
A fair comparison shall be made between the export price and the normal value. This
comparison shall be made at the same level of trade, normally at the ex -factory level,
and in respect of sal es made at as nearly as possible the same time. Due allowance
shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditions and terms of sale, taxation, levels of
trade, quantities, physica l characteristics, and any other differences which are also
demonstrated to affect price comparability.[*] In the cases referred to in paragraph 3,
allowances for costs, including duties and taxes, incurred between importation and
resale, and for profits a ccruing, should also be made. If in these cases price
comparability has been affected, the authorities shall establish the normal value at a
level of trade equivalent to the level of trade of the constructed export price, or shall
make due allowance as war ranted under this paragraph. The authorities shall indicate
to the parties in question what information is necessary to ensure a fair comparison
and shall not impose an unreasonable burden of proof on those parties.
[*fn original] It is understood that som e of the above factors may overlap, and authorities shall
ensure that they do not duplicate adjustments that have been already made under this provision.
7.3.2 USDOC's profit rate determination in the underlying investigation
7.32. In the underlying investigation, the USDOC constructed the normal value of the Korean
respondents based on their cost of production . In doing so, it determined the profit rate for these
respondents using the profit data of a surrogate company, Tenaris, rather than the profit data of
the Kore an respondents whose normal value was being constructed. Korea claims that the
USDOC's rejection of the profit data of the Korean respondents and its use of the profit data of
Tenaris were inconsistent with Article 2.2.2 of the Anti -Dumping Agreement, and specifically that
the USDOC acted inconsistently with the following requirements set out in that provision:

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a. The chapeau of Article 2.2.2 because:
i. the USDOC had actual data on record pertaining to profits realized by the Korean
respondents on home market sales of the like product but failed to use it; and
ii. the USDOC had actual data on record pertaining to profits realized by the Korean
respondents on third-country sales of the like product but again failed to use it.
b. Articles 2.2.2(i) and 2.2.2(iii) because t he USDOC applied an impermissibly narrow
interpretation of the term "same general category of products" which affected its ability
to determine profits on the basis of these provisions.
c. Article 2.2.2(iii) because the USDOC failed to calculate a profit cap and also because its
use of the Tenaris profit data to determine the profit for the Korean respondents was not
a "reasonable method" within the meaning of that provision.
d. Article 2.2 because as a consequence of its failure to determine profits consistently with
Article 2.2.2(iii), the USDOC failed to ensure that the profit amount used in constructing
normal value was a "reasonable amount".
e. Article 2.4 because the USDOC, having decided to use the Tenaris profit rate for
constructing the Korean respondents' normal value, failed to make due allowance for the
difference between that constructed normal value, which reflected the Tenaris profit
rate, and the export price, which reflected the Korean respondents' own profit rates, and
make appropriate adjustment.
7.33. The United States rejects Korea's claims.
7.3.2.1 Whether the USDOC 's failure to use "actual data" as a CV profit source is
inconsistent with Article 2.2.2
7.3.2.1.1 Main arguments of the parties
7.34. Korea's main arguments are set out below:
a. Low volume of sales is not a valid r eason under the chapeau of Article 2.2.2 for an
investigating authority to refuse to use the respondents' actual data to determine
CV profit.52 Therefore, the USDOC applied an improper basis for disregarding the Korean
respondents' actual data.
b. Moreover, the USDOC had access to actual profit data pertaining to the like product from
both the respondents' home market and third -country market sales. Only when this
actual data is not available would the USDOC be able to use one of the alternative
methods provided under the subparagraphs of Article 2.2.2 to determine the CV profit.53
7.35. The main arguments of the United States are as follows:
a. Neither of the two Korean respondents had a viable home or third-country market during
the period of investigation, as a result of which their home and third -country market

52 Korea's first written submission, para. 76 (referring to Appellate Body Report, EC – Tube or Pipe
Fittings, para. 101).
53 Korea's first written submission, para. 77 (referring to Response of Hyundai HYSCO to Section A of
the Department's 27 August 2013 Questionnaire, 17 September 2013, (Exhibit KOR-60) (BCI), p. A-2,
Response of NEXTEEL to the Department's 27 August 2013 Questionnaire, 17 September 2013,
(Exhibit KOR-61) (BCI), p. A-2; HYSCO Cost Verification Exhibit, CVE 15 March 2014, (Exhibit KOR-27) (BCI);
and NEXTEEL Cost Verification Exhibit, CVE 8 March 2014, (Exhibit KOR-28) (BCI)).

BCI deleted, as indicated [[***]]

sales could not serve as a basis for normal value determination, including with respect to
the CV profit.54
b. In addition, actual profit data pertaining to sales in the ordinary course of trade of the
like product in the domestic market required to determine the CV profit did not exist in
the record of the investigation at issue.55
c. The chapeau of Article 2.2.2 does not obligate an investigating authority to consider
third-country sales for purposes of determining CV profit.56
7.3.2.1.2 Main arguments of third parties
7.36. The European Union submits that the USDOC was e ntitled to use one of the
three alternative methods provided in subparagraphs (i) -(iii) of Article 2.2.2 to the extent that it
first ascertained that actual sales, general, and administrative expenses (SG&A) and profit data for
sales in the ordinary course of trade did not exist for the exporters and the like products under
investigation.57
7.3.2.1.3 Evaluation by the Panel
7.37. The chapeau of Article 2.2.2 of the Anti -Dumping Agreement requires that , in constructing
normal value, the amounts for profits determined for an exporter or producer be based on "actual
data pertaining to production and sales in the ordinary course of trade of the like product". Only
when the profit amounts "cannot be determined on this basis" is an investigating authority
permitted to determine profit amounts on the basis of the alternative methods set out in
Articles 2.2.2(i)-(iii) of the Agreement. In the underlying investigation, the USDOC concluded that
it could not establish the CV profit amounts for the Korean respondents on the basis of their
"actual data pertaining to production and sales in the ordinary course of trade of the like product",
i.e. OCTG. The USDOC reached this conclusion based on its deter mination that the Korean
respondents had no viable home market sales of the like product. Korea claims that the USDOC's
failure to use the Korean respondents' "actual data" as the basis for determining CV profit is
inconsistent with the chapeau of Article 2.2.2. The United States disagrees with Korea, and
contends that the USDOC had a proper basis for not using the respondents' actual data for
determining CV profit amounts. The issue before us is whether the USDOC acted inconsistently
with the chapeau of Ar ticle 2.2.2 because it did not use the Korean respondents' "actual data"
pertaining to production and sales of the like product in the ordinary course of trade in either their
domestic or third-country markets, as the basis for determining their CV profit.
7.38. In addressing this issue, we will consider the following:
a. whether the USDOC was permitted to reject the actual data pertaining to the Korean
respondents' domestic market sales of the like product during the period of
investigation, because these sales were made in "low volumes";
b. whether there was, in the USDOC's record in the underlying investigation, actual profit
data pertaining to the respondents' domestic market sales of the like product; and
c. whether the use of the word "profits" in the chapeau of Article 2.2.2 suggests that when
an exporter makes a loss rather than a profit on domestic sales of the like product, the
data pertaining to such losses, even if "actual", need not be considered by the
investigating authority.

54 United States' first written submission, para. 73 (referring to Final Decision Memorandum,
(Exhibit KOR-21), p. 14).
55 United States' first written submission, para. 89 (referring to USDOC, NEXTEEL Sales Verification
Report, 29 May 2014, (Exhibit USA-9) pp. 16 and 17; USDOC HYSCO Sales Verification Report, 5 June 2014,
(Exhibit USA-8) pp. 22 and 23; HYSCO's section A questionnaire responses, 17 September 2013,
(Exhibit USA-6) (BCI), p. A-2 and exhibit A-1; and NEXTEEL's section A questionnaire responses,
17 September 2013, (Exhibit USA-7) (BCI), p. A-2 and exhibit A-1).
56 United States' response to Panel question No. 7, para. 11.
57 European Union's third-party submission, para. 15.

BCI deleted, as indicated [[***]]

7.3.2.1.3.1 The USDOC's rejection of actual data pertaining to the Korean
respondents' domestic market sales of the like product during the period of
investigation because these sales were made in "low volumes"
7.39. The chapeau of Article 2.2.2 does not contain any explicit textual limitation on the use of
actual data pertaining to sales made in low volumes as a basis for CV profit determination. The
chapeau reads as follows:
For the purpose of paragraph 2, the amounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales
in the ordinary course of trade of the like product by the exporter or producer under
investigation.
It is clear from the use of the word "shall" that the investigating authority is required to base the
CV profit on actual data pertaining to production and sales in the ordinary course of trade of the
like product, assuming such data exists. There is nothing in the text to the effect that if those sales
were made in low volumes, an investigating authority is permitted to disregard them as a basis for
CV profit, provided such sales were made in the ordinary course of trade.

7.40. The Appellate Body in EC – Tube or Pipe Fittings reached a similar conclusion. The issue
before the Appellate Body in that case was whether an inve stigating authority must exclude data
from low-volume sales when determining the amounts for SG&A and profits under the chapeau of
Article 2.2.2, having disregarded such low -volume sales for normal value determination under
Article 2.2. The Appellate Body found that:
[I]t is meaningful for the interpretation of Article 2.2.2 that Article 2.2 specifically
identifies low-volume sales in addition to sales outside the ordinary course of trade. In
contrast to Article 2.2, the chapeau of Article 2.2.2 explicitly excludes only sales
outside the ordinary course of trade. The absence of any qualifying language related
to low volumes in Article 2.2.2 implies that an exception for low -volume sales should
not be read into Article 2.2.2.58
Thus, the Appellate Body conclud ed that a requirement that low-volume sales be disregarded as a
basis for determining SG&A and profits cannot be read into the text of Article 2.2.2.59

7.41. The United States contends that the findings in EC – Tube or Pipe Fittings are inapplicable to
this dispute because the issue before the Appellate Body in that case was whether an investigating
authority must exclude data pertaining to low -volume sales when determining the amounts for
SG&A and profits under the chapeau of Article 2.2.2. We understand the Un ited States to argue
that the issue in this dispute, in contrast, is whether an investigating authority must include, or
perhaps may exclude , data pertaining to low -volume sales when determining the amounts for
profit under the chapeau of Article 2.2.2. Ho wever, the United States' argument in this regard is
contrary to the Appellate Body's clear statement in EC – Tube or Pipe Fittings that if actual profit
data for sales in the ordinary course of trade exist for the exporter and the like product under
investigation, an investigating authority must use that data in constructing normal value, and it
may not construct normal value by reference to different data or by using an alternative method. 60
We therefore disagree with the United States, and consider the Appellate Body's findings in EC –
Tube or Pipe Fittings clearly relevant to the issue before us.
7.42. We note that the panel in EC – Salmon (Norway) also addressed the question of whether an
investigating authority must include data pertaining to low -volume sales when determining the
amounts for profit under the chapeau of Article 2.2.2. The facts in EC – Salmon (Norway) are
similar to those in the instant dispute. In that case, the European Community had excluded data
pertaining to domestic sales made in low volu mes when determining the profit for constructed
normal value. The issue before the panel was whether that exclusion was consistent with the

58 Appellate Body Report, EC – Tube or Pipe Fittings, para. 98. (emphasis original; fn omitted)
59 Appellate Body Report, EC – Tube or Pipe Fittings, para. 98.
60 Appellate Body Report, EC – Tube or Pipe Fittings, para. 97.

BCI deleted, as indicated [[***]]

chapeau of Article 2.2.2.61 The panel in that case, agreeing with the views of the Appellate Body in
EC – Tube or Pipe Fittings, concluded that it was not.62
7.43. The United States also argues that the Appellate Body in EC – Tube or Pipe Fittings did not
explain why low -volume sales in the domestic market are rejected as a basis for normal value
determination because they do n ot permit proper comparison, but data derived from the same
sales should be accepted for purposes of CV profit determination under Article 2.2.2. 63 It further
argues that the Appellate Body did not address why data from low -volume sales, found not to
permit a proper comparison in the context of Article 2.2, could nonetheless achieve the objective
of permitting a proper comparison in the context of Article 2.2.2.64
7.44. We recognize the logic behind the United States' arg ument. We understand the
United States to ar gue that the price pertaining to sales made in low -volumes in the domestic
market is discarded for purposes of normal value determination under Article 2.2 because it is
considered to not permit a proper comparison with the export price. To require that da ta from the
same sales be used to determine CV profit and SG&A under Article 2.2.2 for purposes of
constructing normal value would seem to reintroduce the same improper comparison through the
constructed normal value. This is, in terms of overall coherence of Article 2, somewhat perplexing.
But this does not allow an interpretation that does not fully comport with the express language of
Article 2.2.2.
7.45. Under Article 2.2, upon the identification of low -volume sales, an investigating authority is
required to either construct normal value or use third -country export prices as normal value.
Therefore, the identification of low -volume sales serves as a trigger for an investigating authority
to use an alternative to the price of those sales for normal value determination but not necessarily
to exclude the components of the price pertaining to those sales from that determination. If an
investigating authority opts to construct normal value, nothing in Article 2.2 suggests that it is
required to , or may, exclude dat a derived from the rejected low -volume sales from that
construction. Further, Article 2.2.2 requires that only sales that are in the ordinary course of trade
be used as a basis for CV profit determination. Thus, only data from such sales, even if in low
volumes, can be used in constructing normal value. Therefore, what is discarded for normal value
determination under Article 2.2 is the price of low-volume sales but what is accepted for purposes
of normal value construction under Article 2.2.2 is the amount for profit and SG&A on those
low-volume sales that are in the ordinary course of trade.
7.46. To the extent that low -volume sales might be considered to generate a normal value that
will not permit proper comparison with the export price, excluding data from su ch sales that are
not in the ordinary course of trade as a basis for CV profit and SG&A determination under the
chapeau of Article 2.2.2 addresses, at least in part, the overall coherence issue referred to above.
7.47. Thus, while we see the general logic behind the United States' argument, we cannot, in light
of prior Appellate Body and panel findings read out of the text of the chapeau that the CV profit
has to be based on the respondents' actual data for sales of the like product in the ordinary course
of trade, even if those sales were made in low volumes. We thus conclude that the chapeau of
Article 2.2.2 did not permit the USDOC to reject the actual data pertaining to the Korean
respondents' domestic market sales of the like product in the period of investigation because these
sales were made in low volumes.
7.3.2.1.3.2 Alleged lack of actual profit data pertaining to the respondents' domestic
market sales of the like product, in the USDOC's record in the underlying investigation
7.48. The United States argues that the USDOC was unable to use the preferred method set out
in the chapeau of Article 2.2.2 to determine CV profit, as actual data pertaining to the Korean
respondents' sales in the ordinary course of trade of the like product was not in the record of the
investigation at issue. In particular, the United States maintains that the actual profit data

61 Panel Report, EC – Salmon (Norway), para. 7.297.
62 Panel Report, EC – Salmon (Norway), para. 7.304 (referring to Appellate Body Report, EC – Tube or
Pipe Fittings, paras. 93-102 and fn 99).
63 United States' first written submission, para. 80.
64 United States' first written submission, para. 85.

BCI deleted, as indicated [[***]]

pertaining to the respondents' domestic market sales that was on the record did not relate to the
like product, OCTG.65
7.49. As a threshold matter, we note that neither in the U SDOC's final determination nor in its
preliminary determination is there any reference to this alleged lack of relevant data as a reason
for its inability to use the preferred method for CV profit determination. The USDOC attributed its
inability to determine CV profit using the preferred method exclusively to the absence of a "viable
home or third-country market".66
7.50. The USDOC's findings on the absence of a viable domestic or third -country market in its
final determination cite the Korean respondents' questi onnaire responses.67 In these questionnaire
responses, the respondents, HYSCO and NEXTEEL, acknowledge that they do not have viable
markets, but also clearly state that they have made "some sales of the foreign like product in the
home market during the POI".68
7.51. In support of its assertion regarding the unavailability of actual profit data for the like
product, the United States refers to certain sales verification reports in which the respondents are
reported to have stated that the products they sold in the home market were not sold as OCTG. 69
However, neither the preliminary nor final determinations contain any conclusions drawn by the
USDOC regarding availability of data for the like product on the basis of those reported
statements. On the contrary, in its preliminary determination, the USDOC states that:
In order to determine whether there was a sufficient volume of sales in the home
market to serve as a viable basis for calculating NV, we compared HYSCO's and
NEXTEEL's volume of home market sales of the fo reign like product to the volume of
U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(B) of the
Act. For both HYSCO and NEXTEEL, we found that the aggregate volume of U .S. sales,
and, thus, HYSCO's and NEXTEEL's sales in the home market were not viable.70
7.52. This finding also formed the basis of the USDOC's decision, in its final determination, to not
use the preferred method to determine CV profit.71 The United States has not identified any finding
in the USDOC's preliminary or final d eterminations that HYSCO and NEXTEEL made no sales of the
like product in the home market, and further that it was because of the absence of data pertaining
to sales of the like product in the home market that the USDOC had rejected the preferred method
as a basis for determining CV profit. 72 We therefore dismiss, as ex post rationalization , the
United States' argument that the USDOC could not use the p referred method to determine
CV profit because the record did not contain any data pertaining to sales of t he like product in the
home market.73

65 United States' first written submission, para. 89 (referring to USDOC, NEXTEEL Sales Verification
Report, 29 May 2014, (Exhibit USA-9) pp. 16 and 17; USDOC, HYSCO Sales Verification Report, 5 June 2014,
(Exhibit USA-8) pp. 22 and 23; HYSCO's section A questionnaire responses, 17 September 2013,
(Exhibit USA-6) (BCI), p. A-2 and exhibit A-1; and NEXTEEL's section A questionnaire responses,
17 September 2013, (Exhibit USA-7) (BCI), p. A-2 and exhibit A-1).
66 Final Decision Memorandum, (Exhibit KOR-21), p. 14.
67 Final Decision Memorandum, (Exhibit KOR-21), pp. 20 and 21 and fns 68 and 72 (referring to
HYSCO's section A questionnaire responses, 17 September 2013, (Exhibit USA-6) (BCI), p. A-2; and NEXTEEL's
section A questionnaire responses, 17 September 2013, (Exhibit USA-7) (BCI), p. A-2, among others).
68 HYSCO's section A questionnaire responses, 17 September 2013, (Exhibit USA-6) (BCI), p. A-2; and
NEXTEEL's section A questionnaire responses, 17 September 2013, (Exhibit USA-7) (BCI), p. A-2.
69 United States' first written submission, para. 89 (referring to USDOC, NEXTEEL Sales Verification
Report, 29 May 2014, (Exhibit USA-9) pp. 16 and 17; and USDOC, HYSCO Sales Verification Report,
5 June 2014, (Exhibit USA-8) pp. 22 and 23);
70 USDOC, Decision Memorandum for the Negative Preliminary Determination of sales at less than fair
value, negative Preliminary Determination of critical circumstances, and postponement of Final Determination
in the less-than-fair-value investigation of certain oil country tubular goods from the Republic of Korea,
14 February 2014 (Preliminary Decision Memorandum), (Exhibit KOR-5), p. 20. (emphasis added)
71 Final Decision Memorandum, (Exhibit KOR-21), p. 14.
72 United States' response to Panel question No. 43, paras. 8-10.
73 In this regard, the Appellate Body has clarified that a Member is precluded from providing an ex post
rationale during the panel proceedings to justify the investigating authority's determination, and that an
investigating authority's determinations must be evaluated in light of the rationale provided

BCI deleted, as indicated [[***]]

7.53. In light of this and given the mandatory nature of the obligation in the chapeau of
Article 2.2.2 to use actual data as a basis for CV profit, we conclude that if unavailability of the
data for the like product was a reason for the USDOC's inability to use that method, it should have
set out that reason in its determination.
7.3.2.1.3.3 Rejection of data showing [[***]] in determining the amounts for "profits"
for constructed normal value
7.54. The United States argues that the USDOC was unable to use the respondents' actual data as
a basis for CV profit because their sales of "non -prime OCTG" in the domestic market were made
at a [[***]] and [[***]] cannot form the basis for CV profit under the chapeau of Article 2.2.2.74
7.55. As noted in para graph 7.49, in its final determination the USDOC attributed its inability to
determine CV profit using the preferred method exclusively to the absence of a "viable home or
third-country market". 75 We find no ment ion in the USDOC's findings of the [[***]]-making
nature of the respondents' domestic sales as a reason for its inability to use the preferred method.
The record also does not reflect a determination by the USDOC that the Korean respondents' sales
of "non-prime OCTG" in the domestic market were made at a [[***]]. We understand the United
States to argue, in response to our specific question 76 in this regard, that having already rejected
the Korean respondents' actual data pertaining to their home market sale s as a basis for CV profit
determination because those sales were not viable, the USDOC was not required to determine
whether that data could not be used for CV profit determination on other grounds. 77 However, as
noted above, the United States has argued in these proceedings that it did not determine CV profit
based on the Korean respondents' actual data pertaining to home market sales because these
sales were made at a [[***]]. We therefore must determine if this reasoning was used by the
USDOC in the unde rlying investigation or is ex post rationalization by the United States in these
proceedings. The United States has not identified where in its determination the USDOC relied on
this conclusion as a reason for not using the preferred method to calculate CV profit. We therefore
reject this justification offered by the United States as ex post rationalization.
7.56. Based on the foregoing reasons, we find that the United States has not offered any valid
justification for the USDOC's failure to use the respondents' actual data pertaining to the
respondents' domestic market sales as a basis for CV profit. We therefore conclude that in failing
to use the preferred method as basis for CV profit calculation, the United States acted
inconsistently with its obligations under the chapeau of Article 2.2.2.
7.57. Having already concluded that the USDOC had no basis to reject the "actual data"
pertaining to domestic sales of the like product in the ordinary course of trade , we do not find it
necessary to resolve the question whether the USDOC should have determined CV profit on the
basis of the profit derived by the Korean respondents from third -country markets in order to
comply with the chapeau of Article 2.2.2. We, therefore, exercise judicial economy on this claim.
7.3.2.1.4 Conclusion
7.58. For the foregoing reasons, we find that the United States acted inconsistently with its
obligations under the chapeau of Article 2.2.2 because:
a. The lack of viable home market sales is not a permissible ground for rejecting the
Korean respondents' actual data as a basis for determination of CV profit;
b. Nothing in the USDOC's determinations indicates that it rejected the Korean
respondents' actual data because there were no domestic sales of the like product; and

contemporaneously by that investigating authority. (Appellate Body Report, US – Carbon Steel (India),
74 United States' response to Panel question No. 12, paras. 37-39.
75 Final Decision Memorandum, (Exhibit KOR-21), p. 14.
76 United States' response to Panel question No. 45, paras. 13 and 14.
77 United States' response to Panel question No. 45, paras. 13 and 14.

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c. Nothing in the USDOC's determinations indicates t hat it rejected the Korean
respondents' actual data because the respondents made a [[***]] rather than a profit.
7.59. We exercise judicial economy of Korea's claim that the USDOC acted inconsistently with the
chapeau of Article 2.2.2 because it did not use actu al data of the respondents to determine its
CV profit rate although the respondents' third -country market profit data was available on the
record of the underlying investigation.
7.3.2.2 Whether the USDOC's interpretation and application of "same general category
of products" was inconsistent with Articles 2.2.2(i) and 2.2.2(iii)
7.3.2.2.1 Main arguments of the parties
7.60. Korea argues that the USDOC erroneously interpreted and applied the term "same general
category of products" so narrowly that it did not consider non -OCTG products, such as line pipe
and standard pipe, as falling within the "same general category" as OCTG. 78 Based on this narrow
interpretation, the USDOC rejected Article 2.2.2(i) as a basis to calculate CV profit and also
determined that it could not calculate a profit cap under Article 2.2.2(iii).79
7.61. In response, the United States contends that the USDOC defined "same general category of
products" more broadly than "like product" so as to include drill pipe and OCTG that fell outside
the scope of the investigation such as stainless steel tubular products.80
7.3.2.2.2 Main arguments of third parties
7.62. The European Union submits that while 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
guidance in this regard. 81 It notes that the panel in Thailand – H-Beams found that where the
preferred method in the chapeau cannot be used for purposes of determining an amount for profit
in the constructed normal value on the basis of actual data of the exporter or producer under
investigation for the like product, subparagraphs (i) and (ii) respectively provide for the database
to be broadened, either as to the product (i.e. the same general category of products produced by
the producer or ex porter in question) or as to the producer (i.e. other producers or exporters
subject to investigation in respect of the like product), but not both. The European Union
maintains that the Thailand – H-Beams panel confirmed that the intention of these provisions is to
obtain results that approximate, as closely as possible, the price of the like product in the ordinary
course of trade in the domestic market of the exporting country.
7.3.2.2.3 Evaluation by the Panel
7.63. Article 2.2.2(i) of the Anti-Dumping Agreement provides for profit rate determination on the
basis of the actual amounts incurred and realized by the exporter or producer in question in
respect of production and sales in the domestic market of the country of origin of the "same
general category of products ". Article 2.2.2(iii) provides for profit rate determination on the basis
of any other reasonable method, provided that the amount for profit so established shall not
exceed the "profit cap", which is the profit normally realized by other exporters or produc ers on
sales of "products of the same general category " in the domestic market of the country of origin.
Therefore, in order to make a profit determination under Article 2.2.2(i) or to calculate a profit cap
under Article 2.2.2(iii), an investigating autho rity must determine which products fall within the
same general category of products.
7.64. In the underlying investigation, the USDOC found that non -OCTG pipe products
manufactured by the Korean producers, such as line pipe and standard pipe, were not in the s ame
general category of products as the product under consideration, OCTG. The USDOC stated that it
could therefore not determine the CV profit rate for the Korean respondent HYSCO using actual

78 Korea's first written submission, para. 79.
79 Korea's first written submission, para. 88.
80 United States' first written submission, para. 91.
81 European Union's third-party submission, para. 18 (referring to Panel Report, Thailand – H-Beams,
para. 7.112).

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amounts incurred by that producer in respect of production and sales in the domestic market of
the country of origin of the same general category of products, as provided for in Article 2.2.2(i).82
In addition, the USDOC determined that it could not calculate the profit cap called for in
Article 2.2.2(iii) because it did not have domestic market profit data for other exporters and
producers of products of the same general category in Korea.83
7.65. Korea challenges the USDOC's definition of the same general category of products in the
underlying investigation, asserting that the USDOC's focus on down hole applications as the
defining factor of products constituting the same general category of products as OCTG resulted in
a definition that is narrower than the USDOC's definition of the foreign like product. 84 Therefore, a
product that is a like product, based on the USDOC's definition of the foreign like product, could be
excluded from the same general category of products. The United States disagrees with Korea,
and asserts that the USDOC defined the same general category of pr oducts more broadly, rather
than more narrowly, than the like product. The issue before us therefore is whether the USDOC
properly determined the scope of the relevant "same general category of products", and thus
whether its conclusions were consistent with its obligations under Articles 2.2.2(i) and (iii).
7.66. We note that there is no definition of the term "same general category of products" in
Article 2.2.2(i) or (iii) of the Anti -Dumping Agreement. However, as previous panels have noted,
and as both parties agree, the scope of the same general category of products must be understood
to be broader, not narrower than that of the like product, as defined by the investigating
authority.85 We agree with this conclusion, which is consistent with our own views in this regard.
7.67. Bearing in mind th is understanding, we turn to examine how the USDOC defined the same
general category of products in the underlying investigation. We note that the USDOC defined the
same general category of products by reference to the functi onality of the foreign like product. In
particular, in its final determination, the USDOC stated that:
While we do not consider line pipe and standard pipe to be in the same general
category of products as OCTG, we do find that the general category of prod ucts that
encompass the subject casing and tubing would not be limited to just the foreign like
product. Rather it would include other tubular products that go into the exploration
and production of oil and gas. These would be products that would exhibit t he same
fundamental characteristics for down hole applications , and they would include
subject OCTG, non -scope OCTG such as stainless steel tubular products, and drill
pipes.86
7.68. The USDOC thus defined products in the same general category as the like product as those
exhibiting "the same fundamental characteristics for down hole applications" as the foreign like
product i.e. tubular products that are used in the exploration and production of oil and gas .
However, as the United States has confirmed in these pr oceedings, the USDOC's definition of the
foreign like product is co -extensive with the definition of the product under consideration in the
underlying investigation, and the product under consideration definition itself is not limited to pipe
products that can be used for down hole applications. 87 The USDOC defined the product under
consideration as follows:
The merchandise covered by the investigations is certain oil country tubular goods
("OCTG"), which are hollow steel products of circular cross -section, including oil well
casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy),
whether seamless or welded, regardless of end finish (e.g., whether or not plain end,
threaded, or threaded and coupled) whether or not conforming to Ame rican Petroleum
Institute ("API") or non -API specifications, whether finished (including limited service
OCTG products) or unfinished (including green tubes and limited service OCTG

82 Final Decision Memorandum, (Exhibit KOR-21), p. 19.
83 Final Decision Memorandum, (Exhibit KOR-21), p. 21.
84 Korea's second written submission, paragraph 158.
85 Panel Reports, EC – Bed Linen, para. 6.60; and Thailand – H-Beams, para. 7.112. See also
United States' first written submission, para. 95; and Korea's first written submission, para. 83.
86 Final Decision Memorandum, (Exhibit KOR-21), p. 19. (emphasis added)
87 United States' second written submission, para. 28 and fn 55.

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products), whether or not thread protectors are attached. The scope of the
investigations also covers OCTG coupling stock.
Excluded from the scope of the investigations are: c asing or tubing containing
10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and
unattached thread protectors.88
7.69. Thus, the product under consideration as defined by the USDOC, and by implication, the
foreign like product which is co -extensive with that definition , do not incorporate any express
limitation based on whether the pipe products in question can be used for down hole applications.
Based on the foregoing, we conclude that the USDOC's record shows that the foreign like product
was not limited to pipe products that could be used for down hole applications. However, the same
general category of products, as defined by the USDOC, does incorporate such a limitation.89
7.70. Our conclusion is confirmed by the clarification provided by the USDOC itself in a parallel
investigation of OCTG from Ukraine, which was initiated based on the same petition as the
underlying investigation.90 The definition of the product under consideration in that investigation
was identical to that in the underlying investigation, and included "reject" products that cannot be
used in oil and gas well applications. The USDOC clarified the scope of the product under
consideration in the Ukraine investigation as follows:
[T]he plain language of the scope of the investigation indicates that a failure to meet
the requirements for OCTG applications does not render merchandise outside the
scope, provided that merchandise meets the physical characteristics described in the
scope. The scope specifically states that certain OCTG is included "whether or not
conforming to…API or non -API specifications …". We also note that the scope of the
investigation includes unfinished OCTG (including green tubes) which is "prime"
merchandise which cannot be used in OCTG applications until it undergoes additional
processing. Taken together, the scope language clearly covers a variety of goods
produced as OCTG which may not currently meet est ablished OCTG specifications for
use in OCTG -specific applications. On this basis, we find that, whether or not
Interpipe's merchandise failed inspection and therefore did not meet
API specifications, it was still produced as OCTG, entered the United State s as OCTG
and is still OCTG, even if identified as damaged or otherwise unusable as prime
merchandise.91
The USDOC further stated that:

While it is reasonable to assume that use of OCTG in oil and gas well applications is
the primary intended purpose of OC TG, the scope does not limit or otherwise require

88 USDOC, Notice of Initiation in OCTG Investigation, United States Federal Register, Vol. 78, No. 145
(29 July 2013), p. 45505 (Initiation Notice), (Exhibit KOR-2), p. 45512.
89 According to the United States, the USDOC determined that "[the foreign like product as well as] the
same general category of products in the investigation should exhibit characteristics for [down hole]
applications". (United States' response to Panel question no. 49, para. 22).
90 We consider that the clarification provided by the USDOC in the context of the Ukraine investigation
can properly be considered in understanding the scope of the product under consideration, and consequently
the like product, in the underlying investigation. Both investigations were initiated based on the same petition
and covered the same scope of imported products. (Petitions for the imposition of anti-dumping and
countervailing duties on OCTG from certain countries, 2 July 2013, (Exhibit KOR-1)). Further, the Initiation
Notification sets out the scope language for both the underlying investigation and the Ukraine investigation,
among others, under a single heading entitled "Scope of the Investigations", which also supports this
understanding. (Initiation Notice, (Exhibit KOR-2), p. 45506).
91 USDOC, Certain oil country tubular goods from Ukraine, Final Determination of sales at less than fair
value and negative final determination of critical circumstances, United States Federal Register, Vol. 79,
No. 138 (18 July 2014), p. 41969, (Exhibit KOR-75), p. 9 (emphasis added). In US practice, the "scope of the
investigation" refers to the product under consideration.

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that goods manufactured as OCTG be used in that capacity in order to be considered
subject merchandise.92
There is no dispute between the parties that pipe products that fail to meet the "requirements for
OCTG applications" or products which do not "currently meet established OCTG specifications for
use in OCTG-specific applications" cannot be used for down hole applications.

7.71. As noted, in our view, the foreign like product was not limited to pipe products that could be
used for down hole applications , which understanding is confirmed by the clarification from the
Ukraine investigation which shows that pipe products that could not be used for down hole
applications were within the definition of the product un der consideration, and by implication, the
foreign like product.
7.72. We recall our view that the same general category of products includes the like product,
and, as both parties also agree, is broader than the like product. 93 Therefore, if the like product is
not limited to pipe products used for down hole applications, the same general category of
products, which is broader than and includes the like product, cannot be limited to pipe products
used for down hole applications. In other words, the same general category of products cannot
exclude pipe products that do not exhibit the same fundamental characteristics for down hole
applications and are not used for down hole applications. Yet, the USDOC excluded such products
from the same general category of products in the underlying investigation. We therefore conclude
that the USDOC defined the same general category of products more narrowly than it defined the
like product by excluding from the definition of the same general category those pipe products not
used for down hole applications that fell within the definition of the like product.
7.73. The United States attempts to distinguish the USDOC's clarification in the Ukraine OCTG
investigation by noting that the pipe products that were the subject of that clarification were sold
to the US market as OCTG and therefore came within the scope of the investigation. In contrast,
the pipe products sold by the Korean respondents in Korea were "not sold as OCTG" and for that
reason were not within the scope of the investigat ion. Therefore, the USDOC did not define the
same general category of products more narrowly than the like product.94 We consider it irrelevant
that the pipe products sold by the Korean respondents in Korea were not sold as OCTG , given that
the USDOC's definition of the product under consideration (which we recall was the same for both
investigations) is not limited to products that are "sold as OCTG" . We therefore reject th is
argument from the United States.
7.74. Based on the definition of the product under cons ideration in the underlying investigation,
as well as the USDOC's clarification of th at same definition in the parallel investigation of OCTG
from Ukraine, and the fact that the United States has acknowledged that the product under
consideration is co -extensive with the like product, we find that the USDOC defined the same
general category of products more narrowly than the like product.
7.75. For the foregoing reasons, we conclude that having relied on an impermissibly narrow
definition of the "same general cate gory of products" as the basis for not calculating CV profit
under Article 2.2.2(i) and for not calculating the profit cap under Article 2.2.2(iii), the USDOC
acted inconsistently with its obligations under those provisions. In particular, we find that the
United States acted inconsistently with its obligations under Articles 2.2.2(i) and (iii) because the
USDOC defined the same general category of products more narrowly than the like product by
excluding OCTG not used for down hole applications, which was part of the like product as defined
by the USDOC. Thus, the USDOC had no proper basis for its conclusions that the methods under
Article 2.2.2(i) could not be used, and that the profit cap called for in Article 2.2.2(iii) could not be
calculated.

92 USDOC, Certain oil country tubular goods from Ukraine, Final Determination of sales at less than fair
value and negative final determination of critical circumstances, United States Federal Register, Vol. 79,
No. 138 (18 July 2014), p. 41969, (Exhibit KOR-75), pp. 9 and 10. (emphasis added)
93 Panel Reports, EC – Bed Linen, para. 6.60; and Thailand – H-Beams, para. 7.112. See also
United States' first written submission, para. 95; and Korea's first written submission, para. 83.
94 United States' second written submission, para. 29.

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7.3.2.3 Whether the USDOC's use of profit data from the Tenaris financial statements in
constructing normal value was a "reasonable method" within the meaning of
Article 2.2.2(iii)
7.3.2.3.1 Main arguments of the parties
7.76. Korea maintains that:
a. It is impermissible to calculate a dumpi ng margin by comparing an export price to a
normal value which predominantly represents the profit of enterprises, such as Tenaris,
that do not operate in the exporting country.95
b. Further, subparagraphs (i)-(iii) of Article 2.2.2 are intended to approximat e the price of
the like product in the ordinary course of trade in the domestic market of the exporting
country.96
c. The USDOC relied on the profit rate of Tenaris despite the existence on the record of
various CV profit sources that originated from the exporting country, Korea.97
d. The profit of Tenaris is fundamentally not comparable with profits realized by the Korean
respondents.98
7.77. The United States contends that:
a. The USDOC's use of the Tenaris financial statements to calculate CV profit resulted from
a reaso ned consideration of the evidence before it. The CV profit it calculated was
"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".99
b. The average profit experience of Tenaris is representative of OCTG sales across a broad
range of different geographic markets as it sells OCTG in significant quantities and in
virtually every market in which OCTG is sold.100
c. In any case, Article 2.2 expressly permits the use of sales that are destined for
consumption in markets other than the exporting country in determining normal value.
In addition, Article 2.2.2(iii) does not limit the use of "any reasonable method " to a
particular country or market.101
d. Moreover, Article 2.2.2 recognizes that where data specific to the product under
consideration and the exporting country is unavailable, an investigating authority needs
to find a reasonable proxy from data available in the record.102
e. Korea's request for establishment of a panel does not include a claim that the USDOC's
use of the Tenaris profit data as a basis for CV profit determination does not constitute a
reasonable method within the meaning of Article 2.2.2(iii).103

95 Korea's first written submission, para. 130.
96 Korea's first written submission, para. 131 (referring to Panel Report, Thailand – H-Beams,
para. 7.113).
97 Korea's first written submission, para. 135 (referring to Final Decision Memorandum,
(Exhibit KOR-21), p. 20).
98 Korea's second written submission, paras. 185-192.
99 United States' first written submission, para. 123 (referring to Panel Report, EU – Biodiesel
(Argentina), para.7.337).
100 United States' first written submission, para. 126 (referring to Final Decision Memorandum,
(Exhibit KOR-21), p. 20).
101 United States' first written submission, para. 130.
102 United States' first written submission, para. 131.
103 United States' comments on Korea's response to Panel question No. 53, paras. 41-48.

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7.3.2.3.2 Main arguments of third parties
7.78. The European Union submits that while the Anti -Dumping Agreement does not define the
exact scope of what constitutes a "reasonable method" under Article 2.2.2, the intention of the
subparagraphs under Article 2.2.2 is to obt ain results that approximate as closely as possible the
price of the like product in the ordinary course of trade in the domestic market of the exporting
country.104
7.79. Turkey doubts whether the use of the profit data of a non-Korean corporation, that had
neither production nor sales in the Korean market, is consistent with Article 2.2.2(iii).105 Further, it
considers that the profit cap is a means to test the reasonability of the method employed under
Article 2.2.2(iii).106
7.3.2.3.3 Evaluation by the Panel
7.80. Before we can ex amine the merits of Korea's claim that the USDOC's determination of
CV profit based on the Tenaris profit data does not constitute a "r easonable method" under
Article 2.2.2(iii), we will ascertain whether Korea's panel request includes that claim, and that it
therefore falls within our terms of reference and the scope of this dispute. 107 On its face, Korea's
panel request does not set out any express reference to a claim that the USDOC's determination of
CV profit based on the Tenaris profit data does not con stitute a "r easonable method" under
Article 2.2.2(iii). Korea's considers that this claim nevertheless falls within our terms of reference.
7.81. Article 6.2 of the DSU requires, in relevant part, that the panel request "provide a brief
summary of the legal basi s of the complaint sufficient to present the problem clearly" . The panel
request must therefore identify, by way of a brief summary, the "legal basis of the complaint" and
that summary must be "sufficient to present the problem clearly".
7.82. The question befor e us is whether Korea's panel request sets out the requisite "legal basis
of the complaint" with respect to the claim at issue. We consider it clearly established that a panel
request contains "a brief summary of the legal basis of the complaint" if it : (a) identifies the legal
provision which allegedly has been violated ; and (b) clearly specifies how or why that provision
has been violated in terms of the obligations set out in therein. 108 If the provision allegedly
violated contains multiple obligations, the specific obligation that has allegedly been violated must
be clear on the face of the panel request. 109 Further, the compliance of a panel request with

104 European Union's third-party submission, paras. 21 and 22 (referring to Panel Report, Thailand –
H-Beams, para. 7.114).
105 Turkey's third-party submission, para. 12.
106 Turkey's third-party submission, para. 9.
107 Panels are not permitted to address legal claims falling outside their terms of reference. The terms of
reference of a panel define the scope of the dispute. (Appellate Body Report, Mexico – Anti-Dumping Measures
on Rice, para. 152). Pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the
request for the establishment of a panel. Article 6.2 of the DSU sets forth the requirements applicable to such
requests.
108 The Appellate Body in EC – Selected Customs Matters found that:
[T]he legal basis of the complaint, namely, the "claim" pertains to the specific
provision of the covered agreement that contains the obligation alleged to be
violated. A brief summary of the legal basis of the complaint required by Article 6.2
of the DSU aims to explain succinctly how or why the measure at issue is
considered by the complaining Member to be violating the WTO obligation in
question.
(Appellate Body Report, EC – Selected Customs Matters, para. 130 (emphasis original))
109 In Korea – Dairy, the Appellate Body observed that while the identification of treaty provisions
claimed to have been violated by the respondent is a minimum prerequisite for the presentation of the legal
basis of the complaint, such identification may not always be enough. In certain circumstances, such as, where
the treaty provisions identified establish not one single, distinct obligation but rather multiple obligations, the
listing of articles of an agreement, in and of itself, may fall short of the standard of clarity in Article 6.2.
(Appellate Body Report, Korea – Dairy, para. 124). In China – Raw Materials, the Appellate Body found that "to
the extent that a provision contains not one single, distinct obligation, but rather multiple obligations, a panel
request might need to specify which of the obligations contained in the provision is being challenged".
(Appellate Body Report, China – Raw Materials, para. 220).

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Article 6.2 must be determined on the merits of each case, consider ing the panel request as a
whole, and in the light of attendant circumstances.110
7.83. Bearing these principles in mind, we turn to examine whether Korea's panel request
satisfies the requirements of Article 6.2 with respect to the claim at issue. The panel request
states, in relevant part:
II. USDOC'S CALCULATION OF CONSTRUCTED VALUE ("CV") PROFIT
Korea considers the USDOC's calculation of constructed value ("CV") profit in its
anti-dumping investigation of Oil Country Tubular Goods from Korea, which was based
on information contained in the financ ial statements of Tenaris SA (a global producer
incorporated under the laws of Luxembourg with no record of sales or production in
the Korean home market), to be inconsistent with the following provisions of the
Anti-Dumping Agreement:
3. Articles 2.2.2(i ) and 2.2.2(iii) because the USDOC applied an
impermissibly narrow interpretation of the term "same general category of
products." The USDOC's application of the term "same general category of
products" resulted in a scope of products that was essentially identical to the
scope of the term "like product."
4. Article 2.2.2(iii) because the USDOC declined to examine whether the
profit rate that it calculated exceeded "the profit normally realized by other
exporters or producers on sales of products of the sam e general category in the
domestic market of the country of origin," and it did not provide any legal basis
for disregarding this requirement.
5. Article 2.2 because the USDOC did not take any steps to ensure that its
calculated CV profit was "reasonable." In fact, the CV profit that the USDOC
calculated far exceeded all other potential CV profit rates on the record,
including the profit margins that U.S. producers earned on their sales of OCTG
in the United States.111
7.84. We find that Korea's request for establi shment of a panel does not set out a claim that the
USDOC's determination of CV profit based on the Tenaris profit data does not constitute a
"reasonable method" under Article 2.2.2(iii). We reach this conclusion based on the following
considerations:
a. Korea's panel request does not expressly state that the USDOC acted inconsistently with
Article 2.2.2(iii) because it did not determine the CV profit on the basis of any other
"reasonable method", within the meaning of that provision. The requirements of due
process and orderly procedure dictate that claims must be stated explicitly and clearly in
WTO dispute settlement. This is the only way that the panel, other parties, and
third parties will understand that a specific claim has been made, be aware of its
dimensions, and have an adequate opportunity to address and respond to it.112
b. Korea's panel request does expressly state claims on the violation of the profit cap
requirement in Article 2.2.2(iii) and the "reasonable amount for profit" requirement in
Article 2.2, but does not refer to the "reasonable method" obligation in Article 2.2.2(iii).
We consider that, as previous panels have found , the requirement that the CV profit be
determined on the basis of a "reasonable method" is a separate and distinct obligati on in

110 Appellate Body Report, US – Carbon Steel, para. 127.
111 Emphasis original.
112 Appellate Body Reports, Chile – Price Band System, para. 164; and India – Patents (US), para. 94.

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Article 2.2.2(iii).113 We are of the view that a claim alleging violation of that independent
obligation should therefore have been separately set out in Korea's panel request.114
7.85. Korea maintains that the panel request contains the claim at issue, and m akes two main
arguments in this regard. First, Korea contends that paragraphs II.3 and II.4 of its panel request,
read together with the chapeau of paragraph II, set out that claim consistent with the
requirements of Article 6.2 of the DSU. Korea asserts t hat paragraphs II.3 and II.4 identify
Article 2.2.2(iii) as the relevant provision against which it alleges a violation. In particular, it
contends that paragraph II.4 explains that the USDOC's manner of determining profit is
inconsistent with Article 2.2. 2(iii), while the chapeau of paragraph II further indicates that the
profit so determined is inconsistent with Article 2.2.2(iii) because it was based on information in
the Tenaris financial statements.115 Korea cites findings by the Appellate Body and prior panels, in
support of its argument that a panel request must be construed "as a whole" and not in
isolation.116 It notes, in particular, that the panel in Mexico – Anti-Dumping Measures on Rice
found that the "accompanying narrative" and the provisions of t he Anti -Dumping Agreement
identified in the panel request made it clear what the claim being raised was.117
7.86. We disagree with Korea that the claim at issue can be inferred from its panel request, even
when read as a whole. We do not agree that it can be infe rred from paragraphs II.3 and II.4 of
Korea's panel request read together with the chapeau of paragraph II that it is the "reasonable
method" obligation under Article 2.2.2(iii) that has allegedly been violated.
7.87. Korea argues that paragraph II.3 of its pan el request, read together with the chapeau of
section II , sets forth a claim that the USDOC's calculation of CV profit, based on the Tenaris
financial statements, was inconsistent with Articles 2.2.2(i) and (iii) because the USDOC
interpreted and applied a n impermissibly narrow definition of the same general category of
products. Korea also argues that paragraph II.4, read together with the chapeau of Section II, sets
forth a claim that the USDOC's calculation of CV profit, based on the Tenaris financial st atements,
was inconsistent with Article 2.2.2(iii) because the USDOC did not examine whether the profit rate
it had calculated exceeded "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".
7.88. The legal basis for the alleged inconsistency of the USDOC's CV profit determination with
Article 2.2.2(iii), set out in the panel request, is two-fold. In paragraph II.3, Korea identifies the
USDOC's narrow interp retation and application of the definition of the "same general category of
products", and in paragraph II.4, it identifies the USDOC's failure to examine whether the profit
calculated exceeded the profit cap. Nowhere in its panel request does Korea identify the legal basis
for an alleged inconsistency with Article 2.2.2(iii) as the USDOC's failure to determine the CV profit
on the basis of a "reasonable method" within the meaning of that provision. As noted above118, the
obligation that the CV profit be dete rmined using a "reasonable method" is a separate obligation
under Article 2.2.2(iii). Thus, if an inconsistency with that obligation is alleged, it must be clearly ,
if not expressly, set out in the panel request .119 As Korea failed to clearly or expressly set out the
alleged violation in its panel request, we conclude that Korea's panel request does not set out a
claim alleging that the USDOC acted inconsistently with the "reasonable method" obligation in
Article 2.2.2(iii).

113 Panel Reports, EU – Footwear (China), para. 6.52; and Thailand – H-Beams, para. 7.125.
114 This consideration is consistent with the Appellate Body's findings that a mere identification of the
legal provision in the panel request where that provision sets out multiple obligations, is not sufficient to meet
the standard of Article 6.2 and in such a case a panel request might need to specify which of the obligations
contained in the provision is being challenged. (Appellate Body Reports, China – Raw Materials, para. 220; and
Korea – Dairy, para. 124).
115 Korea's response to Panel question No. 53, paras. 41 and 42.
116 Korea's response to Panel question No. 53, para. 43 (referring to Appellate Body Report, EC –
Selected Customs Matters, para. 168; and Panel Report, Mexico – Anti-Dumping Measures on Rice,
para. 7.31).
117 Korea's response to Panel question No. 53, para. 43 (referring to Panel Report, Mexico –
Anti-Dumping Measures on Rice, para. 7.31).
118 See para. 7.84b above.
119 We recall in this regard that paragraph II.5 of the panel request, which is the only appearance of the
word "reasonable" refers to whether the calculated profit rate was, itself, reasonable, and not to whether the
method by which that profit rate was calculated was reasonable.

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7.89. Second, Korea argues that its claim under the "reasonabl e method" obligation of
Article 2.2.2(iii) is covered by the claim under Article 2.2 set out in paragraph II.5 of its panel
request.120 In paragraph II.5, Korea contends that the USDOC's determination of CV profit was
inconsistent with Article 2.2 because the USDOC did not take any steps to ensure that the
CV profit it determined was "reasonable". We understand Korea to argu e that this claim under
Article 2.2 covers its asserted claim under the "reasonable method" obligation of Article 2 .2.2(iii),
because use of a "reasonable method" is one of the "steps" under Article 2.2.2 to ensure the
reasonableness of the CV profit determined for purposes of Article 2.2.121
7.90. We are not persuaded that Korea's claim under Article 2.2 can be understood to cover a
claim alleging inconsistency with the "reasonable method" obligation of Article 2.2.2(iii). In our
view, a failure to comply with the "reasonable method" obligation is not the only error that could
lead to the determination of an amount of profit t hat is not "reasonable" under Article 2.2. F or
instance, failure to act consistently with the chapeau of Article 2.2.2, Articles 2.2.2(i) and 2.2.2(ii),
as well as with the profit cap obligation in Article 2.2.2(iii), could equally have led to the same
result. Thus, a claim under Article 2.2 does not imply a claim under the "reasonable method"
obligation of Article 2.2.2(iii) , and nothing in Korea's panel request gives rise to such an
implication. Korea's panel request does not state, in connection with the claim under Article 2.2,
that the CV profit determined by the USDOC was not "reasonable" because the method used by
the USDOC to determine that profit did not constitute a "reasonable method". 122 Indeed, it does
not mention the method by which that profit was determined at all.
7.91. Korea's panel request also does not suggest that the claim under Article 2.2 covered claims
pertaining to inappropriate application of all methods for CV profit determination set out under
Article 2.2.2, such that a claim pertaining to the "reasonable method" under Article 2.2.2(iii) was
necessarily c overed as one among those methods. Indeed, the fact t hat Korea's panel request
enumerated claims pertaining to the inappropriate application of certain methods for CV profit
determination under Article 2.2.2 , separately from its claim under Article 2.2, but omitted any
reference to the "reasonable method" obligation of Article 2.2.2(iii) , supports our view that its
claim under Article 2.2 does not cover claims pertaining to inappropriate application of all methods
for CV profit determination set out under Article 2.2.2 and, in particular, does not cover a claim
pertaining to the "reasonable method" obligation of Article 2.2.2(iii).123
7.92. We therefore conclude that the reference to "reasonable am ount of profit" in Article 2.2
does not suffice to persuade us that a claim challenging the reasonableness of the amount of profit
determined covers a purported claim concerning the reasonable method requirement in
Article 2.2.2(iii). We find that this cla im is simply not specified in Korea's panel request , and
therefore, Korea's allegation of inconsistency with the "reasonable method " obligation under
Article 2.2.2(iii) is not properly before us.
7.93. Korea further argues that the United States has not demonst rated any prejudice arising
from Korea's panel request and would likely not have objected to the claim at issue had the Panel
not raised a question in this regard during the second substantive meeting.124
7.94. We recall that we have an obligation to decide on is sues concerning our jurisdiction, even if
the parties to the dispute remain silent on those issues and if necessary, on our own motion, in
order to satisfy ourselves that we have authority to proceed. 125 We c onsider that even if the

120 Korea's response to Panel question No. 53, paras. 50-53.
121 Korea's response to Panel question No. 53, para. 52 (referring to Panel Report, EC – Bed Linen,
para. 6.96).
122 Indeed, in its written submissions, Korea argues that it was the USDOC's failure to comply with the
profit cap obligation in Article 2.2.2(iii) that led to the determination of a CV profit which was not "reasonable"
under Article 2.2. (Korea's first written submission, paras. 119 and 277(b)(iii)).
123 In particular, in paragraphs II.I and II.2, Korea makes claims pertaining to inappropriate application
of the method provided for in the chapeau of Article 2.2.2. In paragraph II.3, it brings a claim under
Articles 2.2.2(i) and 2.2.2(iii) regarding the erroneous interpretation and application of the term "same general
category of products", and in paragraph II.4, it raises a claim regarding failure to comply with the profit cap
obligation in Article 2.2.2(iii). Korea does not bring any separate and distinct claim under the "reasonable
method" obligation of Article 2.2.2(iii). Korea has also not brought any claim under Article 2.2.2(ii).
124 Korea's response to Panel question No. 53, paras. 54-56.
125 Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36.

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United States had not obj ected to Korea's claim , it would still have been appropriate for us to
determine whether we had jurisdiction to address and dispose of the claim at issue , regardless of
whether or not there was any evidence of prejudice to the United States . We therefore r eject
Korea's argument in this regard.
7.95. Considering that the "reasonable method" obligation in Article 2.2.2(iii) is a separate and
distinct obligation in that provision and that Korea has failed to properly allege a violation of that
obligation in its panel request, we find that Korea's panel request does not include a claim that the
USDOC acted inconsistently with that obligation. We therefore, reject as falling outside our
jurisdiction, Korea's claim that the USDOC's use of profit data from the Tenaris f inancial
statements in constructing normal value is not a "reasonable method" within the meaning of
Article 2.2.2(iii).
7.3.2.4 Whether the USDOC acted inconsistently with Article 2.2.2(iii) and Article 2.2 by
failing to calculate and apply a profit cap
7.3.2.4.1 Main arguments of the parties
7.96. Korea's principal arguments are set out below:
a. The USDOC's failure to calculate and apply a profit cap constitutes a per se violation of
Article 2.2.2(iii).126 That failure also contravenes Article 2.2 of the Anti -Dumping
Agreement as that provision imposes an obligation to calculate a "reasonable amount for
profits".127
b. Assuming that unavailability of data constitutes a valid justification for failing to calculate
and apply a profit cap, the USDOC's determination that it was unable to calculate a profit
cap would still be inconsistent with Article 2.2.2(iii) because it is premised on an
impermissibly narrow definition of the "same general category of products".128
7.97. The United States contends that:
a. The data required for calculation of the profit cap under Article 2.2.2(iii) was not
available as there were no sales of products of the same general category in Korea.129
b. Further, Article 2.2.2(iii) does not always require the calculation of a profit cap.130
7.3.2.4.2 Main arguments of third parties
7.98. The European U nion submits that the application of a "profit cap" is a mandatory
requirement whenever an investigating authority determines to use "any other reasonable
method" under Article 2.2.2(iii). 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.131
7.99. Turkey submits that an investigating authority is expected under Article 2.2.2 to determine
the "reasonable amount" for profit as required under Article 2.2.132

126 Korea's first written submission, paras. 110 and 114.
127 Korea's first written submission, paras. 111, 112, and 119 (referring to Panel Reports, EC – Bed
Linen, paras. 6.96-6.98 and Thailand – H-Beams, para. 7.125).
128 Korea's first written submission, para. 120.
129 United States' first written submission, para. 88.
130 United States' first written submission, para. 115 (referring to Panel Report, US – Upland Cotton,
paras. 7.1377 and 7.1378).
131 European Union's third-party submission, paras. 21 and 22 (referring to Panel Report, Thailand –
H-Beams, para. 7.124).
132 Turkey's third-party submission, para. 8.

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7.3.2.4.3 Evaluation by the Panel
7.100. In its final determination, the USDOC found that it could not calculate the profit cap called
for in Article 2.2.2(iii) because it did not have domestic market profit data for other expor ters and
producers of the same general category of products in Korea. 133 The principal legal issue before us
is whether the USDOC's failure to calculate and apply a profit cap is inconsistent with
Article 2.2.2(iii) and Article 2.2 of the Anti-Dumping Agreement.
7.101. The text of Article 2.2.2(iii) makes it clear that the determination of the profit cap is
mandatory. When the CV profit cannot be determined using the preferred method set out in the
chapeau of Article 2.2.2, subparagraph (iii) allows the use of "any other reasonable method" for
determining the amount of profit, provided that the amount determined does not exceed the profit
cap, which is "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".
7.102. The mandatory nature of the obligation to determine and apply a profit cap flows from the
use of the imperative "shall not" in Article 2.2.2(iii). In addition, previous panels have found that
both conditions, " any other reasonable method" and the profit cap, must be fulfilled in order for
the determination of an amount for profit to be consistent with Article 2.2.2(iii).134
7.103. The United States contends that the USDOC examined whether there were producers who
sold products of the same general category in the domestic market whose data might have been
used to calculate the profit cap. 135 However, no such data existed in the record, and it was
therefore unable to calculate the profit cap.136
7.104. We understand the situation that the United States presents as one in which the USDOC
attempted to calculate the profit cap but was unable to do so because it lacked data pertaining to
sales of products of the same general category in the domestic market. We recall, however, that
we have concluded137 in this dispute that the USDOC wrongly defined the "same general category
of products" more narrowly than the like product in the underlying investigation . Based on that
same conclusion, we consider that the USDOC's finding that it did not have profit data pertaining
to sales of the same general category of products was similarly erroneous. This was because the
USDOC's conclusion that it lac ked data was premised on an erroneous definition of the same
general category of products. Therefore, even assuming that a lack of data might otherwise justify
failure to calculate and apply a profit cap, the USDOC's failure to do so in the underlying
investigation is not justified. We therefore find that by failing to calculate and apply a profit cap ,
which is mandatory under Article 2.2.2(iii), in the underlying investigation, the USDOC acted
inconsistently with its obligations under that provision.
7.105. Korea also argues that the USDOC's failure to calculate a profit cap is inconsistent with
Article 2.2 of the Anti-Dumping Agreement, which imposes an obligation to calculate a "reasonable
amount" for profits.138
7.106. The text of Article 2.2.2 indicates that the preferred and alternative methods set out in its
chapeau and subparagraphs (i) -(iii), respectively, are used for purposes of determining "a
reasonable amount" for SG&A and for profits within the meaning of Article 2.2 of the Anti-Dumping
Agreement. This is clear from the use of the phrase " [f]or the purpose of paragraph 2" in the
chapeau of Article 2.2.2. Previous p anels have found that the methods set out in Article 2.2.2,
including the use of "any other reasonable method" subject to a profit cap under subparagraph (iii)

133 Final Decision Memorandum, (Exhibit KOR-21), p. 21.
134 Panel Reports, EU – Footwear (China), paras. 6.52, 6.55, and 7.300; Thailand – H-Beams,
para. 7.125; and EC – Bed Linen, paras. 6.97 and 6.98.
135 United States' first written submission, para. 120.
136 United States' first written submission, para. 88.
137 In para. 7.75 above.
138 Korea's first written submission, paras. 111, 112, and 119 (referring to Panel Reports, EC – Bed
Linen, paras. 6.96-6.98 and Thailand – H-Beams, para. 7.125).

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of that provision, are outlined for purposes of fulfilling this obligation under Article 2.2.139 We
agree with that conclusion.
7.107. In light of th e foregoing, we conclude that if the methods under Article 2.2.2 are not
properly applied, the resulting profit amount would no longer be reasonable under Article 2.2. We
therefore find that in the absence of a p rofit cap, the profit that the USDOC determined was not a
"reasonable amount" within the meaning of Article 2.2 of the Anti-Dumping Agreement.
7.108. We find that the United States acted inconsistently with its obligations under
Article 2.2.2(iii) because:
a. It failed to calculate and apply a profit cap, which is mandatory under that provision.
b. The USDOC's determination that no profit data pertaining to the same general category
of products was available cannot justify its failure to calculate and apply the profit c ap,
as it erroneously defined the same general category of products.
7.109. We also conclude that the USDOC's failure to calculate a profit cap led it to act
inconsistently with its obligation under Article 2.2 of the Anti -Dumping Agreement to use a
"reasonable amount for profits" in the construction of normal value for the Korean respondents in
the underlying investigation.
7.3.2.5 Whether the USDOC acted inconsistently with Article 2.4 of the Anti -Dumping
Agreement by failing to make due allowance for differences in th e profit rates reflected
in the constructed normal value and the export price
7.110. Korea contends that because the USDOC used the profit rate of Tenaris in constructing the
normal value of the Korean respondents, their constructed normal value reflected the Tenaris
profit rate, while their export price reflected their own profit rate. In Korea's view, this difference
in the constructed normal value and the export price of the Korean respondents affected price
comparability, and the USDOC should have made due all owance, by making appropriate
adjustments. Korea asserts that by failing to do, the USDOC acted inconsistently with Article 2.4 of
the Anti-Dumping Agreement.
7.3.2.5.1 Main arguments of the parties
7.111. Korea argues that the profit rate of Tenaris was not compa rable to that of the two
Korean respondents because: first, Tenaris focused on the premium segment of the OCTG market,
whereas the Korean respondents participated in the low -grade end of the market; second,
Tenaris's scale of operations was far bigger than that of the Korean respondents; and third,
Tenaris and the two Korean respondents operated at different levels of trade. Therefore, in Korea's
view, the USDOC should have attempted to make adjustments to the 26.11% profit rate of
Tenaris, which was used in the con structed normal value determined for the Korean
respondents.140
7.112. Korea acknowledges that the Korean respondents did not make a specific request to the
USDOC seeking adjustments to the normal value or export price based on this difference in profit
rates.141 However, Korea notes that because the USDOC did not make an affirmative
determination that it would use the Tenaris profit rate until it issued its final determination, the
Korean respondents did not know that the USDOC would use this profit rate. 142 Thus, they could
not request such an adjustment.
7.113. The United States contends that the profit component of a constructed normal value is not
a difference that affects price comparability, and hence is not relevant to the fair comparison
obligation under Article 2.4.143 The United States also disputes the three grounds advanced by

139 Panel Reports, EC – Bed Linen, para. 6.96; and Thailand – H-Beams, para. 7.121.
140 Korea's first written submission, para. 153.
141 Korea's response to Panel question No. 20, para. 71.
142 Korea's response to Panel question No. 20, para. 72.
143 United States' first written submission, para. 141.

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Korea as to why the profit rate of Tenaris was not comparable to that of the Korean
respondents.144 Finally, the United States submits that the respondents in the underlying
investigation never r equested the USDOC to make any adjustments between the constructed
normal value and the export price, and notes that an investigating authority does not have an
obligation to accept unsubstantiated requests for adjustments between the normal value and the
export price.145
7.3.2.5.2 Evaluation by the Panel
7.114. Korea asserts that there was a "massive disparity" in the profit rate recorded by Tenaris
and that recorded by the Korean respondents, with the Tenaris profit rate being much higher than
that of these respondents. 146 Korea alleges that this disparity was attributable to the inherent
differences between Tenaris and these respondents, which are noted in paragraph 7.111 above.147
Thus, in Korea's view, having decided to use the Tenaris profit rate in constructing the normal
value, the USDOC should have made due allowance for this difference between the constructed
normal value, which reflected Tenaris's high profit rate, and the export price, which reflected the
Korean respondents' own, lower profit rates. In particular, Korea argues that the USDOC should
have attempted to adjust the 26.11% profit rate of Tenaris used in the constructed normal
value.148
7.115. In this regard, we have already found that the USDOC acted inconsistently with:
a. the chapeau of Article 2.2.2 of the Anti -Dumping Agreement by failing to determine the
Korean respondents' profit rate on the basis of their actual data pertaining to production
and sales of the like product in the ordinary course of trade;
b. Article 2.2.2(i) and (iii) of the Anti -Dumping Agreement by incorrectly defining the
"same general category of products"; and
c. Article 2.2.2(iii) of the Anti-Dumping Agreement by failing to calculate a profit cap.
7.116. It follows, from these findings, that the USDOC did not dete rmine the profit rate of the
Korean respondents in a manner consistent with its obligations under the Anti -Dumping
Agreement in constructing normal value. We do not find it necessary to decide whether the USDOC
should have made adjustments to a CV profit r ate that was itself determined in a manner
inconsistent with US obligations under the Anti -Dumping Agreement. Hence, we exercise judicial
economy with respect to Korea's Article 2.4 claim.149
7.3.2.6 Conclusions
7.117. For the foregoing reasons , we find that the USDOC acte d inconsistently with the chapeau
and subparagraphs (i) and (iii) of Article 2.2.2 and with Article 2.2 of the Anti-Dumping Agreement
in constructing normal value in the underlying investigation . We exercise judicial economy with
respect to Korea's claim under Article 2.4 of the Anti-Dumping Agreement.
7.3.3 The USDOC's profit rate determination in the remand investigation
7.118. Korea expressed its intent to challenge the USDOC's remand determination at the first
substantive meeting and particularly in its closing statement at that meeting, but it did not identify
the claims that it intended to make with respect to th e remand determination.150 Korea identified

144 United States' first written submission, paras. 142-145; and response to Panel question No. 22,
para. 66.
145 United States' first written submission, para. 147.
146 Korea's first written submission, para. 154.
147 Korea's first written submission, paras. 146-152 and 154.
148 Korea's first written submission, para. 153.
149 It is well settled in WTO jurisprudence that a panel is not required to address each and every claim.
Instead, a panel is only required to address those claims that are necessary to resolve a dispute.
(Appellate Body Report, Argentina – Import Measures, para. 5.190).
150 Korea's closing statement at the first meeting of the Panel, para. 10.

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some of these claims in its second written submission and the others in its opening statement at
the second substantive meeting.
7.119. In its second written submission, Korea claimed that the USDOC's profit rate determination
in the remand investigation (new profit rate determination) was inconsistent with:
a. the chapeau of Article 2.2.2 of the Anti-Dumping Agreement because the USDOC refused
to use actual data pertaining to the sales of the like product in the ordinary course of
trade;
b. Articles 2.2.2(i) and (iii) of the Anti -Dumping Agreement because the USDOC relied on
an impermissibly narrow definition of the "same general category of products"; and
c. Article 2.2.2(iii) of the Anti -Dumping Agreement because the USDOC calculated a profit
cap based on the average of the profit rates in the 2012 financial statement of Tenaris
and the profit rates of a Russian producer/exporter of OCTG, namely, OAO TMK.
7.120. In its opening statement at the second substantive meeting, Korea claimed that the
USDOC's new profit rate determination was also inconsistent with Article 2.2.2(iii) of the
Anti-Dumping Agreement because the USDOC did not determi ne the CV profit rate on the basis of
a reasonable method, as required by this provision. 151 In addition, Korea claimed that the USDOC
acted inconsistently with Article 2.4 of the Anti -Dumping Agreement in the remand investigation
by failing to make adjustme nts to this CV profit rate. 152 As indicated above, we will address these
claims only if we find the remand determination, and Korea's claims with respect to it, to be within
our terms of reference. We therefore turn first to the parties' arguments on this fu ndamental
question of our jurisdiction.
7.3.3.1 Main arguments of the parties with respect to the Panel's jurisdiction
7.121. Korea notes that measures enacted subsequent to panel establishment may, in certain
circumstances, fall within a panel's terms of reference, and states that considering the close nexus
between this remand determination and the final determination expressly identified in its panel
request, the USDOC's remand determination, which was issued after this Panel was established, is
within our terms of ref erence.153 Further, Korea asserts that the remand determination is covered
by its panel request because that request challenges "[a]ny related measure" in the proceeding
entitled Oil Country Tubular Goods from the Republic of Korea, including the anti -dumping
investigation itself as well as " all administrative reviews, new shipper reviews, changed
circumstances reviews, sunset reviews, and other segments of the proceeding". These references,
in Korea's view, are broad enough to cover the remand determination.
7.122. The United States submits that we cannot rule on the remand determination because it
was not in existence at the time this Panel was established, and was not subject to consultations
between the parties. 154 In addition, the United States asserts that Korea' s claims with respect to
the remand determination are wholly new claims, considering the differences in the methodologies
used by the USDOC to determine the CV profit rate in the final determination and in the remand
determination.155

151 Korea's opening statement at the second meeting of the Panel, para. 81. In its response to our
questions following the second substantive meeting, Korea clarified that it was making this claim, and cited to
its second written submission and its opening statement at the second substantive meeting to assert that it
had already presented this claim in these prior submissions. (Korea's response to Panel question No. 40,
para. 13). We do not find any reference to this claim in Korea's second written submission but do find such a
reference in its opening statement at the second substantive meeting.
152 Korea's opening statement at the second meeting of the Panel, para. 89.
153 Korea's response to Panel question No. 39, para. 1.
154 United States' response to Panel question No. 40, para. 4.
155 United States' response to Panel question No. 40, para. 5.

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7.3.3.2 Evaluation by the Panel
7.123. In accordance with Article 7.1 of the DSU, and as set out in paragraph 1.4 above, our
terms of reference require us to examine the "matter referred to the DSB" by Korea in its panel
request. Article 6.2 of the DSU, which sets out the requirements applicable to panel requests,
states that such a request shall:
[I]ndicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly.
Thus, Article 6.2 imposes two distinct requirements : first , to identify the specific measures at
issue, and second, to provide a brief summary of the legal basis of the complaint, or the claims. 156
It is well-established that these two elements, the measure(s) and the claim(s) together, comprise
the "matter referred to the DSB". 157 Therefore, if we conclude either that the USDOC's remand
determination falls outside the scope of the specific measures identified in Korea's panel request,
or that Korea's claims with respect to the remand determination differ from the legal basis of the
complaint set out in that request, we will find that Korea's claims regarding this determination fall
outside the "matter referred to the DSB" and thus, outside our terms of reference. In addressing
these issues, we are mindful that fulfilment of the two requirements set out in Article 6.2 is not a
mere formality.158 Instead, these requirements serve a two-fold purpose of forming the basis of a
panel's terms of ref erence and of ensuring due process by informing the respondent and third
parties of the matter brought before a panel.159

7.124. We commence our analysis by considering whether the remand determination is covered
as a specific measure at issue in Korea's panel req uest. If we find that it is not, then we will have
no jurisdiction to examine the USDOC's remand determination , and it will be unnecessary to
examine whether we also lack jurisdiction because Korea's claims with respect to this
determination differ from the legal basis of the complaint that it set out in its panel request.160
7.125. In deciding whether the remand determination is covered as a specific measure at issue by
Korea's panel request we have to resolve two issues. First, whether the remand determination can
be challenged in these panel proceedings even though it did not exist at the time this Panel was
established. Second, whether the following italicised text in Korea's panel request is broad enough
to cover the remand determination as a specific measure a t issue even though the request makes
no express reference to it161:
Any related measure in the proceeding entitled Oil Country Tubular Goods from the
Republic of Korea, including the anti -dumping investigation itself as well as all
administrative reviews, n ew shipper reviews, changed circumstances reviews, sunset
reviews, and other segments of the proceeding.162
7.126. We recall that the use of the term "specific measures at issue" in Article 6.2 of the DSU
suggests that, as a general rule, the measures falling withi n a panel's terms of reference must be
measures that were in existence at the time of panel establishment. 163 However, there are

156 See, e.g. Appellate Body Reports, Argentina – Import Measures, para. 5.39; and US – Carbon Steel,
para. 125.
157 See, e.g. Appellate Body Reports, Guatemala – Cement I, paras. 69-76; US – Carbon Steel,
para. 125; US – Continued Zeroing, para. 160; and EC and certain member States – Large Civil Aircraft,
para. 639.
158 Appellate Body Report, Australia – Apples, para. 416.
159 Appellate Body Reports, Australia – Apples, para. 416; and US – Carbon Steel, para. 126.
160 In addition, the United States contends that considering that the remand determination was not
subject to any consultations between the parties, it falls outside our jurisdiction. It will be unnecessary to
examine whether the remand determination falls outside our terms of reference for this reason if we are to
conclude that the remand determination is not covered as a specific measure at issue in Korea's panel request.
161 See, e.g. Appellate Body Report, Chile – Price Band System, para. 144.
162 Underlining original; italics added.
163 Appellate Body Report, EC – Chicken Cuts, para. 156.

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exceptions to this general rule. 164 In particular, the Appellate Body recognized in EC – Chicken
Cuts, that in certain limited circ umstances, measures that were not in existence at panel
establishment may be found to fall within a panel's terms of reference. 165 One such circumstance
is when a measure that comes into existence after panel establishment amends the original
measure, but do es not change its essence. 166 In that case, the amended measure will fall within
the panel's terms of reference , provided the panel request is broad enough to cover that
determination.
7.127. Korea argues that the remand determination is within our terms of referen ce because it
supplemented and reaffirmed the final determination of the USDOC and did not change its
essence.167 Korea considers the situation here to be analogous to that in US – Washing Machines,
where the panel found a remand determination issued after p anel establishment to be within its
terms of reference because it supplemented and reaffirmed the original determination.168
7.128. We will examine the relation between the remand determination and the final
determination to determine whether the remand determinati on changes the essence of the final
determination.169 If we find that it does, we will conclude that the remand determination falls
outside our terms of reference.
7.129. We recall that in the final determination the USDOC determined CV profit of 26.11% based
on the Tenaris financial statements. Further, the USDOC concluded that it could not calculate a
profit cap, consistent with Article 2.2.2(iii) of the Anti -Dumping Agreement, because the Korean
exporters or producers made no sales of products of the same general category in the domestic
market. The USCIT, in its remand order, directed the USDOC to reconsider certain aspects of the
CV profit rate calculation used in the dumping margin analysis in the final determination.170

164 Appellate Body Reports, EC – Selected Customs Matters, para. 184; and US – Zeroing (Japan)
(Article 21.5 – Japan), para. 125. These reports of the Appellate Body discuss the type of exceptions that may
apply to this general rule.
165 Appellate Body Report, EC – Chicken Cuts, para. 156.
166 Appellate Body Report, EC – Chicken Cuts, para. 156 (referring to Appellate Body Report, Chile –
Price Band System, paras. 126-144). Following this Appellate Body report, a number of WTO panels have
sought to examine whether a measure not in existence during panel establishment is within its terms of
reference by examining whether such a measure changes the essence of the measure that was expressly
identified in the panel request. (See, e.g. Panel Reports, EC – IT Products, paras. 7.139 and 7.142; and
China – Raw Materials, para. 7.15).
167 Korea's response to Panel question No. 39, para. 1; and comments on United States' response to
Panel question No. 39, para. 8. Korea does not argue that we should find the remand determination to be
within our terms of reference even if it changes the essence of the final determination.
168 Korea's response to Panel question No. 39, para. 1 (citing Panel Report, US – Washing Machines,
para. 7.249).
169 In this regard, we note that in its report in US – Zeroing (Japan) (Article 21.5 – Japan), the
Appellate Body found a measure not in existence at the time of panel establishment to be within the panel's
terms of reference without specifically examining whether that measure changed the essence of the original
measure. However, that case, unlike the one before us, concerned a compliance proceeding under Article 21.5
of the DSU. The Appellate Body's finding in that case was informed by its view that in a compliance proceeding,
Article 6.2 of the DSU must be read in light of the specific function of Article 21.5 proceedings and that the
"specific measures at issue" to be identified in such proceedings are measures that have a bearing on
compliance with the recommendations and rulings of the DSB. (Appellate Body Report, US – Zeroing (Japan)
(Article 21.5 – Japan), para. 122). As this is not an Article 21.5 proceeding, the question of compliance with
DSB recommendations and rulings does not arise. Hence, we consider that whether the remand determination
changed the essence of the final determination is the principal question to be resolved in determining whether
it is within our terms of reference. Korea does not argue otherwise.
170 USDOC's Remand Determination, (Exhibit KOR-69), p. 1. The USCIT instructed the USDOC to: (a)
either remove the financial statements of Tenaris from the record and not use them in the CV profit calculation,
or, alternatively, rectify the alleged prejudice from acceptance of such statements; (b) either exclude from
consideration or, alternatively, explain the relevance of market conditions and testing and certification
requirements to the determination of which products are in the same general category of merchandise as oil
country tubular goods; and (c) either calculate and apply a profit cap or, alternatively, explain why the data on
the record could not be used to calculate a "facts available" profit cap under 19 U.S.C. 1677b(e)(2)(B)(iii).
While the USCIT also directed the USDOC to reconsider the issue of whether the two selected
mandatory respondents, were representative of the Korean industry, this aspect of the remand determination
is not challenged by Korea in these proceedings.

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7.130. The USDOC initiated a remand investigation pursuant to that order, where it re-opened the
record to allow all interested parties to submit new factual information and comments on the issue
of CV profit, and interested parties did submit such information and comments. 171 In its evaluation
of the evidence, the USDOC172:
a. using a different methodology, determined a CV profit rate of 16.24% based on an
average of profit rates in the 2012 financial statements of Tenaris and a Russian
company OAO TMK;
b. unlike the final determination, the USDOC calculated a profit cap on the basis of "facts
available", taking into account the profits earned by Tenaris and OAO TMK in the global
market and calculating the profit cap as the average of those profit rates; and
c. provided further explanation regarding the factors that the USDOC considered in
reaching its determination regarding the scope of the products that were in the same
general category of products as OCTG.
7.131. Based on the above, it is clear that:
a. the factual evidence on the USDOC's record in the remand investigation insofar as the
issue of CV profit rate is concerned is not the same as that in the underlying
investigation, as it includes additional evidence and comments provided by interested
parties173;
b. the USDOC's evaluation of that evidence in the remand investigatio n, and in particular,
the methodology used to determine the CV profit rate and the calculation of a profit cap,
differed from the underlying investigation174; and
c. the USDOC's explanation regarding the factors that it considered in reaching its
determination regarding the scope of the same general category of products is not the
same as in the underlying investigation as it provides additional explanation beyond that
in the underlying investigation.175
7.132. These changes in the evidentiary record and in the USDOC's e valuation of that record and
consequent determinations in our view show that the remand determination changed the essence
of the USDOC's final determination. We do not consider that the remand determination can be said
to retain the essence of the final de termination simply because the USDOC reached the same
ultimate conclusions, albeit at different rates, as to the existence of dumping as it did in the final
determination.176 We recall that a determination of the existence of dumping requires a calculation
which must be based on the evidence before the investigating authority, and carried out
consistently with the requirements of the A nti-Dumping Agreement. Where, as here, the
underlying facts and the methodology used in the determination of normal value are different,
resulting in different margins of dumping , we do not agree that the essence of the original
determination is unchanged.
7.133. Therefore, we do not consider that the references in Korea's panel request , including that
to "[a]ny related measure" or "ot her segments of the proceeding" permit it to challenge the
USDOC's remand determination , because that determination changes the essence of the final
determination expressly identified in Korea's panel request. Hence, we consider it unnecessary to

171 USDOC's Remand Determination, (Exhibit KOR-69), p. 2; and USDOC, Remand Notice,
18 September 2015, (Exhibit KOR-53), p. 1.
172 USDOC's Remand Determination, (Exhibit KOR-69), pp. 3, 11-14, and 61.
173 USDOC's Remand Determination, (Exhibit KOR-69), p. 9.
174 USDOC's Remand Determination, (Exhibit KOR-69), pp. 14-24; Final Decision Memorandum,
(Exhibit KOR-21), pp. 19-23
175 USDOC's Remand Determination, (Exhibit KOR-69), pp. 11-14; Final Decision Memorandum,
(Exhibit KOR-21), pp. 16-19.
176 We find support for this view in the Appellate Body report in EC – Chicken Cuts, where the
Appellate Body considered that a subsequent measure, not identified in the panel request, could not be said to
be covered by the panel's terms of reference simply because it had the same effect as the original measure
and brought about the same result. (Appellate Body Report, EC – Chicken Cuts, para. 160).

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decide whether these phrases were broad yet sufficiently precise to cover the remand
determination as a specific measure at issue. 177 In sum, we conclude that the remand
determination falls outside the specific measures at issue covered by Korea's panel request, and
thus outside our terms of reference.
7.134. For the foregoing reasons , we conclude that we have no jurisdiction to examine Korea's
claims with respect to the remand determination. Moreover, we do not find it necessary to decide
whether we also lack jurisdiction t o address Korea's claims regarding this determination because :
(a) Korea brings new claims that are different from the legal basis of the complaint that it set out
in its panel request 178; and (b) the remand determination was not subject to consultations
between the parties.
7.4 Whether the USDOC's decision to construct NEXTEEL's export price was inconsistent
with Article 2.3 of the Anti-Dumping Agreement
7.135. Under US law, the USDOC is permitted to reject the transaction export price and instead
construct the export price where the exporter or foreign producer's export sales are to an affiliated
purchaser.179 In the underlying investigation, the USDOC concluded that NEXTEEL was affiliated
with the following three entities, which we refer to collectively, together with N EXTEEL, as the
"concerned entities":
a. POSCO, which supplied NEXTEEL with steel coils used in the production of OCTG180;
b. [[***]], a [[***]] that purchased OCTG from NEXTEEL, and in which [[***]]
(Company A)181; and
c. [[***]], the [[***]] US affiliate of [[***]], t hrough which Company A exported
OCTG produced by NEXTEEL to US customers (Company B182).183

177 We note Korea's view that a ruling on the remand determination will contribute to the prompt
settlement of this dispute, consistent with the objectives set out in Article 3.3 of the DSU. (Korea's response to
Panel question No. 39, paras. 9 and 12). However, the goal of prompt settlement of disputes does not take
precedence over the clear definition of our jurisdiction in accordance with the DSU. In any event, we do not
agree with Korea's view. We have found certain aspects of the USDOC's final determination to be inconsistent
with the United States obligations, and as a consequence, the United States may ultimately be recommended
to bring its measures into conformity with its obligations. The remand determination may or may not be an
element of any implementation of that recommendation. In any event, Korea will have the opportunity to
initiate appropriate action under Article 21.5 of the DSU if it considers that the measures taken by the
United States to comply with that recommendation are insufficient or themselves inconsistent with the
United States' obligations. Therefore, we do not consider that our decision to not examine the remand
determination affects the prompt settlement of this dispute.
178 In this regard, while we do not make a separate ruling on whether Korea's claims with respect to the
remand determination differ from the legal basis of the complaint set out in its panel request, we do have
some concerns about Korea's decision to not identify the claims that it was seeking to make with respect to the
remand determination till a very late stage in the proceedings, despite having an opportunity to do so earlier.
We recall that in its closing statement at the first substantive meeting, Korea asked us to rule on the remand
determination, which had been issued by the USDOC by that time, as it considered it to be inconsistent with
the United States' obligations under the Anti-Dumping Agreement. (Korea's closing statement at the
first meeting of the Panel, para. 10). However, as mentioned above, Korea waited till its opening statement at
the second substantive meeting to present all of its claims. We consider that the due process objectives,
intrinsic in Article 6.2 of the DSU, could be better served if Korea identified the claims that it was seeking to
make with respect to the remand determination at the earliest possible opportunity, rather than wait till the
second substantive meeting to identify all of its claims in this regard.
179 Korea's first written submission, para. 6; and USDOC, Affiliation Memorandum for the Final
Affirmative Determination in the less than fair value investigation of certain oil country tubular goods from the
Republic of Korea, 10 July 2014 (USDOC's Affiliation Memorandum), (Exhibit KOR-43) (BCI), p. 5.
180 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
181 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.
182 In order to ensure, to the extent feasible, that this Report is comprehensible to those without access
to BCI, and to ensure consistency, we refer to [[***]] as Company A and [[***]] as Company B in this
Report.
183 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.

BCI deleted, as indicated [[***]]

7.136. Both parties agree that through this conclusion of affiliation under US law, the USDOC in
effect sought to find "association … between the exporter and the importer or a third party", within
the meaning of Article 2.3 of the Anti -Dumping Agreement.184 Having found association between
the concerned entities, the USDOC rejected the transaction export price of NEXTEEL to Company A
and constructed the export price instead.185
7.137. Korea argues that in doing so, the USDOC acted inconsistently with Article 2.3 because ,
first, the USDOC's association determination was not one that an unbiased and objective
investigating authority could have reached on the basis of the record evidence , an d t hus, the
USDOC constructed the export price without making a proper determination of association
between the concerned entities .186 Second, in Korea's view, even where association exists , an
investigating authority is in addition required to determine whe ther the export price is actually
unreliable because of such association, as the export price may be reliable even in such cases .187
But the USDOC failed to make such a determination.
7.4.1 Provision at issue
7.138. Article 2.3 of the Anti-Dumping Agreement reads:
In cas es where there is no export price or 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 or a third party, the export price
may be constructed on the basis of the price at which the imported products are first
resold to an independent buyer, or if the products are not resold to an independent
buyer, or not resold in the condition as imported, on such reasonable basis as the
authorities may determine.
7.4.2 Factual background
7.139. The USDOC addressed whether there was association between t he concerned entities
through an examination of affiliation under US law , which specifies that affiliation exists between
"[a]ny person who controls any other person and such other person".188 In turn, a person shall be
considered to control another person "if the person is legally or operationally in a position to
exercise restraint or direction over the other person". 189 The USDOC first examined whether
NEXTEEL was affi liated with POSCO under US law, by examining whether POSCO was legally or
operationally in a position to exercise restraint or direction, i.e. control over NEXTEEL.
7.140. The USDOC explained that in its analysis, it would first consider whether these two entities
had a close supplier relationship, considering POSCO's status as a supplier of steel coils to
NEXTEEL.190 The threshold issue in finding whether there was such a close supplier relation was
whether either the buyer, i.e. NEXTEEL o r the supplier, i.e. POSCO , was reliant on the other. 191
Further, if such reliance existed, the USDOC would consider whether one of the parties was in a
position to exercise direction or restraint over the other. 192 However, the USDOC would not find
affiliation on this basis unless the relationship between the entities had the potential to affect
decisions concerning the production, pricing or cost of the subject merchandise or foreign like

184 Korea's response to Panel question No. 28, para. 88; and United States' response to Panel
question No. 28, para. 76.
185 In this Report, we use the term "affiliation" when we describe the USDOC's own analysis of the
record evidence, or what the USDOC did, in determining whether there was "affiliation" between the concerned
entities, under US law. We use the term "association" when describing the obligations under the Anti-Dumping
Agreement, and in deciding whether the USDOC met these obligations.
186 Korea's first written submission, paras. 160 and 161; response to Panel question No. 30(a), para. 94.
187 Korea's response to Panel question No. 30(a), para. 97.
188 Customs duties, General Provisions, United States Code, Title 19, Section 167719 USC 1677 (33) G,
(Exhibit KOR-55). See also United States' response to Panel question No. 28, para. 75.
189 19 USC 1677 (33), (Exhibit KOR-55). See also United States' response to Panel question No. 28,
para. 75.
190 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 2. See also 19 C.F.R. § 351.102(b)(3),
(Exhibit KOR-52), p. 211.
191 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 2.
192 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.

BCI deleted, as indicated [[***]]

product, i.e. OCTG. 193 Having set out the criteria that it would apply in examining whether
NEXTEEL and POSCO were affiliated, the USDOC proceeded to evaluate the record evidence to
determine whether these criteria were met , and concluded, for the reasons described in
paragraphs 7.152-7.153 below, that NEXTEEL and POSCO were affiliated with each other.
7.141. The USDOC then turned to examine whether NEXTEEL was affiliated with Company A and
Company B. The USDOC noted that Company A was a [[***]] of POSCO. 194 The USDOC also
found that Company B was [[***]] by Company A.195 The USDOC did not separate ly examine
whether Company A and Company B were in a position to exercise restraint or direction over
NEXTEEL. Instead, having already concluded that NEXTEEL was affiliated with POSCO, the USDOC
concluded that NEXTE EL was also affiliated with these two entities in which [[***]]. Thus, the
USDOC concluded that there was association between the concerned entities.
7.4.3 Main arguments of the parties
7.142. Korea asserts that Article 2.3 of the Anti -Dumping Agreement requires an inv estigating
authority to meet two cumulative requirements before it is permitted to construct the export price,
both of which the USDOC failed to meet. First, the USDOC constructed the export price without
making a proper association determination, contrary to its obligations under Article 2.3. Second,
the USDOC "mechanically conclu[ded]" that because of association between the concerned
entities, NEXTEEL's export price to Company A was unreliable.196 That is, it did not affirmatively
determine whether or not NEXTEEL's export price was actually unreliable, which Korea maintains is
required under Article 2.3. In this regard, Korea states that NE XTEEL submitted evidence to
the USDOC showing that its export price was reliable notwithstanding any association betwee n the
concerned entities, but the USDOC ignored this evidence.197
7.143. The United States rejects both arguments. First, the United States argues that the USDOC
made a proper finding of association, based on the record evidence. Second, noting that Article 2.3
of the Anti-Dumping Agreement provides that it should "appear[]" to the investigating authority
that the export price is unreliable because of association, the United States asserts that this means
that once an investigating authority properly finds associat ion, it may take the view that the
export price is unreliable because of that association, without a separate determination that the
export price is actually unreliable.198
7.4.4 Main arguments of the third parties
7.144. The European Union submits that association itse lf could be a sufficient basis under
Article 2.3 to construct the export price, and that this provision does not impose an additional
obligation to determine whether the export price is actually unreliable because of such
association.199 However, if the evid ence on record shows that an export price is reliable despite
association, an unbiased and objective investigati ng authority would be required to take that
evidence into account.200
7.4.5 Evaluation by the Panel
7.145. We will commence our analysis by considering the nat ure of obligations imposed by
Article 2.3 of the Anti -Dumping Agreement on an investigating authority. Then, we will examine
whether that provision, as we understand it, was complied with by the USDOC in the underlying
investigation.

193 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3. See also 19 C.F.R. § 351.102(b)(3),
(Exhibit KOR-52), p. 211.
194 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.
195 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.
196 Korea's second written submission, para. 242.
197 Korea's second written submission, para. 244.
198 United States' first written submission, para. 155.
199 European Union's third-party submission, para. 41.
200 European Union's third-party submission, para. 43.

BCI deleted, as indicated [[***]]

7.146. Article 2.3 permits an investigating authority to disregard the transaction export price and
construct the export price where, inter alia , " it appears to the authorities concerned that the
export price is unreliable because of association " between the expor ter and the importer or a
third party. In our view, it is clear that an investigating authority must have grounds for the view
that there is association. If there is no association, the export price cannot appear to be unreliable
to the investigating authority "because of" association.201
7.147. While it is clear that the appearance of unreliability must be because of association, the
text of Article 2.3 does not require any "determination", let alone a determination as to the
reliability of the export price . If such a determination had been intended, in our view Article 2.3
would have been drafted differently, to require, for example, that the investigating authority
determine or demonstrate that the export price is unreliable because of association . Instead, it
provides that export price may be constructed where it "appears to the authorities" that the export
price is unreliable. The verb "appear" has different definitions but we find the definition "seem to
the mind, be perceived as, be considered" to be the most appropriate in respect of the text of
Article 2.3.202 The adjective "unreliable" is defined as "not reliable".203 "Reliable" in turn is defined
as "in which reliance or confidence may be put, trustworthy". 204 Thus to us, the use of the terms
"appear to the authorities" and "unreliabl e" in Article 2.3 denotes a situation in which, because of
the association at issue, the investigating authority perceives the export price not to be
trustworthy. Of course, a n investigating authority must have grounds for this view: it is always
obliged to establish facts properly and evaluate them in an unbiased and objective manner.
Nothing in our understanding of Article 2.3 would suggest, however, any separate requirement to
make a "determination" as to the reliability of the export price.
7.148. It is also c lear, in our view, that Article 2.3 does not allow an investigating authority to
construct export price whenever there is association. If that were the case, we would again have
expected Article 2.3 to have been drafted differently, to require, for instance, that an investigating
authority may construct the export price whe re there is association.205 An investigating authority
could not simply ignore evidence before it suggesting that the export price is reliable
notwithstanding association and go on to const ruct the export price without considering such
evidence. As noted above, a n investigating authority has an obligation to establish facts properly
and evaluate them in an unbiased and objective manner , which entails the consideration of
relevant evidence on the issues before it.206
7.149. Korea argues that, in the underlying investigation , the USDOC erred in finding association
between the concerned entities, and ignored evidence presented by NEXTEEL showing that its
export price to Company A was reliable notwithsta nding the USDOC's finding of association.
Therefore, we must consider both the finding of association, and whether the evidence to which
Korea refers is relevant to the question of the reliability of the export price in the circumstances of
the underlying investigation, such that the USDOC's failure to consider it undermines its decision
to construct the export price. Specifically, we will address the following two questions:
a. Whether the USDOC's conclusion of association between the concerned entities was
inconsistent with Article 2.3.

201 Article 2.3 of the Anti-Dumping Agreement also recognizes that an export price may appear to be
unreliable to the investigating authority because of a "compensatory arrangement" between the exporter and
the importer or a third party. Both parties agree, however, that in the underlying investigation, the USDOC
found association and not a compensatory arrangement between the concerned entities.
202 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 101.
203 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 2, p. 3456.
204 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 2, p. 2521.
205 The United States agrees that a finding of association will not necessarily suffice to meet the
requirements under Article 2.3. (United States' response to Panel question No. 33, para. 81).
206 We recall that in reviewing the USDOC's determination under Article 17.6(i) of the Anti-Dumping
Agreement, we are required to examine whether its establishment of the facts was proper and whether its
evaluation of those facts was unbiased and objective.

BCI deleted, as indicated [[***]]

b. Whether the USDOC erred in not considering evidence of the reliability of NEXTEEL's
export price.
7.4.5.1 Whether the USDOC's conclusion of association between the concerned entities
was inconsistent with Article 2.3
7.4.5.1.1 Meaning of "association" under Article 2.3
7.150. Article 2.3 does not define association. The dictionary definitions of "association" include
"action of joining or uniting for a common purpose; the state of being so joined". 207 These
definitions are not limiting, and thus " association" may arise from formal legal ties or far less
structured and non-binding relationships. But it is clear from the overall context of Article 2.3 that
the remedy for the appearance of unreliability resulting from association provided for in that Article
is the construction of the export price on the basis of the price at which the exported merchandise
is first resold to an independent buyer. This strongly suggests that a lack of independent action is
central to the nature of "association" and gives rise to the problem Article 2.3 seeks to remedy.
7.151. "Independent" is defined as "not subject to the authority or control of any person, country,
etc.; free to act as one pleases, autonomous".208 Thus, for purposes of Article 2.3, association may
be understood to me an a lack of autonomy to act as one pleases or the presence of authority or
control over a person. Therefore, we consider that , at a minimum, there may be association for
purposes of Article 2.3 where an exporter and the importer or a third party do not ac t
independently of one another . Based on this understanding, a situation in which export sales are
between associated entities, as opposed to independent entities, may constitute the problem
Article 2.3 seeks to remedy : the appearance of unreliability of e xport price resulting from
association. In considering the USDOC's conclusion of affiliation in the underlying investigation, we
will consider whether it was consistent with this understanding of association.
7.4.5.1.2 The USDOC's conclusions regarding association
7.152. In the underlying investigation, the USDOC reached its conclusions regarding association
on the basis of US law provisions governing a finding of affiliation, which under US law is based on
control. The basis of these conclusions is described in paragraphs 7.139-7.141 above. In
examining whether NEXTEEL was affiliated with POSCO based on the evidence before it , the
USDOC made the following intermediate factual findings:
a. POSCO supplied NEXTEEL with "v irtually all" of the steel coil, the main input used in the
production of OCTG, used by NEXTEEL209;
i. [[***]]% of the steel coil purchased by NEXTEEL during the POI was from POSCO;
ii. [[***]]% of steel coils consumed by NEXTEEL during the POI was from POSCO; and
iii. Steel coils sourced from POSCO accounted for [[***]]% of NEXTEEL's total cost for
manufacturing OCTG.
b. [[***]] to NEXTEEL related to the production of OCTG210;
c. [[***]] of NEXTEEL's US sales were made through [[***]]211;
d. POSCO had a history of working closely on-site with NEXTEEL departments and providing
marketing assistance and other promotional activities for the benefit of NEXTEEL. 212

207 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 137.
208 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 1362.
209 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
210 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
211 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
212 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.

BCI deleted, as indicated [[***]]

POSCO continued to provide marketing support to NEXTEEL during the POI, and POSCO
and NEXTEEL shared technology and market information pertaining to OCTG.213
7.153. On the basis of these factual findings the USDOC reached the following overall conclusion
regarding the relationship between POSCO and NEXTEEL214:
The combination of [POSCO's] involvement on both the production and sales side
creates a unique situation where POSCO is operationally in a position to exercise
restraint or direction over NEXTEEL in a manner that affects the pricing, production,
and sale of OCTG. Being in a position both to establish the primary input cost and
[[***]] enables POSCO to influence the cost of inputs and additionally to [[***]].
The preamble to the [USDOC's] regulations state s that section 771(3) of the [US
Tariff] Act , which refers to a person being "in a position to exercise restraint or
direction," focuse s the [USDOC] on the ability to exercise "control" rather than the
actuality of control over specific transactions. In this case, by playing the role [[***]]
supplier and, [[***]] POSCO is in a rather unique position to exercise restraint or
control over NEXTEEL.
7.154. In addition, as stated above, the USDOC concluded that NEXTEEL was affiliated with
Company A and Company B because of POSCO's [[***]].
7.155. In reviewing the USDOC's finding of affiliation, which served as its conclusion regarding
association between the concerned entities for purposes of Article 2.3 , we recall that pursuant to
our standard of review, we must examine whether, in light of the evidence and arguments before
it, the conclusions reached by the USDOC are such as could be reached by an unbi ased and
objective investigating authority.215 Further, considering th at the USDOC's overall conclusion was
based on several intermediate factual findings, not only must we examine each of these findings,
to the extent necessary, but we must also consider whether these findings, taken as a whole,
supported the USDOC's overall conclusion. 216 This means that even were we to conclude that an
intermediate factual finding or a particular piece of evidence m ight not, viewed in isolation,
support the USDOC's overall conclu sion, if taken as whole, they support that conclusion, we must
uphold it.
7.156. Korea contends that in reaching its intermediate factual findings, the USDOC ignored
alternative explanations of the record evidence, as well as other evidence which undermined these
findings. In particular, Korea argues that:
a. in examining the extent to which NEXTEEL sourced its steel coil supply from POSCO, the
USDOC failed to consider that NEXTEEL had alternative sources from which it purchased
and consumed steel coils during the PO I. The USDOC also drew improper inferences
from the nature of the services provided by [[***]] to NEXTEEL during the production
process of OCTG;
b. the USDOC failed to consider evidence regarding marketing and technology collaboration
between NEXTEEL and POSCO that undermined its findings; and
c. the USDOC failed to consider that the volume of NEXTEEL's US sales through Company A
and Company B was on the [[***]].
Korea also questions the linkage between the intermediate factual findings and the overall
conclusion reached by the USDOC. We will examine each of these arguments below.

7.157. In addition, Korea contends that the USDOC acted inconsistently with the relevant US law
provisions governing findings of affiliation based on control .217 Korea asserts that such a violat ion

213 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
214 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.
215 See paras. 7.3-7.5 above.
216 See, e.g. Appellate Body Reports, US – Softwood Lumber VI (Article 21.5 – Canada), para. 94; and
US – Countervailing Duty Investigation on DRAMS, para. 157.
217 Korea's response to Panel question Nos. 65(a) and (b), para. 78.

BCI deleted, as indicated [[***]]

of US law led to a violation of Article 2.3 of the Anti -Dumping Agreement in this case, because
having decided to find association under Article 2.3 on the basis of US law, the USDOC was
required to comply with the requirements of US law. 218 Thus, Korea essentially requests us to
determine whether the USDOC's conclusion regarding association or affiliation was consistent with
US law.
7.158. As a panel established under the DSU, our role is to determine the consistency of the
United States' measures with its obligations under, in this instance, Article 2.3 of the Anti-Dumping
Agreement and not under US law. It is not our role, nor are we competent, to review the
consistency of the USDOC's findings with governing US law. Therefore, it would be entirely
inappropriate for us to review whether the USDOC complied with US law in its examination of
affiliation based on control , and we will not do so . At the same time, however, we must consider
the consistency of the United States' measure with Article 2.3 on the basis of the conclusions
reached by the USDOC. We may not engage in a de novo review of the evidence and arguments
that were before the USDOC to determine whether it could have found association under Article
2.3 on some other basis than that on which it reached its conclusions.
7.159. Keeping these considerations in mind, we will proceed in the following manner: We will
first review the USDOC's intermediate factual findings, and whether taken as a whole, these
findings support the USDOC's overall conclusion re garding af filiation. Then, we will examine
whether this overall conclusion was a sufficient basis for a conclusion that there was association
between the concerned entities within the meaning of Article 2.3 of the Anti -Dumping
Agreement.219
7.4.5.1.2.1 NEXTEEL's purchases and con sumption of steel coils during the POI and
USDOC's inferences based on the nature of services provided by [[ ***]] to NEXTEEL
during the production process of OCTG
7.160. In the underlying investigation, the USDOC considered the role of POSCO in the production
of OCTG by NEXTEEL. The USDOC noted tha t POSCO supplied NEXTEEL with "virtually all" of the
steel coils used to produce OCTG and that steel coils purchased from other sources were
negligible.220 Further, the USDOC found that [[***]] to NEXTEEL related to the pr oduction of
OCTG.
7.161. Korea argues that the USDOC failed to consider submissions made by NEXTEEL that it had
alternative sources of supply available to it, and that it had, in fact, used steel coils sourced from
other suppliers during the period of investigati on.221 The United States notes, and the record
confirms, that the USDOC did not ignore this evidence, but nonetheless found that POSCO
accounted for [[***]]% of NEXTEEL's consumption of steel coils in the POI and [[***]]% of its
total POI purchases of steel coils.222 As stated above, the USDOC did not conclude that POSCO
supplied NEXTEEL with all steel coils used in the production of OCTG 223, and the evidence does

218 Korea's response to Panel question Nos. 65(a) and (b), para. 80.
219 Noting the USDOC's conclusion that "[b]eing in a position to establish the primary input cost and
[[***]] enables POSCO to influence the cost of inputs and additionally to [[***]]", Korea asserts that this
statement shows that instead of determining association between NEXTEEL and POSCO on the basis of control,
as it sought to do, the USDOC determined association on the basis of the [[***]] exercised by POSCO over
[[***]]. (Korea's second written submission, para. 235). Considering that our role is not to adjudge the
consistency of this conclusion with US law, we do not find it necessary to consider whether the concept of
[[***]] is consistent with that of control, under US law.
220 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
221 Korea's first written submission, para. 171 (referring to NEXTEEL Rebuttal Brief, 23 June 2014,
(Exhibit KOR-42) (BCI), pp. 63 and 64); response to Panel question No. 61, para. 65.
222 United States' comments on Korea's response to Panel question No. 61, para. 52 (citing USDOC's
Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3).
223 We recognize that just because a buyer purchases its inputs predominantly or even exclusively from
a single seller does not necessarily mean that the buyer and seller do not act independently of each other.
Otherwise, association between a buyer and seller would exist whenever the seller has a monopoly on the
production and sale of a particular input used in the production of the product being investigated. However,
this was not the only basis of the USDOC's conclusion in the underlying investigation.

BCI deleted, as indicated [[***]]

support the finding that the USDOC did make. 224 Thus, the USDOC did not ignore evidence or
arguments before it.
7.4.5.1.2.2 Marketing and technology collaboration between POSCO and NEXTEEL
7.162. The USDOC found that POSCO had a history of working closely with NEXTEEL, providing
marketing assistance and conducting other promotional activities for NEXTEEL's benefit. 225 The
USDOC also found that POSCO continued to provide marketing support to NEXTEEL and both
companies shared technology and market information pertaining to OCTG. 226 The USDOC relied on
evidence furnished by the domestic industry in making this finding.227
7.163. That eviden ce relates to technical consulting provided by POSCO to NEXTEEL, technical
checks provided by POSCO on finished products, joint development of new materials and POSCO's
takeover of NEXTEEL's overseas public relations campaign, as well as NEXTEEL's acknowledgement
that "mutual cooperation" between NEXTEEL and POSCO boosted its competitiveness, and would
continue in the future.228 In addition, a [[***]] between NEXTEEL and POSCO provides for [[***
229]].230 Korea does not question the reliability of this evidence in these proceedings.
7.164. Korea argues that the evidence relied on by the USDOC could not have supported the
USDOC's intermediate factual finding of marketing and technology collaboration between NEXTEEL
and POSCO, and that the USDOC ignored evidence other than these that could have undermined
its conclusions regarding association .231 First, Korea notes that the record evidence showed that
POSCO shared technology and market information pertaining to OCTG with other companies with
which it did business, and that in stances of such cooperation were not exclusive between POSCO
and NEXTEEL but in line with normal supplier -customer relations, and asserts that this evidence
was not considered by the USDOC in its analysis.232
7.165. Korea essentially argues that evidence of marketi ng and technology collaboration between
NEXTEEL and POSCO could have probative value only if these two entities had an exclusive
collaborative relationship. We find nothing in the notion of association as we understand it for
purposes of Article 2.3 that would suggest that the lack of an exclusive relationship means that the
evidence is not probative on the question of association or cannot support the inferences drawn by
the USDOC on the basis of th is evidence. Indeed, an exporter may have associations wit h multiple
entities, in which case, the relationship between the exporter and any one of those entities will not
be exclusive. Yet, that relationship may nonetheless suffice to show association for purposes of
Article 2.3.
7.166. Second, Korea notes that the [[***]] was not [[***]] and there were no [[***]]
agreements between POSCO and NEXTEEL. 233 Korea has failed to explain why the fact that an
agreement regarding various aspects of the relations between two companies is not [[***]]

224 Similarly, we do not consider that evidence that [[***]] to NEXTEEL to be sufficient, in and of itself,
to show that there was association between NEXTEEL and POSCO.
225 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
226 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
227 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3 and fns 18 and 19 (referring to
evidence in Exhibit USA-17 as well as a [[***]] between NEXTEEL and POSCO contained in Exhibit USA-46
(BCI)).
228 U.S. Steel Deficiency Comments, 20 November 2013, (Exhibit USA-17), attachment C, pp. 3-5; and
Korea's response to Panel question No. 64, para. 68.
229 NEXTEEL confirmed that this actually occurred, stating that [[***]]. (NEXTEEL's supplemental
section D questionnaire responses, 23 December 2013, (Exhibit USA-46) (BCI), p. 24).
230 United States' response to Panel question No. 66, para. 43 (quoting [[***]] between NEXTEEL and
POSCO, NEXTEEL's supplemental section D questionnaire responses, 23 December 2013, (Exhibit USA-46)
(BCI), pp. 1 and 2).
231 See, e.g. Korea's response to Panel question No. 64, para. 69.
232 For example, as noted by Korea, NEXTEEL submitted that it cooperated with POSCO as part of the
[[***]], but that 1600 companies participated in that program and that POSCO itself partnered with 400
companies as part of that program. (Korea's first written submission, para. 180; and NEXTEEL Rebuttal Brief,
23 June 2014, (Exhibit KOR-42) (BCI), p. 67). See also Korea's first written submission, paras. 179 and 180
(referring to NEXTEEL Rebuttal Brief, 23 June 2014, (Exhibit KOR-42) (BCI), pp. 63-69); and response to Panel
question No. 64, paras. 69 and 71.
233 Korea's comments to the United States' response to Panel question No. 66, para. 100.

BCI deleted, as indicated [[***]]

demonstrates that it is not rele vant to the question of association between those companies.
Indeed, as we understand it, association for purposes of Article 2.3 can exist without any formal
agreement, much less a [[***]] agreement. Accordingly, we are not persuaded that an objective
and unbiased investigating authority could not have found, on the basis of th e evidence in
question, that there was marketing and technological collaboration between NEXTEEL and POSCO
with respect to OCTG, or that these two entities did not act independently of each other in the
production and sale of OCTG.
7.4.5.1.2.3 [[***]] in US sales through Company A and Company B234
7.167. The USDOC found that [[***]].235 However, Korea notes that NEXTEEL's US sales through
Company A and Company B [[***]] throughout the POI.236 In particular, while in the first half of
POI, NEXTEEL sold [[***]] of its OCTG, by volume, through Company A and B, that percentage
[[***]] to [[***]] in the second half of POI. 237 Korea argues that the [[***]] proportion of
sales through these entities contradicts the notion that NEXTEEL was controlled by Company A and
Company B.
7.168. The USDOC recognized t hat the proportion of NEXTEEL's sales through Company A and
Company B [[***]] during the POI in its evaluation238:
[W]e note that while POSCO's [[***]] the Department must mak e its decision
regarding affiliation and its impact for purposes of sales and cost based on the POI ,
the period of time being examined.
7.169. Thus it is clear that the USDOC did consider this issue. However, we recall the USDOC's
conclusion that POSCO was in a position to [[***]] and that by playing the role of [[***]]
supplier and [[***]] Company A [[***]] POSCO was in a position to exercise restraint or
direction over NEXTEEL was based, in part, on the fact that POSCO through Company A and
Company B sold a [[***]] of finished products to the United States. 239 While a more thorough
discussion of whether the [[***]] in sales through these entities at the end of the POI affected its
view that POSCO was in a position to exercise restraint or direction over NEXTEEL would have
been desirable, the USDOC's assessment was based on the data for the POI. During the entire POI
the volume of exports to the United States that NEXTEEL made through Company A and Company
B was a [[***]] [[***]], notwithstanding the [[***]] at the end of the POI.
7.4.5.1.2.4 The USDOC's overall conclusion of associatio n within the meaning of
Article 2.3
7.170. Korea has failed to demonstrate that the evidence relied on by the USDOC did not support
its intermediate factual findings. The question that we now turn to is whether the USDOC's overall
conclusion of affiliation between the concerned entities was reasonably based on these
intermediate factual findings and whether this conclusion sufficed to demonstrate "association"
between the exporter and the importer or a th ird party, within the meaning of Article 2.3 of the
Anti-Dumping Agreement.
7.171. We recall that the USDOC's overall conclusion, as set out in paragraph 7.153 was that
there was affiliation based on control between NEXTEEL and POSCO because:
a. The combination of POSCO's involvement on both the production and sales side created
a unique situation where POSCO was operationally in a position to exercise restraint or

234 We understand from Korea's response to our questions that NEXTEEL's exports through both
Company A and Company B [[***]] during and after the period of investigation. (Korea's response to Panel
question No. 63, para. 66).
235 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 3.
236 Korea's response to Panel question No. 31, para. 107.
237 Korea's response to Panel question No. 31, para. 107. The volume of sales through these entities
[[***]] further after the POI.
238 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.
239 USDOC's Affiliation Memorandum, (Exhibit KOR-43) (BCI), p. 4.

BCI deleted, as indicated [[***]]

direction over NEXTEEL in a manner that affected the pricing, production, and sale of
OCTG.
b. Being in a position to establish the primary input cost and [[***]] enabled POSCO to
influence the cost of inputs and additionally to [[***]].
c. By playing the role [[***]] supplier and [[***]] POSCO was in a rather unique
position to exercise restraint or control over NEXTEEL.
7.172. The USDOC also concluded that there was affiliation between NEXTEEL, Company A, and
Company B because of POSCO's [[***]].
7.173. We recall that the USDOC reached this conclusion based on : (a) undisputed evidence of
marketing and technology collaboration between POSCO and NEXTEEL, including through a
[[***]] that [[***]]; and (b) evidence of POSCO's direct and indirect involvement in NEXTEEL's
production and sale of OCTG. We recall our view that where the exporter and the impo rter or a
third party are joined or united for a common purpose, this may suggest that they do not act
independently of one another, but are instead, dependent on each other, and thus are associated
within the meaning of Article 2.3 of the Anti -Dumping Agreement. We consider that the USDOC's
overall conclusion of affiliation between POSCO and NEXTEEL sufficed to demonstrate that they
were joined or united for a common purpose , and thus there was "association" between the
exporter and the importer or a third party, within the meaning of Article 2.3 of the Anti -Dumping
Agreement.
7.174. We further consider that the USDOC's conclusion of affiliation between NEXTEEL and
Company A and B sufficed to demonstrate that they were joined or united for a common purpose,
and thus there was "association" between the exporter and the importer or a third party, within
the meaning of Article 2.3 of the Anti-Dumping Agreement. It remains undisputed that POSCO had
[[***]] and [[***]]. Indeed, in its questionnaire response before the USDOC, Company B stated
that it was [[***]].240 Because these entities were [[***]] of POSCO, we consider that the
conclusion of association between NEXTEEL and POSCO sufficed as a basis to find that these
entities, like POSCO, did not act independently of NEXTEEL.
7.175. Therefore, we consider that the USDOC 's conclusions regarding the relationship between
the concerned entities were supported by the evidence, and sufficed to satisfy the requirement of
Article 2.3 that there be association between the exporter and the importer or a third party.
7.4.5.2 Whether the USDOC erred in not considering evidence allegedly pertaining to
the reliability of the export price
7.176. During the underlying investigation , NEXTEEL presented evidence to the USDOC, which
Korea alleges showed that N EXTEEL's export price was reliable despite association between the
concerned entities:
a. evidence that NEXTEEL's relationship with both POSCO and its relationship with the
Company A predated the relationship between POSCO and Company A;
b. sales agreement betwe en NEXTEEL, Company A and a US customer that predated
POSCO's affiliation with Company A, and the terms of which remained unchanged since
POSCO [[***]], and even into the POI;
c. Company A testified that [[***]] was not directly or indirectly involved in the sales
negotiation or sale of OCTG between NEXTEEL and Company A; and
d. NEXTEEL's sales through Company A [[***]] throughout the period of investigation,
demonstrating that neither POSCO nor Company A was in a position to control
NEXTEEL's sales.

240 Company A supplemental questionnaire responses, 14 March 2014, (Exhibit KOR-89) (BCI), p. A-7.

BCI deleted, as indicated [[***]]

Korea argues that the USDOC erred in ignoring this evidence.

7.177. Considering that NEXTEEL's relationship with POSCO, Company A , and Company B
predated POSCO's [[***]] in Company A, and [[***]] in Company B, in Korea's view, there was
no effect on NEXTEEL's export price.241 The United States disagrees with Korea's assertion, stating
that because NEXTEEL's export price to Company A was set on a short -term basis, this export
price was not set on terms that existed prior to POSCO's [[***]] in Company A and Company
B.242 The record supports the United States' assertion in this regard.
7.178. First, the sales agreement between NEXTEEL, Company A, and a US customer cited by
Korea does not state [[***]], but rather provides for [[***]]. This shows that the export price
during the POI was not set on terms that existed prior to POSCO's affiliation with Company A or
Company B. This is further confirmed by Company A's questionnaire response243:

7.179. Thus, while the sale agreement appears to predate the affiliation between POSCO and
Company A, the export price during the POI was not based on the terms in that agreement, but on
a [[***.]]244 Therefore, we are of the view that NEXTEEL's export price to Company A could have
appeared unreliable to the investigating authority, without a separate evaluat ion of the timing of
NEXTEEL's relationship with POSCO, Company A, and Company B.
7.180. In addition, during the underlying investigation, Company A testified that [[***]] was not
directly or indirectly involved in the sales negotiation s or sale of OCTG between NEXTEEL and
Company A. However, we recall that [[***]] had an [[***]] in Company A, and the USDOC
found that Company A and Company B were affiliated with NEXTEEL on this basis. Considering that
Company A and Company B were affiliated with NEXTEEL, we consider that NEXTEEL's export price
to Company A could have appeared unreliable to the investigating authority, without a separate
evaluation of whether [[***]] was involved, directly or indirectly , in the export sales made by
NEXTEEL.
7.181. Finally, Korea refers to the fact that NEXTEEL's sales of OCTG through Company A [[***]]
in the POI. We have already found above that the USDOC considered this fact in finding affiliation.
It is not clear, however, and Korea has not shown, the relevance of this fact to the reliability of
NEXTEEL's export prices.
7.182. Therefore, we consider that Korea has not demonstrated that the USDOC erred in not
considering evidence allegedly showing that the export price was reliable notwithstanding the
association between NEXTEEL, POSCO, and the concerned entities.
7.4.6 Conclusion
7.183. For the foregoing reasons, we find that Korea has not demonstrated that the USDOC acted
inconsistently with Article 2.3 of the Anti-Dumping Agreement in the underlying investigation.
7.5 Whether the USDOC's decision to reject the price at which NEXTEEL purchased steel
coils from POSCO was inconsistent with Article 2.2.1.1 of the Anti-Dumping Agreement
7.184. In constructing the normal value for NEXTEEL on the basis of its cost of production, the
USDOC rejected the price that NEXTEEL p aid to POSCO for the principal input, steel coils
(NEXTEEL's steel coil purchase price) , on the ground that NE XTEEL and POSCO were
affiliated entities. Korea contends that t he USDOC's rejection of this price, reflected in NEXTEEL's
records, on the ground that these records did not "reasonably reflect the costs associated with the

241 See, e.g. Korea's response to Panel question No. 67, paras. 84-86.
242 United States' comments on Korea's response to Panel question No. 67, para. 65.
243 Company A supplemental questionnaire responses, 14 March 2014, (Exhibit KOR-89) (BCI), p. A-15.
244 We note that NEXTEEL did not argue before the USDOC that its export price was reliable regardless
of whether there was association because the price at which it sold OCTG to Company A was set on terms
determined prior to POSCO's affiliation with Company A.

BCI deleted, as indicated [[***]]

production and sale" of OCTG, was inconsistent with Article 2.2.1.1 of the
Anti-Dumping Agreement.245
7.5.1 Provision at issue
7.185. Article 2.2.1.1 reads, in part, as follows:
For the purpose o f paragraph 2, costs shall normally be calculated on the basis of
records kept by the exporter or producer under investigation, provided that such
records are in accordance with the generally accepted accounting principles of the
exporting country and reasonably reflect the costs associated with the production and
sale of the product under consideration.
7.5.2 Factual background
7.186. As discussed above, i n the underlying investigation, the USDOC found that POSCO was
affiliated with NEXTEEL. To consider whether, in this situation, NEXTEEL's steel coil purchase price
should be used in constructing normal value, the USDOC calculated the weighted -average price of
POSCO's steel coil sales to unaffiliated customers 246, and compared NEXTEEL's steel coil purchase
prices (transfer price s) with POSCO's cost of production of OCTG and with the price s at which
POSCO sold this product to unaffiliated customers.247
7.187. The USDOC found that the transfer prices of all [[***]] examined grades of steel coils
were above POSCO's corresponding cost of production.248 However, it found that POSCO had sold
[[***]] of the [[***]] examined grades to unaffiliated customers at prices that were [[***]]
than the corresponding transfer price to NEXTEEL.249 The USDOC used the prices of these [[***]]
grades to the unaffiliated customers in constructing the normal value of NEXTEEL , rather than
NEXTEEL's steel coil purchase price.250
7.5.3 Main arguments of the parties
7.188. Korea argues that the USDOC acted inconsistently with Article 2.2.1.1 by rejecting
NEXTEEL's steel coil purc hase price because : (a) the USDOC's finding of affiliation between
NEXTEEL and POSCO was erroneous; and ( b) there was no evidence on the record of the
underlying investigation indicating that NEXTEEL's records did not reasonably reflect the costs
associated with production and sale of OCTG. In this regard, Korea acknowledges that the USDOC
examined NEXTEEL's steel coil purchase price to assess whether it was an arm's length price.
However, Korea contends that in considering whether a producer's records reas onably reflect the
costs associated with production and sale of the product under consideration, an investigating
authority is required to assess whether the producer's records are reliable, and not whether the
costs reflected in those records are reliable .251 In Korea's view, the USDOC did not examine, as
part of this arm's length test, whether NEXTEEL's records were reliable, and thus had no proper
basis under Article 2.2.1.1 to reject NEXTEEL's steel coil purchase price.
7.189. The United States contends that the USDOC disregarded NEXTEEL's steel coil purchase
price because NEXTEEL's records did not reasonably reflect the costs associated with production
and sale of OCTG. 252 The United States notes that the USDOC reached this conclusion based on:
(a) a proper findin g of affiliation ; as well as ( b) an arm's length test which compared NEXTEEL's
steel coil purchase price with POSCO's cost of production and POSCO's steel coil sales price to

245 In this regard, there is no dispute between the parties that NEXTEEL's records were kept in
accordance with Korean GAAP, as provided in Article 2.2.1.1.
246 USDOC, Constructed Value calculation adjustments for the Final Determination,
10 July 2014 (USDOC's Constructed Normal Value Memorandum), (Exhibit USA-39) (BCI), p. 3.
247 USDOC's Constructed Normal Value Memorandum, (Exhibit USA-39) (BCI), p. 3.
248 USDOC's Constructed Normal Value Memorandum, (Exhibit USA-39) (BCI), p. 3.
249 USDOC's Constructed Normal Value Memorandum, (Exhibit USA-39) (BCI), p. 3.
250 USDOC's Constructed Normal Value Memorandum, (Exhibit USA-39) (BCI), p. 3.
251 See, e.g. Korea's second written submission, para. 235.
252 United States' second written submission, para. 54.

BCI deleted, as indicated [[***]]

other unaffiliated customers. The United States asserts that this provided a suff icient basis under
Article 2.2.1.1 to reject NEXTEEL's steel coil purchase price.
7.5.4 Main arguments of the third parties
7.190. The European Union argues that the use of the term "normally" in Article 2.2.1.1 means
that an investigating authority is permitted to dep art from the norm, which is to calculate costs
based on the exporter or producer's records provided the two express conditions provided in this
Article are met. 253 However, the investigating authority must explain why it departed from this
norm.254
7.5.5 Evaluation by the Panel
7.191. The issue before us is whether the USDOC 's rejection of NEXTEEL's steel coil purchase
price, on the ground that NEXTEEL's records did not "reasonably reflect the costs associated with
production and sale of" OCTG, was consistent with Article 2.2.1.1 of the Anti-Dumping Agreement.
Korea presents two main arguments in support of its claim. First, the USDOC's finding of affiliation
between POSCO and NEXTEEL was not proper and hence did not provide a basis under
Article 2.2.1.1 to disregard NEXTEEL 's steel coil purchase price. Second, even assuming this
finding of affiliation was proper, there was still no basis under Article 2.2.1.1 to reject this price
because NEXTEEL's records reasonably reflected costs associated with the production and sale of
the product under consideration . The United States disagrees with both arguments presented by
Korea.255
7.192. We begin by noting that nothing in Article 2.2.1.1 sets out any criteria or consideration for
determining whether the " records kept by the exporter or pro ducer under investigation …
reasonably reflect the costs associated with the production and sale of the product under
consideration". It certainly does not address questions of affiliation among companies. The issue
before us with respect to this claim is thus not whether the USDOC 's finding of affiliation was
consistent with Article 2.2.1.1 , but whether its rejection of NEXTEEL's steel coil purchase price on
the ground that its records did not reasonably reflect the costs associated with production and sal e
of OCTG was consistent with that provision . Indeed, Korea appears to recognize that there is no
basis for concluding that the USDOC's affiliation finding was inconsistent with Article 2.2.1.1, as it
makes no argument in this regard . Instead, Korea argues that because the USDOC's finding of
affiliation between NEXTEEL and POSCO was inconsistent with Article 2.3 of the Anti -Dumping
Agreement, it could not provide a basis under Article 2.2.1.1 to reject NEXTEEL's steel coils
purchase price.256
7.193. We have already concluded above that the USDOC's conclusion on affiliation was sufficient
with respect to the requirements of Article 2.3 of the Anti -Dumping Agreement regarding
association. Korea makes no other argument under Article 2.2.1.1 challenging the USDOC's finding
of affiliation, and thus there is no basis for us to find error in USDOC's conclusion that, as affiliated
companies, NEXTEEL and POSCO did not have an independent buyer -supplier relationship. The
issue that we have to consider is whether the USDOC acted inconsistently with Article 2.2.1.1

253 European Union's third-party submission, para. 46.
254 European Union's third-party submission, para. 46.
255 With respect to Korea's second argument, the United States submits that while in its panel request
Korea stated that the USDOC acted inconsistently with this provision "because due to its erroneous finding of
affiliation" between NEXTEEL and POSCO, the USDOC failed to calculate costs on the basis of the records kept
by the exporter or producer, as required under Article 2.2.1.1, it is now arguing that the Panel should find that
the USDOC violated this requirement even if its finding of affiliation was proper. (United States' second written
submission, para. 53 (emphasis added by the United States)). However, the United States does not argue that
Korea is precluded from making this argument under Article 6.2 of the DSU. In any case, we do not consider
that this argument by Korea deviates from the legal basis of its Article 2.2.1.1 claim, as set out in its panel
request. Korea was not required to set out its arguments in the panel request, and is free to present this
argument in the panel proceedings. Moreover, the reference in the panel request to the erroneous finding of
affiliation between NEXTEEL and POSCO merely identifies the factual basis on which the USDOC made its
determination, which was that NEXTEEL and POSCO were affiliated under US law. The legal basis of Korea's
claim was, and continues to be, that the USDOC acted inconsistently with Article 2.2.1.1 by failing to calculate
costs on the basis of the exporter or producer's, i.e. NEXTEEL's records.
256 See, e.g. Korea's first written submission, para. 186; and opening statement at the first meeting of
the Panel, para. 111.

BCI deleted, as indicated [[***]]

when it disregarded the price at which NEXTEEL purchased steel coils from POSCO based on its
findings that (a) POSCO was an associated supplier; and (b) the price at which POSCO sold
[[***]] grades of steel coils to NEXTEEL was [[***]] than the price at which it sold them to non-
affiliated customers.
7.194. Article 2.2.1.1 does not permit an investigating authority to disregard an exporter 's or
producer's record costs because it considers such costs to be unreasonable or to not be a cost that
the exporter or producer would incur under normal circumstances. 257 In EU – Biodiesel
(Argentina), t he panel and Appellate Body recognized that the focus of this condition is on the
exporter's or producer's records and on whether these record s reasonably reflect the costs
incurred by the exporter or producer. 258 The focus is not on whether the reported costs are
themselves reasonable.259
7.195. However, the issue in this case is whether an investigating authority is permitted to
disregard the price refl ected in an exporter 's or producer's records for the purchase of an input
from an asso ciated or non -independent supplier , when this price is found t o be [[***]] that
supplier's arm's length prices. In other words, is an investigating authority permitted to conclude,
in such a circumstance, that the exporter 's or producer's records do not "reasonably reflect" the
cost associated with production and sale of the product under consideration? While the panel and
Appellate Body reports in EU – Biodiesel (Argentina) are relevant to our consideration , this issue
was not raised in that dispute, and has not been directly addressed in any previous case.
7.196. The Appellate Body in EU – Biodiesel (Argentina) clarified that the phrase "reasonably
reflect" means that the record s of the exporter or producer must suitably and sufficiently
correspond to or reproduce the costs that have a genuine relationship with the production and sale
of the specific product under consideration. 260 The panel in EU – Biodiesel (Argentina), noting that
the ordinary meaning of "reflect" is "to reproduce, esp. faithfully or accurately; to depict" and the
ordinary meaning of "reasonable" , the adjective underlying the adverb "reasonably" which
modifies the verb "reflect" , is "rational or sensible, in acco rdance with reason, and fair and
acceptable in amount", found that the requirement that the records reasonably reflect the incurred
costs means that the records "must depict all the costs [the producer] has incurred in a manner
that is – within acceptable limits – accurate and reliable".261
7.197. However, this does not mean that the figures reported in an exporter 's or producer's
records must be accepted for purposes of constructing normal value without further consideration
in all cases. Both the panel and the Appellate Body in EU – Biodiesel (Argentina) recognized that if
the prices recorded in an exporter 's or producer's records do not reflect arm's length prices, an
investigating authority may find that the records, insofar as those prices are concerned, do not
"reasonably reflect" the costs associated with production and sale of the product under
consideration.262 In such a situation, the investigating authority would be entitled to disregard
those prices when determining the exporter 's or producer's cost of prod uction. Thus, we consider
that when the transactions between the exporter or producer and an associated or
non-independent entity are found not to be at arm's length, the costs reflected in the exporter's or
producer's records cannot be said to be "accurat e or reliable" or "suitably and sufficiently
correspond" to, i.e. reasonably reflect, the costs associated with production and sale of the product
under consideration.
7.198. To examine whether such transactions are or are not at arm's length, and therefore
whether the reported prices should be used in constructing normal value , an investigating
authority would have to examine the transactions in question. This is what the USDOC did in the
underlying investigation. The USDOC calculated the weighted -average price o f POSCO's steel coil
sales to unaffiliated customers, and compared NEXTEEL's steel coil purchase price s (transfer

257 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.30 and 6.37.
258 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.20; Panel Report, EU – Biodiesel
(Argentina), paras. 7.230 and 7.231.
259 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.37; Panel Report, EU – Biodiesel
(Argentina), para. 7.242
260 Appellate Body Report, EU – Biodiesel (Argentina), paras. 6.20 and 6.22. (emphasis added)
261 Panel Report, EU – Biodiesel (Argentina), paras. 7.229-7.232.
262 Appellate Body Report, EU – Biodiesel (Argentina), para. 6.33; Panel Report, EU – Biodiesel
(Argentina), fn 400.

BCI deleted, as indicated [[***]]

prices) with POSCO's cost of production of OCTG and with the price s at which POSCO sold steel
coils to unaffiliated customers. The USDOC found that the prices of [[***]] grades of steel coils
purchased by NEXTEEL from POSCO were [[***]] the prices at which POSCO sold these grades of
steel coils to other non-affiliated customers. In our view, it was not unreasonable for the USDOC to
conclude that NEXTEEL's steel coil purchase s were not at arm's length prices, and therefore that
NEXTEEL's records did not reasonably reflect the costs associated with the production and sale of
OCTG within the meaning of Article 2.2.1.1. In this regard, we note that K orea does not dispute
that an investigating authority may conduct an arm's length test in this context.263 However, Korea
asserts that an arm's length test cannot be used to assess whether the costs reflected in the
exporter or producer's records reflect som e "hypothetical costs" which the investigating authority
considers to be more reasonable than the costs actually incurred by the producer or exporter. 264
We agree. As discussed above, the enquiry under Article 2.2.1.1 is not whether cost s reported in
the producer or exporter's records are reasonable. But this is not the question the USDOC was
addressing in this case. In the underlying investigation, the USDOC did not compare NEXTEEL's
steel coils purchase price with some "hypothetical" reasonable cost or pric e. Instead, the USDOC
compared the actual price at which POSCO sold steel coils to NEXTEEL with the actual price at
which POSCO sold steel coils to non -affiliated customers , and concluded that the former was
[[***]] the latter.
7.199. In light of the above, we c onclude that the USDOC did not act inconsistently with
Article 2.2.1.1 in the underlying investigation when it rejected the price at which NEXTEEL
purchased [[***]] grades of steel coils from POSCO that were found to be [[***]] POSCO's
arm's length prices to non-affiliated customers.265
7.200. For the foregoing reasons, we conclude that the USDOC did not act inconsistently with the
second condition in Article 2.2.1.1 in concluding that NEXTEEL's records did not reasonably reflect
the costs associated with production and sale of OCTG, and rejecting NEXTEEL's steel coil purchase
price for purposes of constructing normal value.
7.6 Whether the USDOC acted inconsistently with Articles 6.2, 6.4 , and 6.9 of the
Anti-Dumping Agreement
7.201. As discussed above, i n its final determina tion in the underlying investigation, the USDOC
determined the CV profit for the Korean respondents on the basis of the Tenaris profit data. It did
not, however, make known to interested parties that it had accepted that data on the record or
that it had relied on that data for purposes of CV profit determination until the final determination.
7.202. On 17 June 2014, one day before the deadline to submit case briefs in the underlying
investigation, the USDOC posted to the record 266 a letter signed by 57 US Senators dated
15 May 2014. On 23 June 2014, the same day as the deadline to submit rebuttal briefs , the
USDOC posted to the record a letter signed by 155 Members of the US House of Representatives
dated 10 June 2014. 267 These letters , as well as other letters from US lawmakers, local
government leaders , and industry representatives and memoranda to the file describing phone
calls and meetings with US lawmakers and industry representatives, set out concerns regarding
the USDOC's preliminary determination and the impact of OCTG imports on the domestic market in
the United States. 268 We refer collectively to these letters and memoranda as the
"communications".
7.203. Korea makes the following claims under Articles 6.2, 6.4, and 6.9 of the Anti -Dumping
Agreement:

263 Korea's response to Panel question No. 68, para. 88.
264 Korea's response to Panel question No. 68, para. 88.
265 We note that there is no claim in this dispute regarding the USDOC's choice of information on steel
input costs to use in constructing normal value for the Korean respondents, and we express no views on that
issue.
266 As we understand, in USDOC practice, all interested parties have access to all information posted to
the non-confidential record, which was the case with the communications at issue here.
267 Letter dated 10 June 2014 from various members of US Congress and Other Memoranda,
(Exhibit KOR-22); and Letter dated 15 May 2014 from various senators, (Exhibit KOR-23).
268 Letter dated 10 June 2014 from various members of US Congress and Other Memoranda,
(Exhibit KOR-22).

BCI deleted, as indicated [[***]]

a. The USDOC acted inconsistently with Articles 6.2, 6.4, and 6.9 in not disclosing, until its
final determination, its decision to accept the Tenaris financial data on the record of the
underlying investigation; and
b. The USDOC acted inconsistently with Articles 6.4 and 6.9 of the Anti -Dumping
Agreement in not posting to the record certain communications in a timely manner.
7.6.1 Provisions at issue
7.204. Article 6.2 of the Anti-Dumping Agreement provides:
Throughout the anti -dumping investigation all interested parties shall have a fu ll
opportunity for the defence of their interests. To this end, the authorities shall, on
request, provide opportunities for all interested parties to meet those parties with
adverse interests, so that opposing views may be presented and rebuttal arguments
offered. Provision of such opportunities must take account of the need to preserve
confidentiality and of the convenience to the parties. There shall be no obligation on
any party to attend a meeting, and failure to do so shall not be prejudicial to that
party's case. Interested parties shall also have the right, on justification, to present
other information orally.
7.205. Article 6.4 of the Anti-Dumping Agreement provides:
The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti -dumping investigation, and to prepare presentations on the
basis of this information.
7.206. Article 6.9 of the Anti-Dumping Agreement provides:
The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests.
7.6.2 Whether the USDOC act ed inconsistently with Articles 6.2, 6.4 , and 6.9 in
connection with the Tenaris financial statements
7.6.2.1 Main arguments of the parties
7.207. Korea's main arguments are as follows:
a. The USDOC did not afford Korean respondents an opportunity to present evidence in
defence of their interests under Article 6.2 because they had no notification from the
USDOC that the Tenaris financial statements submitted by U.S. Steel , which Korean
respondents contended were submitted untimely, were properly on the record.269
b. The Tenaris financial statements constitute "relevant" information under Article 6.4, and
the USDOC failed to notify the Korean respondents of its decision to accept the Tenaris
financial data and failed to provide the Korean respondents with any opportunity to
prepare presentations regarding such data, inconsistently with Article 6.4.270

269 Korea's first written submission, paras. 189, 203 and 204 (referring to Appellate Body Report, US –
Oil Country Tubular Goods Sunset Reviews, para. 241); opening statement at the first meeting of the Panel,
para. 115.
270 Korea's first written submission, paras. 205 and 206 (referring to Appellate Body Report, EC – Tube
or Pipe Fittings, para. 145; and Panel Reports, EC – Salmon (Norway), para. 7.769; and EC – Fasteners
(China) (Article 21.5 – China), para. 7.89).

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c. Finally, the USDOC's decision to accept the Tenaris financial statements on the record
constitutes an "essential fact" which was not disclosed in sufficient time before the final
determination, inconsistently with Article 6.9. In addition, the USDOC's reliance on the
Tenaris financial statements was an essential fact that was not disclosed to interested
parties in sufficient time before the final determination, inconsistently with Article 6.9.271
7.208. The United States argues that:
a. The Korean respondents had the opportunity , which they utilized, to challenge the
Tenaris financial data . They submitted written arguments against its use on several
occasions, as well as oral arguments at the USDOC hearing.272 Therefore, the USDOC
provided Korean respondents a full opportunity to defend their interests under
Article 6.2.
b. The USDOC did notify the respondents , in its preliminary determination , that it had
accepted the Tenaris financial data and examined it as one of three possible options for
CV profit. In addition, a ll interested parties had access to the Tenaris fina ncial
statements once U.S. Steel filed the information on the record , four months before the
final determination. 273 Therefore, the Korean respondents did see all the information,
which was relevant to the presentation of their case, and were able to , and did, prepare
presentations responding to it in accordance with Article 6.4.274
c. Korea's allegations that "whether the USDOC would accept the placement of the Tenaris
financial statements on the record" and the "USDOC's reliance on the financial
statements" were essential fact s conflate "essential facts" with an investigating
authority's deliberations and conclusions. 275 Article 6.9 does not require an authority to
disclose its reasoning or conclusions. Therefore, the USDOC was not required to inform
the respondents that it had chosen to accept the financial statements submitted by the
petitioners or that it would rely on the information in those statements.276
7.6.2.2 Main arguments of third parties
7.209. The European Union makes the following arguments:
a. Whether an investigating authority's decision to accept a party's submission into the
record could, in itself, be considered "information" within the meaning of Article 6.4, is
questionable.277 Whether an investigating authority's decisions pertaining to the
formation of the record could, in themselves be considered as "essential facts" is also
questionable. A document which formed the basis for the profit rate calculation would,
however, set out "essential facts".278
b. Where the authority's decision shifts significantly between the prel iminary and final
determinations due to the submission of new essential facts, it may not suffice that such

271 Korea's first written submission, para. 212.
272 United States' first written submission, paras. 206 and 208 (referring to AJU BESTEEL Case Brief,
18 June 2014, (Exhibit USA-18), pp. 5-7; HUSTEEL Case Brief, 18 June 2014, (Exhibit USA-19), pp. 17-24;
HYSCO Rebuttal Brief, 24 June 2014 (complete), (Exhibit USA-25), pp. 34-41; HYSCO Case Brief,
19 June 2014, (Exhibit USA-24), pp. 41-55; NEXTEEL Case Brief, 19 June 2014, (Exhibit USA-22); NEXTEEL
Rebuttal Brief, 24 June 2014, (Exhibit USA-23); and OCTG Hearing Transcript, 26 June 2014, (Exhibit KOR-32)
pp. 112-122).
273 United States' first written submission, para. 212 (referring to Appellate Body Report, EC – Fasteners
(China) (Article 21.5 – China), paras. 5.121-5.123).
274 United States' first written submission, para. 214.
275 United States' first written submission, para. 216.
276 United States' first written submission, paras. 219 and 220 (referring to Panel Reports, China –
GOES, para. 7.407; US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), para. 7.148;
277 European Union's third-party submission, para. 57 (referring to Appellate Body Report, EC –
Fasteners (China), para. 480).
278 European Union's third-party submission, para. 62.

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facts are on the record of the investigation, but the investigating authority 's reliance on
them may need to be additionally disclosed.279
7.6.2.3 Evaluation by the Panel
7.210. For purposes of its preliminary determination, the USDOC had considered determining the
CV profit on the basis of the Tenaris profit data as one of several options. However, it did not do so
for two reasons: (a) the Tenaris data did not relate to production or sales of OCTG in the home
market; and (b) it was based on a research paper the accuracy of which was questionable.
Ultimately, in its preliminary determination, the USDOC determined CV profit for HYSCO based on
sales of non-OCTG pipe products in Korea, and for NEXTEEL using the audited financial statements
of six Korean OCTG producers. 280 The USDOC noted in the preliminary determination that it
intended to continue exploring other possible options for determining CV profit for both
respondents.281
7.211. After the preliminary determination, the USDOC issued a supplemental questionnaire to
NEXTEEL282, to which NEXTEEL submitted a response. Subsequently, the petitioner in the
underlying investigation, U.S. Steel , made a submission under 19 C.F.R. § 351.301(c)(1)(v),
purportedly to rebut, clarify , or correct factual information contained in that questionnaire
response. U.S. Steel's submission included Tenaris's audited financial statements. 283 In response,
NEXTEEL requested the USDOC to remove the Tenaris fi nancial data from the record, asserting
that it had been filed past the deadline for such submissions. 284 The USDOC did not respond
separately to that request, but in its final determination noted that the Tenaris financial
statements were properly on the re cord and went on to determine the CV profit, for both HYSCO
and NEXTEEL, on the basis of that data.285
7.212. The principal legal issue before us is whether the USDOC, in not disclosing its acceptance
of the Tenaris financial statements on the record until its final determination, failed to:
a. provide a full opportunity for respondents to defend their interests in accordance with
Article 6.2;
b. provide timely opportunities for Korean respondents to see all non-confidential
information relevant to the presentation of their cases and to prepare presentations on
the basis of this information in accordance with Article 6.4; and
c. disclose "essential facts under consideration which form the basis for the decision
whether to apply definitive measures" in a timely manner in accordance with Article 6.9.
7.6.2.3.1 Whether the USDOC act ed inconsistently with Article 6.2 in not disclosing,
until its final determination, that it had accepted the Tenaris financial statements on the
record
7.213. Korea argues that the USDOC's failure to notify its acc eptance of the Tenaris financial
statements on the record until the final determination precluded the Korean respondents from : (a)
launching a "full-scale argument"286; and (b) submitting factual information rebutting the content

279 European Union's third-party submission, para. 65 (referring to Appellate Body Reports, China –
HP-SSST (Japan) / China – HP-SSST (EU), para. 5.130).
280 Preliminary Decision Memorandum, (Exhibit KOR-5), p. 22.
281 Preliminary Decision Memorandum, (Exhibit KOR-5), p. 22.
282 USDOC, Third supplemental section D questionnaire to NEXTEEL, 20 February 2014,
(Exhibit KOR-18) (BCI).
283 U.S. Steel Submission of Tenaris Audit Report, 21 March 2014, (Exhibit KOR-19).
284 NEXTEEL Request to reject untimely new factual information, 27 March 2014, (Exhibit KOR-20).
285 Final Decision Memorandum, (Exhibit KOR-21), pp. 28 and 29.
286 Korea's second written submission, para. 285; opening statement at the first meeting of the Panel,
para. 115.

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of those statements 287, and th us denied them the opportunity to defend their interests under
Article 6.2.
7.214. Article 6.2 of the Anti-Dumping Agreement provides, in relevant part, that "throughout the
anti-dumping investigation all interested parties shall have a full opportunity for the defence of
their interests". It is understood that while Article 6.2 imposes a general duty on an investigating
authority to ensure that interested parties have a full opportunity throughout an anti -dumping
investigation for the defence of their interests, it does not give specific guidance on the type of
procedural steps an investigating authority should take in ensuring the rights of interested
parties.288
7.215. We are not persuaded that because USDOC did not disclose its acceptance of the Tenaris
financial stat ements on the record until the final determination, the Korean respondents were
prevented from launching a "full -scale argument". 289 The record shows that the Korean
respondents did, in fact, make several submissions commenting on the substantive aspects of the
Tenaris profit data and arguing against its use in determining CV profit. 290 Thus, it is clear that the
Korean respondents were aware of the data in question, did have opportunities to present
arguments against its use as a basis for CV profit determinat ion, and did make use of those
opportunities.
7.216. Korea also contends that without notice of an affirmative decision by the USDOC that the
Tenaris data was properly on the record, the Korean respondents were not "permitted to" submit
factual information to support their arguments against the use of that data as a basis for CV profit
determination.291 In particular, Korea asserts that the Korean respondents could not make factual
submissions in response to the Tenaris financial statements (rebuttal facts) because those
statements were submitted in contravention of the governing relevant USDOC regulation,
19 C.F.R. § 351.301. Korea contends that even though U.S. Steel stated that it was submitting the
Tenaris financial statements under 19 C.F.R. § 351.301(c)(1)(v), the submission was not
consistent with the requirements of that provision because it did not "rebut, clarify or correct"
factual information in NEXTEEL's Supplemental Questionnaire Response.292
7.217. The facts on the record of these proceedings do not support Kore a's assertion that the
Korean respondents were precluded from presenting rebuttal facts unless the USDOC notified them
of its acceptance of those statements on the record. We are also not persuaded that the Korean
respondents were prevented from presenting rebuttal facts because the Tenaris statements were
submitted in contravention of the governing relevant USDOC regulation. As described above, after
the preliminary determination, the USDOC issued a supplemental questionnaire to NEXTEEL 293, in
reply to which NEXTEEL submitted its response. The United States relies on US regulation
19 C.F.R. § 351.301(c)(1)(v). That regulation provides that an interested party, other than the
original submitter of a supplemental questionnaire response – here U.S. Steel – has o ne
opportunity to submit factual information to rebut, clarify , or correct factual information contained
in that questionnaire response within a specified time -frame. Korea has not pointed to any other
conditions for such a submission in this regulation.
7.218. The regulation further provides that the original submitter of the supplemental
questionnaire response – here NEXTEEL – has one opportunity to submit a sur -rebuttal containing

287 Korea's second written submission, paras. 285 and 293; first written submission, paras. 189, 203
and 204 (referring to Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 241).
288 Panel Reports, Argentina – Poultry Anti-dumping Duties, para. 7.160; and Guatemala – Cement II,
para. 8.162
289 Korea's opening statement at the first meeting of the Panel, para. 115.
290 United States' first written submission, paras. 206 and 208 (referring to AJU BESTEEL Case Brief,
18 June 2014, (Exhibit USA-18), pp. 5-7; HUSTEEL Case Brief, 18 June 2014, (Exhibit USA-19), pp. 17-24;
HYSCO Rebuttal Brief, 24 June 2014 (complete), (Exhibit USA-25), pp. 34-41; HYSCO Case Brief,
19 June 2014, (Exhibit USA-24), pp. 41-55); NEXTEEL Case Brief, 19 June 2014, (Exhibit USA-22); NEXTEEL
Rebuttal Brief, 24 June 2014, (Exhibit USA-23); and OCTG Hearing Transcript, 26 June 2014, (Exhibit KOR-32)
pp. 112-122).
291 Korea's second written submission, para. 294.
292 Korea's response to Panel question No. 69, paras. 96-99.
293 USDOC, Third supplemental section D questionnaire to NEXTEEL, 20 February 2014,
(Exhibit KOR-18) (BCI).

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factual information to rebut, clarify, or correct the interested party's rebutta l, clarification , or
correction to its supplemental questionnaire response, within seven days of the filing of such a
rebuttal, clarification, or correction. Again, Korea has not pointed to any other conditions for such
a submission in this regulation. U.S. Steel submitted the Tenaris financial statements under
19 C.F.R. § 351.301(c)(1)(v), purporting to rebut, clarify, or correct factual information contained
in NEXTEEL's Supplemental Questionnaire Response.294 As we understand it, NEXTEEL, as the
original s ubmitter of the supplemental questionnaire response, could have submitted rebuttal
facts. NEXTEEL did not do so.295
7.219. Korea does not dispute the United States' description of the operation of 19 C.F.R.
§ 351.301(c)(1)(v). Rather, Korea argues that NEXTEEL did not file a sur -rebuttal because the
Tenaris financial statements did not constitute rebuttal information under 19 C.F.R.
§ 351.301(c)(1)(v) and the provision for sur -rebuttal was therefore, not applicable. 296 We are not
convinced by Korea's argument. Whether or not the Tenaris financial statements were submitted
consistently with the governing regulation was a decision for the USDOC to make in its capacity as
investigating authority, and not for NEXTEEL. NEXTEEL did, in fact, object to the U.S. Steel
submission as inconsistent with the governing regulation. However, Korea has not shown that
anything in the USDOC regulation requires that, having chosen to object to the Tenaris
statements' submission, NEXTEEL was thereby automatically precluded from also respond ing to
the substance of those statements. Apparently, it was their choice to await a decision on that
objection, which was not forthcoming from the USDOC, rather than seek to make their own
sur-rebuttal submission. Pending a decision, NEXTEEL, even if it b elieved that the Tenaris financial
statements should be rejected, was not, in any formal sense, prevented from taking the
opportunity to counter the contents of that submission, without prejudice to its objections to the
USDOC's acceptance of those statements. Moreover, even if the USDOC erred in not responding to
NEXTEEL's objection, a question which is outside our purview, we fail to see how NEXTEEL was
precluded from at least attempting to file a sur-rebuttal.
7.220. Korea further argues that NEXTEEL did not fi le a sur -rebuttal under
19 C.F.R. 351.301(c)(1)(v) because to do so would have amounted to acknowledging that the
Tenaris financial statements constituted rebuttal information under that provision and were
therefore on the record. 297 Korea has failed to expl ain how NEXTEEL was precluded from filing a
sur-rebuttal and stating that its submission did not amount to an acknowledgement that the
Tenaris financial statements had been properly submitted. We agree with the United States that
NEXTEEL could have request ed that the USDOC reject the U.S. Steel submission because it was
improperly submitted while, at the same time arguing in the alternative that the USDOC should
accept the sur-rebuttal information should it decide to accept the U.S. Steel submission. 298 In this
regard, we recall that Article 6.2 requires that an investigating authority provide opportunities for
interested parties to defend their interests. We consider the fact that NEXTEEL did not act to
defend its own interests in the underlying investigation cannot b e equated with a failure by
the USDOC to provide opportunities to interested parties to defend their interests.299
7.221. Korea also argues that 19 C.F.R. § 351.301(c)(1)(v) permitted only the submitter of the
original factual information to submit rebutta l facts, and therefore only NEXTEEL, and not HYSCO,
would have been able to submit such rebuttal facts under these regulations. 300 The United States
submits that HYSCO and other Korean respondents could also have filed such rebuttal facts
"generally" under 19 C.F.R. § 351.301.301 Korea denies that HYSCO and other Korean respondents
had an opportunity to submit rebuttals under the relevant provisions because 19 C.F.R. § 351.301
only permits parties to present arguments that the record is deficient, and does not permit parties
to submit unsolicited factual information.302

294 U.S. Steel Submission of Tenaris Audit Report, 21 March 2014, (Exhibit KOR-19), p. 1.
295 United States' response to Panel question No. 70, paras. 44-46.
296 Korea's response to Panel question No. 69, paras. 96-98.
297 Korea's response to Panel question No. 69, para. 99.
298 United States' comments on Korea's response to Panel question No. 69, para. 75.
299 See Panel Report, Egypt – Steel Rebar, para. 7.88.
300 Korea's comments on the United States' response to Panel question No. 70(a), para. 102 and fn 96.
301 United States' response to Panel question No. 70(a), para. 47.
302 Korea’s comments on the United States' response to panel question no. 70, para. 103.

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7.222. We recall, however, that Korea's claim under Article 6.2 does not raise the question
whether the USDOC regulation in question, 19 C.F.R. § 351.301, prevented Korean respondents
from making factual submissions to rebut the Tenaris financial statements. Rather, Korea's claim is
that the absence of a USDOC notification of its acceptance of those statements on the record until
its final determination prevented them from doing so. Korea has pointed to no specific evidence to
show that NEXTEEL, or for that matter, any other Korean respondent, was prevented from filing
sur-rebuttal evidence in response to the submission of the Tenaris financial statements only
because the USDOC had not notified its acceptance of the Tenaris data on the record. In particular,
Korea has not identified any US laws or procedures or any specific requirement imposed by the
USDOC in the underlying investigation that made the filing of rebuttal facts by the Korean
respondents condit ional upon prior notification by the USDOC of its acceptance of the Tenaris
financial statements on the record. Korea has also failed to identify any instance in the course of
the underlying investigation where the USDOC declined to accept rebuttal facts f rom the Korean
respondents by invoking 19 C.F.R. § 351.301 or any other provision of US domestic law, or for
that matter, even without invoking any legal provision.
7.223. As Korea has failed to demonstrate that the USDOC's failure to notify the Korean
respondents that it had accepted the Tenaris financial statements on the record until its final
determination prevented the Korean respondents from launching a "full -scale argument" and
submitting rebuttal facts, we conclude that Korea has failed to establish that the USDOC acted
inconsistently with Article 6.2 in this regard.
7.6.2.3.2 Whether the USDOC act ed inconsistently with Article 6.4 in not disclosing,
until its final determination, that it had accepted the Tenaris financial statements on the
record and that it was using those statements in determining CV profit
7.224. As w e understand it, Korea's claim under Article 6.4 is that, because the Korean
respondents were not informed that the USDOC had accepted the Tenaris financial statements on
the record until the final determi nation, they were not provided a timely opportunity to prepare
presentations on the basis of the fact that the Tenaris financial statements were being used by
the USDOC.303
7.225. Article 6.4 requires an investigating authority to provide interested parties timely
opportunities to see all non -confidential information that is relevant to the presentation of their
cases and that is used by that authority in the anti -dumping investigation , and to prepare
presentations on the basis of this information . We see nothing in Article 6.4 that would suggest
that an investigating authority must "inform" interested parties of procedural decisions to accept
and/or use certain information in the anti -dumping investigation. In any event, we fail to see how
a procedural decision to accept and/or use certain information itself would constitute "information
that is relevant to the presentation" of an interested party's case.
7.226. Korea characterizes the Tenaris financial statements as the "information" that is "relevant"
to the presentation of the Korean respondents' cases and which was "used" by the investigating
authority in the anti -dumping investigation. 304 We do not disagree with this characterisation.
However, Korea is not arguing that the Korean respondents did not have timely opportunit ies to
see the Tenaris profit data and prepare presentations on that basis. Rather, Korea is arguing that
the "information" the Korean respondents did not have timely opportunities to see , and to prepare
presentations on the basis of , is the decision by th e USDOC to accept and/or use the Tenaris
financial data on the record.
7.227. Korea also argues that the USDOC's failure to notify the interested parties that it had
accepted the Tenaris financial statements on the record until its final determination precluded t he
Korean respondents from submitting rebuttal facts305, and thus denied them the opportunity to
prepare presentations on the basis of those statements, as required under Article 6.4. We have
rejected Korea's claim that the USDOC's failure to notify the interested parties that it had accepted
the Tenaris financial statements on the record until its final determination precluded the Korean

303 Korea's opening statement at the first meeting of the Panel, para. 116.
304 Korea's first written submission, para. 206.
305 Korea's second written submission, para. 293.

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respondents from submitting rebuttal facts. Therefore, there is no basis for Korea's argument in
this regard.
7.228. Based on the foregoing, we conclude that Korea has not established that, in not disclosing
until its final determination, that it had accepted the Tenaris financial data on the record and was
using that data for determining CV profit, the USDOC failed to provide time ly opportunities for
Korean respondents to see all non-confidential information relevant to the presentation of their
cases used by the USDOC and to prepare presentations on the basis of this information.
7.6.2.3.3 Whether the USDOC act ed inconsistently with Article 6.9 in not disclosing,
until its final determination, that it had accepted the Tenaris financial statements on the
record and that it relied on those statements in determining CV profit
7.229. We have before us two main questions in regard to this claim:
a. whether the USDOC's reliance on the Tenaris profit rate in determining CV profit
constitutes an "essential fact" within the meaning of Article 6.9, whose disclosure was
therefore required under that provision; and
b. whether the USDOC's acceptance of the Tenaris fin ancial statements on the record
constitutes an "essential fact" within the meaning of Article 6.9, whose disclosure was
therefore required under that provision.
7.230. We understand from Korea's submissions that the "acceptance on the record" of a
submission containing financial statements by the USDOC means a decision to include that
submission on the record of the investigation . We understand the USDOC's "reliance" on the
submitted financial statements in determining CV profit to be a decision to use the substance of
that submission in making its determination. In view of that differe nce, we will evaluate these
two questions separately.
7.231. Article 6.9 provides that:
The authorities shall, before a final determination is made, inform all interested
parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures. Such disclosure should take place in sufficient
time for the parties to defend their interests.
It is well accepted that Article 6.9 does not req uire the investigating authority to disclose its
decisions or conclusions.306

7.232. Article 6.9 requires the disclosure of essential facts "under consideration", which form the
basis for the decision whether to apply definitive measures. That the essential facts, which must
be disclosed are "under consideration" at the time of their disclosure, implies that the investigating
authority has not yet reached conclusions regarding its reliance on them at that stage. We agree
with the views of the panel in EC – Salmon (Norway) that essential facts for purposes of Article 6.9
are not only those facts that support a determination, but rather are the body of facts essential to
any determination that are being considered in the process of analysis and decision-making by the
investigating authority.307 That panel further observed that:
[I]n our view, the essential facts to be disclosed under Article 6.9 are not affected by
the substance of the determination an investigating authority may ultimately make.
Indeed, they cannot be, as the essential facts to be disclosed are those "under
consideration that form the basis of the decision" – that is, the disclosure of essential
facts precedes the decision. Thus, at the time of the Article 6.9 disclosure, no decision

307 Panel Report, EC – Salmon (Norway), para. 7.796.

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has yet been taken, and, it seems to us, the disclosure of essential facts may not
enable an interested party to foresee the ultimate decision.308
7.233. Given that the final determination may be affected by further arguments or information
submitted after the Article 6.9 disclosure, the investigating authority cannot be required to include
conclusions in that disclosure. This view is in keeping with the panel's statement in EC – Salmon
(Norway) that the requirement in Article 6.9 for disclosure of "essential facts" is not necessarily
satisfied by the disclosure of the investigating authority's conclusions on issues of fact that must
be resolved before a decision to apply definitive measures is taken.309
7.234. Turning first to the question whether the USDOC's reliance on the Tenaris profit data to
determine CV profit constitutes an "essential fact", as we have stated, the USDOC's reliance on the
Tenaris profit data to determine CV profit constitutes a decision to use that data in its
determination. In light of the foregoing, we are of the view t hat Article 6.9 requires an
investigating authority to disclose only the essential facts and not its reasoning or its
conclusions.310 Given that the USDOC's reliance on the Tenaris profit data to calculate profit
constitutes its conclusion to use that data ( as opposed to other data it had before it) in calculating
CV profit, in our view, that reliance was not an essential fact within the meaning of Article 6.9, and
there was therefore no obligation on the USDOC to disclose it.
7.235. We next consider the question wh ether the USDOC's acceptance of the Tenaris profit data
on the record of the underlying investigation constitutes an "essential fact" within the meaning of
Article 6.9.
7.236. Korea argues that the acceptance of the Tenaris profit data on the record constitutes an
"essential fact" because : (a) that data was "under consideration" as evidenced by the USDOC's
decision to rely on it to calculate CV profit ; and (b) it formed the basis for the decision whether to
apply definitive measures as the use of that data was th e most important factor that raised the
respondents' dumping margins from a preliminary de minimis to a positive final margin.311
7.237. The question raised by Korea's assertion is whether the acceptance of the Tenaris profit
data on the record rather than the Tenaris profit data itself was an essential fact under
consideration. There is no issue in Korea's claim regarding whether the Tenaris profit data itself
was an essential fact. What is pertinent to deciding Korea's claim is therefore not whether the
Tenaris data was a fact under consideration by the USDOC for the determination of CV profit, but
whether "the acceptance of that data on the record" was a fact under consideration for that
determination. We are of the view that the acceptance of the Tenaris profit data on the record
does not constitute an "essential fact" within the meaning of Article 6.9.
7.238. We recall that what facts are essential is decided by reference to the determinations that
must be made by the investigating authority. 312 In the context of Article 2.2.2(iii), the essential
facts were those that were under consideration as forming the basis for the USDOC's CV profit
determination. While data which is used in the CV profit determination is substantively relevant to
that determination, the fact of acceptance of that data on the record is not. This is because the
fact of acceptance of data on the record, unlike the data itself, cannot be used in making the
CV profit determination. The fact of acceptance of a submission on the record, even given that the
submission contained the Tenaris profit data that was ultimately relied on, is not required to
understand the basis for the USDOC's CV profit determination, because the fact of acceptance of
the submission on the record has no substantive relevance to the CV profit determination. We do
not consider that the fact of acceptance of the Tenaris profit data on the record was substantively
relevant to the content of the USDOC's findings on the CV profit and therefore, to the content of its
findings on the dumping margin. The fact of acceptance of the Tenaris profit data therefore did not
underlie the USDOC's final findings and conclusions in respect of any of the three essential

308 Panel Report, EC – Salmon (Norway), para. 7.796. (emphasis added)
309 Panel Report, EC – Salmon (Norway), para. 7.806.
310 United States' first written submission, para. 219.
311 Korea's response to Panel question No. 36, para. 123.
312 Appellate Body Report, China – GOES, para. 241.

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elements – dumping, injury and causation – that must be present for application of de finitive
anti-dumping measures.313
7.239. Our conclusion in this regard is consistent with the views of the Appellate Body in China –
GOES:
In order to apply definitive measures at the conclusion of countervailing and anti -
dumping investigations, an investigating authority must find dumping or subsidization,
injury and a causal link between the dumping or subsidization and the injury to the
domestic industry. What constitutes an "essential fact" must therefore be understood
in light of the content of the findings needed to satisfy the substantive obligations with
respect to the application of definitive measures under the Anti -Dumping Agreement
and the SCM Agreement, as well as the factual circumstances of each case.
Hence, in the context of the second sentence of A rticles 3.2 and 15.2, we consider
that the essential facts that investigating authorities need to disclose are those that
are required to understand the basis for their price effects examination , leading to the
decision whether or not to apply definitive m easures, so that interested parties can
defend their interests.314
7.240. Moreover, in our view, the acceptance of the Tenaris profit data on the record forms part
of the authority's consideration or reasoning with regard to that data, which is not subject to the
disclosure obligation under Article 6.9. It is well accepted that the Article 6.9 disclosure obligation
does not apply to the reasoning of the investigating authority, but to the "essential facts " that
form the factual basis for that reasoning.315
7.241. Korea also argues that the acceptance of the Tenaris profit data on the record constitutes
an essential fact because it defined the universe of sources that the USDOC was considering for its
CV profit determination. In particular, it enabled the USDOC to determine CV profit on the basis of
the Tenaris profit data, which according to Korea, in and of itself, also constitutes an "essential
fact" that must be disclosed under Article 6.9. Korea argues that the USDOC's failure to disclose its
acceptance of the Tenaris pr ofit data on the record is, therefore, tantamount to its failure to
disclose the Tenaris profit data itself as an "essential fact".316
7.242. The acceptance of the Tenaris profit data on the record would not mean that the USDOC
would necessarily consider that data as the basis for its CV profit determination. Acceptance of a
submission on the record by an authority does not necessarily mean that the content s of that
submission become "essential fact s under consideration" which form the basis for its decision
whether to apply definitive measures. Even if the USDOC had disclosed its acceptance of the
Tenaris profit data on the record, that disclosure in itself would not have identified the Tenaris data
as an "essential fact".
7.243. Based on the foregoing, we conclude that Korea has not established that the USDOC's
acceptance of the Tenaris profit data on the record constituted an "essential fact" within the
meaning of Article 6.9. We therefore find that the USDOC did not act inconsistently with Article 6.9
in not disclosing its acceptance of that data on the record until its final determination.
7.6.2.4 Conclusion
7.244. For the foregoing reasons, regarding Korea's claims under Articles 6.2 and 6.4 of the
Anti-Dumping Agreement, we find that:

313 In Mexico – Olive Oil, the Panel observed that, in the context of the SCM Agreement, "essential facts"
are the "specific facts that underlie the investigating authority's final findings and conclusions in respect of the
three essential elements – subsidization, injury and causation – that must be present for application of
definitive measures". (Panel Report, Mexico – Olive Oil, para. 7.110).
314 Appellate Body Report, China – GOES, paras. 241 and 242. (fns omitted; emphasis added)
316 Korea's second written submission, para. 302.

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a. The USDOC did not act inconsistently with Arti cle 6.2 because Korea has not established
that the USDOC, by not notifying its acceptance on the record of the Tenaris financial
statements, prevented the Korean respondents from making factual submissions to
counter the contents of those statements, thus denying them a full opportunity for the
defence of their interests.
b. The USDOC did not act inconsistently with Article 6.4 because:
i. it was not required under that provision to inform interested parties of its decision to
accept and/or use the Tenaris financial statements on the record; and
ii. Korea has failed to establish a legal or factual basis for its assertion that the
USDOC's failure to disclose that it had accepted the Tenaris financial statements on
the record prevented the Korean respondents from maki ng factual submissions to
counter the substance of those statements.
7.245. Regarding Korea's claim under Article 6.9, we find that:
a. the USDOC's decision to rely on the Tenaris profit data to determine CV profit did not
constitute an "essential fact" within the meaning of Article 6.9 and the USDOC was
therefore not required to disclose that reliance by Article 6.9; and
b. the USDOC's acceptance of the Tenaris profit data on the record did not constitute an
"essential fact" within the meaning of Article 6.9 and the U SDOC was therefore not
required to disclose that acceptance by Article 6.9.
7.6.3 Whether the USDOC act ed inconsistently with Articles 6.4 and 6.9 in connection
with the disclosure of certain communications
7.6.3.1 Main arguments of the parties
7.246. Korea argues that the US DOC's delay in disclosing certain communications was
inconsistent with Articles 6.4 and 6.9 of the Anti -Dumping Agreement. 317 According to Korea,
these communications constituted "relevant" information used by the investigating authority in the
anti-dumping investigation under Article 6.4, as well as "essential facts under consideration" within
the meaning of Article 6.9 that formed the basis for the USDOC's decisions.318
7.247. The United States contends that Korea fails to explain why the communications at issue
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. 319 Korea also fails to
demonstrate that the communications at issue constitute "essential facts" under consideration that
formed the basis for USDOC's decision to apply definitive measures.320 Moreover, the record shows
that the Korean respondents had ample opportunity to and did respond to the relevant letters from
the US lawmakers and industry rep resentatives.321 Further, the United States asserts that it is
evident from the face of Korea's panel request that it does not include a claim that the USDOC's
delay in disclosing the communications in question was inconsistent with Article s 6.4 and 6.9 of
the Anti -Dumping Agreement. Therefore, the Panel should find that this claim falls outside its
terms of reference.322

317 Korea's first written submission, paras. 216 and 224; opening statement at the first meeting of the
Panel, para. 121 (referring to Letter dated 10 June 2014 from various members of US Congress and Other
Memoranda, (Exhibit KOR-22)).
319 United States' first written submission, para. 226.
320 United States' first written submission, para. 226.
321 United States' first written submission, para. 228.
322 United States' comments on Korea's response to Panel question No. 75, paras. 85 and 86.

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7.6.3.2 Main arguments of third parties
7.248. As regards Korea's claim under Article 6.4, the European Union submits that the Panel
should first examine wh ether the content of the letters was relevant from the
respondents' standpoint and whether it related to a required step in the analysis, such as to the
determination of normal value. 323 The next issue is whether the investigating authority allowed
"timely opportunities" for the respondents to see the information and prepare presentations on the
basis of it. 324 As regards Korea's claim under Article 6.9, it is doubtful that a letter that merely
expresses support for a certain outcome of the investigation consti tutes an essential fact, however
important its signatories might be. Article 6.9 could only be relevant if such a letter provides new
essential facts which formed the basis of the final determination.325
7.6.3.3 Evaluation by the Panel
7.249. The principal legal issue s before us are whether the timing of the placement of certain
communications on the record deprived Korean respondents of timely opportunities to see
non-confidential information that was relevant to the presentation of their cases that was used by
the USDOC, inconsistently with Article 6.4, and whether the communications at issue constituted
"essential facts" within the meaning of Article 6.9 which were not disclosed to interested parties in
a timely fashion. Before addressing these questions, however, we cons ider it necessary to
ascertain whether Korea's panel request includes a claim that that the timing of USDOC's posting
of these communications to the record resulted in inconsistency with those provisions.
7.250. We recall that a panel request must identify, by way of a brief summary, the "legal basis of
the complaint" and that summary must be "sufficient to present the problem clearly". We also
recall that compliance with DSU Article 6.2 must be assessed on the face of the panel request and
on the merits of each case, considering the panel request as a whole, and in the light of attendant
circumstances.326
7.251. Korea's panel request states, in relevant part:
IV. PROCEDURAL CLAIMS UNDER THE ANTI-DUMPING AGREEMENT AND THE
GATT 1994
Korea further considers that the USDOC's actions taken in the course of its
anti-dumping investigation of Oil Country Tubular Goods from Korea failed to protect
the respondents' due process rights and were otherwise inconsistent with procedural
obligations under the following provisions of the Anti-Dumping Agreement or
GATT 1994:
1. Articles 6.2, 6.4, and 6.9 of the Anti -Dumping Agreement because the USDOC
did not inform interested parties of its decision to accept the petitioners' submission of
Tenaris SA's financial statements for inclusion in the record after all regulatory
deadlines for the submission of new factual information had passed.
a. Because the USDOC did not address Korean respondent's request to remove the
untimely submission from the record until its Final Determination, the
respondents were not granted a full opportunity to defend their interests under
Article 6.2.
b. By failing to respond to Korean respondent's request to remove the untimely
submission from the record or to clarify whether the financial statements were
properly ad mitted to the official administrative record, the USDOC did not
ensure an opportunity for Korean respondents to prepare presentations on the
basis of this information under Article 6.4.

323 European Union's third-party submission, para. 70.
324 European Union's third-party submission, para. 71.
325 European Union's third-party submission, para. 72.
326 Appellate Body Report, US – Carbon Steel, para. 127.

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c. Because the USDOC did not respond to Korean respondents' requests o r clarify
whether the financial statements were properly on the record, and because the
USDOC used the Tenaris SA financial statements to calculate anti -dumping
margins for the Korean respondents for the first time in the Final Determination,
the USDOC fai led to inform interested parties of "essential facts" that formed
the basis of its decision to apply definitive measures under Article 6.9.327
7.252. On its face, Korea's panel request does not mention the communications at issue at all.
The only "brief summary" wi th respect to claims under Articles 6.4 and 6.9 relates to the facts
surrounding the submission, acceptance, and disclosure of the Tenaris financial data. We thus find
it difficult to see how the panel request can be understood to set forth a claim that th e timing of
the USDOC's posting of the communications at issue to the record was inconsistent with
Articles 6.4 and 6.9 of the Anti -Dumping Agreement.328 At a minimum, we would have expected
some reference to the facts surrounding the alleged violation in co nnection with the
communications as brief summary of the legal basis of the complaint, giving some indication of
how or why Korea considered the measure at issue to be inconsistent with Articles 6.4 and 6.9 in
this regard. However, in this case, there is n othing on this point in the panel request at all. The
panel request does not even mention the communications in question , much less give any
indication of the nature of any violation of Articles 6.4 and 6.9 in connection with those
communications. We therefore conclude that Korea's panel request does not set out a claim that
the USDOC acted inconsistently with Articles 6.4 and 6.9 of the Anti -Dumping Agreement in
connection with the communications at issue.
7.253. Korea contends, however, that the circumstances surrounding the USDOC's treatment of
the communications in question do not constitute a claim, but are "evidence" to support the claim,
identified in its panel request, that the USDOC failed to comply with Articles 6.2, 6.4 , and 6.9 in
the course of the und erlying investigation.329 Korea submits that in its panel request, it described
certain instances in which the USDOC's actions were inconsistent with these provisions as evidence
supporting that claim. It contends that having enumerated certain evidence in i ts panel request
does not preclude it from presenting additional evidence in these proceedings, because a party is
under no obligation to identify, in its panel request, all the evidence that it intends to advance to
support its claims.330
7.254. We understand Korea's position to be that it was not precluded from relying on the facts
surrounding the communications in question as additional evidence supporting the claim of
violation of Articles 6.2, 6.4, and 6.9 set out in its panel request. We are not persuaded by Korea's
argument. We do not agree that Korea's panel request set out a general claim that "the USDOC
failed to comply with Articles 6.2, 6.4 and 6.9 in the course of the underlying investigation". As is
clear from the text of the panel request, Korea's claim is that the USDOC acted inconsistently with
Articles 6.2, 6.4 , and 6.9 of the Anti -Dumping Agreement because it did not inform interested
parties of its decision to accept the petitioners' submission of Tenaris SA's financial statements for
inclusion in the record after all regulatory deadlines for the submission of new factual information
had passed . We recall that the panel request serves an important function of giving notice to
Members of the substance of the dispute. In light of the limiting nature o f Korea's summary of its
claim, we fail to see, and Korea has fail ed to explain, how the circumstances surrounding the
USDOC's treatment of the communications in question could be relevant "evidence" to support
that claim. 331 In particular, Korea has not sho wn how an alleged delay in disclos ing the
communications in question has any relevance to the question of the USDOC's alleged failure to

327 Emphasis original.
328 Korea's first written submission, paras. 216 and 224; second written submission, paras. 314
and 316; and opening statement at the first meeting of the Panel, para. 119.
329 We note that in its arguments presented over the course of these proceedings, as part of
submissions referred to in footnote 328 above, Korea has argued that the USDOC's delay in disclosing certain
letters from US lawmakers was inconsistent with Articles 6.4 and 6.9 of the Anti-Dumping Agreement.
However, in its response to Panel question No. 75, it characterizes the USDOC's delay in disclosing certain
letters from US lawmakers as evidence in support of its claim that the USDOC acted inconsistently with
Article 6.2 in addition to Articles 6.4 and 6.9 of the Anti-Dumping Agreement. (Korea's response to Panel
question No. 75, para. 108).
330 Korea's response to Panel question No. 75, paras. 108 and 109.
331 Similarly, Korea's claims under Articles 6.2, 6.4, and 6.9, set out under paragraphs 1 (a)-(c) of its
panel request, pertain to the USDOC's conduct in relation to the Tenaris financial statements.

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give Korean respondents a full opportunity to defend their interests under Article 6.2, to provide
timely opportunities to see relevant information and prepare presentations on the basis of this
information under Article 6.4, or to disclose "essential facts" concerning the acceptance of the
Tenaris data under Article 6.9. Moreover, Korea has expressly argued in these proce edings that
the USDOC's alleged delay in disclosing the communications in question violated Articles 6.4 and
6.9, and has requested us to make a finding in this regard. 332 In light of the foregoing, we reject
the notion that the circumstances surrounding the treatment of the communications in question
are merely evidence in support of a claim of violation of Articles 6.2, 6.4, and 6.9.
7.255. Korea's allegation s in connection with the communications in question constitute an
entirely new claim, based on different f acts and legal arguments, that were not set forth in the
panel request. As discussed above, the USDOC's alleged delay in disclosure of the communications
in question is not covered by the claims set out in Korea's panel request.
7.256. We find that Korea's claim that the USDOC acted inconsistently with Article 6.4 because it
failed to post the communicatio ns i n question to the record in a timely fashion, and failed to
disclose these communications as essential facts pursuant to Article 6.9 falls outside our terms of
reference because it is not set out in Korea's panel request.333 We will therefore make no findings
in this regard.
7.7 Whether the USDOC's decision to limit its examination to NEXTEEL and HYSCO was
inconsistent with Articles 6.10 and 6.10.2 of the Anti-Dumping Agreement
7.257. In the underlying investigation, the USDOC concluded that it would be impracticable to
examine all known exporters and producers of the subject merchandise because of the large
number of exporters or producers involved in the investigation a nd in light of its limited
resources.334 The USDOC selected NEXTEEL and HYSCO as the two mandatory respondents for
examination. Korea claims that the USDOC acted inconsistently with Article 6.10 of the
Anti-Dumping Agreement by limiting its examination to only these two exporters , and also acted
inconsistently with Article 6.10.2 of the Agreement by failing to individually examine the voluntary
respondents.
7.7.1 Provisions at issue
7.258. Article 6.10 of the Anti-Dumping Agreement provides:
The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation. In cases
where the number of exporters, producers, importers or types of products involved is
so large as to make such a determination impracticable, the authorities may limit their
examination either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information available to the
authorities at the time of the s election, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated.
Article 6.10.2 of the Anti-Dumping Agreement further provides:

In cases where the authorities have limited their examin ation, as provided for in this
paragraph, they shall nevertheless determine an individual margin of dumping for any
exporter or producer not initially selected who submits the necessary information in
time for that information to be considered during the c ourse of the investigation,

332 Korea's first written submission, paras. 216, 224, and 277(c)(ii).
333 Panels are not permitted to address legal claims falling outside their terms of reference. The terms of
reference of a panel define the scope of the dispute. (Appellate Body Report, Mexico – Anti-Dumping Measures
on Rice, para. 152). Pursuant to Article 7.1 of the DSU, a panel's terms of reference are governed by the
request for the establishment of a panel. Article 6.2 of the DSU sets forth the requirements applicable to such
requests.
334 USDOC, Antidumping duty investigation of certain oil country tubular goods from the Republic of
Korea: Respondent Selection Memorandum, 26 August 2013 (Respondent Selection Memorandum),
(Exhibit KOR-3), p. 6.

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except 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. Voluntary responses shall not be discouraged.
7.7.2 Factual background
7.259. In the underlying investigation, the USDOC issued a Respondent Selection Memorandum
(Exhibit KOR -3) in which it explained why it considered that the individual examination of all
known Korean exporters would be impracticable. It stated that it was selecting the two Korean
exporters, NEXTEEL and HYSCO which together accounted for the largest volume of subject
imports from Korea into the United States, for individual examination.335 The USDOC also issued a
Treatment of Voluntary Re spondents Memorandum (Exhibit KOR -50) in the underlying
investigation, in which it explained why it would be unduly burdensome to individually examine
voluntary respondents, i.e. exporters other than NEXTEEL and HYSCO which submitted voluntary
responses to the USDOC questionnaire.336
7.7.3 Main arguments of the parties
7.260. Korea makes two main arguments under Article 6.10. First, Korea argues that the USDOC
did not provide a reasoned explanation as to why it would be impracticable to examine all known
exporters, and fu rther, why it would be practicable to examine only two exporters. 337 Second,
Korea notes that where it is impracticable to examine all known exporters, Article 6.10 permits an
investigating authority to limit its examination to either : (a) a reasonable number of interested
parties or products by using samples which are statistically valid on the basis of information
available to the investigating authority at the time of the selection (first method) or, in the
alternative; (b) the largest percentage of the volume of exports from the country in question which
can reasonably be investigated (second method). Korea asserts that the USDOC relied on the first
method in the underlying investigation , but did not properly comply with this method. 338 In
particular, the USDOC failed to explain why only two Korean respondents constituted a reasonable
number of exporters to be examined , and did not limit its examination on the basis of a
statistically valid sample. 339 Regarding its claim under Article 6.10.2, Korea asserts that the
USDOC failed to provide any explanation as to why it would be "unduly burdensome" to
individually examine voluntary respondents.340
7.261. The United States asserts that in its Respondent Selection Memorandum, the USDOC
adequately explained why it would be imp racticable to examine all known exporters. 341 The
United States further submits that the USDOC's record shows that the USDOC relied on the second
rather than the first method for limiting its examination provided for in Article 6.10. 342 According
to the United States, the USDOC fully complied with this second method.
7.262. The United States maintains that the "Treatment of Voluntary Respondents Memorandum"
explained why it would be unduly burdensome to individually examine voluntary respondents in
light of its resource constraints, and thus there is no violation of Article 6.10.2.
7.7.4 Main arguments of the third parties
7.263. The European Union submits that a decision under Article 6.10.2 to not determine
individual dumping margins for voluntary respondents cannot be arbitrary , and the authority must

335 Respondent Selection Memorandum, (Exhibit KOR-3), p. 8.
336 USDOC, Treatment of Voluntary Respondents Memorandum, 30 December 2013, (Exhibit KOR-50),
p. 6.
337 Korea's second written submission, para. 265.
338 Korea's second written submission, para. 273.
339 Korea's first written submission, para. 232; response to Panel question No. 37(a) and (b), para. 128.
340 Korea's first written submission, para. 236.
341 United States' first written submission, paras. 186 and 188.
342 United States' second written submission, para. 58.

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explain why the number of voluntary respondents would make it unduly burdensome to make an
individual examination and prevent the timely completion of the investigation.343
7.7.5 Evaluation by the Panel
7.7.5.1 Article 6.10 of the Anti-Dumping Agreement
7.264. Korea's Article 6.10 claim raises the following two principal issues:
a. Was the USDOC's explanation as to why it would be "impracticable" to examine all
known exporters sufficient to discharge its obligation under Article 6.10?
b. Did the USDOC act incon sistently with Article 6.10 by failing to properly limit its
examination in accordance with one of the methods provided under this provision?
7.7.5.1.1 The USDOC 's determination that it would be "impracticable" to examine all
known exporters
7.265. The first sentence of A rticle 6.10 establishes the general rule that an investigating
authority shall determine an individual margin of dumping for each known exporter or producer of
the product under investigation. However, the second sentence , recognizing that this may not be
possible in all cases, permits an investigating authority to deviate from the general rule where it
would be "impracticable" to do so , and provides for individual examination of a limited number of
exporters. Article 6.10 further provides for two methods o f choosing the limited number of
exporters for individual examination. 344 However, Article 6.10 contains no guidance on how large
the number of exporters must be in order for an investigating authority to limit its examination to
a smaller number. Instead, it specifies that the number of exporters must be "so large" as to make
an individual determination "impracticable". This is necessarily a judgment which must be made by
the investigating authority in each case in which it limits the individual examination, based on the
relevant facts and circumstances.
7.266. In the underlying investigation, the USDOC provided the following explanation as to why it
would be impracticable to examine all known exporters of the product under investigation345:
Because of the large numbe r of known exporters or producers involved in this
investigation, and after careful consideration of our resources, we conclude that it
would not be practicable in this antidumping duty investigation to examine all known
exporters and producers of the subj ect merchandise as identified in the Petition and
the CBP import data. Antidumping and Countervailing Duty (AD/CVD) Operations
Office 7, the office to which this antidumping duty investigation is assigned, does not
currently have the resources to examine a ll such exporters or producers. We find that
the number of potential respondents identified in the CBP data is large relative to the
resources available to AD/CVD Operations Office 7 and Import Administration that can
be dedicated to the investigation. Thi s office is conducting numerous concurrent
antidumping duty proceedings, which place a constraint on the number of analysts
that can be assigned to this case. Not only do these other cases present a significant
workload, but the deadlines for a number of t he cases coincide or overlap with
deadlines in this antidumping proceeding. In addition, because of the significant
workload throughout Import Administration, we do not anticipate receiving additional
resources to devote to this antidumping proceeding.346
Thus, the USDOC's decision to limit the individual examinations was based on the following
considerations: (a) there were a large number of exporters or producers involved in the underlying
investigation; and (b) the USDOC lacked the resources to examine all such exporters or producers,
considering that the relevant office was conducting numerous concurrent anti -dumping

343 European Union's third-party submission, para. 84.
344 See, e.g. Panel Report, EC – Salmon (Norway), para. 7.162.
345 Respondent Selection Memorandum, (Exhibit KOR-3), pp. 6 and 7.
346 Fns omitted.

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proceedings and the deadline for a number of the cases coincided or overlapped with deadlines in
the underlying investigation.

7.267. Korea contends that the USDOC did not provide a reasoned and adequate explanation as
to why the number of exporters was so large so as to render individual examination of all these
exporters impracticable. 347 Korea also asserts that the USDOC 's resource constraints do no t
evidence the existence of "any extraordinary circumstances" in the underlying investigation
considering that such constraints are faced by investigating authorities on a regular basis. 348 In
Korea's view, institutional resource constraints are not unique t o the investigation at issue and
cannot be the basis for a conclusion that it is impracticable to examine all known exporters or
producers. Finally, Korea submits that the USDOC did not explain why it would be impracticable to
examine more than two respond ents, which Korea contends is required by Article 6.10.349 We are
not persuaded by these arguments.
7.268. First, Korea itself acknowledges that the USDOC explained that the number of exporters
was large relative to the resources at its disposal. 350 Whether or not Korea agrees with the
explanation, it is clear that the USDOC did explain its conclusion that the number of exporters was
so large so as to render individual examination of all of them impracticable. It is not clear to us,
and Korea does not explain, what else the USDOC could have said in this regard.
7.269. Second, nothing in the text of Article 6.10 supports Korea's position that an investigating
authority may limit individual examination only when "extraordinary circumstances" exist. In our
view, the text is clear that the trigger for limiting individual examination is the existence of a large
number of exporters . Article 6.10 contains no mention of extraordinary circumstances as a
relevant consideration, and we see no basis to read such a consideration into the text. Similarly,
nothing in Article 6.10 suggests that examination of all exporters may only be found to be
"impracticable" for reasons that are unique to the investigation at issue. The text of Article 6.10
simply does not support Korea's position that institutional resource constraints, of the kind cited by
the USDOC, cannot be a ground for such limited examination.351
7.270. Our conclusion is consistent with the views of the panel in EU – Footwear (China) on an
analogous question . There the panel was considering whether, under Article 6.10.2 of the
Anti-Dumping Agreement, an investigating authority was justified in citing institutional resource
constraints and administrative burden as the reason why it would be "unduly burdensome" to
examine voluntary responses f iled by exporters who were not selected for individual examination.
That panel concluded as follows352:
These are precisely the criteria set forth in Article 6.10.2 which an investigating
authority may cite in order to justify declining to grant individual e xamination
requests. To the extent China is arguing that it would not, in fact, have been unduly
burdensome, and that the Commission could, and should, have allocated its available
resources so as to enable it to undertake the individual examinations reque sted, we
reject China's argument. Even assuming China is correct that the Commission had
sufficient resources, and/or could have allocated its available resources differently, we
consider that it would be entirely inappropriate for us to interfere in this manner in an
investigating authority's conduct of anti-dumping investigations.
7.271. Article 6.10.2 is drafted differently from Article 6.10 , allowing voluntary responses to not
be examined if to do so would be "unduly burdensome". Article 6.10, on the other ha nd, allows
limited examination if it is impracticable to examine all known exporters. However, the underlying
rationale of the panel's finding in EU – Footwear (China) applies here as well. In particular, both
provisions permit some flexibility in examinin g a limited subset of all exporters of the product

347 Korea's second written submission, para. 267.
348 Korea's second written submission, para. 267.
349 Korea's second written submission, para. 265.
350 Korea's second written submission, para. 267.
351 Indeed, it would seem to us that this is the most likely reason for an investigating authority to
consider examining all known exporters to be impracticable, given that an anti-dumping investigation is
complex and must be completed within 12 months, as a rule, and no more than 18 months in any case, under
Article 5.10.
352 Panel Report, EU – Footwear (China), para. 7.146.

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under investigation in certain circumstances. Indeed, we see no reason why institutional resource
constraints are not equally valid as a basis for a limited examination under Article 6.10 as they are
for not examining voluntary respondents under Article 6.10.2. Thus, we consider that the USDOC's
reliance on institutional resource constraints as the reason why it was impracticable to examine all
known exporters was not inconsistent with Article 6.10.
7.272. Finally, we see nothing in the first sentence of Article 6.10 that would impose an obligation
on an investigating authority to specifically explain why it would be impracticable to examine more
than a particular number of respondents, in this case two. The second sentence of Article 6.10
consists of two parts, with the first specifying the circumstances in which it may be impracticable
to examine all known exporters (the number is "so large") , and the second setting out the
methods for choosing the exporters to be individually examined when not all are examined. We
consider that the second part of the second sentence, rather than the first part , is relevant to the
number of exporters to be selected for limited examination. If the investigating authority selects
the exporters subject to individual examination in a manner consistent with the methods
prescribed in the second part of the second sentence of Article 6.10, we do not see why that
authority would have to provide a separate explanation of why it is practicable to examine only the
number of exporters in the resulting pool . Therefore, we consider that the USDOC was not
required to specifically explain why it was practicable to examine only two exporters, and not
more.
7.273. Thus, for the reasons discussed above, we co nclude that USDOC's explanation on why it
would be impracticable to examine all known exporters of the product under investigation was not
inconsistent with Article 6.10.
7.7.5.1.2 The USDOC's decision to limit its examination to two mandatory respondents
7.274. The second sentence of Article 6.10 sets out two alternative selection methods for an
investigating authority to use in deciding which exporters it will individually examine when it does
not examine all exporters of the product under investigation. First, the invest igating authority may
limit its examination to a reasonable number of interested parties by using samples which are
statistically valid on the basis of information available to that authority at the time of the selection.
Second, and in the alternative, it may limit its examination to the largest percentage of the volume
of exports from the country in question which can reasonably be investigated.
7.275. In connection with the second method, we recall that the panel in EC – Salmon (Norway)
concluded that the volu me of sales 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 the
relevant facts that are before the investigating authority, including the nature and t ype of the
interested parties, the products involved and the investigating authority's own investigating
capacity and resources. 353 We share this understanding of the type s of factors that would be
relevant to considering an investigating authority's complia nce with this second method of
selection provided in Article 6.10 and will apply it in this dispute.
7.276. Before we turn to that question, however, we must resolve a factual question. Korea
maintains that the USDOC relied on the first method, selecting exporte rs for limited examination
on the basis of a statistically valid sample, while the United States asserts that the USDOC relied
on the second method. T he USDOC 's decision is clearly set forth in its Respondent Selection
Memorandum:
In selecting respondents in this antidumping duty investigation, the [USDOC] finds
that, given its limited resources, it is most appropriate to select the exporters or
producers accounting for the largest volume of the subject merchandise that can
reasonably be examined.354
In our v iew, it is undisputable that the USDOC used the second method, selecting producers
accounting for the largest percentage of the volume of exports that it could reasonably investigate,

353 Panel Report, EC – Salmon (Norway), para. 7.188.
354 Respondent Selection Memorandum, (Exhibit KOR-3), p. 7. (emphasis added)

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that is, the two Korean exporters who accounted for the largest volume o f imports of the subject
merchandise into the United States from Korea, during the POI.355

7.277. Notwithstanding the clear statement by the USDOC in this regard, Korea insists that the
USDOC used the first method. Korea asserts that the USDOC selected the number of exporters it
considered it could examine rather than limiting its examination to the largest percentage of the
volume of exports. 356 Korea appears to be of the view that the USDOC used the first method
because it did not state that it could only reasonably investigate X% of the total volume of exports
into the United States and instead stated that it could reasonably investigate the two exporters
who accounted for the largest volume of exports. We disagree. The limited examination allowed for
under Article 6.10 is, necessarily, of exporters, not of a volume of exports. It is self -evident that a
dumping margin cannot be determined for the "largest percentage of the volume of the exports"
from the subject country, but only for exporters which account for that volume of exports.357 This
is what the USDOC did in the underlying investigation. 358 Korea does not dispute that NEXTEEL
and HYSCO were, in fact, the two largest exporters of OCTG into the United States.
7.278. Therefore, we conclude that the USDOC did not act incon sistently with Article 6.10 in this
regard.
7.7.5.2 Article 6.10.2 of the Anti-Dumping Agreement
7.279. In the underlying investigation, certain Korean exporters not selected for individual
examination by USDOC requested such individual examination as voluntary responden ts. The
USDOC did not individually examine any of these voluntary respondents, concluding that to do so
would be unduly burdensome and would inhibit the timely completion of the underlying
investigation.359 Korea asserts that the USDOC's explanation of why i t would be "unduly
burdensome" to individually examine the voluntary respondents was not reasoned and adequate,
and that the USDOC therefore acted inconsistently with Article 6.10.2.
7.280. Article 6.10.2 establishes a general requirement that an investigating authority determine
an individual margin of dumping for any exporter or producer not selected for individual
examination which submits the necessary information in time for it to be considered during the
course of the investigation. However, there is an exception to this general rule. Where the number
of exporters or producers is so large that individual examination would be "unduly burdensome" to
the investigating authority and prevent the timely completion of the investigation, the authority
need not undert ake individual examination of exporters or foreign producers who voluntarily
submit the necessary information. However, Article 6.10.2 does not identify any circumstance in
which, or criteria for determining whether , individual examination of voluntary res pondents would
be unduly burdensome.
7.281. In deciding not to individually examine any of the voluntary respondents, the USDOC
noted the complex factual issues that it had to address in examining the responses filed by the two

355 United States' comments on Korea's response to Panel question No. 77, para. 90.
356 Korea's response to Panel question No. 77, para. 112.
357 We note that Article 9.4 of the Anti-Dumping Agreement establishes a method for determining a
dumping margin for exporters not selected for individual examination under Article 6.10. That method is based
on the dumping margins determined for the exporters which are selected. Pursuant to Article 9.4, the margin
for unexamined exporters cannot exceed either: (a) the weighted average dumping margin of the exporters
selected for limited examination; or (b) where the anti-dumping duty is calculated on the basis of a prospective
normal value, the difference between the prospective normal value of the exporters who are selected for
limited examination, and the export price of those who are not. Thus, it is clear that to apply an anti-dumping
measure in an appropriate amount to unexamined exporters, the investigating authority must determine the
dumping margins for the exporters selected for limited examination (or normal values, in the case of a
prospective normal value system).
358 To the extent Korea is arguing that the USDOC was required to first determine what was the largest
volume of exports of the subject merchandise into the United States it could investigate, and then consider
which exporters accounted for that volume, we see no basis for such sequencing in the text of Article 6.10. In
any event, such a sequence would not work as a selection methodology, since as discussed above, it is
exporters that are examined, not a volume of exports. The impracticability of examining all exporters is a
function of the number of exporters, not of the volume of exports.
359 USDOC, Treatment of Voluntary Respondents Memorandum, 30 December 2013, (Exhibit KOR-50),
p. 7.

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mandatory respondents, observed tha t it had already issued extensive supplemental
questionnaires to the m, and stated that it expected to issue additional ones. 360 The USDOC then
went on to explain why it would be unduly burdensome to examine the voluntary responses filed
by certain Korean respondents:
In addition to the work involved in examining the two mandatory respondents in this
investigation, the [USDOC] has also considered its available resources in light of its
current workload, to determine whether examining Husteel, IUIN and/or SeAH as
voluntary respondents would be unduly burdensome and inhibit timely completion of
the investigation. We note that our workload has not decreased since our selection of
mandatory respondents. AD/CVD Enforcement Office VI, the office to which this
antidumping duty investigation is assigned, is conducting numerous concurrent
antidumping and countervailing duty proceedings, which place a constraint on the
number of analysts that can be assigned to this investigation. Specifically, Office VI is
currently conducting eight investigations and approximately 20 administrative reviews
(some covering multiple companies), one remand proceeding, and one
ant-circumvention inquiry. Not only do these other proceedings present a significant
workload, but the deadlines for a number of these proceedings coincide and/or
overlap with deadlines in this investigation. In light of the significant workload
throughout Enforcement and Compliance, which includes numerous investigations
(including 11 concurrent AD and CVD investigation s on OCTG from various countries),
we do not anticipate receiving additional resources to devote to this proceeding.
The complications presented by this particular investigation have created an additional
burden on the Department's already strained resourc es. As noted above, the
Department is currently handling 11 concurrent AD and CVD investigations on OCTG
from various countries, as well as other numerous AD and CVD investigations and
reviews. Therefore, individual examination of an additional company or companies,
which typically requires multiple rounds of supplemental questionnaires and extensive
analysis in order to calculate accurate weighted -average dumping margins for the
voluntary respondents, would be unduly burdensome and inhibit timely completio n of
this investigation. The Department has already extended the preliminary
determination to the maximum extent allowable by law, based on the significant
challenges posed by the collection and examination of information and data for the
two mandatory respondents. Even with the additional time afforded by a full extension
of the preliminary determination, we would not be able to individually examine an
additional company or companies, because an examination of an additional
respondent would place an additi onal burden on our already strained resources and
present the possibility of additional complex issues. Critically, individual examination
of an additional company or companies would require separate verifications in Korea
and in some cases the United Stat es, which would extend the time required for
overseas travel, as well as the accompanying verification reports and data analysis,
which in turn would add to the Department's burden and further strain its resources.
Each of these steps would place additiona l administrative burden on the Department
and inhibit the timely completion of this investigation. 361
7.282. Thus, the USDOC's conclusion that it would be unduly burdensome to individually examine
the voluntary respondents was based on:
a. complexities unique to the underlying investigation, including c omplexity of legal issues
in the case and administrative issues such as travel time that would be needed for the
verification of the sales records of additional Korean respondents, if selected;
b. time constraints faced by the USDOC , which had already extended the preliminary
determination to the maximum extent allowable under US law; and

360 USDOC, Treatment of Voluntary Respondents Memorandum, 30 December 2013, (Exhibit KOR-50),
p. 6.
361 USDOC, Treatment of Voluntary Respondents Memorandum, 30 December 2013, (Exhibit KOR-50),
pp. 6 and 7. (fns omitted)

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c. resource constraints faced by the USDOC.
7.283. Korea asserts that the USDOC did not provide "any basis" for its conclusion that
examination of additional voluntary respondents would have increased the administrative burden
on its increasingly limited resources .362 As a factual matter, the clear statements set out above
lead us to a different conclusion . In our view, the USDOC did provide the basis on which it made
this conclusion, even if Korea disagrees with that basis.
7.284. Insofar as Korea is challenging the quality of the explanation for the USDOC's conclusion
that it would be unduly burdensome to examine voluntary responses , Korea makes two main
arguments. First, that the USDOC failed to explain why it was unable to examine at least some, if
not all, of the voluntary respondents 363, and second, the reasons cited by the USDOC as to why it
would be unduly burdensome to individually examine the voluntary respondents were "largely
similar" to the reasons cited by USDOC as to why it would be impracticable to examine all known
exporters.364
7.285. First, the USDOC explicitly stated that it could individually examine none of the voluntary
respondents for the reasons it gave. We see no thing in Article 6.10.2 that would require an
investigating authority to explain why it cannot individually examine some voluntary respondents
in a situation where it has decided it cannot individually examine any of them. The explanation f or
why it can individually examine none of them suffices to explain why it cannot individually examine
some of them.
7.286. Second, Article 6.10.2 comes into play "[i]n cases where the authorities have limited their
examination" under Article 6.10, having found that the number of exporters, producers, importers,
or types of products involved is so large as to make individual examination of all of them
impracticable. Therefore, the question whether it would be unduly burdensome to individually
examine voluntary respondents will arise only after an investigating authority has already found it
impracticable to make an individual determination for each known exporter. There may well be
situations where the investigating authority finds it impracticable to examine all known exporters
but does not find it unduly burdensome to examine at least some voluntary responses. Thus, the
Article 6.10.2 question of whether it would be "unduly burdensome" to individually examine
voluntary respondents is separate from, and not answer ed by, the conclusion that it is
"impracticable" to examine all known exporters.
7.287. However, Article 6.10.2 does not preclude that the factual circumstances making it
impracticable to examine all known exporters may also affect whether it would be unduly
burdensome to individually examine voluntary respondents. In both cases, an investigating
authority deviates from the norm, which is to determine an individual margin of dumping for all
known exporters. To us, it is not surprising that a justification for the second deviation, under
Article 6.10.2, may overlap and share elements with the justification for the first deviation under
Article 6.10. Thus, an investigating authority's explanation for why it would be unduly burdensome
to examine voluntary responses w ill not be insufficient merely because of such similarities.
Therefore, we consider that the fact that the USDOC's explanation for why it was unduly
burdensome to individually examine any voluntary respondents also cited time and resource
constraints, and thus was "largely similar" to its explanation for why it was impracticable to
individually examine all known exporters, does not establish any inconsistency with
Article 6.10.2.365
7.288. In any event, the USDOC also considered other elements in concluding that it would be
unduly burdensome to individually examine voluntary respondents , including events that arose
subsequent to the selection of the two mandatory respondents , namely, the challenges it was
facing in examining the ir responses, and time constraints that it would face were it to individually
examine voluntary respondents.

364 Korea's second written submission, para. 280.
365 We note in this regard the views of the panel in EU – Footwear (China), that institutional resource
constraints and administrative burden may be a valid reason for an investigating authority to find it "unduly
burdensome" to individually examine voluntary respondents.

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7.289. In sum, we are not convinced that the USDOC's explanation o f why it would be unduly
burdensome to individually examine the voluntary respondents was not reasoned and adequate,
and insuf ficient to discharge its obligations under Article 6.10.2. The USDOC explained why, in
light of its institutional resource constraints, as well as challenges faced by the USDOC in the
underlying investigation, it was unable to make this individual examinat ion, and we consider that
this explanation was consistent with its obligations under this provision. Therefore, we reject
Korea's claim that USDOC acted inconsistently with Article 6.10.2 of the Anti-Dumping Agreement.
7.7.6 Conclusion
7.290. For the foregoing reasons , we find that Korea has not established that the USDOC acted
inconsistently with Articles 6.10 and 6.10.2 of the Anti-Dumping Agreement.
7.8 Whether the USDOC acted inconsistently with Article 12.2.2 of the Anti -Dumping
Agreement by failing to provide reasons for rejecting certain arguments
7.291. Korea claims that the USDOC acted inconsistently with Article 12.2.2 of the Anti -Dumping
Agreement by failing to provide, either in the public notice, or through a separate report, the
"reasons for the acceptance or rejectio n of relevant arguments or claims made by the exporters
and importers". In particular, Korea contends that the USDOC failed to provide the reasons for the
rejection of the following arguments made by the Korean respondents366:
a. arguments concerning the approp riateness of determining the CV profit rate of the
Korean respondents on the basis of the Tenaris financial statements; and
b. arguments that contradicted the facts based on which the USDOC found NEXTEEL to be
affiliated with Company A and Company B.
7.8.1 Provisions at issue
7.292. Article 12.2.2 of the Anti-Dumping Agreement provides, in pertinent part:
A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and law and reasons
which have led to the imposition of final measures or the acceptance of a price
undertaking, due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall contain the
information described in subparagraph 2.1, as well as the reasons for the acceptance
or rejection of relevant arguments or claims made by the exporters and importers,
and the basis for any decision made under subparagraph 10.2 of Article 6.
7.8.2 Main arguments of the parties
7.293. Korea's principal arguments are set forth below:
a. The USDOC failed to include, in its public no tice, reasons for rejecting relevant
arguments made by Korean respondents regarding the inappropriateness of using the
Tenaris financial data to determine the CV profit for the Korean respondents, in light of
the substantial differences between the companies.367
b. The USDOC failed to address arguments that contradict the facts that it relied upon in
making its determination of affiliation between NEXTEEL, POSCO, Company A , and
Company B.368

366 Korea's first written submission, paras. 228 and 229.
367 Korea's first written submission, para. 228.
368 See, e.g. Korea's first written submission, para. 229.

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7.294. The United States makes the following arguments:
a. If the investigating aut hority does not consider an issue of fact or law to be material to
its determination, Article 12.2.2 does not require it to address that issue in its public
notice.369
b. The USDOC's Issues and Decision Memorandum includes a detailed analysis of the
reasoning behind the USDOC's determination to use the Tenaris financial data in the final
determination.370
c. The Issues and Decision Memorandum and accompanying confidential affiliation
memorandum provide the factual findings that led the USDOC to find that NEXTEEL,
POSCO, Company A , and Company B were associated for the purposes of the
anti-dumping determination.371
7.8.3 Main arguments of third parties
7.295. The European Union considers it undisputed that the Tenaris profit data used to establish a
profit rate, and the findings on affiliation, were "relevant information" and "material" in the
meaning of Article 12.2.372 The main issue is, therefore, whether the USDOC 's reasons for
rejecting or accepting the Korean respondents' arguments were "set forth in sufficient detail". 373 It
notes however, that previous panels have found that where the investigating authority has
contravened a substantive requirement under the Anti -Dumping Agreement, the question of
whether the notice is sufficient under Article 12.2.2 is immaterial.374
7.8.4 Evaluation by the Panel
7.296. Article 12.2.2 of the Anti -Dumping Agreement, and in particular its second sentence,
provides that a public notice of conclusion of an investigation, in case of an affirmative
determination to impose definitive duty, shall contain, or otherwise make available through a
separate report, "the reasons for the acceptance or rejection of relevant arguments or claims
made by the exporters and importers". 375 It is clear on the face of the provision that an
investigating authority is not required to provid e the reasons for rejecting all arguments made by
the exporters and importers , but the "relevant" ones. In addressing Korea's claim under
Article 12.2.2, we will therefore consider:
a. whether these arguments were adequately addressed by the USDOC in the rele vant
documents, in this case, the Issues and Decision Memorandum and the Affiliation
Memorandum376;
b. whether the arguments made by the Korean respondents were "relevant" within the
meaning of Article 12.2.2.
7.297. Article 12.2.2 does not specify the type of argume nts that may be considered "relevant"
within the meaning of this provision. But a clearer understanding of how a WTO panel should

369 United States' first written submission, para. 232 (referring to Appellate Body Report, China – GOES,
370 United States' first written submission, para. 235 (referring to Final Decision Memorandum,
(Exhibit KOR-21), pp. 14-23).
371 United States' first written submission, para. 238.
372 European Union's third-party submission, para. 77 (referring to Panel Report, EU – Footwear (China),
para. 7.844).
373 European Union's third-party submission, para. 77 (referring to Panel Report, China – X-Ray
Equipment, para. 7.472).
374 European Union's third-party submission, para. 75 (referring to Panel Report, EC – Bed Linen,
para. 6.261).
375 In this regard, Article 12.2.2 does not only refer to obligations that apply in case of a public notice of
conclusion in case of an affirmative determination providing for the imposition of a definitive duty, but also
refers to a public notice of suspension of an investigation.
376 There is no dispute between the parties that these are the relevant documents for purposes of our
analysis.

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determine the relevance of an argument in this context emerges when Article 12.2.2 is read as a
whole and in the context of Article 12.2 of the Anti-Dumping Agreement.
7.298. Article 12.2 is the chapeau of Article 12.2.2 and provides guidance for our understanding
of the second sentence of Article 12.2.2. 377 Article 12.2 provides, inter alia, that a public notice of
an affirmative final d etermination shall set forth, or otherwise make available through a separate
report, in sufficient detail , the findings and conclusions reached on all issues of fact and law
considered material by the investigating authority. It is generally understood that an issue of fact
or law considered material by an investigating authority includes any issue that has arisen in the
course of the investigation that must necessarily be resolved by the investigating authority to be
able to reach its determination. 378 Furthermore, the facts that an investigating authority may
consider material to its determinations are circumscribed by the framework of the substantive
provisions of the Anti-Dumping Agreement.379
7.299. Article 12.2.2 elaborates on these obligations. Th us, Article 12.2.2 captures the principle
that those parties whose interests are affected by the imposition of final dumping duties are
entitled to know, as a matter of fairness and due process, the facts, law, and reasons that have led
to the imposition of definitive du ties.380 In particular, the requirement under the first sentence of
Article 12.2.2, that the public notice or the separate report contain "all relevant information on the
matters of fact and law and reasons which have led to the imposition of final measures" ,
establishes a requirement to disclose "relevant" information, including the matrix of facts, law, and
reasons that logically fit together to render the decision to impose final measures. 381 It is by
requiring the disclosure of "all relevant information" in this regard, that Article 12.2.2 seeks to
guarantee that interested parties are able to pursue judicial review of a final determination as
provided in Article 13 of the Anti-Dumping Agreement.382
7.300. Thus, the arguments that are "relevant" under Article 12.2.2 are those that pertain to
issues of facts and law that must be resolved in an investigating authority's decision to impose
final measures. Therefore, in considering the relevance of argument s for purposes of
Article 12.2.2, we will look to whether those ar guments pertain to issues of facts and law that
must be resolved in the investigation at issue and are therefore necessarily material.383
7.301. Article 12.2.2 requires that the investigating authority provide the reasons for the
acceptance or rejection of relevant arguments. In this regard, we agree with the views of the panel
in China – X-Ray Equipment that the reasons for rejecting or accepting such arguments should be
set forth in sufficient detail to allow the exporter or importer to understand why their argume nts
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 WTO law. 384 However, we do not
understand Article 12.2.2 to impose a formalistic obligation to i dentify each and every relevant
argument and explicitly provide the reasons for accepting or rejecting each such argument.
Instead, in our view, the obligation to provide reasons for rejecting or accepting arguments will be
satisfied if the exporter or imp orter could clearly understand how its arguments were treated by
the investigating authority from the explanations given by the investigating authority in resolving
the issue to which they pertain. We now turn to the issue before us.

377 See, e.g. Panel Reports, China – X-Ray Equipment, para. 7.458; and EU – Footwear (China),
para. 7.844.
378 See, e.g. Panel Reports, China – Broiler Products, para. 7.327; and EU – Footwear (China),
para. 7.844.
379 Appellate Body Report, China – GOES, para. 265.
380 Appellate Body Report, China – GOES, para. 258.
381 Appellate Body Report, China – GOES, para. 258.
382 Appellate Body Report, China – GOES, para. 258.
383 Our approach in this regard is consistent with that followed by previous panels which evaluated
specific claims concerning the investigating authority's alleged failure to provide reasons for the rejection of
relevant arguments or claims made by the exporters and importers. (See, e.g. Panel Report, China – X-Ray
Equipment, para. 7.472).
384 Panel Report, China – X-Ray Equipment, para. 7.472.

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7.8.4.1 The USDOC's alleged fa ilure to address the Korean respondents' arguments
concerning the use of the Tenaris profit data
7.302. We recall that i n the underlying investigation, the USDOC determined CV profit for the
Korean respondents on the basis of the profit rate of Tenaris and not th e profit rate of the Korean
respondents. In their submissions to the USDOC, the Korean respondents made several arguments
against the USDOC's use of the Tenaris profit data for CV profit determination , alleging significant
differences between Tenaris and t he Korean respondents, their products, their sales and
production volumes, and their customer bases.
7.303. Korea asserts that the USDOC acted inconsistently with Article 12.2.2 because it failed to
include, in its public notice, any reasons for rejecting releva nt arguments made by the Korean
respondents regarding the inappropriateness of using the Tenaris financial data to determine the
Korean respondents' CV profit rate. Korea argues, in particular, that the USDOC did not provide
reasons for rejecting the Korean respondents' arguments that:
a. OCTG shares more similarities with non -OCTG pipe products than with the OCTG
products sold by Tenaris;
b. the products that the Korean respondents sold in the home market were not physically
similar to those sold by Tenaris;
c. the structure and scale of Tenaris's business operations was so different to that of the
Korean companies as to make Tenaris not comparable to the Korean respondents for
purposes of calculating CV profit;
d. the different position of Tenaris in the distribution chain as compared to the Korean
respondents rendered Tenaris's profit not comparable to the Korean respondents' profits;
and
e. differences in the customer bases of Tenaris and the Korean respondents rendered the
Tenaris profit rates not comparable to the Korean respondents' profit rates.385
7.304. The USDOC stated, in its Final Decision Memorandum , that in selecting a profit from
available record evidence it may not find a profit source that reflects both production and sales in
the home market of the exporting count ry as well as the foreign like product. Its choice of a profit
source would, therefore, depend on factors such as the level of specialization of the foreign like
product, the percentage of sales of the foreign like product or same general category of products,
among others. 386 The USDOC also noted that, in the underlying investigation, it chose to
determine CV profit on the basis of the Tenaris profit data and not the Korean respondents' profit
data for the following reasons: ( a) as OCTG is a specialized prod uct, CV profit needed to be
determined on the basis of a source which most closely reflected the profits pertaining to sales of
OCTG; and (b) the Tenaris profit data is representative of sales of OCTG across a broad range of
geographic markets , while the K orean respondents' profit data reflects profit o n non-OCTG
products that cannot reasonably be considered to fall in the same general category as OCTG.387
7.305. Korea alleges that the USDOC failed to give reasons for rejecting the first of the specific
arguments ab ove. The submissions Korea cites in this regard do not show that the Korean
respondents argued that OCTG shares more similarities with non -OCTG pipe products than with
the OCTG products sold by Tenaris .388 Korea refers to submissions in which the Korean
respondents argued that OCTG and the non -OCTG pipe products that they sold in the home
market fall within the same general category of products. They did not argue, however, that OCTG
is more similar to non -OCTG than it is to the OCTG products sold by Tenaris. 389 Therefore, Korea

386 Final Decision Memorandum, (Exhibit KOR-21), p. 15.
387 Final Decision Memorandum, (Exhibit KOR-21), pp. 21 and 23.
388 Korea's second written submission, para. 324 (referring to HYSCO Rebuttal Brief, 24 June 2014,
(Exhibit KOR-80), pp. 17-21; and NEXTEEL Rebuttal Brief, 23 June 2014, (Exhibit KOR-79) (BCI), pp. 18-21).
389 The Korean respondents did argue that determining "CV profit rate that reflects home market
experience for sales of steel pipe products that is far more representative" than the financial data of

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has not established that the Korean respondents made the argument in question before the
USDOC in the underlying investigation, and we are of the view that Korea has thus failed to
establish a prima facie case of violation of Article 12.2.2 in this respect.
7.306. Korea's second argument is that the Korean respondents presented arguments related to
the alleged lack of comparability between the profit data of Tenaris and the Korean respondents
due to differences in the companies' products, scale of production, position in the distribution chain
and customer bases in support of their view that Tenaris was not an appropriate source for
determination of CV profit of the Korean respondents. The USDOC made the following statements
in this context390:
We believe due to the nature of this product that it is more consistent with the statute
to calculate profit using a company that mainly sells either the identical product or,
alternatively, merchandise that is in the same general category of products. Becau se
Tenaris is an OCTG producer that sells OCTG in significant quantities, and in virtually
every market in which OCTG is sold, we find its average profit experience is
representative of sales of OCTG across a broad range of different geographic markets.
As the profit from its financial statements is predominantly of OCTG, it reflects more
precisely the profit on products identical to the subject merchandise. While we would
prefer to use the financial statements of an OCTG producer that primarily produces
and sells OCTG in Korea, such information is not available. The financial statements of
the six Korean producers ' reflect sales of OCTG almost exclusively to the U.S., and
predominantly sales of non-OCTG pipe products and other non-pipe products.
The USDOC went on to state that it " consider[ed] it important … to have a profit reflective of the
specialized nature of OCTG products", that it had " analyzed the data for all possible CV profit
sources" and the record of the underlying investigation showed that a pr ofit figure from those not
selected would predominantly reflect profit of non -OCTG products that could not reasonably be
considered to be of the same general category of merchandise. It concluded that it was consistent
with US law to calculate profit using a company that mainly produced and sold the merchandise
under consideration, and considering that Tenaris met these criteria, it was using its financial
statements to determine the profit rate of the Korean respondents.391

7.307. In considering whether the USDOC provided reasons for rejecting these arguments, we
will, as stated above, consider whether the Korean respondents were, or should have been able to,
clearly understand from the public notice or report how their arguments were treated by that
authority. In this regard, in our view, it is clear from the USDOC's determination that it considered
that it had to choose between two options: determining CV profit rate on the basis of sources that
met its criteria, i.e. profit of a company that mainly produced and sold the merchandise under
consideration, or alternatively determining CV profit rate on the basis of sources that did not meet
its criteria. The USDOC noted that "[w]hile [it] would prefer to use the financial statements of an
OCTG producer that primarily produce[d] and [sold] OCTG in Korea" that information was not
available. Having decided that it was important to have a "profit reflective of the specialized nature
of OCTG products", and having found that the profit from the Tenaris financial statements was
predominantly of OCTG, the USDOC considered it appropriate to use that data notwithstanding the
alleged lack of comparability between that data and the Korean respondents' profit data . In this
regard, we recall that we are considering whether the USDOC provided reasons for rejecting the
Korean respondents' arguments, and not the substantive consistency of the USDOC's decision with
the Anti -Dumping Agreement. 392 In our view, the USDOC's explanation allowed the Korean
respondents to understand why their arg uments regarding the inappropriateness of determining

companies, such as Tenaris, that have no production or known sales in Korea. However, this is a different
argument from the one that Korea asserts that the Korean respondents made. Here, the Korean respondents
objected to the use of the Tenaris data as a basis for determining CV profit not because the OCTG products
sold by Tenaris were less similar to OCTG than non-OCTG pipe products, as Korea contends they argued, but
because the Tenaris data pertained to OCTG sales outside of Korea. See HYSCO Rebuttal Brief, 24 June 2014,
(Exhibit KOR-80), p. 22; and NEXTEEL Rebuttal Brief, 23 June 2014, (Exhibit KOR-79) (BCI), p. 22.
390 Final Decision Memorandum, (Exhibit KOR-21), p. 21.
391 Final Decision Memorandum, (Exhibit KOR-21), p. 23.
392 We recall that we have found that the USDOC's substantive determination concerning which products
fell within the same general category of products was inconsistent with its obligations under Articles 2.2.2(i)
and (iii).

BCI deleted, as indicated [[***]]

CV profit based on the Tenaris profit data were rejected. We therefore consider that Korea has
failed to demonstrate that the USDOC acted inconsistently with Article 12.2.2 in this regard.393
7.8.4.2 The USDOC's alleged failure to address NEXTEEL's arguments that it was not
affiliated with POSCO, Company A, and Company B
7.308. Korea argues that the USDOC failed to address the following arguments made by
NEXTEEL394:
a. NEXTEEL did not purchase steel coils [[***]] from POSCO395;
b. NEXTEEL's collaboration with POSCO did not create an affiliation because such a
collaboration was part of either joint research projects that were common in the
industry, or a broader national program that involved thousands of companies396; and
c. the USDOC should not have disregarded NEXTEEL's export price to Company A because
this price was reliable.397
7.309. As discussed above, Korea's view that the USDOC failed to address NEXTEEL's argument
that it did not purchase steel coils [[***]] from POSCO is incorrect as a matter of fact. The
USDOC did recognize that NEXTEEL purchased steel coils from sources other than POSCO.398 Thus,
there is no factual basis for Korea's claim.
7.310. We examined Korea's argument that NEXTEEL's collaboration with POSCO did not create
an affiliati on because that collaboration was part of either joint research projects that were
common in the industry, or a broader national program that involved thousands of companies in
evaluating its claim under Article 2.3 of the Anti -Dumping Agreement. We noted that this
argument presumes that association under Article 2.3 may only exist if the associated entities
have an exclusive relationship . However, we concluded that there is no such requirement under
Article 2.3. 399 It follows, in our view , that the USDOC did not have to resolve whether the
relationships in question were exclusive, and therefore the argument was not relevant within the
meaning of Article 12.2.2, and the USDOC was not required to provide reasons for rejecting it.
7.311. Korea has failed to identify any arguments by NEXTEEL before the USDOC that its export
price to Company A was reliable, notwithstanding association in the context of its claim under
Article 12.2.2. Korea refers to NEXTEEL's Supplemental Questionnaire Response, but does not
identify where such arguments were actually made.400 Korea's approach would require the Panel to
review the relevant documents , identify any arguments pertaining to the reliability of the export
price notwithstanding association, and then decide whether the USDOC set out reasons for
rejecting such argument(s) in the relevant documents . This would be tantamount to the Panel
making a case for Korea.401 In our view, Korea has failed to make a prima facie case of violation in
this regard.

393 In this regard, we recall that we found that Korea's panel request does not set out a claim that the
USDOC's determination of CV profit based on the Tenaris profit data does not constitute a "reasonable method"
under Article 2.2.2(iii) and therefore made no findings on the substance of Korea's arguments in that regard.
Whether the USDOC should have considered the Korean respondents' arguments regarding the differences
between Tenaris and the Korean respondents is an issue which goes to the substantive question of whether the
USDOC's choice of the Tenaris profit data as a basis for determining CV profit was consistent with
Article 2.2.2(iii).
394 Korea's response to Panel question No. 76, para. 110.
395 Korea's first written submission, para. 229.
396 Korea's second written submission, para. 328.
397 Korea's second written submission, para. 329 (referring to Company A supplemental questionnaire
responses, 14 March 2014, (Exhibit KOR-89) (BCI)).
398 See paras. 7.160-7.161 above.
399 See para. 7.165 above.
400 Korea's second written submission, para. 329 and fn 227.
401 We recall that in respect of its Article 2.3 claim, Korea referred to specific "evidence" presented by
NEXTEEL that allegedly showed that its export prices to Company A were, in fact reliable. (Korea's second
written submission, para. 245; response to Panel question No. 31, para. 103). However, Korea has not

BCI deleted, as indicated [[***]]

7.8.5 Conclusion
7.312. For the foregoing reasons, we conclude that Korea has not established that the USDOC
acted inconsistently with Article 12.2.2 by failing to provide the reasons for rejecting:
a. an argument that Korea n respondents did not make, i.e. that OCTG shares more
similarities with non-OCTG pipe products than with the OCTG products sold by Tenaris;
b. an argument that Korea failed to identify in these proceedings, i.e. that t he USDOC
should not disregard NEXTEEL's export price to [[***]] because these export prices
were reliable;
c. arguments made by t he Korean respondents concerning the appropriateness of
determining the CV profit rate of the Korean respondents on the basis of the Tenaris
financial statements, in particular:
i. the products that the Korean respondents sold in the home market were not
physically similar to those sold by Tenaris;
ii. the structure and scale of Tenaris's business operation was so different to that of the
Korean companies as to make Tenaris not comparable to the Korean respondents for
purposes of calculating CV profit;
iii. the different position of Tenaris in the distribution chain as compared to the Korean
respondents rendered Tenaris's profit not comparable to the Korean
respondents' profits; and
iv. differences in the customer bases of Tenaris and the Korean respondents rendered
the Tenaris profit rates not comparable to the Korean respondents' profit rates.
d. arguments that contradicted the facts based on which the USDOC found NEXTEEL to be
affiliated with [[***]], and in particular NEXTEEL's arguments that:
i. NEXTEEL did not purchase steel coils [[***]] from POSCO; and
ii. NEXTEEL's collaborations with POSCO did not create an affiliation between them
because they were either joint research projects that were common in the industry,
or were part of a much broader national program that involved t housands of
companies.
7.9 Whether the USDOC acted inconsistently with Article X:3(a) of the GATT 1994 in the
administration of US laws and regulations
7.313. Korea presents two separate factual bases for its claim that the USDOC failed to administer
US laws and regu lations in a uniform, impartial and reasonable manner, as required by
Article X:3(a) of the GATT 1994:
a. First, Korea notes that in its final determination, the USDOC determined the CV profit of
the Korean respondents based on the profits earned by Tenaris, but the profits earned
by this company had no relationship with profits earned in the Korean market. 402 Korea
submits that by determining the profits this way, the USDOC acted contrary to its
"established agency practice" of determining CV profit on the basi s of sources located in
the home market of the exporter or producer under investigation , without providing any
justification for this departure .403 Korea also asserts that the USDOC deviated from this

identified any "arguments" made by NEXTEEL in this regard. If the exporter or the importer does not make an
"argument", the obligation on an investigating authority to provide reasons for accepting or rejecting relevant
"arguments" would obviously not apply.
402 Korea's first written submission, para. 265.
403 Korea's first written submission, paras. 260, 265 and 275.

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practice because of "political influence" exerted by diff erent lobbying groups, including
US lawmakers.404
b. Second, Korea contends that US domestic regulation 19 C.F.R. § 351.301, which
establishes deadlines under the US system for submission of new factual information,
and establish es deadlines for rebuttals for each type of submission, was administered
differently by the USDOC in the underlying investigation than in a parallel investigation
on OCTG from Turkey (Turkish investigation).405
7.9.1 Provisions at issue
7.314. Article X:3(a) of the GATT 1994 provides:
Each contracting party shall administer in a uniform, impartial and reasonable manner
all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of
this Article.
Article X:1 of the GATT 1994, referred to in Article X:3(a), provides:

Laws, regulations, judicial decisions and administrative rulings of general application,
made effective by any contracting party, pertaining to the classification or the
valuation of products for customs purposes, or to rates of duty, taxes or other
charges, or to req uirements, restrictions or prohibitions on imports or exports or on
the transfer of payments therefor, or affecting their sale, distribution, transportation,
insurance, warehousing inspection, exhibition, processing, mixing or other use, shall
be published promptly in such a manner as to enable governments and traders to
become acquainted with them.
7.9.2 Main arguments of the parties
7.315. Korea asserts that Article X:3(a) of the GATT 1994 imposes three independent obligations
on a Member with respect to the administr ation of its laws, regulations, judicial decisions and
administrative rulings of general application (laws and regulations) , namely, to administer them
in a: (a) uniform; (b) impartial; and (c) reasonable manner. Korea contends that the USDOC acted
inconsistently with each of these three obligations because it failed to administer US anti -dumping
laws and regulations in either a uniform or impartial or reasonable manner. Korea presents two
separate factual bases for its claim under this provision, as noted above.
7.316. First, Korea contends that by determining the CV profit of the Korean respondents on the
basis of profits earned by Tenaris, a company which had no production or sales in Korea, the
USDOC failed to administer its laws and regulations in:
a. a uniform manner, because it acted contrary to its established practice of determining
profits on the basis of sources located in the home market of the exporter or producer
under investigation406;
b. a reasonable manner, because it did not have a rational basis to deviat e from this
practice407; and
c. an impartial manner , because, in Korea's view, the USDOC's decision to deviate from
this practice, and accept the Tenaris financial statements for profit determination was
attributable solely to political pressure exerted by diff erent lobbying groups, including
US lawmakers.408

404 Korea's first written submission, paras. 268-273.
405 Korea's response to Panel question No. 78, para. 114; second written submission, para. 345.
406 Korea's first written submission, para. 265.
407 Korea's first written submission, para. 275.
408 Korea's first written submission, para. 275.

BCI deleted, as indicated [[***]]

7.317. Second, Korea contends that the USDOC failed to administer 19 C.F.R. § 351.301 in409:
a. A uniform manner, because in the Turkish investigation, in which the Tenaris financial
statements were also considered as a source for calculating the profit amount, the
USDOC gave the Turkish respondents an opportunity to submit factual comments on this
data410, but failed to provide a similar opportunity to the Korean respondents in the
underlying investigation.411
b. A reasonable manner, because the USDOC provided no reasonable explanation for the
difference in how it dealt with the Tenaris financial statement in the underlying
investigation and in the Turkish investigation.
7.318. The United States contends that Korea does not challenge t he administration of US laws
and regulations, but instead challenges the substance of the USDOC's determination. 412 Therefore,
in the United States' view, Korea's claim in this regard falls outside the scope of Article X :3(a).
With respect to the specific issues raised by Korea, the United States submits:
a. Regarding uniformity:
i. Korea has not shown that the facts in the Turkish inve stigation were similar to
those in the underlying investigation such that the same decisions under
19 C.F.R. § 351.301 were warranted.413
ii. While laws need to be administered uniformly, practice need not, and thus Korea's
argument, which is based on the USDOC's alleged deviation from past practice
concerning determination of profits, must be rejected.414
b. Korea does not provide any evidence to support its view that US laws and regulations
were not applied in an impartial manner, and speculates about the impact of supposed
political pressure on the USDOC's decision.415
c. The United States has shown, through its arguments under Article 2.2.2 of th e
Anti-Dumping Agreement, that the USDOC's decision to use the Tenaris financial
statements to determine CV profit was reasonable.416
7.9.3 Main arguments of the third-parties
7.319. The European Union comments that the nature of issues raised by Korea under
Article X:3(a) of the GATT 1994 can be resolved under the substantive provisions of the
Anti-Dumping Agreement rather than under this provision.417
7.9.4 Evaluation by the Panel
7.9.4.1 Whether the USDOC's alleged deviation from established agency practice for
determining CV profit is within the Panel's terms of reference
7.320. The United States does not contend that the first factual basis of Korea's Article X:3(a)
claim falls outside our jurisdiction. However, whether we have jurisdiction to address this aspect of
Korea's Article X:3(a) c laim is a question that we have to decide for ourselves, even though the
parties did not raise it. Thus, we commence our analysis by addressing this question.

409 Korea does not argue that the USDOC failed to administer 19 C.F.R. § 351.301 in an impartial
manner. (See, e.g. Korea's first written submission, paras. 267-273).
410 Korea's first written submission, paras. 255 and 264.
411 Korea's first written submission, paras. 255 and 264.
412 United States' first written submission, para. 250.
413 United States' first written submission, para. 258.
414 United States' first written submission, para. 257.
415 United States' first written submission, para. 261.
416 United States' first written submission, para. 264.
417 European Union's third-party submission, para. 89.

BCI deleted, as indicated [[***]]

7.321. The first basis of Korea's Article X:3(a) claim asserts that the USDOC deviated from
"established agency practice" of determining CV profit on the basis of sources located in the home
market of the exporter or producer under investigation. We see no reference in Korea's panel
request to this first basis of its claim. Korea's panel request states, in pertinent part:
IV. PROCEDURAL CLAIMS UNDER THE ANTI -DUMPING AGREEMENT AND THE
GATT 1994
Korea further considers that the USDOC's actions taken in the course of its anti -
dumping investigation of Oil Country Tubular Goods from Korea failed to protect the
respondents' due process rights and were otherwise inconsistent with procedural
obligations under the following provisions of the Anti-Dumping Agreement or
GATT 1994:
…
5. Article X:3 of the GATT 1994 because the USDOC permitted petitioners to place
Tenaris SA's financial statements on the record after the expiration of the regulatory
time limit for submission of new factual information, while the USDOC applied its
regulatory deadlines for the submission of new factual information with respect to
other parties and other submissions. Consequently, the USDOC failed to administer its
regulations in a uniform, impartial, and reasonable manner.418
7.322. We recall that Article 6.2 of the DSU requires that a panel request "present the problem
clearly" by plainly connecting the challenged measure with the provision of the covered agreement
claimed to have been infringed , and that the narrative of a panel request functions to explain
succinctly how or why the measure at issue is considered by the complaining Member to be
violating the WTO obligation in question. We also recall that we must determine compliance with
the requirements of Article 6.2 on the merits of each case, considering the panel request as a
whole, and in light of attendant circumstances.
7.323. The narrative part of K orea's panel request, and in particular the first sentence of
paragraph 5 identifies, without qualification, the USDOC's decision to permit the petitioners to
place the Tenaris financial statement s on the record after the expiration of the regulatory
time-limit for submission of "new factual information" , as the basis of Korea's Article X:3(a) claim.
This relates to the second factual basis of Korea's claims, i.e. the allegedly different
administration of 19 C.F.R. § 351.301 in the Turkish and the underlyin g investigation.419 We recall
that 19 C.F.R. § 351.301 establishes rules for the submission of new factual information, and the
second factual basis for Korea's claim relates to the alleged difference in the USDOC's treatment of
what Korea considers to be "n ew factual information" within the meaning of this US domestic
regulation, the Tenaris financial statements , in the two investigations .420 Korea states that
"[c]onsequently", that is, as a consequence of its decision to accept the Tenaris data in the
underlying investigation, the USDOC failed to administer its regulation in a uniform, impartial and
reasonable manner. Thus, Korea connects what it seeks to challenge, the USDOC's application of
regulatory deadlines for the submission of new factual informatio n, with Article X:3 of the
GATT 1994.
7.324. We see no reference in paragraph 5, or in the panel request as a whole, to the USDOC's
alleged deviation from established agency practice of determining profits on the basis of sources
located in the home market of the e xporter under investigation. Korea's panel request ma kes no
reference whatsoever to this factual basis in connecting the conduct or action that it seeks to
challenge with the provisions of Article X :3(a). Therefore, we see no basis to conclude that Korea

418 Emphasis added.
419 This becomes even clearer on reading Korea's first written submission. (Korea's first written
submission, paras. 263 and 275). In addition, Korea stated in its second written submission that it was
challenging, inter alia, the US regulations governing the submission and acceptance of new factual information.
In its response to our questions at the second substantive meeting, it specifically identified this regulation as
19 C.F.R. § 351.301. (Korea's second written submission, para. 344; response to Panel question No. 78,
para. 114).
420 Korea's response to Panel question No. 78, para. 114.

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intended to challenge the USDOC's conduct under Article X:3(a) on this first factual basis , and this
aspect of, Korea's Article X:3(a) claim fall s outside our terms of reference. We will thus limit our
analysis to the second factual basis for Korea's claim.
7.9.4.2 Whether the USDOC failed to administer 19 C.F.R. § 351.301 in a uniform and
reasonable manner
7.325. Korea argues that the USDOC failed to administer 19 C.F.R. § 351.301 in a uniform or
reasonable manner because of differences in the administration of this regul ation in the underlying
investigation and in the Turkish investigation. 421 In particular, in the Turkish investigation, where
USDOC also considered whether to determine the CV profit of the Turkish respondents on the basis
of the Tenaris financial statements , the USDOC explicitly stated that it was "placing [ Tenaris's]
financial statements on the record of the antidumping duty investigation of OCTG from Turkey as a
possible alternative for the calculation of CV profit for the final determination".422 The USDOC went
on to invite all interested parties to submit factual information to rebut, clarify , or correct the
Tenaris financial statements by the stipulated deadline or rebuttal facts , in accordance with
US regulation 19 C.F.R. § 351.301(c)(4).423
7.326. Korea submits t hat, in contrast, in the underlying investigation the USDOC did not place
the Tenaris financial statements "on the record" of this investigation, and did not invite interested
parties to submit r ebuttal facts . Korea asserts that 19 C.F.R. § 351.301 prohibi ted the Korean
respondents from submitting such rebuttal facts until the USDOC conveyed to them a formal
decision placing the Tenaris financial statements "on the record" of the underlying investigation. 424
Therefore, in Korea's view, the USDOC denied an opportunity to the Korean respondents to submit
rebuttal facts in the underlying investigation while granting the respondents in the Turkish
investigation an opportunity to do so.
7.327. The United States asserts that it is not the case that the Tenaris financial statements would
be "on the record" of the underlying investigation only when and if the USDOC notified the
interested parties that these statements were on the record of the investigation. 425 The
United States submits that these statements were on the record of the underlying investigation
once they were submitted, until and unless the USDOC made a decision to remove them.426
Further, the United States argues that Korea's view that the Korean respondents did not have an
opportunity to submit rebuttal facts is in correct, and the respondents did have such an
opportunity.427 The difference between the underlying investigation and the Turkish investigation is
that because of different factual circumstances, the interested parties in the Turkish investigation
had this o pportunity to submit rebuttal facts under US regulation , 19 C.F.R. § 351.301(c)(4),
whereas the Korean respondents in the underlying investigation had this opportunity under
different US regulations, 19 C.F.R. § 351.301 and 19 C.F.R. § 351.301(c)(1)(v).
7.328. There is no dispute between the parties that the Tenaris financial statements were
available to the Korean respondents in the underlying investigation, just as they were available to
the respondents in the Turkish investigation. The dispute is with respect t o whether the Korean
respondents in the underlying investigation had an opportunity to submit rebuttal facts or whether
they were treated differently from the interested parties in the Turkish investigation in this regard.
7.329. The United States explains that in the Turkish investigation, it was the USDOC itself, rather
than an interested party, that introduced the Tenaris financial statements into the record of the
underlying investigation. When the USDOC itself introduces factual information in the record of an
investigation, at any time during the proceeding, US regulation 19 C.F.R. § 351.301(c)(4) requires
it to provide interested part ies one opportunity to submit factual information to rebut, clarify , or

421 Korea's response to Panel question No. 78, para. 114.
422 USDOC, Memorandum of placement of the Tenaris financial statements on the record of the
Turkish OCTG investigation, 12 May 2014, (Exhibit KOR-49).
423 USDOC, Memorandum of placement of the Tenaris financial statements on the record of the
Turkish OCTG investigation, 12 May 2014, (Exhibit KOR-49).
424 Korea's response to Panel question No. 69, para. 93.
425 United States' response to Panel question No. 71, para. 48.
426 United States' response to panel question No. 72, para. 49.
427 United States' response to Panel question No. 72, para. 53.

BCI deleted, as indicated [[***]]

correct that information within a stipulated deadline .428 This is wh at the USDOC did in the
Turkish investigation when it notified interested parties that it had placed the information on the
record and gave them seven days to submit rebuttal facts.
7.330. We recall that the Tenaris financial statements were submitt ed by U.S. Steel in the
underlying investigation, in the context of a rebuttal to information submitted by NEXTEEL in
response to a supplemental questionnaire from the USDOC , pursuant to a different US regulation
19 C.F.R. § 351.301(c)(1)(v) .429 We further recall that, as described in paragraph 7.218 above,
within ten days of the submission of a supplemental questionnaire response, an interested party
other than the submitter of that questionnaire response is permitted, under this regulation, one
opportunity to submit factual information to rebut, clarify , or correct factual information contained
in that questionnaire response. The original submitter of the supplemental questionnaire response
then has an automatic time of seven day s to sur -rebut, clarify , or correct the information
submitted by this interested party. 430 In the underlying investigation, U .S. Steel invoked this
provision and stated that it was submitting the Tenaris financial statement as factual information
to rebut, c larify, or correct information contained in NEXTEEL's Supplemental Questionnaire
Response.431 Thus, NEXTEEL had seven days to provide rebuttal facts .432 There was no need for
the USDOC to solicit rebuttal facts from the Korean respondents . In addition, according to the
United States, HYSCO and other Korean respondents, which were not the original submitters of the
information, could also file rebuttal information, under 19 C.F.R. § 351.301 .433 However, neither
NEXTEEL nor any other Korean respondent took advantag e of this opportunity by making any
submissions in this regard.
7.331. Therefore, the United States maintains that the interested parties in the two
investigations had the same opportunity to submit rebuttal facts , albeit under different
US regulations. Hence, in the United States' view, there was no differential treatment . Korea does
not dispute the United States' description of the requirements under 19 C.F.R. § 351.301(c)(4)
and 19 C.F.R. § 351.301(c)(1)(v)434, but denies that NEXTEEL or other Korean respondents had
an opportunity to submit rebuttal facts under those provisions. Korea also states that
19 C.F.R. § 351.301 only permits parties to present arguments that the record is deficient, and
does not permit parties to submit unsolicited factual information, bu t does not present evidence in
support of this view.
7.332. Korea acknowledges that the USDOC did not decline to accept any rebuttal facts proffered
by Korean respondents by citing these regulations.435 Korea does not challenge the US regulations
per se , but only t he alleged different application in this case . Yet, because it is clear that the
USDOC did not in fact apply these regulations to prevent Korean respondents from making rebuttal
facts436, Korea apparently bases its argument on an assumption that had the Korean respondents
sought to submit such facts , the USDOC would have invoked 19 C.F.R. § 351.301 and rejected it.
Moreover, Korea proffers no evidence to demonstrate that 19 C.F.R. § 351.301 prohibited the
Korean respondents from submitting such rebuttal facts until the USDOC conveyed to them a
formal decision to place the Tenaris financial statements on the record of the underlying
investigation. We cannot find a violation of Article X:3(a) of the GATT 1994 on the basis of Korea's
counter-factual assumption of how a domestic regulation might have been applied.

428 United States' response to Panel question No. 72, para. 52.
429 United States' response to Panel question No. 72, para. 51.
430 United States' response to Panel question No. 72, para. 51.
431 United States' response to Panel question No. 72, para. 51.
432 United States' response to Panel question No. 72, para. 51.
433 See, e.g. United States' response to Panel question No. 70, para. 47.
434 However, Korea asserts that 19 C.F.R. § 351.301(c)(1)(v) was not applicable in the underlying
investigation.
435 Korea's response to Panel question No. 69, para. 102.
436 Korea argues that if it were to submit factual information on Tenaris within the seven day
sur-rebuttal period granted under 19 C.F.R. § 351.301(c)(1)(v), that would be tantamount to acknowledging
that the Tenaris financial statements were "on the record" and therefore, subject to sur-rebuttal. (Korea's
response to Panel question No. 69, para. 99). This suggests to us that NEXTEEL did have an option to
submit factual information on Tenaris but chose not to submit it. This undermines Korea's argument that
19 C.F.R. § 351.301(c)(1)(v) prohibited NEXTEEL from filing factual information on Tenaris.

BCI deleted, as indicated [[***]]

7.333. The fact that the opportunity to provide rebuttal facts was available to interested parties
under different US domestic regulations in the Turkish and in the underlying investigation does not
establish that the Korean respondents in the underlying investigation were treated differently from
the interested parties in the Turkish investigation . On the basis of the foregoing , we conclude that
Korea has not shown that the USDOC failed to administer 19 C.F.R. § 351.301 in a uniform or
reasonable manner.
7.9.5 Conclusion
7.334. For the foregoing reasons, we conclude that:
a. Korea's claim under Article X:3(a) of the GATT 1994 that the USDOC failed to administer
US laws and regulations in a uniform, impartial and reasonable manne r because it acted
contrary to its established agency practice of determining CV profit on the basis of
sources located in the home market of the exporter or producer under investigation, and
because this decision was attributable to political influence, f alls outside our terms of
reference and we make no findings in that regard.
b. Korea has not established that the USDOC acted inconsistently with Article X:3(a) of the
GATT 1994 because it failed to administered its domestic regulation 19 C.F.R. § 351.301
in a uniform or reasonable manner.
7.10 Consequential claims under Articles 1, 9.3 , and 18.4 of the Anti -Dumping
Agreement, Article VI of the GATT 1994, and Article XVI:4 of the WTO Agreement
7.335. Korea claims that as a consequence of the USDOC's violation of the subst antive and
procedural obligations set out in the Anti -Dumping Agreement, the United States also acted
inconsistently with Articles 1, 9.3 , and 18.4 of the Anti -Dumping Agreement. 437 In particular,
Korea argues that the USDOC acted inconsistently with:
a. Article 1 of the Anti -Dumping Agreement because it failed to ensure that the underlying
investigation was initiated and conducted in accordance with this Agreement;
b. Article 9.3 of the Anti -Dumping Agreement because the margin of dumping determined
by the USDOC w as inconsistent with Articles 2.2, 2.2.1.1, 2.2.2, 2.3 , and 2.4 of this
Agreement, and thus the anti -dumping duty imposed by the USDOC was necessarily in
excess of a margin of dumping determined consistently with Article 2 of this Agreement;
and
c. Article 18.4 of the Anti -Dumping Agreement because by maintaining the "viability test",
which is inconsistent with Article 2.2 of the Anti -Dumping Agreement, the USDOC failed
to take all necessary steps, to ensure the conformity of its laws, regulations and
administrative procedures with the provision of this Agreement.
In addition, Korea claims that because the USDOC acted inconsistently with the Anti -Dumping
Agreement, it acted inconsistently with Article VI of the GATT 1994. 438 Further, as consequence of
this, the USDOC also acted inconsistently with Article XVI:4 of the WTO Agreement. 439 The
United States requests that we reject each of Korea's consequential claims.

7.336. We reach the following conclusions regarding Korea's claims under Articles 1, 9.3, and
18.4 of the Anti-Dumping Agreement:
a. Having found substantive violation s of Articles 2.2.2, 2.2.2(i) , and 2.2.2(iii) of the
Anti-Dumping Agreement, we do not find it necessary to address Korea's consequential
claims under Articles 1 and 9.3 of the Anti -Dumping Agreement to secure a positive
resolution to this dispute, and we therefore exercise judicial economy on these claims.

437 Korea's first written submission, paras. 238-241.
438 Korea's first written submission, para. 243.
439 Korea's first written submission, para. 244.

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b. Korea's consequential claim under Article 18.4 of the Anti -Dumping Agreement is
dependent on a finding that the "viability test" is inconsistent w ith Article 2.2 of the
Anti-Dumping Agreement. Having found that the "viability test" is not inconsistent with
Article 2.2 of the Anti -Dumping Agreement , there is no basis for a finding of a
consequential violation of Article 18.4, and we reject Korea's claim.
7.337. With respect to Korea's claim under Article VI of the GATT 1994, Korea simply asserts that
the USDOC acted inconsistently with Article VI of the GATT 1994 , without identifying either in its
panel request or in its written submissions the specific par agraphs or the specific obligations under
these paragraphs that it seeks to challenge. 440 We would expect Korea, as the complainant in this
dispute, to identify the specific obligations in Article VI it considers the United States has violated.
We cannot mak e a finding of a consequential violation of Article VI of the GATT 1994 in general.
Moreover, we decline to attempt to parse Korea's claims so as try to identify which obligations in
Article VI may be violated as a consequence of findings of violation base d on Korea's claims. This
is a task for Korea, which it has failed to undertake. Therefore, we reject Korea's consequential
claim under Article VI of the GATT 1994.441
7.338. Considering that Korea's consequential claim under Article XVI :4 of the WTO Agreement is
contingent on a finding of violation of Article VI of the GATT 1994, which we have rejected, we
similarly reject Korea's consequential claim under Article XVI:4 of the WTO Agreement.
7.11 Korea's claim under Article I:1 of the GATT 1994
7.11.1 Provision at issue
7.339. Article I:1 of the GATT 1994 provides that:
With respect to customs duties and charges of any kind imposed on or in connection
with importation or exportation or imposed on the international transfer of payments
for imports or exports, and with respect to the me thod of levying such duties and
charges, and with respect to all rules and formalities in connection with importation
and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of
Article III, any advantage, favour, privilege or imm unity 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.
7.11.2 Main arguments of the parties
7.340. Korea asserts that the USDOC acted inconsistently with Article I :1 of the GATT 1994
because its relatively lenient treatment of the exporters and foreign producers from countries that
were subject to parallel USDOC investigation s on OCTG as compared to the exporters and foreign
producers from Korea resulted in an "advantage, favour, privilege or immunity" that was not
granted to OCTG originating in Korea.442
7.341. The United States submits that Korea's claim is based on bare allegations of different
actions in different anti-dumping proceedings, and cannot succeed on this basis.443
7.11.3 Main arguments of the third parties
7.342. The European Union anticipates that the matters raised by Korea may be resolved by
addressing Korea's claims under Article VI of the GATT 1994 and the Anti -Dumping Agreement
without having to address these matters under Article I:1 of the GATT 1994.444

440 See, e.g. Korea's first written submission, paras. 245-256.
441 In this regard, we are aware that some other WTO panels appear to have found consequential
violations under Article VI, as a whole, without identifying the specific obligation that has been violated. (See,
e.g. Panel Reports, China – HP-SSST (Japan) / China – HP-SSST (EU), para. 7.336; and Canada – Welded Pipe,
para. 7.223). We are not persuaded, however, that a similar approach is warranted in the present case.
442 Korea's first written submission, para. 253.
443 United States' first written submission, para. 241.

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7.11.4 Evaluation by the Panel
7.11.4.1 Whether Korea's claims under Article I :1 of the GATT 1994 is within our terms
of reference
7.343. The United Stat es has raised an objection to the Panel's jurisdiction over aspects of this
claim. Thus, we commence our analysis by addressing this question.
7.344. We recall that Article 6.2 of the DSU requires that a panel request "present the problem
clearly" by plainly connecting the challenged measure with the provision of the covered agreement
claimed to have been infringed , and that the narrative of a panel request functions to explain
succinctly how or why the measure at issue is considered by the complaining Member to be
violating the WTO obligation in question. We also recall that we must determine compliance with
the requirements of Article 6.2 on the merits of each case, considering the panel request as a
whole, and in light of attendant circumstances.
7.345. In its panel request, Korea presented its claim under Article I of the GATT 1994 as follows:
IV. PROCEDURAL CLAIMS UNDER THE ANTI -DUMPING AGREEMENT AND THE
GATT 1994
Korea further considers that the USDOC's actions taken in the course of its anti -
dumping investigation o f Oil Country Tubular Goods from Korea failed to protect the
respondents' due process rights and were otherwise inconsistent with procedural
obligations under the following provisions of the Anti-Dumping Agreement or
GATT 1994:
…
4. Article I of the GATT 1994 because, inter alia , the USDOC expressly provided
interested parties in its investigation of OCTG produced in other subject countries an
opportunity to defend their interests by responding to the placement of Tenaris SA's
financial statements on the record. Because the Korean respondents were not granted
an opportunity to present submissions responding to Tenaris SA's financial
statements, the USDOC's actions resulted in less [favourable] treatment of OCTG from
Korea compared to like products originati ng from other countries under
investigation.445
7.346. In its first written submission, Korea states that the USDOC acted inconsistently with
Article I:1 of the GATT 1994 because:
a. The underlying investigation was the only one in which the USDOC required
questionnaire responses and on -site verification of companies that were not named as
respondents, or identified as affiliates.446
b. The questionnaires issued to the Korean respondents were far more extensive than the
questionnaires issued to the respondents in any of the other OCTG investigations,
although the product at issue as well as the factors that the USDOC considered in
reaching its final determination were largely identical.447
c. In the Turkish investigation, the USDOC provided the interested parties with an
opportunity to respond to the Tenaris financial statements whereas it refused to provide
a similar opportunity to the Korean respondents in the underlying investigation.448

444 European Union's third-party submission, para. 87.
445 Underlining original; italics added.
446 Korea's first written submission, para. 253.
447 Korea's first written submission, para. 253.
448 Korea's first written submission, para. 256.

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7.347. It is clear to us, reading the narrative section of the panel request, in particular, the
chapeau to Section IV and paragraph 4, that Korea intended to challenge the USDOC's conduct on
the basis set out in subparagraph (c) above. However, it is not clear to us, reading this panel
request, that Korea also intended to challenge the USDOC's conduct o n the basis specified in
subparagraphs (a) and (b). The United States contends that Korea is precluded from challenging
the USDOC's conduct on these bases, because its panel request makes no reference to them.449
7.348. Korea's GATT Article I:1 claim is set out in paragraph 4 of Section IV of its panel request.
Korea sets out a series of procedural claims in Section IV, related to different actions taken by the
USDOC in the course of the underlying investigation. In the first sentence of paragraph 4, Korea
states th at the USDOC acted inconsistently with Article I of the GATT because "inter alia" it
expressly provided the interested parties in its investigation s on OCTG produced in other subject
countries an opportunity to defend their interests by responding to the p lacement of the Tenaris
financial statements on the record. Korea contends that the use of the phrase "inter alia" in this
paragraph makes it clear that it did not intend to challenge the USDOC's action or conduct on this
basis alone, and therefore the oth er two aspects of its claim argued in its written submissions are
also within the Panel's terms of reference.
7.349. We are not persuaded that the use of "inter alia" in this context entitles Korea to challenge
any and all actions of the USDOC in the underlying investigation when its panel request specifically
refers to one aspect of the USDOC's conduct, the allegedly differential treatment accorded to the
Korean respondents by not providing them an opportunity to respond to the Tenaris financial
statement. In par ticular, we note that the USDOC conduct referred in subparagraphs (a) and (b)
above is not the conduct challenged in subparagraph (c). In subparagraph (a) Korea challenges
the USDOC's decision to ask for questionnaire responses from specific entities. In
subparagraph (b), Korea challenges the scope of the USDOC's questionnaire s in the underlying
investigation. Neither of these two aspects of the USDOC's conduct have anything to do with the
USDOC's alleged failure to provide the Korean respondents with an op portunity to respond to the
Tenaris financial statements.
7.350. Furthermore, in the second sentence of paragraph 4, unlike the first, Korea did not use the
phrase "inter alia". Instead, Korea stated, without any qualification, that "[b]ecause" the Korean
respondents were not granted an opportunity to present submissions responding to the
Tenaris financial statements, the USDOC's actions resulted in "less [favourable] treatment" of
OCTG from Korea. Thus, Korea connected the specific conduct of the USDOC that it was seeking to
challenge with the alleged violation of Article I:1 of the GATT 1994. Considering that the basis on
which Korea presented its claim under Article I:1 of the GATT 1994 in its panel request is distinctly
different from the bas es it presents in its written submission, it seems clear to us that Korea has
attempted to expand its claims beyond the scope of its panel request. Korea cannot bring claim s
under Article I :1 of the GATT on wholly new bas es not even alluded to in its request for
establishment.
7.351. Therefore, we conclude that Korea's claims challenging the USDOC's actions referred in
subparagraphs (a) and (b) above fall outside our terms of reference , and we will not address
them.
7.11.4.2 The USDOC's alleged denial of a n opportunity for the Korean respo ndents to
comment on the Tenaris financial statements
7.352. Korea contends that the USDOC acted inconsistently with Article I :1 of the GATT 1994
because it discriminated against the Korean respondents by providing the interested parties in the
Turkish investigat ion an opportunity to comment on the Tenaris financial statements , while
denying that opportunity to the Korean respondents in the underlying investigation .450 The factual
basis of this claim is the same as that of Korea's claim under Article X:3(a) of the GATT 1994, that
the USDOC failed to administer 19 C.F.R. § 351.301 in a uniform or reasonable manner in the
Turkish and underlying investigations.

449 United States' comments on Korea's response to Panel question No. 79, para. 99.
450 Korea's first written submission, paras. 254 and 255.

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7.353. We concluded above that Korea has not established the factual basis of its claim that the
USDOC discriminated against the Korean respondents by denying them an opportunity to provide
rebuttal facts while providing that opportunity to the interested parties in the Turkish
investigation.451 Considering that Korea's Article I :1 claim rests on the same factual basis, we
conclude that Korea has also failed to establish the factual basis of its claim under Article I:1 of the
GATT 1994. Therefore, we reject Korea's claim under Article I:1 of the GATT 1994.452
7.11.5 Conclusion
7.354. For the foregoing reasons, we conclude that Korea's claims that the USDOC acted
inconsistently with Article I:1 of the GATT 1994 because : (a) the underlying investigation was the
only one in which the USDOC required questionnaire responses and on-site verification of
companies that were not named as respondents , or identified as affiliates ; and (b) t he
questionnaires issued to the Korean respondents were far more extensive than the questionnaires
issued to the respondents in any of the other OCTG investigations, although the product at issue
as well as the facto rs that the USDOC considered in reaching its final determination were largely
identical, are not within our terms of reference.
7.355. We also conclude that Korea has not established that the USDOC acted inconsistently with
Article I:1 of the GATT 1994 by discriminating against the Korean respondents because it gave
interested parties in the Turkish investigation an opportunity to comment on the Tenaris financial
statements but denie d such an opportunity to the Korean respondents in the underlying
investigation.
8 CONCLUSIONS AND RECOMMENDATIONS
8.1. For the reasons set forth in this Report, we conclude that the United States acted
inconsistently with:
a. the chapeau of Article 2.2.2 of the Anti-Dumping Agreement because the USDOC did not
determine CV profit of the Korean re spondents based on actual data pertaining to their
sales of the like product in the home market;
b. Articles 2.2.2(i) and (iii) of the Anti -Dumping Agreement because the USDOC relied on
an impermissibly narrow definition of the "same general category of produ cts" in
concluding it could not determine CV profit under Article 2.2.2(i) and in concluding it
could not calculate the profit cap required by Article 2.2.2(iii);
c. Article 2.2.2(iii) of the Anti -Dumping Agreement because the USDOC failed to calculate
and ap ply a profit cap as required by that provision, and as a consequence acted
inconsistently with Article 2.2 of the Anti -Dumping Agreement by failing to use a
reasonable amount for profits in the construction of normal value for the
Korean respondents.
8.2. For the reasons set forth in this Report, we conclude that Korea has failed to demonstrate
that the United States acted inconsistently with:
a. Article 2.2 of the Anti-Dumping Agreement "as such" and "as applied" in connection with
the "viability test";

451 See paras. 7.332-7.333 above.
452 In this regard, we note that the Appellate Body in EC – Fasteners (China) stated that in determining
whether there was a violation of Article I.1 of GATT 1994, the panel should have considered, as part of its legal
analysis, whether and under what circumstances an anti-dumping measure that is inconsistent with the
Anti-Dumping Agreement may be reviewed under Article I.1 of the GATT 1994 in the absence of a review
under Article VI of the GATT 1994. (Appellate Body Report, EC – Fasteners (China), para. 395). We have
concluded that Korea has not established the factual basis of its claim under Article I:1 and thus do not find it
necessary to conduct this legal analysis in this particular case.

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b. Article 2.3 of the Anti -Dumping Agreement in connection with the USDOC's construction
of NEXTEEL's export price where it appeared to the USDOC that NEXTEEL's export price
was unreliable because of association;
c. Article 2.2.1.1 of the Anti-Dumping Agreement in connection with the USDOC's rejection,
for the purpose of constructing the normal value, of the price at which NEXTEEL
purchased steel coils from POSCO;
d. Article 6.2 of the Anti-Dumping Agreement in connection with the absence of notification
by the USDOC to the K orean respondents , until its final determination, that it had
accepted the Tenaris financial statements on the record;
e. Article 6.4 of the Anti-Dumping Agreement in connection with the absence of notification
by the USDOC to the Korean respondents until its final determination that it had
accepted the Tenaris financial statements on the record and that it was using these
statements in determining CV profit;
f. Article 6.9 of the Anti -Dumping Agreement in connection with the absence of disclosure
as an essential fact of the USDOC's decision to accept the Tenaris financial statements
on the record and its reliance on the Tenaris financial statements to determine CV profit;
g. Article 6.10 of the Anti -Dumping Agreement in connection with the USDOC's conclusion
that and explanation why it would be impracticable to examine all known exporters and
why it was limiting its examination to two exporters;
h. Article 6.10.2 of the Anti -Dumping Agreement in connection with the USDOC 's
conclusion that and explanation why it would be unduly burdensome to individually
examine voluntary respondents;
i. Article 12.2.2 of the Anti -Dumping Agreement in connection with the USDOC's reasons
for rejecting certain arguments;
j. Article X:3(a) of the GATT 1994 in connection with the USDOC 's administra tion of
USDOC regulation 19 C.F.R. § 351.301;
k. Article I:1 of the GATT 1994 in connection with the treatment of interested parties in the
Turkish investigation and the treatment of the Korean respondents in the underlying
investigation regarding the opportunity to comment on the Tenaris financial statements;
l. Article 18.4 of the Anti-Dumping Agreement as a consequence of the alleged violation of
Article 2.2 of the Anti-Dumping Agreement in connection with the "viability test";
m. Article VI of the GATT 1994 as a consequence of alleged violations of the Anti-Dumping
Agreement; and
n. Article XVI :4 of the WTO Agreement as a consequence of alleged violations of the
Anti-Dumping Agreement and Article VI of the GATT 1994.
8.3. For the reasons set forth in this Report , we find that the following claims asserted by Korea
fall outside our terms of reference, and thus do not consider them:
a. alleged violation of Article 2.2.2(iii) of the Anti-Dumping Agreement because the USDOC
failed to use a reasonable method to determine the CV profit rate of the Korean
respondents by basing this profit rate on the Tenaris financial statements;
b. alleged violation of Article 6.4 of the Anti-Dumping Agreement because the USDOC failed
to post certain communications to the record in a timely fashion;
c. alleged violation of Article 6.9 of the Anti -Dumping Agreement because it failed to
disclose these communications as essential facts;

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d. alleged violation of Article X:3(a) of the GATT 1994 because the USDOC failed to
administer US laws and regulations in a uniform, impartial and reasonable manner by
acting contrary to its established agency practice of determining CV profit on the basis of
sources located in the home market of the exporter or producer under investigation, and
because this decision was attributable to political influence;
e. alleged violation of Article I:1 of the GATT 1994 because : (a) the underlying
investigation was the only one in which the USDOC required questionnaire responses
and on-site verification of companies that were not named as res pondents, or identified
as affiliates; and (b) the questionnaires issued to the Korean respondents were far more
extensive than the questionnaires issued to the respo ndents in any of the other
OCTG investigations.
8.4. For the reasons set forth in this Report, we find the USDOC's remand determination falls
outside our terms of reference and therefore we do not consider Korea's claims in connection with
it.
8.5. For the reasons set forth in this Report, we exercise judicial economy with respect to Korea's
claims that the USDOC acted inconsistently with:
a. the chapeau of Article 2.2.2 of the Anti-Dumping Agreement because the USDOC did not
determine CV profit of the Korean respondents based on actual data pertaining to their
sales of the like product in third-country markets;
b. Article 2.4 because the USDOC did not make a fair comparison between the export price
and the constructed normal value b y failing to make du e allowance for the
significant differences between the profit rates of the Korean respondents and that of
Tenaris; and
c. Articles 1 and 9.3 of the Anti -Dumping Agreement as a consequence of substantive
violations of Articles 2.2.2, 2.2.2(i), and 2.2.2(iii) of the Anti-Dumping Agreement.
8.6. Under Article 3.8 of the DSU, in cases where there is an infringement of the ob ligations
assumed under a covered agreement, the action is considered prima facie to constitute a case of
nullification or impairment. We conclude that, to the extent that the measures at issue are
inconsistent with certain provisions of the Anti -Dumping Agreement, they have nullified or
impaired benefits accruing to Korea under this agreement.
8.7. Pursuant to Article 19.1 of the DSU, we recommend that the United States bring its measures
into conformity with its obligations under the Anti-Dumping Agreement.