Lawyers, other representatives, expert(s), tribunal’s secretary

Report of the Panel

CASES CITED IN THIS REPORT

Short titleFull 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, DSR 2015:II, p. 579
Argentina – Textiles and Apparel Panel Report, Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/R, adopted 22 April 1998, as modified by Appellate Body Report WT/DS56/AB/R, DSR 1998:III, p. 1033
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
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1161
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, p. 167
Canada – Wheat Exports and Grain Imports Appellate Body Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004, DSR 2004:VI, p. 2739
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 – Electronic Payment Services Panel Report, China – Certain Measures Affecting Electronic Payment Services, WT/DS413/R and Add.1, adopted 31 August 2012, DSR 2012:X, p. 5305
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
Dominican Republic – Import and Sale of Cigarettes Panel Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by Appellate Body Report WT/DS302/AB/R, DSR 2005:XV, p. 7425
EC – Approval and Marketing of Biotech Products Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, Add.1 to Add.9 and Corr.1 / WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, p. 591
EC – Bananas III (Article 21.5 – Ecuador II) / EC – Bananas III (Article 21.5 – US) Appellate Body Reports, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by Ecuador,WT/DS27/AB/RW2/ECU, adopted 11 December 2008, and Corr.1 / European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United States, WT/DS27/AB/RW/USA and Corr.1, adopted 22 December 2008, DSR 2008:XVIII, p. 7165
EC – Countervailing Measures on DRAM Chips Panel Report, European Communities – Countervailing Measures on Dynamic Random Access Memory Chips from Korea, WT/DS299/R, adopted 3 August 2005, DSR 2005:XVIII, p. 8671
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 – Poultry Appellate Body Report, European Communities – Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July 1998, DSR 1998:V, p. 2031
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 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
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, DSR 2016:VI, p. 2871
EU – PET (Pakistan) Appellate Body Report, European Union – Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan, WT/DS486/AB/R and Add.1, adopted 28 May 2018
EU – PET (Pakistan) Panel Report, European Union – Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan, WT/DS486/R, Add.1 and Corr.1, adopted 28 May 2018, as modified by Appellate Body Report WT/DS486/AB/R
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
India – Additional Import Duties Panel Report, India – Additional and Extra‑Additional Duties on Imports from the United States, WT/DS360/R, adopted 17 November 2008, as reversed by Appellate Body Report WT/DS360/AB/R, DSR 2008:XX, p. 8317
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
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, p. 97
Japan – DRAMs (Korea) Appellate Body Report, Japan – Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/AB/R and Corr.1, adopted 17 December 2007, DSR 2007:VII, p. 2703
Korea – Commercial Vessels Panel Report, Korea – Measures Affecting Trade in Commercial Vessels, WT/DS273/R, adopted 11 April 2005, DSR 2005:VII, p. 2749
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 – 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 DSUby the United States, WT/DS132/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6675
Peru – Agricultural Products Appellate Body Report, Peru – Additional Duty on Imports of Certain Agricultural Products, WT/DS457/AB/R and Add.1, adopted 31 July 2015, DSR 2015:VI, p. 3403
Thailand – H‑Beams Appellate Body Report, Thailand – Anti‑Dumping Duties on Angles, Shapes and Sections of Iron or Non‑Alloy Steel and H‑Beams from Poland, WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice, WT/DS334/R, adopted 22 October 2007, DSR 2007:VI, p. 2151
US – 1916 Act Appellate Body Report, United States – Anti‑Dumping Act of 1916, WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, p. 4793
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 – Anti‑Dumping and Countervailing Duties (China) Panel Report, United States – Definitive Anti‑Dumping and Countervailing Duties on Certain Products from China, WT/DS379/R, adopted 25 March 2011, as modified by Appellate Body Report WT/DS379/AB/R, DSR 2011:VI, p. 3143
US – Anti‑Dumping Methodologies (China) Appellate Body Report, United States – Certain Methodologies and Their Application to Anti‑Dumping Proceedings Involving China, WT/DS471/AB/R and Add.1, adopted 22 May 2017
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 – Corrosion‑Resistant Steel Sunset Review Appellate Body Report, United States – Sunset Review of Anti‑Dumping Duties on Corrosion‑Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, p. 3
US – Countervailing and Anti‑Dumping Measures (China) Appellate Body Report, United States – Countervailing and Anti‑Dumping Measures on Certain Products from China, WT/DS449/AB/R and Corr.1, adopted 22 July 2014, DSR 2014:VIII, p. 3027
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 – Countervailing Measures (China) Appellate Body Report, United States – Countervailing Duty Measures on Certain Products from China, WT/DS437/AB/R, adopted 16 January 2015, DSR 2015:1, p. 7
US – Countervailing Measures (China) Panel Report, United States – Countervailing Duty Measures on Certain Products from China, WT/DS437/R and Add.1, adopted 16 January 2015, as modified by Appellate Body Report WT/DS437/AB/R, DSR 2015:1, p. 183
US – Countervailing Measures (China) (Article 21.5 – China) Panel Report, United States – Countervailing Duty Measures on Certain Products from China – Recourse to Article 21.5 of the DSU by China, WT/DS437/RW and Add.1, circulated to WTO Members 21 March 2018 [appealed by the United States 27 April 2018]
US – Countervailing Measures on Certain EC Products Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the European Communities, WT/DS212/AB/R, adopted 8 January 2003, DSR 2003:I, p. 5
US – Export Restraints Panel Report, United States – Measures Treating Exports Restraints as Subsidies, WT/DS194/R and Corr.2, adopted 23 August 2001, DSR 2001:XI, p. 5767
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, p. 29
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 Panel Report, United States – Sunset Reviews of Anti‑Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted 17 December 2004, as modified by Appellate Body Report WT/DS268/AB/R, DSR 2004:VIII, p. 3421
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Section 301 Trade Act Panel Report, United States – Sections 301‑310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp (Article 21.5 – Malaysia) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, p. 6481
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R, adopted 17 February 2004, DSR 2004:II, p. 571
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 – Stainless Steel (Mexico) Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, DSR 2008:II, p. 513
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 13 June 2012, DSR 2012:IV, p. 1837
US – Underwear Appellate Body Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/AB/R, adopted 25 February 1997, DSR 1997:I, p. 11
US – Underwear Panel Report, United States – Restrictions on Imports of Cotton and Man‑made Fibre Underwear, WT/DS24/R, adopted 25 February 1997, as modified by Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
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, DSR 2016:V, p. 2505
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 – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by Appellate Body Report WT/DS33/AB/R, DSR 1997:I, p. 343
US – Zeroing (EC) Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, p. 417
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3
US – Zeroing (Japan) Panel Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/R, adopted 23 January 2007, as modified by Appellate Body Report WT/DS322/AB/R, DSR 2007:I, p. 97
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

ABBREVIATIONS

AbbreviationDescription
BCI Business Confidential Information
Borusan Borusan Istikbal Ticaret and Borusan Mannesmann Boru Sanayi
CBERA Caribbean Basin Economic Recovery Act
CWP circular welded carbon steel pipes and tubes
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
Erdemir Eregli Demir ve Celik Fabrikalari T.A.S.
GATT 1994 General Agreement on Tariffs and Trade 1994
GOT Government of Turkey
HRS hot rolled steel
HWRP heavy walled rectangular welded carbon steel pipes and tubes
Isdemir Iskenderun Iron & Steel Works Co.
LTAR less than adequate remuneration
MMZ MMZ Onur Boru Profil uretim San Ve Tic. A.S.
OCTG oil country tubular goods
OYAK Ordu Yardimlasma Kurumu
Ozdemir Ozdemir Boru Profil San ve Tic. Ltd. Sti.
POI period of investigation
SCM Agreement Agreement on Subsidies and Countervailing Measures
TESEV Turkish Economic and Social Studies Foundation
TPA Turkish Privatization Authority
USDOC US Department of Commerce
USITC US International Trade Commission
Vienna Convention Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679
WLP welded line pipe
WTO World Trade Organization

1 INTRODUCTION

1.1 COMPLAINT BY TURKEY

1.1.
On 8 March 2017, Turkey requested consultations with the United States pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes(DSU), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), and Article 30 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) with respect to the measures and claims set out below.1
1.2.
Consultations were held on 28 April 2017. These consultations failed to settle the dispute.

1.2 PANEL ESTABLISHMENT AND COMPOSITION

1.3.
On 11 May 2017, Turkey requested the establishment of a panel pursuant to Article 6 of the DSU with standard terms of reference.2 At its meeting on 19 June 2017, the Dispute Settlement Body (DSB) established a panel pursuant to the request of Turkey in document WT/DS523/2, 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 Turkey in document WT/DS523/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those Agreements.4

1.5.
On 4 September 2017, Turkey requested the Director‑General to determine the composition of the panel, pursuant to Article 8.7 of the DSU. On 14 September 2017, the Director‑General accordingly composed the Panel as follows:

Chairperson: Mr Guillermo Valles

Members: Ms Luz Elena Reyes de la Torre

Mr José Antonio de la Puente León

1.6.
Brazil, Canada, China, the European Union, Japan, Kazakhstan, the Republic of Korea, Mexico, the Russian Federation, the Kingdom of Saudi Arabia, and the United Arab Emirates notified their interest in participating in the Panel proceedings as third parties.5

1.3 PANEL PROCEEDINGS

1.3.1 General

1.7.
After consultation with the parties, on 8 November 2017, the Panel adopted its Working Procedures6, Additional Working Procedures on Business Confidential Information (BCI)7, and timetable. The Panel revised its timetable on 5 March and 22 June 2018 after consulting the parties.
1.8.
The Panel held a first substantive meeting with the parties on 28 February and 1 March 2018. A session with the third parties took place on 1 March 2018. The Panel held a second substantive meeting with the parties on 29 and 30 May 2018. On 17 July 2018, the Panel issued the descriptive part of its Report to the parties. The Panel issued its Interim Report to the parties on 14 September 2018. The Panel issued its Final Report to the parties on 20 November 2018.

1.3.2 Preliminary ruling request

1.9.
With its first written submission on 20 December 2017, the United States requested a preliminary ruling pursuant to paragraph 6 of the Panel's Working Procedures that certain measures and claims are outside the Panel's terms of reference, because (a) certain measures were not identified in Turkey's request for consultations; (b) certain claims raised in Turkey's first written submission were not identified in Turkey's panel request; and (c) a measure ceased to have legal effect prior to the Panel's establishment.8
1.10.
At the Panel's invitation, on 17 January 2018, Turkey submitted a written response to the United States' request for a preliminary ruling.9 The Panel also posed questions to both parties concerning the United States' request following the first substantive meeting.10 Furthermore, both parties made additional comments regarding the United States' preliminary ruling request in their subsequent submissions.11
1.11.
The Panel addresses the United States' request for a preliminary ruling in its findings below.12

2 FACTUAL ASPECTS

2.1.
This dispute concerns certain countervailing duty measures that the United States imposed in connection with its investigations of Turkish imports of certain oil country tubular goods (OCTG); welded line pipe (WLP); and heavy walled rectangular welded carbon steel pipes and tubes (HWRP); and in connection with a 2011 sunset review and 2013 administrative review of the countervailing duty order on Turkish imports of circular welded carbon steel pipes and tubes (CWP).

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1.
Turkey requests that the Panel find that13:

a. The countervailing duty measures imposed on imports of OCTG are inconsistent with the United States' obligations under the following provisions of the SCM Agreement:

i. Article 1.1(a)(1), as applied, because the US Department of Commerce (USDOC) failed to apply the correct legal standard and failed to provide a reasoned and adequate explanation of its public body determinations with regard to Ordu Yardimlasma Kurumu (OYAK), Eregli Demir ve Celik Fabrikalari T.A.S. (Erdemir) and Iskenderun Iron & Steel Works Co. (Isdemir).

ii. Articles 1.1(b) and 14(d), as applied, because of the USDOC's practice of rejecting in‑country prices based solely on evidence of substantial government involvement and determination to reject Turkish prices with no consideration whether there was evidence those prices are actually distorted, and such practice is also inconsistent as such with Article 14(d).

iii. Article 12.7, as applied, because the USDOC failed to take account of the difficulties Borusan Istikbal Ticaret and Borusan Mannesmann Boru Sanayi (Borusan) experienced in providing requested information and because the USDOC applied an adverse inference for the purpose of punishing Borusan for its supposed failure to cooperate.

iv. Articles 2.1(c) and 2.4, as applied, because the USDOC failed to identify, or substantiate based on positive evidence on the record, a subsidy "programme" related to the provision of hot rolled steel (HRS), and because the USDOC failed to consider the two factors specified in the last sentence of Article 2.1(c).

v. Article 15.3, as applied, because of the US International Trade Commission (USITC)'s practice of cumulating subsidized and non‑subsidized imports for purposes of its material injury analysis, and because the USITC chose to cumulate imports of OCTG from countries subject to both antidumping and countervailing duty investigations (India and Turkey) with imports from countries subject to only antidumping investigations (Korea, Ukraine, and Viet Nam). Such practice is also inconsistent as such with Article 15.3.

vi. Articles 10 and 32.1, as applied, because the United States applied countervailing duties on the basis of determinations that are inconsistent with Articles 1, 2, 12, 14, and 15 of the SCM Agreement.

b. The countervailing duty measures imposed on imports of WLP are inconsistent with the United States' obligations under the following provisions of the SCM Agreement:

i. Article 1.1(a)(1), as applied, because the USDOC failed to apply the correct legal standard and failed to provide a reasoned and adequate explanation on its public body determinations with regard to OYAK and Erdemir and Isdemir.

ii. Article 12.7, as applied, because the USDOC applied an adverse inference for the purpose of punishing Borusan and which resulted in an inaccurate subsidization determination that has no factual connection to the alleged subsidy programmes investigated.

iii. Articles 2.1(c) and 2.4, as applied, because the USDOC failed to identify, or substantiate based on positive evidence on the record, a subsidy "programme" related to the provision of HRS, and because the USDOC failed to consider the two factors specified in the last sentence of Article 2.1(c).

iv. Article 15.3, as applied, because of the USITC's practice of cumulating subsidized and non‑subsidized imports for purposes of its material injury analysis, and because the USITC chose to cumulate Turkish imports of WLP, which were subject to both antidumping and countervailing duty investigations, with Korean imports of WLP, which were subject to only an antidumping investigation. Such practice is also inconsistent as such with Article 15.3.

v. Articles 10 and 32.1, as applied, because the United States applied countervailing duties on the basis of determinations that are inconsistent with Articles 1, 2, 12, and 15 of the SCM Agreement.

vi. Article 19.4 and Article VI:3 of the GATT 1994, as applied, because the United States applied countervailing duties in excess of the amount of subsidization attributable to WLP.

c. The countervailing duty measures imposed on imports of HWRP are inconsistent with the United States' obligations under the following provisions of the SCM Agreement:

i. Article 1.1(a)(1), as applied, because the USDOC failed to apply the correct legal standard and failed to provide a reasoned and adequate explanation of its public body determinations with regard to OYAK and Erdemir and Isdemir.

ii. Article 12.7, as applied, because the USDOC applied adverse inferences for the purpose of punishing MMZ Onur Boru Profil uretim San Ve Tic. A.S. (MMZ) and Ozdemir Boru Profil San ve Tic. Ltd. Sti. (Ozdemir) and which resulted in inaccurate subsidization determinations that have no factual connection to the alleged subsidy programmes investigated.

iii. Articles 2.1(c) and 2.4, as applied, because the USDOC failed to identify, or substantiate based on positive evidence on the record, a subsidy "programme" related to the provision of HRS, and because the USDOC failed to consider the two factors specified in the last sentence of Article 2.1(c).

iv. Article 15.3, as applied, because of the USITC's practice of cumulating subsidized and non‑subsidized imports for purposes of its material injury analysis, and because the USITC chose to cumulate imports of HWRP from Turkey, which were subject to both antidumping and countervailing duty investigations, with imports from countries subject to only antidumping investigations, Mexico and Korea. Such practice is also inconsistent as such with Article 15.3.

v. Articles 10 and 32.1, as applied, because the United States applied countervailing duties on the basis of determinations that are inconsistent with Articles 1, 2, 12, and 15 of the SCM Agreement.

vi. Article 19.4 and Article VI:3 of the GATT 1994, as applied, because the United States applied countervailing duties in excess of the amount of subsidization attributable to HWRP.

d. The countervailing duty measures imposed on imports of CWP are inconsistent with the United States' obligations under the following provisions of the SCM Agreement:

i. Article 1.1(a)(1), as applied, because the USDOC failed to apply the correct legal standard and failed to provide a reasoned and adequate explanation of its public body determinations with regard to OYAK and Erdemir and Isdemir.

ii. Articles 2.1(c) and 2.4, as applied, because the USDOC failed to identify, or substantiate based on positive evidence on the record, a subsidy "programme" related to the provision of HRS, and because the USDOC failed to consider the two factors specified in the last sentence of Article 2.1(c).

iii. Article 15.3, as applied, because of the USITC's practice of cumulating subsidized and non‑subsidized imports for purposes of its material injury analysis, and because the USITC chose to cumulate imports of CWP from Turkey, which were subject to both antidumping and countervailing duty orders, with imports of CWP from Brazil, India, Korea, Mexico, Chinese Taipei, and Thailand, which were subject only to antidumping duty orders. Such practice is also inconsistent as such with Article 15.3.

iv. Articles 10 and 32.1, as applied, because the United States applied countervailing duties on the basis of determinations that are inconsistent with Articles 1, 2, and 15 of the SCM Agreement.

3.2.
The United States requests that the Panel reject Turkey' 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 that were provided to the Panel in accordance with paragraph 18 of the Working Procedures (see Annex B).

5 ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of Brazil, European Union, Japan and Mexico are reflected in their executive summaries that were provided to the Panel in accordance with paragraph 19 of the Working Procedures (see Annexes C‑1, C‑2, C‑3, and C‑4).

6 INTERIM REVIEW

6.1.
On 14 September 2018, the Panel issued its Interim Report to the parties. On 28 September 2018, Turkey and the United States submitted their written requests for review. In addition to its written request, the United States also requested the Panel to hold an interim review meeting with the parties. On 5 October 2018, Turkey submitted comments on the United States' written request for review. The Panel held an interim review meeting with the parties on 13 November 2018.
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 A‑3.

7 FINDINGS

7.1 GENERAL PRINCIPLES REGARDING TREATY INTERPRETATION, THE APPLICABLE STANDARD OF REVIEW, AND BURDEN OF PROOF

7.1.1 Treaty interpretation

7.1.
Article 3.2 of the DSU provides that the dispute settlement system serves to clarify the existing provisions of the covered Agreements "in accordance with customary rules of interpretation of public international law". It is generally accepted that the principles codified in Articles 31 and 32 of the Vienna Convention are such customary rules.14

7.1.2 Standard of review

7.2.
Panels generally are bound by the standard of review set forth in Article 11 of the DSU, which 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.

7.3.
The Appellate Body has stated that the "objective assessment" to be made by a panel reviewing an investigating authority's determination is to be informed by an examination of whether the authority provided a reasoned and adequate explanation as to (a) how the evidence on the record supported its factual findings; and (b) how those factual findings supported the overall determination.15
7.4.
The Appellate Body has also stated that a panel reviewing an investigating authority's determination may not undertake a de novo review of the evidence or substitute its judgment for that of the investigating authority. A panel must limit its examination to the evidence that was before the authority during the investigation and must consider all such evidence submitted by the parties to the dispute.16 At the same time, a panel must not simply defer to the conclusions of the investigating authority; a panel's examination of those conclusions must be "in‑depth" and "critical and searching".17

7.1.3 Burden of proof

7.5.
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.18 Therefore, Turkey bears the burden of demonstrating that the challenged measures are inconsistent with the SCM Agreement. A complaining party will satisfy its burden when it establishes a prima facie case, namely a case which, without effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party.19 Each party asserting a fact should provide proof thereof.20

7.2 TURKEY'S CLAIM UNDER ARTICLE 1.1(A)(1) OF THE SCM AGREEMENT IN RELATION TO THE USDOC'S PUBLIC BODY DETERMINATIONS IN THE OCTG, WLP, HWRP, AND CWP PROCEEDINGS

7.2.1 Introduction

7.6.
In the challenged proceedings, the USDOC found that Erdemir and its subsidiary Isdemir are public bodies which provided respondent companies with HRS for less than adequate remuneration (LTAR). As the basis for its public body determinations, the USDOC found that the Government of Turkey (GOT) exercised "meaningful control" over the two entities. This finding of meaningful control was based in part on a finding of "significant involvement" of the GOT in the Turkish military pension fund OYAK, which holds a controlling ownership stake in Erdemir.21 The GOT has no direct ownership interest in Erdemir and Isdemir.
7.7.
Turkey claims that the USDOC found that OYAK, Erdemir, and Isdemir are each subject to "meaningful control" by the GOT, and in doing so, determined that OYAK, Erdemir, and Isdemir are public bodies. Turkey claims that the USDOC's determinations that OYAK, Erdemir, and Isdemir are public bodies are inconsistent with Article 1.1(a)(1) of the SCM Agreement. In particular, Turkey claims that the USDOC applied the incorrect legal standard under Article 1.1(a)(1) in its public body determinations. In addition, Turkey claims that the USDOC failed to provide a reasoned and adequate explanation for its determinations because the evidence on the record that the USDOC cited does not support its public body findings, and because the USDOC failed to consider evidence that contradicted its public body determinations.22
7.8.
The United States argues that Turkey's claim with respect to OYAK must fail because the USDOC did not find that OYAK is a public body and was not required to do so. The United States otherwise requests the Panel to find that the USDOC's public body determinations with respect to Erdemir and Isdemir are consistent with Article 1.1(a)(1) of the SCM Agreement.
7.9.
We first recall the legal framework applicable to the public body inquiry before addressing the parties' arguments regarding Turkey's claims.

7.2.2 The legal standard applicable to the public body enquiry

7.10.
Article 1.1(a)(1) of the SCM Agreement provides that a subsidy shall be deemed to exist if a financial contribution is provided by a government or any public body within the territory of a Member. The particular conduct of the government or public body must fall within any of the subparagraphs (i) to (iii) in Article 1.1(a)(1), or pursuant to subparagraph (iv), a government or public body may make payments to a funding mechanism, or otherwise entrust or direct a private body to carry out one or more of the type of functions illustrated in subparagraphs (i) to (iii).23
7.11.
The Appellate Body has explained that a public body within the meaning of Article 1.1(a)(1) "must be an entity that possesses, exercises or is vested with governmental authority".24 In evaluating whether an entity is a public body, a relevant enquiry is whether "an entity is vested with authority to exercise governmental functions".25 The Appellate Body has further explained that "[w]hether the conduct of an entity is that of a public body must in each case be determined on its own merits, with due regard being had to the core characteristics and functions of the relevant entity, its relationship with the government, and the legal and economic environment prevailing in the country in which the investigated entity operates".26 In addition, "just as no two governments are exactly alike, the precise contours and characteristics of a public body are bound to differ from entity to entity, State to State, and case to case".27
7.12.
Different types of evidence may be relevant to show that a government has bestowed authority on a particular entity, including such as when a statute legal instrument expressly vests authority in an entity.28 Absent express statutory delegation of governmental authority, evidence that an entity is in fact exercising governmental functions may serve as evidence that the entity in question possesses or has been vested with governmental authority, particularly when the evidence points to a sustained and systematic practice.29
7.13.
The Appellate Body has also observed that "evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions".30 The Appellate Body has cautioned, however, that "the mere ownership or control over an entity by a government, without more, is not sufficient to establish that the entity is a public body".31 Rather, "where evidence shows that the formal indicia of government control are manifold, and there is also evidence that such control has been exercised in a meaningful way, then such evidence may permit an inference that the entity concerned is exercising governmental authority".32
7.14.
Finally, in evaluating whether the conduct of a particular entity is that of a public body within the meaning of Article 1.1(a)(1), an investigating authority "must, in making its determination, evaluate and give due consideration to all relevant characteristics of the entity and, in reaching its ultimate determination as to how that entity should be characterized, avoid focusing exclusively or unduly on any single characteristic without affording due consideration to others that may be relevant".33

7.2.3 The Panel's evaluation of Turkey's Article 1.1(a)(1) claims in connection with the challenged proceedings

7.15.
Turkey has requested findings that the USDOC's evaluation of Turkish military pension fund OYAK, and Erdemir and Isdemir are inconsistent with Article 1.1(a)(1) of the SCM Agreement. At the core of its claims, Turkey argues that the USDOC "created an elaborate chain of governmental control linking the GOT to OYAK to [Erdemir and Isdemir]" and found that OYAK, Erdemir and Isdemir are public bodies.34 Turkey submits that the USDOC applied an incorrect legal standard twice: first, in its assessment of OYAK, and second, in its assessment of Erdemir and Isdemir. Turkey also claims that the USDOC failed to provide a reasoned and adequate explanation for its determinations based on the evidence on the record. Turkey also emphasizes, in contrast to other occasions in which the USDOC has assessed that entities are public bodies based on government ownership, that the GOT does not have any ownership stake in Erdemir or its subsidiary Isdemir.35
7.16.
WTO panels or the Appellate Body have not previously addressed the issue of whether an investigating authority may establish that an entity is a public body through establishing a "chain" of governmental control linking that entity to the government, such as under the facts of this dispute. We note that Turkey does not in principle challenge that it may be possible to establish that a government may provide a financial contribution via such a chain of control over various entities. Rather, the parties disagree as to whether the legal standard under Article 1.1(a)(1) applies to each entity found to exist in the alleged chain of control.36
7.17.
The United States argues that the text of Article 1.1(a)(1) clarifies that the requirements surrounding the determination of whether an entity is a public body only apply to entities that provide a financial contribution.37 Thus, the United States argues that Turkey's separate Article 1.1(a)(1) claim cannot be considered with respect to OYAK, because the USDOC never attributed a financial contribution to OYAK, and therefore never made a public body determination in respect of that entity.38 The United States considers that we should focus our legal assessment on the USDOC's evaluation of Erdemir and Isdemir. The United States also argues that we should not consider Turkey's arguments with respect to OYAK in the context of its challenge to Erdemir and Isdemir because the claim was independently raised.39 However, for completeness, the United States also submits that we could examine the USDOC's factual findings regarding the relationship between the GOT and OYAK to determine whether the USDOC was entitled to treat OYAK as governmental, such that its meaningful control over Erdemir and Isdemir justified the treatment of those entities as public bodies. The United States asserts that nothing in the text of Article 1.1(a)(1), or in the relevant interpretations of that provision, suggests that OYAK needed to be a particular type of governmental entity, such as a government "organ". OYAK only needed to exhibit the characteristics of a government "organ" or "agency", or a "public body" or any other "governmental" entity.40 The United States submits that the USDOC considered OYAK as an "organ of the GOT" in its assessment of Erdemir and Isdemir.41 The United States has also asserted that OYAK was governmental in the broader sense.42
7.18.
In response, Turkey submits that the United States' argument that the disciplines of Article 1.1(a)(1) only apply in respect of entities that provide financial contributions is unfounded.43 Turkey submits that, under Article 1.1(a)(1), it is first necessary to determine whether an entity is governmental or a private body before analysing whether the conduct of an entity falls within subparagraphs (i) to (iv) of Article 1.1(a)(1). Accordingly, Turkey argues that the analysis of whether an entity is governmental or a private body is thus a separate step from the assessment of whether the particular conduct of an entity is determined to be a financial contribution under Article 1.1(a)(1) and the United States should not be relieved of any obligation in respect of OYAK.44
7.19.
Turkey considers it clear that the USDOC analysed OYAK as a public body, as the USDOC analysed OYAK pursuant to the same US standard that it analysed Erdemir and Isdemir, i.e. as subject to "meaningful control" of the government.45 Turkey also considers that an investigating authority need not make explicit finding or statement that an entity is a public body, but may make implicit findings in its determinations, as panels and the Appellate Body have recognized.46 Turkey also argues that the United States' evaluation of OYAK as a "government organ" is not supported in the reasoning and findings of the determinations at issue.47
7.20.
As a general matter, we do not reject that it may be possible to establish that an entity is a public body through establishing a chain of governmental control linking that entity to the government. However, to properly attribute48 the actions of that entity to the government, the governmental character of entities in the alleged chain will be relevant to the assessment. In this regard, an entity may be "governmental" in either the broad sense or the narrow sense, or directly or through a government's entrustment or direction of a private body. We recall in this regard that the Appellate Body has explained that "the performance of governmental functions, or the fact of being vested with, and exercising, the authority to perform such functions are core commonalities between government and public body".49 In addition, the Appellate Body has found that "evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions".50
7.21.
Finally, although the United States considers that no legal standard under the SCM Agreement would apply to the USDOC's findings with respect to OYAK, we note the United States' statement that the Panel may find relevant to its factual assessment of OYAK the characteristics examined by other panels or the Appellate Body with respect to "government", "public body", and other governmental entities in other contexts.51 The parties therefore appear to agree that OYAK's status is relevant to the assessment of Erdemir and Isdemir.
7.22.
With this framework in mind, we will consider whether the USDOC's public body determinations are inconsistent with Article 1.1(a)(1) of the SCM Agreement.

7.2.3.1 Whether the USDOC's public body determinations are inconsistent with Article 1.1(a)(1) of the SCM Agreement

7.23.
In claiming that the USDOC's public body determinations in respect of Erdemir and Isdemir are inconsistent with Article 1.1(a)(1), Turkey argues that the USDOC both failed to apply the correct legal standard and failed to provide a reasoned and adequate explanation of the basis of its public body findings based on evidence on record.
7.24.
Turkey raises a series of arguments with respect to the USDOC's analysis of OYAK and its relationship with the GOT. First, Turkey considers that neither OYAK's creation by statute, nor the USDOC's interpretation of certain provisions of Law No205, support the USDOC's finding that the GOT exercises control over OYAK and by extension, over Erdemir and Isdemir.52 Second, Turkey argues that OYAK's property and tax treatment under Turkish law is consistent with that of other Turkish pension funds.53 Third, Turkey argues that, because OYAK's member contributions are private funds, the mandatory nature of participation for some members does not support USDOC's findings.54 Fourth, Turkey argues that the members participating in OYAK's governing bodies are acting in their individual capacities, and not as government officials.55 Fifth, Turkey argues that the USDOC did not consider contradictory record evidence that OYAK is an autonomous, private pension fund that is in fact a non‑profit foundation, and acts independently of the government in making investment decisions.56
7.25.
Turkey argues that the other evidence that the USDOC identified in relation to Erdemir and Isdemir, at most, demonstrates GOT's alleged ability to control Erdemir, and otherwise, the limited statements in Erdemir's 2012 and 2013 Annual Reports do not support a finding that Erdemir and Isdemir possess, exercise, or are vested with governmental authority.57
7.26.
The United States has acknowledged that the Appellate Body considers that "the term public body in Article 1.1(a)(1) of the SCM Agreement means 'an entity that possesses, exercises or is vested with governmental authority'"58, and argues that the USDOC's public body analysis in relation to Erdemir and Isdemir is consistent with the Appellate Body's interpretation of Article 1.1(a)(1).59 The United States argues that the USDOC properly determined that Erdemir and Isdemir are public bodies in the challenged proceedings based on consideration of the totality of evidence, including the involvement of OYAK in Erdemir.60
7.27.
In the challenged proceedings, the USDOC based its determination that Erdemir and Isdemir are public bodies on numerous considerations, including that OYAK holds a majority of shares of Erdemir through its wholly‑owned holding company, Ataer Holding AS, and that Erdemir owns more than 92% of its subsidiary Isdemir.61
7.28.
Regarding OYAK specifically, the USDOC found "extensive GOT involvement in OYAK" and that the GOT exercised "meaningful control" over OYAK.62 The USDOC observed that 1961 Military Personnel Assistance and Pension Fund Law (Law No205) establishing OYAK states that the GOT created OYAK "as an institution related to the Ministry of National Defense".63 Pursuant to Law No205, the USDOC observed that OYAK's property has by law the "same rights and privileges of state property", that OYAK is exempt from corporate and other taxes, and that members of the armed forces must by law contribute part of their salaries to OYAK.64 The USDOC also reviewed OYAK's leadership structure, highlighting the following:

OYAK's Representative Assembly comprises 50 to 100 members of the Turkish Armed Forces "designated by their respective commanders or superiors." The Representative Assembly, in turn, elects 20 of the 40 members of OYAK's General Assembly. Of the General Assembly's other 20 members, 17 are by statute government officials (e.g., Ministers of Finance and Defense). Members of the General Assembly elect the eight‑person Board of Directors.65

7.29.
In the OCTG investigation, the USDOC also referred to a statement in a study published by the Turkish Economic and Social Studies Foundation (TESEV) that "a review of the membership and administrative structure of OYAK reveals that the military is clearly in control."66 The United States contends that the evidence concerning OYAK before the USDOC exhibits the attributes associated with "government" in the broader sense.67
7.30.
The USDOC next evaluated evidence which it considered "shows that the government's significant involvement in OYAK extends to Erdemir and Isdemir".68 In the OCTG investigation, the USDOC referred to statements in Erdemir's 2012 Report that Erdemir "implemented policies which promoted the customers to engage in export‑oriented production" and "supports the use of domestically mined resources for raw materials in view of … the added value created by the domestic suppliers in favor of the local industries".69 In the WLP, HWRP, and CWP proceedings, the USDOC referred to Erdemir's 2013 Annual Report, stating that "'[t]hrough … flat steel sales to exporting industries,' Erdemir 'made a major contribution to the 4.6% increase in Turkey's manufacturing exports in 2013' … and 'continues to create value added for Turkish industry through its initiatives to increase the use of domestic sources of raw materials.'"70 The USDOC concluded that "[t]hese policies are in line with the GOT's stated policy in its 2012‑2014 Medium Term Programme to improve Turkey's balance of payments".71
7.31.
Finally, the USDOC evaluated evidence that members of OYAK and the Turkish Privatization Authority (TPA), and a "Representative of the Ministry of Finance" all participate on Erdemir's board of directors.72 The USDOC additionally noted that the TPA holds veto power over any decision related to the closure, sale, merger, or liquidation of both Erdemir and Isdemir.73 In the OCTG investigation, the USDOC observed that "OYAK effectively decides the composition of the majority of Erdemir's board through its majority shareholder voting rights in Erdemir".74
7.32.
In our assessment, we must determine whether the findings and conclusions reached by the investigating authority are "reasoned" and "adequate"75, in light of information provided by respondents in the investigation, and taking into account the totality of the evidence upon which the USDOC relied. In this regard, we bear in mind that:

"[W]hen an investigating authority relies on the totality of circumstantial evidence, this imposes upon a panel the obligation to consider, in the context of the totality of the evidence, how the interaction of certain pieces of evidence may justify certain inferences that could not have been justified by a review of the individual pieces of evidence in isolation." In addition, if an investigating authority explains that the totality of the evidence supports the conclusion reached, a panel must undertake a critical examination of whether, in the light of the evidence on record, the investigating authority's conclusion was reasoned and adequate.76

7.33.
However, a panel may bear in mind that errors in an investigating authority's examination of individual pieces of evidence "undoubtedly would affect an examination of the totality of the evidence".77 Further, "[i]n reviewing individual pieces of evidence, for example, a panel should focus on issues such as the accuracy of a piece of evidence, or whether that piece of evidence may reasonably be relied on in support of the particular inference drawn by the investigating authority".78
7.34.
In reviewing whether the USDOC's public body determinations are inconsistent with Article 1.1(a)(1) of the SCM Agreement, we will begin by assessing the USDOC's factual findings regarding the relationship between the GOT and OYAK. Thereafter, we will review the USDOC's factual findings in relation to Erdemir and Isdemir.
7.35.
Regarding OYAK, the United States argues that "OYAK was … expressly established to provide retirement and social security benefits to members of the country's armed forces"79, and argues that "ensuring that military members receive pensions and other benefits as a result of their service is indicative of a governmental function".80 In its determinations, the USDOC found relevant that, pursuant to Law No205, OYAK was established "as an institution related to the Ministry of National Defense"81; that OYAK's governing bodies are comprised of military and certain governmental personnel, which elect the eight‑person board of directors82; that OYAK is ensured funding through mandatory contribution requirements, which it can enforce as a matter of law83; and that OYAK was granted certain property and tax privileges.84 The USDOC also found relevant a statement in the TESEV study that "a review of the membership and administrative structure of OYAK reveals that the military is clearly in control".85
7.36.
Turkey objects that OYAK is part of the Turkish public social security system, and rejects that OYAK is performing "governmental functions".86 Turkey has contended throughout these proceedings that OYAK is a private occupational pension fund that is not part of Turkey's mandatory "first pillar" public social security system.87 Turkey further submits that OYAK is a "non‑profit foundation".88
7.37.
In the USDOC's public body determinations in the four proceedings at issue, the USDOC did not identify OYAK's role of providing retirement and social security benefits as being a government function. OYAK's annual reports, which were on the record before the USDOC, describe OYAK as a private supplemental pension fund that is not funded through the Turkish government.89 OYAK's annual reports further specify that OYAK does not use public resources or receive any other form of public support, and the government has no ownership stake in OYAK.90
7.38.
Although the USDOC highlighted the statement in Article 1 of Law No205 that OYAK was established "as an institution related to the Ministry of National Defense"91, and provisions of Law No. 205 concerning OYAK's tax and property status and governing structure, Article 1 of Law No205 also provides that "[OYAK] shall be subject to the provisions of this Law and private law and shall be a corporate body with financial and administrative autonomy."92 In our view, the fact that OYAK is granted financial and administrative autonomy under Turkish law is relevant to the analysis of whether OYAK acts according to the mandate of the GOT or in pursuit of Turkish government policies or objectives.93 We recall the Appellate Body in US – Carbon Steel (India) explained that panels should not overlook evidence on the record relevant to assessing the relationship between the government and an entity under investigation "and, in particular, the degree of control by the [government] and the degree of autonomy enjoyed by" such an entity.94 Therefore, in weighing the relevance of OYAK's status under Turkish law, OYAK's financial and administrative autonomy is also relevant.
7.39.
We do not consider the fact that OYAK's governing bodies are comprised of military and certain governmental personnel, which elect the eight‑person board of directors, that OYAK is ensured mandatory contributions for pension purposes, and that OYAK may benefit from its certain property and tax status, is sufficient to establish that OYAK acts pursuant to governmental authority or is under the meaningful control of the GOT. The Appellate Body has explained that evidence of "formal indicia of control", such as a government's power to appoint and nominate directors to the board of an entity may be relevant to the assessment of whether the conduct of an entity is that of a public body.95 However, the Appellate Body also observed that "a government's power to appoint directors to the board of an entity and the issue of whether those directors are independent, would seem to be distinct factors" in assessing the governmental character of an entity.96 We see nothing in the evidence that the USDOC considered in its analysis of OYAK to suggest that military and government personnel within OYAK have made decisions under the direction of the GOT in pursuit of governmental economic policies. In its assessment of OYAK, in addition to citing provisions of Law No. 205, the USDOC referred to a single statement in the TESEV study that "a review of the membership and administrative structure of OYAK reveals that the military is clearly in control".97 Although the USDOC appears to equate Turkish military presence in OYAK with governmental control based on this statement, the USDOC did not weigh other statements in the TESEV study describing OYAK's "core function as a holding company", and that OYAK's mission statement identifies the goals to "protect[] first and foremost the actuarial balance in its operations" and to "offer the highest rates of return to its members".98 In our view, these additional statements do not support an inference that OYAK officials act at the behest of the GOT.99
7.40.
Taking into account the evidence on the record, including that OYAK is granted financial and administrative autonomy under Turkish law, we are not persuaded that the evidence that the USDOC relied upon demonstrates that OYAK is under the meaningful control of the GOT, or that OYAK is part of the GOT in either the broad sense or the narrow sense. Accordingly, we find that the USDOC was not justified in attributing to the GOT any control that OYAK may exercise over Erdemir and Isdemir.
7.41.
We recall the United States' argument that the USDOC based its consideration on the totality of evidence, which includes but is not limited to OYAK's involvement in Erdemir. In particular, the USDOC also considered relevant participation by the Ministry of Finance and TPA on Erdemir's board of directors. The USDOC found that the TPA "holds veto power over any decisions [sic] related to the closure, sale, merger, or liquidation of both Erdemir and Isdemir".100 The United States argues that this "affords the GOT, through the TPA, an ability to determine critical aspects of Erdemir's and Isdemir's operations".101 The United States has also pointed to the fact that, as a condition of purchasing Erdemir from the GOT in 2006, OYAK agreed to increase Erdemir's steel production capacity by 3.5 million tonnes through the creation of Isdemir in 2008.102 Finally, the USDOC referred to selected statements from the 2012 and 2013 Erdemir Annual Reports, which the USDOC found to be "in line"103 with the Turkish policy to improve the balance of payments.
7.42.
As we have found in respect of military and government officials in OYAK's governing bodies, Ministry of Finance and TPA participation on Erdemir's board of directors amount to formal "indicia" of control that is insufficient to establish that the GOT meaningfully controls Erdemir and Isdemir.104 For instance, although the United States has emphasized the ability of the TPA to determine critical aspects of Erdemir and Isdemir's operations, as Turkey argues105, the USDOC has not pointed to evidence on the record that TPA has at any point since Erdemir's privatization exercised its veto power or sought to influence Erdemir's pricing, production or financial decisions. We do not share the United States' view that events taking place at the time of Erdemir's privatization in 2006 are indicative of whether Erdemir and Isdemir were acting in pursuit of Turkish governmental policies in the years after Erdemir's privatization.
7.43.
As the only evidence that Erdemir has acted in pursuit of governmental policy, the USDOC considered that statements from Erdemir's 2012 and 2013 Annual Reports demonstrated that Erdemir's conduct was "in line"106 with Turkish policy to improve the balance of payments. The USDOC referred to the objective set out in the 2012‑2014 Medium Term Programme "to decrease high dependency of production and exports on imports, especially for intermediate and capital goods, policies and supports enhancing domestic production capacity will be carried on".107 As set out in paragraph 7.30 above, the USDOC referred to statements that: "the [Erdemir] Group also implemented policies which promoted the customers to engage in export‑oriented production"108; "ERDEMIR Group also supports the use of domestically mined resources for raw materials in view of the close proximity of the resources to our production sites and the added‑value created by the domestic suppliers in favour of the local industries"109; Erdemir "continues to create‑value‑added for Turkish industry through its initiatives to increase the use of domestic sources of raw materials"110; and Erdemir "made a major contribution to the 4.6% increase in Turkey's manufacturing exports in 2013".111
7.44.
We do not share the USDOC's assessment that these statements support the inference that Erdemir and Isdemir acted in pursuit of objectives set out in the 2012‑2014 Medium Term Programme. Erdemir's 2012 and 2013 Annual Reports do not themselves refer to the 2012‑2014 Medium Term Programme or any other government macroeconomic programme. Absent clear indication that Erdemir acts pursuant to governmental authority, the mere fact that Erdemir's own business strategies include encouraging customers in export‑oriented industries to increase production or encouraging the use of domestic sources of raw materials – even if such efforts might align with GOT macroeconomic policy objectives – does not show that Erdemir and Isdemir exercise governmental authority.
7.45.
Other statements in Erdemir's 2012 Annual Report support our understanding that Erdemir's business strategies are consistent with those of a private, profit‑seeking company. For instance, Erdemir's 2012 Annual Report indicates that "ERDEMIR Group managed to boost its sales by 22% in 2012 with the assistance of industries which are export‑driven".112 Erdemir's 2012 Annual Report also notes that raw material "entails a very large share in the total costs" and is procured from abroad, and also explains that Erdemir monitors raw material markets "in line with two objectives, firstly, to search for alternative raw material resources and, secondly, to augment access to economical raw material suppliers", further highlighting the importance of "supply safety" to production and the need to find "the most cost‑effective raw material resources".113
7.46.
Finally, the United States has referred to additional statements in Erdemir's 2012 and 2013 Annual Reports in this dispute, beyond those that were identified in the challenged determinations. These include statements that: "[p]roducing flat steel products is crucial for the development of Turkish steel industry, and Isdemir plays a significant role in enhancing the capacity of flat steel production"; Erdemir's "goal is to meet the country's ever‑growing need for flat steel and pave the way for the development and growth of Turkish industry"; and "Isdemir also began manufacturing flat products in 2008 with the Modernization and Transformation Capital Investments undertaken after Isdemir's acquisition by Erdemir that year. This largest single investment in the history of the Republic of Turkey served to mitigate the imbalance between long and flat steel production in the country."114 Turkey objects to the United States' reference to these statements in this dispute as ex post justifications.
7.47.
As Turkey notes, the USDOC did not directly address these excerpts in any of the determinations. Setting aside the question of whether the USDOC might have taken these statements into account in its determinations, we do not consider that general references to developing the Turkish steel industry and Turkish industry more generally change our assessment reached above.
7.48.
Based on our review above, we therefore find that the USDOC failed to establish based on evidence on the record that OYAK is under the meaningful control of the GOT, or that OYAK is part of the GOT in either the broad sense or the narrow sense. We are therefore not persuaded that OYAK's control over Erdemir and Isdemir justifies attributing the actions of those entities to the GOT.
7.49.
In addition, we find that the remaining evidence that the USDOC relied upon in the context of assessing Erdemir and Isdemir in the challenged proceedings is insufficient on its own to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to constitute public bodies within the meaning of Article 1.1(a)(1) of the SCM Agreement. We find that most of the evidence that the USDOC relied upon amounts to evidence of "indicia" of government control. As we explained above, we are also not convinced that statements that the USDOC identified in Erdemir's 2012 and 2013 Annual Reports provide evidence that Erdemir and Isdemir's corporate objectives and accomplishments are aligned with GOT stated macroeconomic policies in its 2012‑2014 Medium Term Programme, in particular, the objective to improve Turkey's balance of payments either by "decreas[ing] high dependency of production and exports on imports" through "policies and supports enhancing domestic production capacity".115
7.50.
For the foregoing reasons, we therefore find that Turkey has demonstrated that the United States acted inconsistently with Article 1.1(a)(1) of the SCM Agreement. In particular, we find that the USDOC failed to apply the standard applicable to the public body inquiry under Article 1.1(a)(1) by failing to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to perform a government function. In addition, we find that the USDOC acted inconsistently with Article 1.1(a)(1) by failing to provide a reasoned and adequate explanation for its determinations based on consideration of the information contained in the record and the explanations given by the authority in its published report.

7.2.3.2 Whether the USDOC failed to consider relevant evidence on the record related to Erdemir's commercial conduct

7.51.
Turkey also argues that the USDOC acted inconsistently with Article 1.1(a)(1) by failing to consider evidence on record that arguably demonstrates that Erdemir and Isdemir operate on a commercial basis and independently from OYAK and the GOT.116
7.52.
Referring to the guidance of the Appellate Body in US – Carbon Steel (India), Turkey argues that an investigating authority conducting a public body determination must give proper consideration to evidence on the record regarding the relationship between the government and the entity at issue "and, in particular, the degree of control by the [government] and the degree of autonomy enjoyed by" the entity in question, such as evidence that the entity operates "in a commercial, de‑regulated environment and conducts its operations and business on commercial principles".117
7.53.
Specifically, Turkey argues that the totality of evidence demonstrates that Erdemir, its board, and its management act independently from both OYAK and the GOT. In the OCTG proceeding, Turkey argues that respondents presented arguments that "Erdemir does not sell coil at preferential prices", and that Erdemir's prices are higher than co‑respondent Toscelik's cost of production and selling prices.118 In the WLP, HWRP, and CWP proceedings, Turkey argues that the GOT presented arguments that Erdemir and Isdemir "operate[] only to maximize [their] profits as is the case for all private companies" and that "Erdemir has always been a profitable company and reached a net operating profit worth of 484 million dollar in 2013".119
7.54.
In addition, Turkey refers to information contained in the Input Producer Appendices and other documents on the record in the four proceedings, which Turkey argues provides evidence that (a) Erdemir is a publicly‑traded company subject to strict audit and disclosure requirements with 47.63% of Erdemir's shares owned by private entities; (b) Erdemir has a corporate framework with established guidelines by which its board and executive officers make investment decisions based on maximizing profits; (c) Erdemir's executive officers and senior management are selected based on their professional expertise; (d) Erdemir's executive officers are independent from the GOT and none of Erdemir's senior managers are government officials; and (e) Erdemir's hot rolled steel pricing decisions are made based on worldwide price indexes and cost considerations, free from government involvement.120
7.55.
Contrary to Turkey's assertion, the United States argues that the USDOC considered this information and provided a reasoned and adequate explanation for its rejection. Recalling the USDOC's explanation in its determinations, the United States submits that "a firm's commercial behavior is not dispositive in determining whether that firm is a government 'authority'", as "this line of argument conflates the issues of the 'financial contribution' being provided by an authority and 'benefit.'"121 The United States submits that this reasoning is consistent with the approach taken by previous panels122 and is also supported by the structure of the SCM Agreement, in that Article 1.1(a)(1) does not include consideration of whether the financial contribution is provided consistent with market principles.123
7.56.
The United States further argues that Turkey conflates the distinct concepts of a company operating independently and autonomously from the government with that of a company exhibiting commercial profit‑maximizing behaviour. The United States submits that Turkey has only referred to evidence with respect to commercial behaviour, which does not demonstrate that Erdemir and Isdemir operate autonomously from the GOT.124
7.57.
The United States submits that Turkey has not in any event demonstrated Erdemir's independence from the GOT based on its financial decision‑making processes. In this respect, Erdemir's board of directors, which includes OYAK and TPA officials, also approves the selection of senior managers, thus allowing it to participate in the decision‑making process regarding pricing and production. The United States submits that the fact that high‑level managers may be selected based on their professional expertise does not rebut the GOT's influence. Lastly, although Turkey raises the fact that Erdemir is a publicly traded company subject to certain audit and disclosure requirements, the United States argues that Turkey has not cited any evidence or provided explanation to demonstrate that compliance with these requirements somehow means Erdemir's behaviour is free of government influence.125
7.58.
We recall that, in evaluating whether the conduct of a particular entity is that of a public body within the meaning of Article 1.1(a)(1), an investigating authority "must, in making its determination, evaluate and give due consideration to all relevant characteristics of the entity and, in reaching its ultimate determination as to how that entity should be characterized, avoid focusing exclusively or unduly on any single characteristic without affording due consideration to others that may be relevant".126 In addition, the Appellate Body has observed that an investigating authority undertaking a public body analysis should take into account all evidence on the record regarding the relationship between the government and the entity at issue, which may include evidence that the entity operates "in a commercial, de‑regulated environment and conducts its operations and businesses on commercial principles".127
7.59.
We note that the United States has taken a number of stances in relation to evidence on the record regarding Erdemir and Isdemir's commercial conduct. On the one hand, citing the USDOC in the determinations at issue, the United States has submitted that a firm's commercial behaviour is "not dispositive" in determining whether that firm is a public body.128 On the other hand, the United States submits that the USDOC considered all the evidence that was submitted, but concluded that the evidence on Erdemir's commercial behaviour "simply was outweighed, in [the] USDOC's view, by the ample record evidence to the contrary that supported [the] USDOC's determinations".129
7.60.
The United States has also submitted that information regarding an entity's "commercial conduct" does not undermine the USDOC's findings, as it is possible that a government or government‑controlled entity may act in a commercial manner.130 Finally, as noted above, the United States disputes that the submitted information and explanation reflects behaviour free of government influence.
7.61.
Based on our review of the underlying determinations, we understand that the USDOC found that evidence regarding Erdemir's commercial conduct was not legally "relevant" (or not "dispositive")131 to the public body analysis. In light of the Appellate Body's guidance that evidence that an entity conducts its operations and business on commercial principles may be relevant to the public body assessment, we are of the view that the USDOC's failure to consider this information in any meaningful way runs contrary to an investigating authority's obligation to evaluate and give due consideration to all relevant characteristics of the entity. Rather, we consider that, in making its public body determinations in respect of Erdemir and Isdemir, the USDOC should have at least engaged with evidence submitted in the underlying proceedings related to Erdemir's commercial conduct, rather than simply dismissing the information as irrelevant.
7.62.
Accordingly, in addition to our findings above, we find that Turkey has demonstrated that the United States acted inconsistently with Article 1.1(a)(1) of the SCM Agreement for having failed to consider relevant evidence on the record.

7.2.3.3 Whether the USDOC's assessment of OYAK is also inconsistent with Article 1.1(a)(1) of the SCM Agreement

7.63.
Turkey also requests a separate finding that the USDOC determined that OYAK is a public body in a manner inconsistent with Article 1.1(a)(1) of the SCM Agreement, in addition to findings in relation to Erdemir and Isdemir. Turkey submits that the USDOC applied the same legal standard under US law for "public body" to OYAK as it did to Erdemir and Isdemir, and considers that findings in relation to OYAK would assist in resolving the dispute.132
7.64.
Based on our findings above that Turkey has demonstrated that the United States acted inconsistently with Article 1.1(a)(1) of the SCM Agreement in its determinations regarding Erdemir and Isdemir, we do not consider it necessary to separately rule on whether the USDOC determined that OYAK is a public body in a manner inconsistent with Article 1.1(a)(1) to resolve the matter before us. We are of the view that we have adequately addressed flaws in the USDOC's analysis regarding OYAK in our assessment above. Accordingly, we make no separate finding regarding any public body determination that the USDOC may have made in respect of OYAK.

7.2.4 Conclusions regarding Turkey's claims under Article 1.1(a)(1) of the SCM Agreement

7.65.
In the four challenged countervailing duty proceedings, the USDOC relied upon record evidence to reach its conclusion that the GOT exercises "meaningful control" over Erdemir and Isdemir, including through its control of OYAK, and accordingly, the USDOC found Erdemir and Isdemir to be public bodies, and hence "authorities", pursuant to Section 771(5)(B) of the Tariff Act of 1930.133
7.66.
We found that the USDOC failed to apply the standard applicable to the public body enquiry under Article 1.1(a)(1) of the SCM Agreement in its assessment of "meaningful control", by failing to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to perform a government function, as required by the Appellate Body's interpretation of Article 1.1(a)(1). We further found that the USDOC failed to provide a reasoned and adequate explanation for its determinations based on consideration of the information contained in the record and the explanations given by the authority in its published report, and for failing to consider relevant evidence on the record.
7.67.
In our assessment, we are mindful that the United States based its finding on the totality of evidence. However, we found that the USDOC failed to establish based on evidence on the record that OYAK is under the meaningful control of the GOT, or that OYAK is part of the GOT in either the broad sense or the narrow sense. In particular, we observed that OYAK is granted financial and administrative autonomy under Turkish law. We also found that much of the evidence that the USDOC considered in relation to OYAK constitutes mere "formal indicia" of government control, and the USDOC did not identify otherwise establish that OYAK has taken decisions in pursuit of government economic policies. We are therefore not persuaded that OYAK's control over Erdemir and Isdemir justifies attributing the actions of those entities to the GOT.
7.68.
In addition, we concluded that the evidence that the USDOC relied upon in the context of assessing Erdemir and Isdemir in the challenged proceedings is insufficient on its own to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to constitute public bodies within the meaning of Article 1.1(a)(1) of the SCM Agreement. We found that most of the evidence that the USDOC relied upon amounts to evidence of "indicia" of government control. We did not find that the remaining evidence supported the United States' argument that Erdemir effectuates governmental interests by pursuing policies and objectives that are consistent with the GOT's macroeconomic policies as reflected in the 2012‑2014 Medium Term Programme, namely, policies aimed at improving Turkey's balance of payments either by "decreasing high dependency of production and exports on imports" through "policies and supports enhancing domestic production capacity".134 We also found that the USDOC should have engaged with evidence submitted in the underlying proceedings related to Erdemir's commercial conduct, rather than simply dismissing the information as irrelevant. In light of our findings regarding Erdemir and Isdemir, we did not consider it necessary to separately rule on whether the USDOC public body determinations in respect of OYAK are also inconsistent with Article 1.1(a)(1) in order to resolve the dispute.

7.3 TURKEY'S CLAIMS UNDER ARTICLES 1.1(B) AND 14(D) OF THE SCM AGREEMENT IN RELATION TO THE BENEFIT DETERMINATION IN THE OCTG PROCEEDING

7.3.1 Introduction

7.69.
Turkey claims that the USDOC "has a practice, in assessing whether a good is provided for less than adequate remuneration thereby conferring a benefit, of rejecting in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, with no consideration of whether in‑country prices are distorted".135 Turkey claims that this practice is inconsistent with Article 14(d) of the SCM Agreement, both "as such" and as applied in the OCTG investigation. Turkey also claims that, because the USDOC failed to properly establish that Erdemir and Isdemir provided HRS to the respondents for LTAR under Article 14(d), the USDOC failed to establish that the alleged provision of hot rolled steel conferred a benefit within the meaning of Article 1.1(b) of the SCM Agreement.
7.70.
In its first written submission, the United States requested that the Panel make a preliminary ruling excluding from its terms of reference Turkey's challenge concerning the alleged "practice" mentioned above, on the basis that Turkey failed to identify such a measure and accompanying "as such" claims relating to the measure in its request for consultations. In addition, the United States requested the Panel to make a preliminary ruling that the OCTG Final Determination which forms the basis of Turkey's as applied claim in relation to the alleged "practice" is also outside the Panel's terms of reference, on the basis that the determination had ceased to exist and have legal effect prior to the Panel's establishment.
7.71.
In addressing Turkey's claims, we first address the United States' requests concerning the Panel's terms of reference, before turning to the parties' arguments regarding the merits of Turkey's claims.

7.3.2 The United States' request to exclude measures and claims from the Panel's terms of reference

7.3.2.1 Whether Turkey's panel request adds a challenge regarding an alleged benefit "practice" that was not the subject of Turkey's request for consultations

7.72.
The United States has first requested the Panel to rule that Turkey's panel request improperly includes measures and claims regarding an alleged benefit "practice" that were not the subject of consultations.
7.73.
The United States submits that Turkey clearly limited its challenge in its consultations request with respect to the USDOC's benefit determination exclusively to the preliminary and final benefit determinations in the OCTG proceeding.136 By limiting its challenge in its consultations request to the preliminary and final benefit determinations in the OCTG proceeding, the United States submits that Turkey has attempted to improperly expand the scope of the dispute by including, first, a new measure, i.e. an alleged "practice" of rejecting in‑country prices as benchmarks "based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good"137; and, second, by raising an "as such" claim that this alleged practice is inconsistent with Article 14(d) of the SCM Agreement.138
7.74.
Turkey argues that the Panel should reject the United States' request. First, contrary to the United States' position, Turkey argues that the identification of the measures at issue in its consultations request is broader in scope as Turkey did identify "practices" as measures that are the subject of the dispute.139 Second, Turkey argues that Article 4.4 of the DSU does not require a complainant to identify the practice in question with the same degree of specificity and particularity in its consultations request as in its panel request.140 Third, Turkey argues that the manner in which it identified the measures at issue does not limit Turkey from raising an "as such" claim in its panel request.141
7.75.
The United States' request requires the Panel to consider whether Turkey's challenge to the "practice" as specified in its panel request and associated "as such" claim should be excluded from the Panel's terms of reference on the basis that the alleged practice and the "as such" claim against this practice were not identified in Turkey's request for consultations. This issue involves the relationship between the measures that are identified in the consultations request and the panel request.
7.76.
We recall the relevant legal standards applicable under Articles 4.4 and 6.2 of the DSU. Thereafter, we consider whether, based on the content of Turkey's request for consultations and panel request, Turkey has improperly expanded the scope of its challenge.
7.77.
Article 4.4 of the DSU provides:

All … requests for consultations shall be notified to the DSB and the relevant Councils and Committees by the Member which requests consultations. Any request for consultations shall be submitted in writing and shall give the reasons for the request, including identification of the measures at issue and an indication of the legal basis for the complaint.

7.78.
Article 6.2 of the DSU provides:

The request for the establishment of a panel shall be made in writing. It shall indicate 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. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference.

7.79.
Although similar, these provisions contain important textual differences. While Article 4.4 of the DSU provides that a request for consultations must identify the "measure at issue", Article 6.2 provides that a panel request must identify the "specific measure at issue". This difference in the language between Articles 4.4 and 6.2 makes it clear that, in identifying the measure at issue, greater specificity is required in a panel request than in a consultations request.142 Further, while Article 4.4 provides that a consultations request must identify the "legal basis for the complaint", Article 6.2 specifies that a panel request must "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly".
7.80.
The Appellate Body has explained that the measures and claims identified in a panel request may constitute a natural evolution of the consultations process.143 In this respect, a "precise and exact identity"144 is not required between the measures identified in the request for consultations and the measures identified in the panel request.145 The Appellate Body has also explained that the "legal basis" for a complaint in a panel request may reasonably evolve from the consultations request, so long as the addition of provisions do not have the effect of changing the essence of the complaint.146 Thus, in respect of measures or claims, as long as a complainant does not "expand the scope"147 or change the "essence" of the dispute148 in its panel request as compared to its consultations request, the contents of that panel request will determine the panel's terms of reference.149
7.81.
When a party alleges that a panel request has impermissibly expanded the scope of the dispute or changed its essence, a panel must scrutinize the extent to which the identified measure or claim at issue has evolved or changed from the consultations request to the panel request. The determination of whether the identification of the specific measure at issue or claim in the panel request expanded the scope or changed the essence of the dispute must be made on a case‑by‑case basis, considering the context in which the measures exist and operate.150
7.82.
We must therefore assess whether Turkey expanded the scope or changed the essence of the dispute in its panel request as compared to its request for consultations, through the inclusion as a specific measure in its panel request, a "practice[] followed by the United States in the identified countervailing duty proceedings related to … the rejection of in‑country prices in the assessment of benefit"151, and through the inclusion of an "as such" claim against this practice.152
7.83.
As part of this enquiry, we are required to evaluate whether the identified measures and claims in the panel request have evolved from measures and claims identified in the request for consultations.
7.84.
We note that section (A) of Turkey's request for consultations, entitled "Specific Measures at Issue", provides as follows:

This request for consultations concerns the preliminary and final countervailing duty measures imposed by the United States on Turkish imports of Certain Oil Country Tubular Goods ("OCTG"); Welded Line Pipe; Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes; and Circular Welded Carbon Steel Pipes and Tubes, as identified in Annex 1.

These measures include the determination by the United States to initiate the identified countervailing duty proceedings, the conduct of those proceedings, any preliminary or final countervailing duty or injury determinations issued in those proceedings, any definitive countervailing duties imposed as a result of those proceedings, as well as any notices, annexes, memoranda, orders, amendments, or other instruments issued by the United States, and related practices, in connection with the measures identified in Annex 1.153

7.85.
This language in the first paragraph only identifies the preliminary and final countervailing duty measures that the United States imposed on OCTG, WLP, HWRP, and CWP, as identified in Annex 1.154 This language is consistent with the United States' view that Turkey's challenge in its request for consultations is exclusively aimed at the preliminary and final countervailing duty measures imposed on Turkish OCTG, WLP, HWRP, and CWP imports.
7.86.
The second paragraph also refers to the preliminary and final countervailing duty measures imposed in the four challenged proceedings. In addition, the second paragraph refers to "related practices", in connection with the measures identified in Annex 1. The United States acknowledges the reference to "related practices" in the description of the measures at issue, but argues that this reference is "so general" that it does not identify a particular "practice" at issue and cannot provide a basis for challenging the specific practices that are subsequently identified in Turkey's panel request.155 We do not consider the reference to "related practices" is particularly clear, as it does not identify which are the practices that were followed in connection with the measures in Annex 1 that are the focus of Turkey's concerns. The generic modifier "related" is also not informative. When read in isolation, the reference to "related practices" in section (A) can at most be understood as related to any preliminary or final countervailing duty or injury determination issued in the four proceedings at issue, or any definitive countervailing duty imposed resulting from those proceedings.
7.87.
The Appellate Body has made clear that a panel should view the requests for consultations on the whole when determining whether the language of the request provides a sufficient basis for considering particular measures are covered by a panel's terms of reference.156
7.88.
In this regard, we note that section (B) of Turkey's request for consultations, entitled "Legal Basis of the Complaint" provides in part as follows:

Turkey considers that the measures identified above, and in Annex 1, are inconsistent with the United States' obligations under the WTO Agreements. Turkey's concerns are particularly focused on, though not necessarily limited to, the following aspects of the measures and underlying administrative proceedings:

2. Benefit Determination: The United States' determination that sales of hot rolled steel conferred a benefit, within the meaning of Article 1.1(b), and were made for less than adequate remuneration, within the meaning of [sic] 14(d) of the SCM Agreement, including the Department's improper rejection of in‑country prices for hot rolled steel as a benchmark for less than adequate remuneration.

Turkey considers that the United States' administrative proceedings and measures are inconsistent with Article VI:3 of the GATT 1994, Articles 10, 19.4, and 32.1 of the SCM Agreement, and the specific provisions cited above. Turkey's concerns relate to both the aspects of the measures and underlying administrative proceedings cited above as well as ongoing practices applied in administrative proceedings more generally.157

7.89.
As can be understood from this excerpt, among other concerns, section (B) sets out that Turkey's concerns are focused on the United States' "Benefit Determination" in the OCTG investigation.158 Notably, in addition, the end of this excerpt specifies that "Turkey's concerns relate to both the aspects of the measures and underlying administrative proceedings cited above as well as ongoing practices applied in administrative proceedings more generally".159
7.90.
We thus understand that Turkey's consultations request is focused on several concerns, one of which relates to the United States' benefit determination in the OCTG investigation. Turkey's concerns relate to the preliminary and final countervailing duty measures imposed in the four challenged proceedings. However, Turkey's concerns may also be understood to relate to ongoing practices, in light of the reference to "ongoing practices applied in administrative proceedings more generally". In our view, the reference to "ongoing practices" may be linked to Turkey's identification of each the different aspects of the identified "legal basis" of its consultations request, one of which includes the alleged "improper rejection of in‑country prices for HRS as a benchmark for less than adequate remuneration" referred to in connection with the benefit determination.
7.91.
We recall that a "precise and exact identity"160 is not required between the measures identified in the request for consultations and the measures identified in the panel request, and that the contents of the panel request may govern the panel's terms of reference so long as a complainant does not "expand the scope"161 or change the "essence" of the dispute.162
7.92.
Based on our review of Turkey's request for consultations on the whole, although the reference to "related practices" in the subsection "Specific Measures at Issue" is general in nature, a reasonable reading of section (B) discussing the "Legal Basis of the Complaint" indicates that Turkey's concerns relate not only to preliminary and final countervailing duty measures imposed in the four challenged proceedings, but also to ongoing practices applied in connection with benefit determinations in countervailing duty investigations. Accordingly, Turkey's reference to "related practices" in the subsection "Specific Measures at Issue" in Turkey's consultations request may be understood to include, inter alia, a practice in connection with the "improper rejection of in‑country prices" as a benchmark.
7.93.
In light of our understanding of Turkey's consultations request, we do not consider that Turkey improperly expanded the scope or changed the essence of the dispute by including a practice regarding the benefit determination as a specific measure at issue in its panel request.
7.94.
Therefore, we disagree with the United States that Turkey's panel request improperly expanded the scope of the dispute by including as a new measure, an alleged "practice" of rejecting in‑country prices as benchmarks "based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good". Rather, we consider that, while the panel request identifies the challenged "practice" measures with greater specificity, the manner in which this was done did not expand the scope or essence of the dispute as these "practice" measures were set forth in the request for consultations. Accordingly, we reject the United States' request to exclude the alleged benefit practice measure from our terms of reference.
7.95.
We recall that the United States has argued that Turkey's panel request adds measures and claims regarding a benefit "practice" that were not the subject of Turkey's request for consultations.163 The United States argues that Turkey's "as such" claim in connection with the alleged benefit "practice" must necessarily fall outside the Panel's terms of reference "[b]ecause [the alleged benefit practice measure is] not within the terms of reference".164 The United States further argues that the issue "is not that Turkey described its claims with respect to the alleged practices as 'as such' claims in its panel request, but that Turkey failed to identify those alleged measures in its consultations request altogether".165
7.96.
We thus understand that the basis for the United States' argument that Turkey's "as such" claim corresponding to the alleged benefit "practice" is outside our terms of reference, is that the alleged benefit practice measure is not within the terms of reference. As we have rejected that the alleged benefit practice measure is outside our terms of reference, we see no basis in the United States' request for finding that Turkey's "as such" claim in connection with the alleged benefit "practice" is outside the Panel's terms of reference.
7.97.
We also recall that the "legal basis" for a complaint in a panel request may reasonably evolve from the consultations request, so long as the addition of provisions does not have the effect of changing the essence of the complaint.166 In our view, the basis for Turkey's "as such" claim against the alleged benefit practice measure reasonably evolved from the description and reference to Articles 1.1(b) and 14(d) in the section discussing the "Legal Basis of the Complaint" in Turkey's consultations request, as well as reference to "ongoing practices" therein, demonstrating that Turkey's "as such" claim in its panel request is clearly connected to its request for consultations.
7.98.
For the above reasons, we therefore reject the United States' request for a ruling that Turkey's challenge to an alleged "practice" in relation to the benchmark determination and its "as such" claim with respect to this alleged practice are outside the Panel's terms of reference.

7.3.2.2 Whether the Panel should make findings on the benchmark determination in the OCTG investigation which was successfully challenged in a US domestic court and reversed in a remand determination

7.99.
With respect to Turkey's Articles 1.1(b) and 14(d) claims, the United States submits that Turkey challenges the benchmark determination in the OCTG Final Determination, which was amended and ceased to have legal effect prior to the establishment of the Panel. Therefore, the United States requests the Panel to make a preliminary ruling that this aspect of the OCTG Final Determination is outside the Panel's terms of reference.
7.100.
The United States submits that, as a general rule, the measures included in a panel's terms of reference must be measures that exist at a panel's establishment.167 The United States submits that the initial OCTG Final Determination was successfully challenged before a US domestic court, remanded to the USDOC, and reversed by the USDOC in a remand determination at least 15 months prior to the establishment of the Panel.168 Therefore, the United States submits that the Panel needs to review the benchmark that is set out in the amended OCTG remand determination, and not the benchmark in the initial OCTG Final Determination. Notably, the United States submits that the remand determination no longer relies on out‑of‑country prices as a benchmark, but instead uses in‑country prices.169 Accordingly, the United States submits that Turkey cannot establish that the initial OCTG final benchmark determination was impairing benefits accruing to it at the Panel's establishment, and the panel should not make findings on this initial determination.170
7.101.
Turkey disputes that the initial OCTG Final Determination has ceased to have legal effect for two reasons. First, Turkey observes that the remand determination referred to by the United States was appealed to the US Court of Appeals for the Federal Circuit, and that court only issued its decision on 30 May 2017, after Turkey had requested the Panel's establishment. Turkey argues that the decision of the US Court of Appeals for the Federal Circuit could have been further appealed to the United States Supreme Court, leaving open the possibility that the USDOC's remand determination would be reversed and the original benefit determination reinstated.171 Second, Turkey argues that the initial OCTG Final Determination continues to have legal effect because it reflects the USDOC's long‑standing practice of rejecting in‑country benchmarks based on evidence of government ownership or control of domestic producers. Accordingly, Turkey submits that a ruling from the Panel is necessary to resolve whether the alleged continuing practice is consistent with the United States' WTO obligations.172
7.102.
The United States' request raises the issue of whether the Panel should make findings on the initial OCTG Final Determination when addressing Turkey's claims under Article 1.1(b) and Article 14(d) of the SCM Agreement. Specifically, we understand that the United States has requested us to find outside our terms of reference the benchmark determination in the initial OCTG Final Determination in respect of Turkey's "as applied" claims under Article 1.1(b) and Article 14(d).
7.103.
WTO panel and Appellate Body jurisprudence indicates that panels have discretion regarding whether to make findings in relation to measures that have expired or ceased to have legal effect.173
7.104.
When deciding whether to make findings on expired measures, panels have declined to make findings on challenged measures that have expired before panel establishment.174 Panels have also considered whether a measure is affecting the operation of any covered Agreement or impairing the benefits accruing to the requesting Member under a covered Agreement175; whether a complainant continued to request that the Panel make findings with respect to the measure176; whether an expired or repealed measure is likely to be reimposed or reoccur177; and whether the responding Member could impose duties on goods from the complaining Member in a manner that may give rise to certain of the same, or materially similar, WTO inconsistencies that are alleged in the dispute.178
7.105.
We see no basis to make findings on the benefit determination in the USDOC's initial OCTG Final Determination in the context of addressing Turkey's "as applied" claims in this dispute. We agree with the United States that the benefit determination in the initial OCTG Final Determination ceased to have legal effect under US law following the publication of the amended OCTG Final Determination on 10 March 2016. Thus, the initial OCTG Final Determination ceased to have legal effect well in advance of the Panel's establishment on 19 June 2017.179 We recall that panels may exercise discretion on whether to make findings regarding expired measures, particularly with respect to measures that expired before panel establishment.180
7.106.
In addition, the benchmark used in the amended benefit determination is based on in‑country prices, which is at odds with Turkey's argument that the United States acted inconsistently with Articles 1.1(b) and 14(d) in the OCTG investigation because it relied on out‑of‑country benchmarks to determine whether HRS was provided to Turkish respondents for LTAR.181 As the amended Final Determination that replaces the initial Final Determination is based on in‑country benchmarks, we do not need to make "as applied" findings on the WTO consistency of the initial benefit determination to resolve the dispute. Tellingly, Turkey has not raised any Article 1.1(b) and Article 14(d) claim against the amended OCTG benefit determination that replaced the initial benchmark and benefit determinations.
7.107.
In reaching this decision, we also agree with the United States that potential subsequent US domestic litigation or a risk that the USDOC would revert to using the out‑of‑country benchmark, should not factor into our assessment of whether to make "as applied" findings on the initial OCTG Final Determination. First, the mere potential for a subsequent appeal to the United States Supreme Court does not alter the fact that the initial OCTG Final Determination was replaced under US law and ceased to have legal effect.182 Moreover, that any potential subsequent legal action might have allowed the USDOC to further amend the duty rates or alter the legal basis of those rates does not mean that the initial OCTG Final Determination continued to have legal effect.183
7.108.
Turkey cites the Appellate Body's statement in US – Upland Cotton in support of its argument that a panel should rule on measures that expire prior to the establishment of a panel.184 Turkey's argument is misplaced. In that case, the complainant had challenged a measure whose legislative basis had expired prior to a panel's establishment, but whose effects were alleged to be impairing the benefits accruing to the requesting Member under a covered Agreement at the establishment of the panel.185 As noted above, the circumstances in this dispute are different, as the amended Final Determination that supersedes and replaces the initial Final Determination, is based on in‑country benchmarks, thereby reverting from relying on out‑of‑country prices and eliminating the conduct alleged by Turkey to be inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement.
7.109.
Turkey also cites the Panel Report in Turkey – Rice and the Appellate Body Report in China – Raw Materials in arguing that panels may make findings on measures which expired but for which the underlying legislative framework remained in force.186 First, unlike the facts before us, both of those cases concerned measures that had expired after a panel's establishment and the issues did not arise as to whether those measures were within the panel's terms of reference.187 Even so, Turkey has not challenged here the basic legislative framework and implementing regulations on calculating benchmarks for determining the adequacy of remuneration.188
7.110.
Finally, Turkey argues that a finding regarding its "as applied" claim with respect to the USDOC's benefit determination in the OCTG investigation would differ from a finding regarding its "as such" claim because such a finding would be based on the USDOC's reasoning and evaluation of the facts in that instance. Thus, Turkey argues that "even if [the] Panel finds the USDOC's practice is not 'as such' inconsistent with Articles 1.1(b) and 14(d) of the SCM Agreement, it may nonetheless find the practice as applied in the OCTG investigation to be inconsistent with those obligations".189 Turkey submits that such a finding would resolve the dispute by affirming that the USDOC's application of a continuing practice was inconsistent with Articles 1.1(b) and 14(d). Turkey considers this would "provid[e] guidance for benefit determinations in future segments of the same proceeding, i.e., administrative or sunset reviews, or other countervailing proceedings involving the alleged provision of hot rolled steel by the [GOT]".190
7.111.
In this sense, we understand that Turkey considers that the initial OCTG Final Determination continues to have legal effect because it reflects the USDOC's alleged practice of rejecting in‑country benchmarks.191 As an initial matter, Turkey conflates the notion of the existence of a "practice" with whether a USDOC countervailing duty determination that was superseded by an amended determination continues to have legal effect under US law. As explained above, we disagree with Turkey that the initial OCTG Final Determination continues to have legal effect under US law following the publication of the amended OCTG Final Determination. In addition, in making its argument, Turkey's request for an "as applied" finding in respect of the initial OCTG Final Determination would serve as a second opportunity to challenge an alleged "practice". We disagree with Turkey that such an "as applied" finding would differ from a finding regarding Turkey's "as such" claim. The reason Turkey gives for requesting an "as applied" finding, i.e. providing guidance for future benefit determinations in the same proceeding, is precisely the reason why complaining WTO Members bring "as such" challenges against another Member's laws, practice or ongoing conduct: to seek to prevent that Member from continuing to apply the offending law or conduct in the future. "As such" challenges by a Member also avoid the need to bring further "as applied" challenges in the future. Therefore, we are not persuaded that we should rule on the USDOC's initial OCTG Final Determination in the context of addressing Turkey's "as applied" claims under Article 1.1(b) and Article 14(d).
7.112.
For the foregoing reasons, we decline to rule on the USDOC's initial OCTG final benefit determination in the context of addressing Turkey's "as applied" claims under Article 1.1(b) and Article 14(d) of the SCM Agreement, as we do not consider that findings would aid in providing a positive resolution to the dispute.

7.3.3 The Panel's evaluation of Turkey's "as such" challenge under Article 14(d) of the SCM Agreement

7.113.
Under Article 14(d) of the SCM Agreement, a subsidy in the form of a provision of goods or services is deemed to confer a benefit to the recipient, within the meaning of Article 1.1(b), if it is "made for less than adequate remuneration".192 Article 14(d) provides that "[t]he adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service in question in the country of provision".193
7.114.
In making its "as such" claim that the United States acted inconsistently with Article 14(d), Turkey argues that the USDOC "has a practice, in assessing whether a good is provided for less than adequate remuneration thereby conferring a benefit, of rejecting in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, with no consideration of whether in‑country prices are distorted".194 Turkey argues that "this practice has been articulated and applied systematically by the USDOC in both prior and subsequent countervailing duty proceedings, and thus should be considered a rule of 'general and prospective application' subject to challenge … 'as such' … in this proceeding."195
7.115.
Turkey argues that the Appellate Body has clarified that the relevant inquiry for selecting a proper benchmark under Article 14(d) is whether or not certain in‑country prices are distorted, rather than whether such prices originate from a particular source (e.g. government‑owned entities).196 Moreover, Turkey argues that the Appellate Body has explained that a finding of government ownership and control of certain entities alone cannot serve as the sole basis for establishing price distortion.197 Thus, Turkey argues that an investigating authority may not reject in‑country prices based solely on evidence of substantial government ownership or control of domestic suppliers, with no consideration of whether those prices are in fact distorted.198 Accordingly, Turkey claims that the USDOC's practice is therefore inconsistent "as such" with the Appellate Body's interpretation of Article 14(d).
7.116.
At the outset, we observe that Turkey does not challenge the consistency "as such" of the United States' laws or regulations concerning calculating benchmarks for determining the adequacy for remuneration199, but instead asserts that the USDOC has a practice which constitutes a rule or norm of general and prospective application. In light of this, we will consider below whether Turkey has established the existence of such a practice as a rule or norm of general and prospective application. If we find that Turkey has established the existence of such a practice, we will then evaluate whether such a practice is incompatible with the requirements of Article 14(d).
7.117.
The Appellate Body has explained that any act or omission attributable to a WTO Member may be challenged in dispute settlement proceedings.200 The specific measure at issue, whether it is written or unwritten, and how it is described, characterized, and challenged by a complainant, will inform the kind of evidence a complainant is required to submit and the elements that it must prove in order to establish the existence of the challenged measure.201
7.118.

In challenging a rule or norm of general and prospective application, a Member must demonstrate (a) that the alleged rule or norm is attributable to the responding Member; (b) the precise content of the alleged rule or norm; and (c) that the alleged rule or norm has general and prospective application.202 A rule or norm has "general" application when it affects an unidentified number of economic operators.203 Lastly, a rule or norm has "prospective" application "to the extent that it applies in the future".204 In this regard, complainants are not required to show with "certainty" that a measure will continue to apply in the future.205 However, when prospective application is not sufficiently clear from the constitutive elements of the rule or norm, it may be demonstrated through a number of factors, including: the existence of an underlying policy that the rule or norm implements; proof of systematic application of the challenged rule or norm; the extent to which the rule or norm provides administrative guidance for future conduct; and the expectations it creates among economic operators that the rule or norm will be applied in the future.206 The examination of whether a rule or norm has general and prospective application may vary from case to case and other factors may also be relevant.207

7.119.
When an "as such" challenge concerns an unwritten measure – as in the present dispute – the complaining party must reach a "high [evidentiary] threshold".208 Thus, "a panel must not lightly assume the existence of a 'rule or norm' constituting a measure of general and prospective application, especially when it is not expressed in the form of a written document".209
7.120.
We note that, in prior disputes, complainants have submitted both documentary evidence as well as extensive evidence of instances of systematic application, to demonstrate the existence of unwritten measures that have general and prospective application.210In its first written submission, Turkey submitted relatively limited evidence in support of its claim, consisting of (a) a single statement in the Final Issues and Decision Memorandum issued in the OCTG investigation at issue in this dispute concerning the benchmark determination211; (b) the preliminary CVD determination in the CWP proceeding at issue in this dispute212; and (c) a reference to three preliminary affirmative countervailing duty determinations involving Chinese imports.213
7.121.
The United States considers that the evidence on which Turkey relies is "patently insufficient"214 to support the existence of an unwritten measure and "in no way reflects proof of systemic application" or "a 'practice' at the time of the Panel's establishment".215
7.122.
Following the first meeting with the parties, the Panel submitted a written question asking Turkey to explain how the evidence that Turkey has presented shows the existence of a practice, particularly considering that the USDOC amended its determination in the OCTG investigation.216 In response, Turkey submitted that "the USDOC's exercise of discretion to depart from its normal practice of rejecting in‑country prices … does not establish that the USDOC's practice is not ongoing", noting also that "the USDOC only departed from its normal practice following the adverse USCIT ruling in the OCTG investigation, and it did so under protest".217 In addition, Turkey took the opportunity to submit 28 "examples" of countervailing proceedings in which the USDOC has applied its alleged practice on a systematic basis, including examples "which post‑date the [US]CIT's April 2015 ruling remanding the USDOC's determination in the OCTG investigation".218
7.123.
The United States has objected to us considering any of the examples provided in Turkey's response, on the ground that the evidence is untimely and contrary to the Panel's Working Procedures.219 The United States argues that Turkey should have presented evidence in its first written submission or even at the first meeting, but having failed to do so, Turkey should not be permitted to make its case at a subsequent stage.220 In response to questions from the Panel following the first meeting asking the United States for examples, the United States also submitted three examples in which it argues that the USDOC considered additional evidence of market distortions after determining that the government constituted the majority of the market for a good, in analysing whether in‑country prices could be used as benchmarks.221
7.124.
In our view, the evidence that Turkey refers to in its first written submission, and other evidence cited by Turkey and the United States does not demonstrate that the USDOC systematically bases its decision to rely on in‑country, or out‑of‑country, prices exclusively on evidence as to whether the government owns or controls the majority or a substantial portion of the market. Accordingly, we consider that Turkey has failed to establish the existence of a practice in support of its claim that the USDOC systematically "reject[s] in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, with no consideration of whether in‑country prices are distorted".222
7.125.
We find most troubling Turkey's selective citation in its first written submission to the USDOC's benefit determination in the Final Issues and Decision Memorandum in the OCTG investigation, as follows:

Notwithstanding the regulatory preference [in 19 CFR 351,511(a)(2)] for the use of prices stemming from actual transactions in the country, where the Department finds that the government owns or controls the majority or a substantial portion of the market for the good or service, the Department will consider such prices to be significantly distorted and not an appropriate basis of comparison for determining whether there is a benefit.223

7.126.
We recall, as discussed in Section 7.3.2.2 above, that the initial OCTG final benchmark determination was successfully challenged in a US domestic court by Turkish respondents, remanded to the USDOC and reversed by the USDOC in an amended determination that was published approximately 15 months prior to the establishment of the Panel. In the amended final OCTG determination, the USDOC reversed its decision to base its benchmark on out‑of‑country prices and relied on in‑country prices for its amended benchmark.224 In its amended determination, the USDOC explained as follows:

[W]e are reversing our determination that actual transaction prices in Turkey are not appropriate to use as a benchmark for the HRS purchased by respondents during the POI. Accordingly, we find that HRS prices stemming from transactions within Turkey – including domestic purchases and imports into the country (i.e., tier one prices) – may be considered appropriate, pursuant to the statutory and regulatory requirements, to use as benchmarks for the purposes of this remand redetermination. On this basis, we have recalculated the benefit to [the Turkish respondents] from their purchases of HRS produced by Erdemir and Isdemir.225

7.127.
Initially, Turkey did not refer to the amended OCTG Final Determination in connection with its Articles 1.1(b) and 14(d) claims. Turkey has explained that the USDOC only revised its determination "under protest" and at the direction of a US domestic court226 and considers that the reaction of the USDOC to the ruling confirms the existence of a practice. Therefore, Turkey does not consider that the USDOC's decision to deviate from its earlier determination should prevent the Panel from finding the existence of a practice of general and prospective application. Turkey also cites the Appellate Body in EU – Biodiesel (Argentina), arguing that the fact that a Member may at times exercise discretion does not preclude a panel from finding that a measure violates certain WTO obligations "as such".227
7.128.
First, we do not consider that Turkey's citation to the Appellate Body's Report in EU – Biodiesel (Argentina) is relevant to our assessment. In that dispute, the Appellate Body discussed panel and Appellate Body findings in past cases addressing discretionary aspects of WTO Members' municipal laws subject to "as such" challenges.228 The Appellate Body did not, however, address the evidentiary burden relevant to the examination of an alleged unwritten measure as a rule or norm that has general and prospective application. In this dispute, we must assess whether Turkey has met its burden to demonstrate the existence of the alleged challenged practice.
7.129.
While Turkey considers relevant that the USDOC revised its determination "under protest", the evidence before us suggests that the OCTG remand decision has influenced subsequent benchmark determinations, at least on certain occasions. For instance, in the subsequent CWP 2013 Final Determination Memorandum, the USDOC found that "the record of this review does not contain evidence of the GOT's direct or indirect involvement resulting in distortion of the Turkish HRS market during the POR sufficient to warrant using an out‑of‑country benchmark."229 The USDOC explained:

For example, the record does not contain evidence of GOT export restraints on HRS and the share of imports into the domestic market is higher than in certain past cases where the Department pointed to low import levels as relevant information in rejecting tier one prices. The record information regarding any policies that the GOT may have with respect to the steel industry does not indicate that the GOT's pursuit of those policies results in a significant distortion of the Turkish HRS market. There is no indication otherwise that government involvement significantly distorts this market. Thus, the record of this investigation is absent additional facts present in other cases in which the agency found government distortion even where record evidence did not show that government‑controlled producers accounted for a majority of the market for the good.230

7.130.
Consequently, the USDOC concluded that it would use "the Borusan Companies' actual domestic and import prices for HRS to calculate the benefit from the Borusan Companies' purchases of HRS from Erdemir and Isdemir during the POR".231 In our review of the Final Determinations in the WLP and HWRP proceedings at issue in this dispute, the USDOC similarly found that record evidence did not support a finding that the Turkish HRS market was so distorted that it cannot serve as an appropriate benchmark, despite the fact that Erdemir's and Isdemir's production accounted for a substantial portion of the domestic supply.232
7.131.
Outside of the proceedings at issue in this dispute, other examples submitted by both parties confirm that the USDOC does not systematically reject in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, without considering other evidence of whether in‑country prices are distorted. For instance, in certain cases, the USDOC considered government export restraints (e.g. export tariffs) and import levels, in addition to the level of government involvement in the market.233 In at least one instance, the USDOC declined to resort to out‑of‑country prices as benchmarks for its benefit analysis even in presence of a substantial level of control on the production of the product concerned by the government.234
7.132.
Turkey argues that, while the USDOC may in certain cases refer to factors beyond the level of government involvement in the market, such as the level of import penetration, the USDOC does not analyse these factors in the context of a market analysis or otherwise use it to determine if prices are in fact distorted because of government ownership or control.235 Regardless of how the USDOC may evaluate other factors, we disagree with Turkey's contention that consideration of such factors does not detract from the existence of the alleged practice. To the extent that the USDOC considers additional evidence in assessing the degree of distortion present in the market, as reflected in several examples before us, the USDOC cannot be said to have rejected in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good.
7.133.
We recall that Turkey has referred to excerpts from three preliminary determinations involving Chinese products that pre‑date the USDOC's CVD determinations challenged in this dispute: Certain Steel Wheels from China, Circular Welded Austenitic Stainless Pressure Pipe from China, and Circular Welded Carbon Quality Steel Line Pipe from China.236 In each of these determinations, the USDOC determined that private prices in China are significantly distorted based on a finding of "overwhelming involvement" by the Chinese government in the market.237 Turkey has also identified examples in response to questioning from the Panel in which the USDOC rejected in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, without considering other evidence.238 We do not consider that three preliminary determinations involving Chinese products and certain examples identified in response to questioning are sufficient evidence to demonstrate a systematic practice, particularly in consideration of other evidence contradicting the existence of such a practice. In this respect, we recall the "high [evidentiary] threshold"239 that applies in proving the existence of an unwritten rule or norm that is alleged to have general and prospective application.
7.134.
Based on the foregoing, we thus find that Turkey has failed to establish that the USDOC "has a practice, in assessing whether a good is provided for less than adequate remuneration thereby conferring a benefit, of rejecting in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, with no consideration of whether in‑country prices are distorted".240 Accordingly, we find that Turkey has failed to demonstrate that the United States has acted inconsistently "as such" with Article 14(d) of the SCM Agreement.

7.3.4 Conclusions regarding Turkey's claims under Articles 1.1(b) and 14(d) of the SCM Agreement

7.135.
For the reasons set out above, we reject the United States request for a ruling that Turkey's challenge to an alleged "practice" in relation to the benchmark determination and its "as such" claim with respect to this alleged practice are outside the Panel's terms of reference. We further exercise our discretion and decline to rule on the USDOC's initial OCTG final benefit determination in the context of addressing Turkey's "as applied" claims under Article 1.1(b) and Article 14(d) of the SCM Agreement. We found that the initial OCTG final benefit determination ceased to have legal effect under US law prior to the Panel's establishment following the publication of the amended OCTG Final Determination, and thus, we do not consider that findings would aid in providing a positive resolution to the dispute.
7.136.
In addressing Turkey's "as such" claim Article 14(d), we find that Turkey has failed to establish that the USDOC "has a practice, in assessing whether a good is provided for less than adequate remuneration thereby conferring a benefit, of rejecting in‑country prices as a benchmark based solely on evidence that the government owns or controls the majority or a substantial portion of the market for the good, with no consideration of whether in‑country prices are distorted". On this basis, we reject Turkey's claim that the United States acted inconsistently "as such" with Article 14(d) of the SCM Agreement.

7.4 TURKEY'S CLAIMS UNDER ARTICLES 2.1(C) AND 2.4 OF THE SCM AGREEMENT IN RELATION TO THE SPECIFICITY DETERMINATIONS IN THE OCTG, WLP, HWRP, AND CWP PROCEEDINGS

7.4.1 Introduction

7.137.
Turkey claims that the USDOC's de facto specificity determinations in the OCTG, WLP, and HWRP investigations and the CWP review are inconsistent with Articles 2.1(c) and 2.4 of the SCM Agreement. Turkey claims, first, that the USDOC acted inconsistently with Articles 2.1(c) and 2.4 by failing to sufficiently identify or substantiate the existence of a "subsidy programme" within the meaning of Article 2.1(c). Second, the USDOC acted inconsistently with Article 2.1(c) by failing to take into consideration the two mandatory factors in the last sentence of Article 2.1(c), i.ethe extent of diversification of economic activities, as well as the length of time during which the subsidy programme has been in operation.241
7.138.
In each of the determinations at issue, the USDOC determined that the number of industries or enterprises using the so‑called "Provision of HRS for LTAR" programme was limited and, thus, de facto specific under Article 2.1(c). The USDOC based its determination primarily on a questionnaire response from the GOT that 8 or 9 industries purchased HRS in Turkey during the POI. In the OCTG investigation, the USDOC stated that:

Regarding the specificity of HRS for LTAR, the GOT provided a list of the industries that purchased HRS in Turkey during the POI. The GOT identified eight industries: Construction, Automotive, Machinery & Industrial, Electrical Equipment, Appliances, Agricultural, Oil & Gas, and Containers & Packaging. Consistent with past determinations, we find that the provision of HRS is specific pursuant to section 771(5A)(D)(iii)(I) of the Act because the number of industries or enterprises using the program is limited.242

7.139.
The USDOC replicated its specificity determination for the WLP, HWRP, and CWP proceedings.243
7.140.
We will first address the legal standard under Articles 2.1(c) and 2.4 of the SCM Agreement before addressing Turkey's claims.

7.4.2 The Panel's evaluation of Turkey's Articles 2.1(c) and 2.4 claims

7.141.
Article 2.1 of the SCM Agreement provides as follows:

Article 2

Specificity

2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as "certain enterprises") within the jurisdiction of the granting authority, the following principles shall apply:

(c) If, notwithstanding any appearance of non‑specificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.244

7.142.
Article 2.4 of the SCM Agreement provides:

Any determination of specificity under the provisions of this Article shall be clearly substantiated on the basis of positive evidence.

7.143.
Thus, a subsidy may be de facto specific notwithstanding the appearance of being de jure non‑specific in certain cases. For instance, a finding of de facto specificity may arise when a subsidy is provided under a "subsidy programme" that is used "by a limited number of certain enterprises".
7.144.
In order to establish de facto specificity on this basis, an investigating authority must first have established the existence of the relevant "subsidy programme". An investigating authority might do this when determining the existence of the relevant subsidy within the meaning of Article 1.1.245 When this is not the case, the investigating authority must do so at the time of making its determination of specificity. In order to do so, an investigating authority needs to determine that subsidies have been provided to recipients pursuant to a plan or scheme of some kind.246 Moreover, in determining whether a subsidy programme is used by a limited number of enterprises, the last sentence of Article 2.1(c) provides that an investigating authority shall take into account the extent of diversification of economic activities with the jurisdiction of the granting authority, as well as the length of time that the subsidy programme has operated. Thus, an investigating authority is obligated to take these two factors into consideration in its de facto specificity determination, regardless of whether an interested party raises this issue during the investigation.247 Finally, an investigating authority's specificity determination is subject to the obligation under Article 2.4 that it be clearly substantiated on the basis of positive evidence.

7.4.2.1 Whether the United States established the existence of a "subsidy programme" for purposes of Article 2.1(c) of the SCM Agreement

7.145.
We recall our findings at paragraphs 7.51 and 7.62 above that the USDOC's public body determinations regarding Erdemir and Isdemir in the challenged proceedings are inconsistent with Article 1.1(a)(1) of the SCM Agreement because the USDOC failed to establish that Erdemir and Isdemir possess, exercise, or are vested with governmental authority to perform a government function. Since the SCM Agreement is concerned only with subsidies provided by a government (in either the narrow or broad sense, either directly or through entrustment and direction of a private body), the term "subsidy programme" under Article 2.1 (c) necessarily refers to a governmental subsidy programme. Accordingly, a lack of governmental function of an entity for the purpose of public body analysis likely suggests a lack of a subsidy programme for the purpose of Article 2.1 (c). Nevertheless, we consider it useful to address the parties' arguments raised directly in relation to the issue of whether the USDOC established a "programme", to provide a more complete analysis to resolve the present dispute.
7.146.
The parties agree that Article 2.1(c) requires the identification of a "subsidy programme". In this regard, both parties248 referred to the Appellate Body's statement in US – Countervailing Measures (China) regarding the notion of "subsidy programme" in Article 2.1(c):

The ordinary meaning of the word "programme" refers to "a plan or scheme of any intended proceedings (whether in writing or not); an outline or abstract of something to be done". The reference to "use of a subsidy programme" suggests that it is relevant to consider whether subsidies have been provided to recipients pursuant to a plan or scheme of some kind. Evidence regarding the nature and scope of a subsidy programme may be found in a wide variety of forms, for instance, in the form of a law, regulation, or other official document or act setting out criteria or conditions governing the eligibility for a subsidy. A subsidy scheme or plan may also be evidenced by a systematic series of actions pursuant to which financial contributions that confer a benefit have been provided to certain enterprises. This is so particularly in the context of Article 2.1(c), where the inquiry focuses on whether there are reasons to believe that a subsidy is, in fact, specific, even though there is no explicit limitation of access to the subsidy set out in, for example, a law, regulation, or other official document.

The mere fact that financial contributions have been provided to certain enterprises is not sufficient, however, to demonstrate that such contributions have been granted pursuant to a plan or scheme for purposes of Article 2.1(c) of the SCM Agreement. In order to establish that the provision of financial contributions constitutes a plan or scheme under Article 2.1(c), an investigating authority must have adequate evidence of the existence of a systematic series of actions pursuant to which financial contributions that confer a benefit are provided to certain enterprises.249

7.147.
We agree with the above statement and are guided by these findings in addressing Turkey's claim. The issue before us is essentially a factual one: whether the USDOC identified and evidenced a "subsidy programme" in the form of the Provision of HRS for LTAR in each challenged proceeding.
7.148.
Turkey contends that the USDOC simply based its de facto specificity determinations on the mere fact that the purchasers of HRS in Turkey are limited in number. In Turkey's view, the record contains neither evidence of a "plan" or "scheme", nor evidence demonstrating "a systematic series of actions" concerning the Provision of HRS for LTAR.250
7.149.
The United States argues that in each of the challenged proceedings the USDOC identified the subsidy programme at issue, i.e. the Provision of HRS for LTAR, in the form of "plan or scheme" through a systematic series of actions. The United States contends that the existence of the Provision of HRS for LTAR as a "subsidy programme" was first alleged by the petitioners in their petition, and was confirmed in the challenged proceedings through, inter alia, an examination of the GOT's 2012‑2014 Medium Term Programme, Erdemir's Annual Reports, and a complete transaction‑specific accounting of the provision of HRS, in conjunction.251
7.150.
In response, Turkey argues that the United States took the statements in Erdemir's 2012 and 2013 Annual Reports out of context. Turkey also argues that the USDOC did not evaluate or explain its relevance of the list of HRS transactions in its de facto specificity determinations.252 Turkey contends that a list of HRS transactions, some of which are above and some of which are below a benchmark price, cannot support the existence of a plan or scheme in the form of a systematic series of actions, let alone a plan or scheme for the Provision of HRS for LTAR. According to Turkey, the frequency or number of transactions that provide a subsidy may be relevant evidence of an underlying plan or scheme, but such evidence is not, in and of itself, sufficient evidence.253
7.151.
We first observe that the USDOC determinations in the challenged proceedings do not include any explicit discussion or statement concerning the existence of a "subsidy programme" in the form of the Provision of HRS for LTAR. For example, in its de facto specificity determination section of the OCTG investigation, the USDOC stated that:

Regarding the specificity of HRS for LTAR, the GOT provided a list of the industries that purchased HRS in Turkey during the POI. The GOT identified eight industries: Construction, Automotive, Machinery & Industrial, Electrical Equipment, Appliances, Agricultural, Oil & Gas, and Containers & Packaging. Consistent with past determinations, we find that the provision of HRS is specific pursuant to section 771(5A)(D)(iii)(I) of the Act because the number of industries or enterprises using the program is limited.254

7.152.
Elsewhere in the determinations, the USDOC referred to all investigated subsidies in the challenged proceedings generally as "program" or "programs". For instance, the USDOC's determination in the WLP investigation contains the following:

Further, we are applying the above‑zero rates calculated for Toscelik in this investigation for the following identical programs: Provision of HRS for LTAR …[.]255

7.153.
Thus, the USDOC simply used the word "program" without any explanation of the reason why this term could properly be used to refer to the subsidy or subsidies in question. In our view, such a generic reference to all investigated subsidies as "programmes" alone is not sufficient to properly identify and substantiate a "subsidy programme" to determine de facto specificity under Article 2.1(c). We recall and agree with the panel's statement in US – Countervailing Measures (China) that "the use of the term 'subsidy programme', as opposed to 'subsidy', is not lacking in significance".256 For its de facto specificity determination under Article 2.1(c), an objective and unbiased investigating authority is expected to provide a reasoned explanation whether subsidies have been provided to recipients pursuant to a plan or scheme of some kind, before assessing whether access to that programme is specifically restricted.
7.154.
In the present proceedings, the United States refers to the GOT's Medium Term Programme, Erdemir's policies of supporting export‑oriented production, and a complete transaction‑specific accounting of the provision of HRS as evidence of the existence of the "subsidy programme". The United States claims that, on the basis of all evidence in conjunction, the USDOC concluded that a subsidy programme in the form of the Provision of HRS for LTAR existed.257 We have no doubt that government policies and the list of HRS transactions may serve as potential evidence demonstrating the existence of a plan or scheme in the form of a systematic series of actions. However, we must determine whether the USDOC actually considered the alleged evidence, and if so whether such evidence sufficiently supports the conclusion that there is a "subsidy programme" for the Provision of HRS for LTAR under Article 2.1(c). The parties do not dispute that the set of evidence referred to by the United States was in the record of the challenged proceedings. Nevertheless, the existence of the policy documents and the transaction data in the record does not necessarily mean that the USDOC actually considered them in determining the existence of a "subsidy programme" in the form of the Provision of HRS for LTAR. The burden is on the United States to demonstrate that the USDOC actually considered these policy statements and transaction data in determining the existence of a "subsidy programme". We shall now consider whether or not the United States has discharged that burden.

7.4.2.1.1 2012‑2014 Medium Term Programme

7.155.
In the OCTG, WLP, and CWP proceedings, the USDOC did indeed refer to the GOT's "stated policy in its 2012‑2014 Medium Term Programme to improve Turkey's balance of payments".258 The Medium Term Programme refers to the GOT's objectives such as "increasing employment, maintaining fiscal discipline, increasing domestic saving, [and] reducing the current account deficit, [in] this way strengthening macroeconomic stability in stable growth process".259 The USDOC referred to the Medium Term Programme for the purpose of determining that Erdemir and Isdemir are public bodies. The USDOC did not refer to the Medium Term Programme as a basis for establishing the existence of any alleged Provision of HRS for LTAR Programme in the context of its de facto specificity determination. There may be many different ways of achieving the broad objectives of the Medium Term Programme of improving the balance of payments, increasing employment and strengthening macroeconomic stability in Turkey. The provision of subsidised HRS may well be one of them. However, this need not necessarily be the case. In the absence of any additional evidence suggesting that the Medium Term Programme somehow envisages the provision of subsidised HRS, or a reasoned explanation by the USDOC to this effect, any connection between these broad governmental policies in the Medium Term Programme and the alleged Provision of HRS for LTAR Programme is too remote to support the existence of the latter subsidy programme.

7.4.2.1.2 Erdemir's Annual Reports

7.156.
Regarding Erdemir's alleged support to export‑oriented production, we recall that, in the public body determination sections of the OCTG investigation, the USDOC refers to the statement in Erdemir's 2012 Annual Report that "the [Erdemir] Group also implemented policies which promoted the customers to engage in export‑oriented production".260 In the WLP, CWP and HWRP proceedings, the USDOC refers to the statements in Erdemir's 2013 Annual Report that Erdemir "made a major contribution to the 4.6% increase in Turkey's manufacturing exports in 2013"261 and "continues to create value added for Turkish industry through initiatives to increase the use of domestic sources of raw materials".262 According to the USDOC, these policies are "in line" with the GOT's policies in the 2012‑2014 Medium Term Programme.263 The United States submits that together with the Medium Term Programme and the list of HRS transactions, the alleged policies of Erdemir to support export‑oriented production demonstrate that there is a plan or scheme in the form of the systematic provision of HRS for LTAR.264 Turkey argues that these policy statements were taken out of context265, and do not demonstrate the existence of a "subsidy programme" because the USDOC did not discuss any of them in any of its determinations in any context.266
7.157.
As discussed at paragraph 7.44 above, we do not consider that the statements, when considered in their context, demonstrate that Erdemir pursued a governmental policy to support export‑oriented production, let alone that there is a plan or scheme in the form of the Provision of HRS for LTAR in order to support export‑oriented production in Turkey. In any event, considering that there could be many ways for a government or public body to support export‑oriented production, an objective and unbiased investigating authority is expected to provide a reasoned explanation in its determinations of how Erdemir's alleged policies indicate the existence of the Provision of HRS for LTAR. In our view, the USDOC has failed to provide such a reasoned explanation in the present case. Without any additional evidence or a reasoned explanation by the USDOC, we consider that any connection between Erdemir's alleged policies and any alleged Provision of HRS for LTAR is too remote to support the existence of the latter subsidy programme.

7.4.2.1.3 List of HRS transactions

7.158.
The list of HRS transactions may serve as potential evidence demonstrating that there is a systematic series of actions in the form of the Provision of HRS for LTAR by a public body. However, such a list alone is not sufficient evidence, particularly where the prices of the transactions vary with some prices higher than the benchmark prices and some lower than the benchmark prices.267 As the Appellate Body stated in US – Countervailing Measures (China), "the mere fact that financial contributions have been provided to certain enterprises is not sufficient, however, to demonstrate that such contributions have been granted pursuant to a plan or scheme for purposes of Article 2.1(c) of the SCM Agreement".268
7.159.
In our view, the number or frequency of the subsidies provided under an alleged subsidy programme must be analysed before the systematic nature of the subsidy provision can be determined.269 We are not suggesting that a "subsidy programme" in the form of provision of inputs for LTAR must consist exclusively of transactions with prices lower than the benchmark prices. However, if the transactions providing a subsidy are disparate and infrequent in light of the total number of transactions, it may not be discernible that subsidies were provided pursuant to "a plan or scheme of some kind". We consider that an investigating authority must therefore provide a reasoned explanation as to how each of the pieces of evidence individually or jointly indicates the existence of the alleged subsidy programme. Where such a subsidy programme is evidenced by a systematic series of transactions, there must be a reasoned explanation as to whether and how the transactions providing a subsidy are "systematic" in the particular circumstances of a given case. In the present case, the record does not indicate that the USDOC actually analysed the list of HRS transactions to determine whether the transactions providing subsidies in the form of the provision of HRS for LTAR are systematic by considering, e.g. the volume and frequency of transactions providing subsidies as compared with transactions for which the prices are above the benchmark.

7.4.2.1.4 Consideration of the evidence in its totality

7.160.
We note that the United States argues that the USDOC considered the above‑mentioned policy statements and the list of HRS transactions "in conjunction".270 Having considered that each of the three pieces of evidence was not sufficient to support the USDOC's alleged conclusion concerning the existence of a subsidy programme in the form of the Provision of HRS for LTAR, we are not persuaded that the abovementioned evidence, when considered together, supports the USDOC's alleged conclusion that a subsidy programme existed in the form of systematic provision of HRS for LTAR by Erdemir and Isdemir.
7.161.
Accordingly, given that the USDOC failed to make proper "public body" determinations in the challenged proceedings, we find that the USDOC could not have properly determined that Erdemir and Isdemir provided subsidies, much less that they did so pursuant to a "subsidy programme" within the meaning of Article 2.1(c). In any event, we find that the USDOC acted inconsistently with Article 2.1(c) of the SCM Agreement by failing to properly identify and substantiate the existence of a subsidy programme in the form of the Provision of HRS for LTAR.
7.162.
We recall that Turkey also brings a claim under Article 2.4 of the SCM Agreement concerning the USDOC's failure to substantiate the alleged "subsidy programme" of the Provision of HRS for LTAR.271 We have found above that the USDOC failed to properly identify and substantiate the existence of a subsidy programme within the meaning of Article 2.1(c). Accordingly, the USDOC's de facto specificity determination was not clearly substantiated on the basis of positive evidence in accordance with Article 2.4. For this reason, we also find that the USDOC acted inconsistently with Article 2.4 of the SCM Agreement for failing to clearly substantiate its de facto specificity determination.

7.4.2.2 Whether the United States considered the two factors in the last sentence of Article 2.1(c) of the SCM Agreement

7.163.
In determining whether a subsidy programme is used by a limited number of enterprises, the last sentence of Article 2.1(c) of the SCM Agreement provides that an investigating authority shall take into account the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as the length of time that the subsidy programme has operated. Article 2.1(c) however does not provide any specific guidance as to how an investigating authority should take into account these two factors. The panel in US – Countervailing Measures (China) addressed this issue in the following terms:

With regard to the ordinary meaning of the final sentence of Article 2.1(c), we are of the view that the use of the term "shall" clearly connotes an obligation. Indeed, the term is defined as "has a duty to; more broadly, is required to". The decision by the drafters of the SCM Agreement to use the term "shall" instead of terms such as "should" or "may" is significant.

With regard to the context of Article 2.1(c) more broadly, as we have seen above, subparagraph (c) concedes a certain flexibility for investigating authorities to consider specificity in a number of factual scenarios that may arise. In this context, we consider the last sentence of Article 2.1(c) to function as a safeguard that keeps in check this flexibility. Indeed, where economic activities within the jurisdiction of the granting authority are less diversified, the use of a subsidy programme by a limited number of certain enterprises may nonetheless lead to a finding of non‑specificity. Use by a limited number of certain enterprises may similarly lead to a finding of non‑specificity where the subsidy programme has been in operation for a limited period of time only.272

7.164.
Moreover, that panel considered that an investigating authority's consideration of the factors in the final sentence of Article 2.1(c) need not be done explicitly. That is to say, an investigating authority need not in all circumstances include an explicit statement in its determination that these factors had been taken into account. However, there must be evidence that these two factors were taken into account, either explicitly or implicitly.273 The panel in US – Washing Machines followed a similar approach.274
7.165.
We agree with these panels. Thus, the two factors, i.e. the extent of economic diversification and the length of time during which the subsidy programme has operated, are mandatory, and must therefore be taken into account whenever an investigating authority makes a de facto specificity determination. This does not depend upon whether an interested party in the proceeding raised the relevance of the two factors. Having said that, an investigating authority does not need to consider these two factors explicitly.
7.166.
In the present case, the United States does not dispute that the USDOC did not discuss these two factors, or make any explicit statement regarding these factors in its determination. The United States asserts that the USDOC took these factors into account implicitly. The question before us is whether the record evidence supports this assertion. We make this inquiry with respect to each of these two factors in turn.

7.4.2.2.1 Economic diversification

7.167.
The United States argues that the USDOC concluded, implicitly, that the extent of economic diversification factor had no bearing on its specificity analysis. According to the United States, the USDOC's implicit consideration of this factor is reflected in the USDOC's consideration and discussion of the factual record such as the Medium Term Programme and Erdemir's 2012 and 2013 Annual Reports.275 The United States also submits that it is a publicly known fact that Turkey has a highly diversified economy.276
7.168.
In our view, the United States' reference to the Medium Term Programme in its public body determinations in each of the proceedings does not demonstrate that the USDOC actively and meaningfully considered the economic diversification of Turkey. According to the United States, the Medium Term Programme discusses the Turkish economy in relation to other world economies. The United States underlines the following statements in the Medium Term Programme:

Turkey was among the countries that had highest growth rates around the world.277

Turkey has been one of the most successful countries among the OECD in struggling with the unemployment thanks to rapid growth and measures taken timely during the crisis exit process.278

7.169.
Although these statements concern Turkey's economy, they address only certain aspects of the Turkish economy, i.e. its growth and unemployment rates. These statements are not connected with the economic diversification of the Turkish economy. We note that the last sentence of Article 2.1(c) does not simply require consideration of factors related to the economy of the granting authority, but specifies that an investigating authority consider the extent of the economic diversification. Therefore, even if we accept the United States' argument that the USDOC indeed implicitly considered these statements when making its de facto specificity determination, the United States has not demonstrated that the USDOC specifically took into account the economic diversification factor.
7.170.
Likewise, Erdemir's 2012 and 2013 Annual Reports do not demonstrate that USDOC actively and meaningfully considered the economic diversification of Turkey. The United States referred to statements in Erdemir's 2012 and 2013 Annual Reports that Turkey is among the eight largest steel producers in the world, with a production capacity of 35.9 million tonnes in 2012 and 34.7 million tonnes in 2013.279 The United States also points to the statements in Erdemir's 2013 Annual Report that the Turkish economy expanded more than 3% in 2013 despite the global crisis280, and that Turkeys' manufacturing exports grew by 4.6% in 2013.281 None of these references are linked to the diversification of the Turkish economy.
7.171.
Finally, regarding whether the USDOC implicitly took into account the publicly known fact that the Turkish economy is highly diversified, we do not necessarily disagree that an investigating authority may take into account publicly known facts in its determinations. However, leaving aside whether the high level of diversification of the Turkish economy is a publicly known fact or not, the United States has not identified anything in the investigation record to indicate that the USDOC implicitly took into account the diversification of the Turkish economy. We recall and agree with the panel in US – Washing Machines that there must be some means of determining from the determination that the investigating authority did consider the factors in the last sentence of Article 2.1(c) in an "active and meaningful" way.282
7.172.
In sum, we conclude that the identified statements contained in the evidence on the record do not indicate that the USDOC considered the economic diversification of Turkey in its determination of de facto specificity. Accordingly, we find that the USDOC acted inconsistently with the final sentence of Article 2.1(c) of the SCM Agreement by failing to take into account the extent of diversification of economic activities within Turkey.

7.4.2.2.2 Length of time that the "subsidy programme" has been in operation

7.173.
Regarding the length of time that the subsidy programme has been in operation, the United States argues that in evaluating the Provision of HRS for LTAR, the USDOC examined Erdemir's 2012 and 2013 Annual Reports, which identify Erdemir as "Turkey's iron and steel power"283, as well as evidence that Erdemir has existed since 1960 and Isdemir has existed since 1970.284 The United States also contends that the GOT provided the USDOC with information regarding the production and provision of HRS not only for the period of investigation (POI), but also the preceding two years, which demonstrated that the programme usage data for the POI was not anomalous in comparison to data for past years.285 According to the United States, the length of time in which the subsidy programme had existed did not warrant explicit discussion in the USDOC's determination.286
7.174.
Turkey argues that the USDOC's de facto specificity determination is not based on the evidence that the United States refers to in the present proceedings. Turkey contends that the duration of the existence of Erdemir and Isdemir does not establish of the duration of the subsidy programme.287 Turkey also points out that, for the two preceding years before the POI, the data on the record are insufficient to allow the USDOC to meaningfully take into account the length of time in which the alleged subsidy programme has operated.288
7.175.
We must decide whether the USDOC took into account the length of the subsidy programme's operation by virtue of the fact that there is evidence on the record that Erdemir and Isdemir have been in operation since 1960 and 1970, respectively, and the fact that the USDOC requested and obtained data from the GOT concerning the two years preceding the POI.
7.176.
The kinds of evidence that the United States identified could be potentially relevant for an investigating authority to consider in its evaluation of the length of time in which the subsidy programme has been in operation. For instance, for a subsidy programme in the form of the provision of inputs for LTAR, an investigating authority may consider the duration of the subsidy programme by examining transactional data preceding the POI with regard to the provision of that relevant input.289 The compliance panel in US – Countervailing Measures (Article 21.5 – China) did not understand this mandatory factor to require an investigating authority to establish in each case the total duration of the subsidy programme that has been in operation. That panel stated that:

[W]e do not consider that Article 2.1(c) imposes in all cases a requirement to establish the total duration of the programme. Rather, to comply with the requirement of the last sentence of Article 2.1(c), it would be sufficient to show that the programme has been in operation for a duration that does not itself account for "use of a subsidy programme by a limited number of certain enterprises".290

7.177.
We agree with this statement. In our view, an investigating authority does not need to establish the total duration of the subsidy programme, so long as it can be demonstrated that the limited number of users of the programme is not entirely explained by the short durations of the programme. In the present case, the parties do not dispute that the data for the two preceding years are incomplete, so far as the provision of HRS for LTAR by Erdemir and Isdemir is concerned. In particular, in the OCTG investigation, because the requested HRS consumption and production data was not available, the GOT provided Turkish production and consumption figures for all flat steel products, which includes hot rolled coils, cold rolled coils, stainless coils, and other products.291 In subsequent proceedings, the GOT provided data for all Turkish HRS imports, exports, production, and consumption.292 The GOT did not provide any company‑specific data for Erdermir and Isdemir. Moreover, the GOT did not provide any HRS pricing information during the relevant period.293
7.178.
Given that pricing information for the relevant period is missing from the record, and Erdemir and Isdemir were not the only HRS producers in Turkey during the relevant period, we do not see how assessing the data provided by the GOT would allow the USDOC to meaningfully consider the length of the time that the subsidy programme has been in operation.
7.179.
We also do not consider that statements that Erdemir and Isdemir existed since 1960 and 1970, necessarily inform the length of time that the so‑called Provision of HRS for LTAR Programme has been in operation. The fact that these two companies have existed since the 1960s and 1970s does not necessarily mean that these two companies have been providing HRS for LTAR as public bodies since then. In our view, the evidence cited by the United States is not sufficient on its own to demonstrate that the USDOC actively and meaningfully considered the length of operation of the alleged "subsidy programme".
7.180.
Finally, we do not see any basis in Article 2.1(c) or elsewhere in the SCM Agreement for the United States' argument that a complainant must also show how the investigating authority's failure to consider the two factors in the final sentence of Article 2.1(c) affected the specificity determination.294
7.181.
In sum, we find that the USDOC acted inconsistently with Article 2.1(c) of the SCM Agreement by failing to properly evaluate the length of time in which the so‑called Provision of HRS for LTAR Programme has been in operation.

7.4.3 Conclusions regarding Turkey's Article 2.1(c) and 2.4 claims

7.182.
For the reasons stated above, we find that the USDOC acted inconsistently with Articles 2.1(c) and 2.4 of the SCM Agreement by failing to identify and clearly substantiate the existence of a Provision of HRS for LTAR Programme based on positive evidence. We also find that the USDOC acted inconsistently with Article 2.1(c) of the SCM Agreement by failing to take into account the extent of diversification of economic activities within Turkey, and by failing to properly evaluate the length of time in which the so‑called Provision of HRS for LTAR Programme has been in operation.

7.5 TURKEY'S CLAIMS UNDER ARTICLE 12.7 OF THE SCM AGREEMENT IN RELATION TO THE USE OF FACTS AVAILABLE IN THE OCTG, WLP, AND HWRP PROCEEDINGS

7.5.1 Introduction

7.183.
Turkey claims that the USDOC's use of facts available in the OCTG, WLP, and HWRP investigations is inconsistent with Article 12.7 of the SCM Agreement.
7.184.
In its first written submission, the United States requested the Panel to make a preliminary ruling excluding from its terms of reference claims under Article 12.7 of the SCM Agreement relating to the WLP investigation, concerning subsidy programmes other than the Provision of HRS for LTAR. In its panel request, the United States argues that Turkey expressly limited its Article 12.7 claim in the WLP investigation to a single programme, the Provision of HRS for LTAR, and thus any Article 12.7 claims in respect of any other investigated programmes in the WLP proceeding fall outside the Panel's terms of reference.
7.185.
We address Turkey's claims concerning the OCTG, WLP, and HWRP proceedings in turn.

7.5.2 The use of facts available in the OCTG investigation

7.5.2.1 Factual background

7.186.
In the OCTG investigation, the USDOC requested that Borusan report in its questionnaire response all of its HRS purchases during the POI, including purchases which were not used to produce OCTG.295 Following a request by Borusan, the USDOC extended the deadline for response to the original questionnaire.296
7.187.
In response to the original questionnaire, Borusan stated that it had production facilities at three locations during the POI: Gemlik, Halkali, and Izmit. Borusan only reported HRS purchases for the Gemlik facility. Borusan explained that it only produces OCTG at Gemlik, and did not transfer any HRS purchased at the other two facilities to Gemlik. Borusan also explained that the process of gathering HRS purchase data on a coil‑by‑coil basis is extremely time‑consuming and burdensome, and failed to see the purpose of gathering information for the facilities that do not produce OCTG. The USDOC subsequently issued a supplemental questionnaire requesting that Borusan either report all its HRS purchases, including for the other two facilities, or otherwise justify why it could not report the purchases.297 In its response to the supplemental questionnaire, Borusan stated that Gemlik HRS purchase data was collected from two different data systems, and transportation costs had to be separated out manually. For these reasons, Borusan requested the USDOC's permission to report HRS purchases only for Gemlik.298 Borusan further indicated to the USDOC that it would be willing to cooperate if a full reporting was insisted upon for all facilities, but stressed that Borusan would require several weeks to provide such complete information.299
7.188.
The USDOC determined that Borusan failed to follow the questionnaire instructions and failed to properly request an extension when asked for the second time to provide all HRS purchases data, thus failing to act to the best of its ability. As a result, the USDOC applied an adverse inference. Specifically, for both the Halkali and Izmit facilities, the USDOC found that Borusan purchased HRS at the lowest price on the record for the Gemlik facility's purchases. The USDOC also adversely inferred that the Halkali and Izmit facilities purchased quantities of HRS during the POI equal to their annual production capacity300, and that these facilities purchased HRS from Erdemir and Isdemir in the same ratio as the Gemlik facility purchased from Erdemir and Isdemir (expressed as a share of Gemlik's total purchases from all suppliers).

7.5.2.2 The Panel's evaluation of Turkey's claim regarding the use of facts available in the OCTG investigation

7.189.
Article 12.7 of the SCM Agreement provides that:

In cases in which any interested Member or interested party refuses access to, or otherwise does not provide necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.

7.190.
Article 12.7 of the SCM Agreement thus allows an investigating authority to make determinations using facts available in cases when a Member or interested party refuses access to necessary information within a reasonable time period, otherwise fails to provide such information within a reasonable period, or significantly impedes the investigation. This provision is intended to ensure that an interested party's failure to provide necessary information does not impede the investigation. Article 12.7 permits the use of facts that are otherwise available on the record solely for the purpose of replacing necessary information that may be missing, to allow the investigating authority to make an accurate subsidization determination. Recourse to facts available does not permit an investigating authority to use any information in whatever way it chooses. Rather, an investigating authority must take into account all the substantiated facts provided by an interested party, even if those facts may not constitute the complete information requested of that party. An investigating authority may draw inferences when selecting from among the facts otherwise available, but should not use Article 12.7 to punish non‑cooperating parties by intentionally drawing an adverse inference. The use of inferences to select adverse facts to punish non‑cooperating parties would result in an inaccurate subsidization determination.
7.191.
Paragraph 7 of Annex II of the Anti‑Dumping Agreement, which is relevant to the interpretation and application of Article 12.7, provides that "if an interested party does not cooperate and thus relevant information is being withheld from the investigating authorities, this situation could lead to a result which is less favourable to the party than if the party did cooperate".301
7.192.
Turkey argues that the USDOC's reliance on facts available and its decision to draw an adverse inference is inconsistent with Article 12.7 of the SCM Agreement: first, because the USDOC failed to take "due account" of the difficulties Borusan experienced in gathering the requested information; and second, because the USDOC's application of facts available is punitive.302 We address these two aspects of Turkey's claim in turn.

7.5.2.2.1 Failure to take into account the difficulties

7.193.
Turkey argues Borusan experienced considerable difficulties in collecting the requested information. According to Turkey, once Borusan informed the USDOC of its difficulties in obtaining the requested information, the USDOC should have taken "due account" of those difficulties in having recourse to Article 12.7.303 In particular, Turkey argues that the USDOC should have considered "whether it would have been reasonable to use the data which Borusan provided on its hot rolled steel purchases for the Gemlik facility to approximate the missing information or to ask Borusan to provide the missing information in a different form".304 In this regard, Turkey relies on the Appellate Body's statement in US – Carbon Steel (India) that:

In our view, the context provided by these provisions suggests that the manner or procedural circumstances in which information is missing can be relevant to an investigating authority's use of "facts available" under Article 12.7. In particular, Article 12.11 requires an investigating authority to take "due account of any difficulties experienced by interested parties", which includes interested parties that have not provided the "necessary information" referred to in Article 12.7. The kinds of "difficulties", or lack thereof, experienced by interested parties to be taken into account by an investigating authority in having recourse to Article 12.7 could relate, inter alia, to the nature and availability of the evidence being sought … the time period provided in which to respond, and the extent or number of opportunities to respond[.]305

7.194.
According to Turkey, the Appellate Body's statement above means that the USDOC was obligated to take "due account" of the difficulties Borusan experienced in responding to the USDOC's requests for information both when determining that necessary information was not provided (such that recourse to Article 12.7 is justified), and when selecting facts available under Article 12.7.306 Turkey's claim only concerns the latter situation, regarding the USDOC's selection of facts available.307
7.195.
The United States argues that Turkey is trying to collapse the obligation to take due account of the difficulties under Article 12.11 into the obligation under Article 12.7.308 The United States contends that, in any event, the USDOC took due account of Borusan's difficulties, including by granting an extension, and by issuing a supplemental questionnaire to allow Borusan significant additional time to gather the requested data.309 The United States contends that Borusan had two opportunities to provide the information, 65 days to prepare for the initial questionnaire response, and an opportunity to request a further extension for the supplemental questionnaire response.310 According to the United States, the USDOC appropriately relied on facts available to "fill in gaps" due to the continued failure of Borusan to provide data regarding its HRS purchases for the Halkali and Izmit facilities.311
7.196.
In our view, Turkey's complaint about the difficulties fits more appropriately into the obligation under Article 12.11 to take "due account of any difficulties experienced by interested parties". We do not see any basis to read the obligation under Article 12.11312 into Article 12.7. In US – Carbon Steel (India), the Appellate Body referred to Articles 12.4 and 12.11 for context in its interpretation of the text of Article 12.7, because "these provisions recognize some potential reasons why the 'necessary information' referred to in Article 12.7 may not be provided, namely, confidentiality and resource constraints".313 The Appellate Body's reference to these provisions as context for understanding the potential reasons why "necessary information" may not be provided in the sense of justifying recourse to facts available under Article 12.7 cannot have the effect of reading an obligation into Article 12.7 that is not reflected in its text. Nor do we understand the Appellate Body to have suggested otherwise. The Appellate Body stated clearly after its contextual consideration of Article 12.7 that "[w]hether and how such procedural circumstances should be taken into account by an investigating authority, and any appropriate inferences that may be drawn, will necessarily depend on the particularities of a given investigation."314 Thus, the Appellate Body has not suggested that Article 12.7 requires an investigating authority to properly take into account the difficulties experienced by the interested parties.
7.197.
Turkey's claim concerning the alleged difficulties is made under Article 12.7 only. Turkey has not brought any claim under Article 12.11. Thus, to the extent that Turkey relies on an alleged breach of the obligation to take due account of difficulties under Article 12.11 to demonstrate a breach of Article 12.7, we reject Turkey's claim as a matter of law.
7.198.
In any event, we are not persuaded by Turkey's proposition that had the USDOC taken due account of the difficulties, it would not have insisted on Borusan submitting the relevant information, and thereby would not have resorted to facts available. We do not see how the difficulties experienced by Borusan could have affected the USDOC's resort to facts available, if the information that the USDOC requested is indeed "necessary information" for the purpose of Article 12.7.315 The absence of a piece of "necessary information" in the record leaves a hole in the factual basis of an investigating authority's determination, which necessarily requires the investigating authority to resort to facts available to fill in the gaps. The mere failure of an interested Member or interested party to provide information necessary for the determination, regardless of the reasons or procedural circumstances, requires an investigating authority to resort to other sources of information to complete the factual record on which it makes its determination.
7.199.
We are also not persuaded by Turkey's argument that the USDOC should have considered whether "to ask Borusan to provide the missing information in a different form".316 That, in our view, is not a relevant consideration under Article 12.7 of the SCM Agreement, which strictly addresses situations in which information is not provided.

7.5.2.2.2 Punitive application of facts available

7.200.
Turkey argues that the USDOC used an adverse inference to purposefully punish Borusan, contrary to the Appellate Body's interpretation of Article 12.7 in US – Carbon Steel (India). Turkey contends that the USDOC should have used all of the data provided by Borusan regarding its purchases of HRS for the Gemlik mill to reasonably approximate the benefit received by Borusan with respect to Borusan's purchases of HRS for its Halkali and Izmit facilities.317 Turkey submits that the USDOC chose the lowest price of any of Borusan's purchases of HRS from Erdemir and Isdemir and applied that price for all purchases of HRS for the Halkali and Izmit facilities equal to the facilities' entire annual production capacity. In doing so, the USDOC only relied on a part of the evidence provided by Borusan – i.e. only the lowest price on the record.318 Turkey considers that "even a weighted average" of the prices paid for HRS at the Gemlik facility "might have been a more reasonable replacement for the price of hot rolled steel purchased for the Halkali and Izmit mills" because it would reflect all of the relevant substantiated facts on the record.319 According to Turkey, the USDOC's application of facts available is a clear attempt to use the worst facts to punish Borusan for non‑cooperation320, as the USDOC itself acknowledged.321 In this regard, Turkey points to the USDOC's own statement that "the inference is adverse, not neutral".322
7.201.
The United States submits that the USDOC's application of facts available was not punitive and fully complied with Article 12.7.323 The United States argues that the Appellate Body has recognized that non‑cooperation implies that a less favourable result becomes possible due to the selection of a replacement of an unknown fact. That the outcome is less favourable than Borusan would have liked does not mean that the application of facts available was punitive or otherwise inconsistent with Article 12.7.324 According to the United States, the USDOC selected a reasonable replacement for the missing price and quantity information by relying on actual data that Borusan had provided for another of its facilities.325 Turkey has not explained why its suggested approach would lead to a more accurate determination of the missing price and quantity data. With regard to price, the United States argues that the actual prices paid by Borusan for HRS for the non‑responding facilities may have been less than the lowest price it paid for Gemlik. In that situation, the use of the lowest price may in fact reflect a better outcome than had Borusan fully cooperated with the investigation.326 With regard to quantity, the United States points out that the selected quantities did not exceed the annual production capacity of the non‑reporting facilities and reflected a reasonable replacement of the missing information.327
7.202.
The United States rejects that the USDOC should have relied on a weighted average transaction price, as Turkey argued. The United States argues that such an approach would ignore the procedural circumstances of the investigation, including Borusan's failure to cooperate, and would in general lead to findings that are necessarily better than some of the outcomes for cooperating entities. According to the United States, such an interpretation would be inconsistent with Article 12.7 because it provides an incentive for interested parties not to cooperate.328
7.203.
We note that Turkey's arguments concerning the alleged punitive application of facts available evolved during the dispute. At the outset, Turkey seemed to argue that, in light of the difficulties experienced by Borusan in providing the requested information, the USDOC is not entitled to resort to the use of adverse inferences with a view to punish Borusan.329 If this is the case, Turkey's argument concerning "punitive application of facts available" hinges upon its view that the USDOC should have taken into account the difficulties experienced by Borusan when selecting facts available. In this regard, we refer to our findings above at paragraph 7,198 that the USDOC was not obliged to take into account the difficulties experienced by Borusan in responding to the USDOC's requests for information when selecting facts available under Article 12.7. Subsequently, Turkey clarified that its argument concerning the punitive application of facts available does not hinge upon the USDOC having to take into account the alleged difficulties.330 Therefore, we proceed on the basis that Turkey is pursuing an argument that the facts that the USDOC selected in the OCTG investigation were punitive, irrespective of whether Borusan experienced any difficulties.
7.204.
The words "punish" or "punitive" do not appear in the SCM Agreement. In alleging "punitive" application of facts available, we understand Turkey to argue that the use of adverse inferences—such as the selection of the lowest price on the record and the non‑reporting facilities' entire annual production capacity was meant to punish Borusan and resulted in an inaccurate subsidization determination that does not accord with Article 12.7.331 Turkey's argument concerning the "punitive" application of facts available thus rests on the premise that the way in which the USDOC selected "facts available" resulted in inaccurate determinations that are not "reasonable replacements" of the necessary missing information.332 We note that in US – Carbon Steel (India), the Appellate Body warned against the so‑called "punitive" application of facts available for exactly that reason:

[T]he use of inferences in order to select adverse facts that punish non‑cooperation would lead to an inaccurate determination and thus not accord with Article 12.7.333

7.205.
Thus, the issue before us is whether an objective and unbiased investigating authority would have considered the facts that the USDOC selected in the OCTG investigation to be reasonable replacements of the missing information, with a view to achieving an accurate determination. In this regard, the Appellate Body in US – Carbon Steel (India) stated that:

[T]he task of ascertaining which "facts available" reasonably replace the missing "necessary information" under Article 12.7 calls for a process of reasoning and evaluation. … [I]t would not be possible to identify whether replacements for the missing "necessary information" are "reasonable", and thus constitute the "evidence" on which to ground a determination, without engaging in such a process.334

7.206.
This process in turn calls for a consideration of all pertinent and substantiated facts on the record:

[A]s part of the process of reasoning and evaluating which "facts available" reasonably replace the missing information, all substantiated facts on the record must be taken into account. It would frustrate the function of Article 12.7, namely, to "replac[e] information that may be missing, in order to arrive at an accurate subsidization or injury determination", if certain substantiated facts were arbitrarily excluded from consideration. In addition, we note that the participants agree that Article 12.7 should not be used to punish non‑cooperating parties by choosing adverse facts for that purpose. Rather, the participants agreed at the oral hearing that the function of Article 12.7 is to replace the missing "necessary information" with a view to arriving at an accurate determination.335

7.207.
Where there are multiple facts available on the record, an investigating authority may be required to make a comparative evaluation:

[W]here there are several "facts available" from which to choose, an investigating authority must nevertheless evaluate and reason which of the "facts available" reasonably replace the missing "necessary information", with a view to arriving at an accurate determination.336

7.208.
Finally, the investigating authority must sufficiently explain in its determination its selection of "facts available":

[T]he explanation provided by the investigating authority in its published report must be sufficient to allow a panel to assess whether the "facts available" employed by the investigating authority resulted from a process of reasoning and analysis, including an assessment of whether the use of an inference comports with the legal standard of Article 12.7 we have set out above.337

7.209.
We are guided by these principles when assessing whether the USDOC as an objective and unbiased investigating authority could have found the selected facts to be reasonable replacements for the missing necessary information.
7.210.
In the OCTG investigation, the USDOC selected facts available for the purpose of determining two elements regarding Borusan's purchases of HRS from Erdemir and Isdemir at the two non‑responding facilities, i.e. the price and quantity of such purchases. We examine each of these selected facts in turn.

7.5.2.2.2.1 The selection of the lowest price on the record

7.211.
We recall that, for the purpose of establishing the price paid for HRS at the two non‑responding facilities, the USDOC's Post‑Preliminary Analysis Memorandum for Borusan stated that:

With respect to Borusan's HRS purchases for the Halkali and Ismit mills … we are also inferring adversely that for both the Halkali and Ismit mills, Borusan purchased HRS at the lowest price on the record for the Gemlik mill's HRS purchases.338

7.212.
The USDOC's Final Determination stated in this regard that:

Consistent with the Borusan Post‑Preliminary Analysis, we are inferring adversely that Borusan purchased all HRS for the Halkali and Izmit mills at the lowest price on the record for the Gemlik mill's HRS purchases from Erdemir and Isdemir.339

7.213.
The parties do not dispute that verified information concerning HRS transactions for the Gemlik facility was on the record. Accordingly, there was a series of verified prices on the record concerning Borusan's HRS purchases at the Gemlik facility. Before an investigating authority selects a price amongst the facts available, i.e. all verified prices, we expect an objective and unbiased investigating authority to engage in a process of reasoning and evaluation regarding the whole range of transactional prices on the record, including in particular the date, seller, purchase quantity associated with these transactions, as well as any reasons for fluctuations in prices. Moreover, as the Appellate Body observed on several occasions, when an investigating authority must choose among several facts available, like in the present case, the process of reasoning and evaluation must involve a degree of comparison in order to arrive at an accurate determination.340 In our view, only through such a process could an investigating authority properly select among all verified prices to find a "reasonable replacement" for the missing price information consistently with Article 12.7.
7.214.
We do not suggest that the price that an investigating authority eventually selects as the "fact available" must reflect all of the verified prices on the record, which Turkey seems to suggest.341 What is important in our view is that an investigating authority cannot exclude other substantiated facts from the pool from which it will select a reasonable replacement. If an investigating authority simply chooses the lowest price without a process of reasoning and evaluation of all the prices, it risks excluding a priori the rest of the prices arbitrarily.
7.215.
We do not understand that the USDOC engaged in any comparative process of reasoning and evaluation in selecting the lowest price on the record. Instead, the USDOC clearly stated that it was "inferring adversely" in selecting the lowest price on the record because of Borusan's non‑cooperation. In other words, the sole basis for selecting the relevant price data was the adverse inference. Therefore, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement.
7.216.
The United States argues that the USDOC considered the lowest price to be a "reasonable replacement" because it was a price that Borusan had actually paid for HRS for the Gemlik facility. For the United States, it is entirely possible that the actual prices paid by Borusan for HRS for the Halkali and Izmit facilities were less than the lowest price it paid for the Gemlik facility.342
7.217.
The United States' argument is not reflected in the USDOC determination and amounts to post hoc rationalization. In any event, the United States' argument is unpersuasive. The fact that the selected price is an actual price does not necessarily mean that it is a "reasonable replacement" of the missing necessary information under Article 12.7. We agree that actual prices that the same respondent paid at a different facility may serve as a useful starting point for selecting the "reasonable replacement" for prices paid by that respondent at its other facilities. However, given that there is a range of actual prices available on the record, one cannot ascertain which of the actual prices reasonably replaces the missing "necessary information" under Article 12.7 without also looking into the particular circumstances of the transactions. While the United States may be right in pointing out that the unknown actual price at the non‑responding facilities could be lower than the lowest price at the Gemlik facility, it is equally possible that the unknown price at the non‑responding facilities could be higher than the highest price at the Gemlik facility. Such speculation cannot form the basis of facts available under Article 12.7. We recall and agree with the panel's views in EC – Countervailing Measures on DRAM Chips that an objective and unbiased investigating authority would not base its determination on "speculative assumptions or on the worst information available", even when interested parties have failed to cooperate.343
7.218.
In light of our finding that the USDOC failed to engage in a process of reasoning and evaluation in selecting the facts available for the missing price information in the OCTG investigation, we do not address the arguments of Brazil344 and Turkey345 that a weighted average price serves better as a "reasonable replacement" of the missing price information at the two non‑responding facilities. We also do not need to address Turkey's argument that the USDOC selected the lowest price on the record as the worst possible fact to punish Borusan.346

7.5.2.2.2.2 The selection of quantities of HRS purchases on the basis of the full capacity of the non‑responding facilities and Gemlik's ratio of HRS purchases from Erdemir and Isdemir

7.219.
In the OCTG investigation, the USDOC determined the quantities of HRS purchases by non‑responding facilities, Halkali and Izmit, from Erdemir and Isdemir based on facts available. The USDOC initially used the quantity of HRS purchased by Gemlik from Erdemir and Isdemir as the quantity of HRS purchases for each of the non‑responding facilities. The USDOC subsequently revised the quantities of HRS purchases for the non‑responding facilities. The USDOC based the final quantities of HRS purchases at the Halkali and Izmit facilities on the full production capacity347 of each facility, multiplied by the percentage of Gemlik's HRS purchases from Erdemir and Isdemir out of total HRS purchases. In its Final Determination, the USDOC stated the following:

In the Borusan Post‑Preliminary Analysis, we also inferred adversely that Borusan purchased the same quantity of HRS produced by Erdemir and Isdemir for each of these mills as it did for the Gemlik mill. Based on comments from interested parties and record information, however, we adjusted that inference for this final determination. Accordingly, we now are inferring as adverse facts available that the Halkali and Izmit mills each purchased the same quantity of HRS during the POI as its annual production capacity. In accordance with that inference, we are presuming in our calculations that the Halkali and Izmit mills each purchased HRS from Erdemir and Isdemir in the same ratio as the Gemlik mill's purchases from Erdemir and Isdemir as a share of its total purchases.348

7.220.
In our view, an objective and unbiased investigating authority would not have simply used the full production capacity as a basis to calculate the quantities of HRS purchases from Erdemir and Isdemir at the two non‑responding facilities, without first considering any substantiated information on the record that may shed light on the capacity utilization of the two non‑responding facilities. The United States confirms that Borusan's verified capacity utilization rate at the Gemlik facility was on the record.349 This information might have served as a reasonable approximation of the capacity utilization rate at the two non‑responding facilities. This is clear given that the USDOC also used Gemlik's HRS purchase ratio for the purpose of establishing the two non‑responding facilities' HRS purchase ratio from Erdemir and Isdemir. Even absent such verified capacity utilization data, an investigating authority may choose to use information from secondary sources, such as the industry average capacity utilization rate, in order to select a commercially realistic capacity utilization rate as a basis for a "reasonable replacement" of the quantities of HRS purchases with a view to arrive at an accurate subsidization determination. We have no evidence before us that the USDOC engaged in such a process of reasoning and evaluation to ascertain whether the full capacity utilization serves as the basis of a reasonable replacement of the missing quantity information.
7.221.
We therefore find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement in using the full production capacity of the two non‑responding facilities as the basis for calculating the quantity of the HRS purchases at these two facilities.
7.222.
We now turn to examine whether an objective and unbiased investigating authority could have selected Gemlik's ratio of HRS purchases from Erdemir and Isdemir as the ratio for the non‑responding facilities' HRS purchases from Erdemir and Isdemir. We recall that in determining the quantity of HRS provided by Erdemir and Isdemir, the USDOC multiplied the full production capacity of the two non‑reporting facilities by the percentage of Gemlik's HRS purchases from Erdemir and Isdemir out of Gemlik's total HRS purchases. In our view, it was reasonable that the USDOC relied on Gemlik's ratio of HRS purchases from Erdemir and Isdemir out of Gemlik's total HRS purchases. First, the USDOC engaged in a process of reasoning and evaluation with a degree of comparison when it rejected the alternative facts proposed by the petitioner that "Borusan's Izmit and Halkali mills purchased the same quantity of HRS as the Gemlik facility, but that 100 percent of these purchases was from Erdemir and Isdemir."350 Second, we consider that there is a sufficiently close connection between the missing information, i.e. the quantity of Borusan's HRS purchases from Erdemir and Isdemir at non‑responding facilities Halkali and Izmit, and the percentage of Gemlik's HRS purchases from Erdemir and Isdemir.
7.223.
For the above reasons, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in a process of reasoning and evaluation in selecting the facts available for the missing price information in the OCTG investigation. We also find that the USDOC acted inconsistently with Article 12.7 by using the full production capacity of the two non‑responding facilities as the basis for calculating the quantity of the HRS purchases at these two facilities, without engaging in a process of reasoning and evaluation. However, we consider that it was reasonable for the USDOC to use Gemlik's ratio of HRS purchases from Erdemir and Isdemir out of the total HRS purchases at the Gemlik facility as the basis for calculating the quantity of the HRS purchases at the two non‑responding facilities.

7.5.3 The use of facts available in the WLP investigation

7.5.3.1 Factual background

7.224.
In the WLP investigation, Borusan decided not to participate in the verification. Instead, Borusan requested the USDOC to use the verification report and exhibits from the CWP review proceeding, which allegedly covered the same programmes351 and the same time period as the WLP investigation.352 The USDOC rejected this request because "[v]erification of data submitted in a separate proceeding related to a different industry does not satisfy the requirement in section 782(i) of the Act that the Department verify the information relied upon in making its final determination".353 The USDOC found that Borusan significantly impeded the investigation and provided information that could not be verified, and therefore its CVD rate has to be based on facts available. The USDOC concluded that Borusan did not cooperate to the best of its ability in this investigation. The USDOC stated that adverse inference is warranted "to ensure that Borusan did not obtain a more favorable result by failing to cooperate in the investigation".354
7.225.
The USDOC inferred that Borusan benefitted from each of the programmes raised in the petition, with the exception of any programmes that were previously proven not to exist. The USDOC applied subsidy rates for all of the subsidy programmes in the following manner355:

a. for the 7 income tax programmes alleged in the petition which pertain to either the reduction of income tax paid or the payment of no income tax, the USDOC applied an adverse inference that Borusan paid no income tax during the POI, i.e. a subsidy rate of 20% was applied;

b. for 7 subsidy programmes, including the Provision of HRS for LTAR, the USDOC applied the highest‑calculated programme‑specific subsidy rates (above zero) for a cooperating respondent in the WLP investigation, Toscelik;

c. for programmes for which the USDOC did not calculate an above‑zero rate for Toscelik in the WLP investigation, the USDOC applied the highest subsidy rate calculated for the same or, if lacking such rate, for a similar programme in a CVD investigation or administrative review involving Turkey; and

d. for programmes for which the USDOC were unable to find above‑de minimis rates calculated for the same or similar programmes, the USDOC applied the highest calculated subsidy rate for any programme identified in a Turkish CVD proceeding that could conceivably be used by Borusan.

7.226.
We first address the United States' request that we exclude from our terms of reference certain claims under Articles 12.7 of the SCM Agreement concerning the WLP investigations. We then address the claims that are within our terms of reference.

7.5.3.2 Whether Turkey's claims under Article 12.7 of the SCM Agreement in respect of "all investigated programs" in the WLP investigation are within the Panel's terms of reference

7.227.
The United States requests the Panel to rule that Turkey's claims under Article 12.7 of the SCM Agreement with respect to 29 non‑HRS for LTAR subsidies addressed in the WLP investigation are outside the Panel's terms of reference.
7.228.
Turkey's panel request includes a number of claims regarding the WLP investigation. Three of these claims are grouped under the subheading "In connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration", including one claim under Article 12.7 of the SCM Agreement, as follows356:

(B) WLP from Turkey (C‑489‑823)

In connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration:

1. Article 1.1(a)(1) of the SCM Agreement

a. In determining that OYAK is a "public body," the USDOC failed to adhere to the appropriate legal standard under Article 1.1(a)(1) and follow the Appellate Body's guidance regarding the interpretation of that standard. Instead, the USDOC determined that OYAK is a public body based on formal indicia of government ownership or control, with no consideration of whether OYAK in fact exercises or is vested with governmental authority. The USDOC also failed to provide a reasoned and adequate explanation, based on the evidence on the record, for its finding that OYAK is a public body.

b. In determining that Erdemir and its subsidiary Isdemir are "public bodies," the USDOC failed to adhere to the appropriate legal standard under Article 1.1(a)(1) and follow the Appellate Body's guidance regarding the interpretation of that standard. The USDOC's determination was improperly confined to formal indicia of government ownership or control, with no consideration of whether Erdemir and its subsidiary Isdemir in fact exercise or are vested with governmental authority. The USDOC also failed to provide a reasoned and adequate explanation, based on the evidence on the record, for its finding that Erdemir and its subsidiary Isdemir are public bodies.

2. Article 12.7 of the SCM Agreement

a. The USDOC drew adverse inferences in selecting among the facts available for the purpose of punishing Borusan for its alleged failure to cooperate.

3. Articles 2.1(c) and 2.4 of the SCM Agreement

a. In finding specificity in terms of use by a limited number of industries or enterprises, the USDOC failed to identify, or substantiate based on positive evidence on the record, a "subsidy programme" related to the provision of hot rolled steel for less than adequate remuneration.

In connection with the injury determination:

4. Article 15.3 of the SCM Agreement

a. The U.S. International Trade Commission ("[US]ITC") has a practice, in assessing material injury, of cumulating imports that are subject to countervailing duty investigations with imports that are subject only to antidumping duty investigations, i.e., non‑subsidized imports, from all countries with respect to which antidumping or countervailing duty petitions are filed on the same day. In investigations, the [US]ITC considers this practice to be required under section 771(7)(G)(i) of the Tariff Act of 1930, if the subsidized and non‑subsidized imports compete with each other and with the domestic like product in the U.S. market.

b. Turkey considers that the [US]ITC's practice of "cross‑cumulating" subsidized and non‑subsidized imports, with respect to which antidumping or countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the SCM Agreement both "as such", as a practice, and as applied in this proceeding.

7.229.
The United States argues that, by grouping its claims in this manner, Turkey expressly limited its Article 12.7 claim in the WLP investigation to the USDOC's application of facts available "[i]n connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration".357 The United States submits that the other 29 programmes were not included in the claim in Turkey's panel request.358
7.230.
Turkey argues that it advanced its Article 12.7 claim that the United States' determination to apply facts available and draw adverse inferences with regard to Borusan in the WLP proceeding generally and not just in respect of the so‑called Provision of HRS for LTAR Programme.
7.231.
Therefore, we must address whether Turkey's panel request limits the scope of its Article 12.7 challenge in the WLP proceeding to the use of facts available in connection with the so‑called Provision of HRS for LTAR Programme, based on how Turkey chose to group its claims in its panel request.
7.232.
Article 6.2 of the DSU provides in relevant part:

The request for the establishment of a panel shall be made in writing. It shall indicate 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.

7.233.
The two requirements to identify the measures at issue and provide a brief summary of the legal basis of the complaint constitute the "matter referred to the DSB" and form the basis of a panel's terms of reference. These requirements are therefore central to the establishment of a panel's jurisdiction.359 The panel request also serves a due process function, providing the respondent and third parties notice as to the nature of the complainant's case360, enabling them to respond accordingly.361 A panel must therefore determine whether the panel request, read as a whole and as it existed at the time of filing362, is "sufficiently clear" or "sufficiently precise" on the basis of an "objective examination".363
7.234.
In order to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly", the panel request must set out the claims so as to "present the problem clearly".364 A "claim" in this context is an allegation "that the respondent party has violated, or nullified or impaired the benefits arising from, an identified provision of a particular Agreement".365 "Arguments", by contrast, are statements put forth by a complaining party "to demonstrate that the responding party's measure does indeed infringe upon the identified treaty provision".366 Further, "the narrative" of panel requests should "explain succinctly how or why the measure at issue is considered by the complaining Member to be violating the WTO obligation in question".367 Moreover, a panel request must "plainly connect the challenged measure(s) with the provision(s) of the covered Agreements claimed to have been infringed".368 "Whether such a brief summary is 'sufficient to present the problem clearly' is to be assessed on a case‑by‑case basis, keeping in mind the nature of the measure(s) at issue, and the manner in which it is (or they are) described in the panel request, as well as the nature and scope of the provision(s) of the covered Agreements alleged to have been violated."369
7.235.
We consider that, by grouping its claims in its panel request in the manner it did, Turkey expressly limited its Article 12.7 claim in the WLP investigation to the USDOC's application of facts available "[i]n connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration". Therefore, any claim that Turkey raises in respect of other subsidy programmes at issue in the WLP investigation are outside of our terms of reference.
7.236.
Fundamentally, Turkey's panel request identifies a single subsidy programme in respect of the WLP investigation, namely the alleged "Provision of Hot Rolled Steel for Less Than Adequate Remuneration". Turkey's panel request does not refer to any of the other subsidy programmes at issue in the WLP investigation. In order to "present the problem clearly", a panel request must "plainly connect the challenged measure(s) with the provision(s) of the covered Agreements claimed to have been infringed".370 Turkey's panel request plainly connects its Article 12.7 claim with the alleged Provision of HRS for LTAR Programme. It does not plainly connect its Article 12.7 claim with any other programmes or measures at issue in the WLP investigation.
7.237.
We recall that a panel request forms the basis of a panel's terms of reference and establishes a panel's jurisdiction371, as well as serves a due process function by providing the respondent notice as to the nature of the complainant's case. Based on the manner in which Turkey formulated its panel request, we conclude that a respondent would thus reasonably understand that Turkey as complainant was raising its Article 12.7 claim in the WLP investigation solely in connection with the Provision of HRS for LTAR.
7.238.
This conclusion is consistent with the logic with which claims are identified throughout Turkey's panel request.372 For instance, we note that the other claims grouped with Turkey's Article 12.7 claim under the subheading "[i]n connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration" concerning the WLP investigation are raised exclusively in respect of the Provision of HRS for LTAR. Turkey's claims under Article 1.1(a)(1) in respect of the public body determination in the WLP investigation only concern the provision of HRS by Erdemir and Isdemir. Turkey's Articles 2.1(c) and 2.4 claims also concern the provision of HRS programme exclusively.373 The same logic exists in respect of Turkey's claims concerning the HWRP investigation. In the subsection pertaining to that investigation, Turkey's panel request groups Turkey's Articles 1.1(a)(1), 2.1(c) and 2.4 claims under the subheading "In connection with the alleged Provision of Hot Rolled Steel for Less Than Adequate Remuneration".374 Turkey's Article 12.7 claim regarding the HWRP investigation, however, is listed under the separate subheading "In connection with 'other subsidies' not previously reported to the USDOC".375 Consistent with the inclusion of its Article 12.7 claim concerning the HWRP investigation under that subheading, Turkey has only raised arguments in connection with so‑called "other subsidies" not reported to the USDOC prior to verification.376
7.239.
Turkey argues that the United States conflates Turkey's "arguments" with its "claims" under Article 12.7 and mischaracterizes the nature of the claim at issue. Turkey considers that it was not required to include all potential arguments in support of its claim under Article 12.7 of the SCM Agreement in its panel request, and thus it was not required to identify all 30 programmes investigated in the WLP proceeding in its request. Turkey also argues that its panel request clearly connects the challenged measure with the provision that is alleged to have been infringed, and thus, Turkey considers that the United States was sufficiently informed of Turkey's claim.377 We disagree. As we explain above, a panel request must plainly connect the challenged measures with the provisions of the covered Agreements claimed to have been infringed in order to "present the problem clearly". Turkey's panel request does not connect its Article 12.7 claim with any other subsidy programme, strictly identifying its Article 12.7 claim directly in connection with the Provision of HRS for LTAR Programme.
7.240.
Turkey also raises several additional arguments. For instance, Turkey argues that the United States' determination to apply facts available with regard to Borusan was not a "program‑specific determination", but was based on Borusan's decision not to participate in verification, which is a circumstance outside the context of the USDOC's investigation of any particular subsidy programme. Thus, Turkey submits that "the USDOC did not make an adverse facts available determination specifically with regard to its investigation of the provision of hot rolled steel for less than adequate remuneration".378 In addition, Turkey argues that, even if the United States understood Turkey's claim to be limited to the Provision of HRS for LTAR, the United States is not prejudiced because the "USDOC made the same factual findings and applied the same legal reasoning in drawing adverse inferences to select subsidy rates for all investigated programs in the WLP proceeding".379
7.241.
Turkey's arguments are not relevant to our assessment of whether any of Turkey's Article 12.7 claims fall outside our terms of reference. Regardless of whether the USDOC made the same factual findings and applied the same legal reasoning when drawing adverse inferences in respect of all subsidy programmes, whether the decision to resort to facts available is programme‑specific or not cannot cure deficiencies in a panel request.380 We further find irrelevant whether the United States was prejudiced or not by a lack of precision in Turkey's panel request. As we explain above, Article 6.2 of the DSU requires a complainant to "identify the specific measure at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". A panel's examination of whether a panel request complies with these requirements "must be objectively determined on the basis of the panel request as it existed at the time of the filing" and be "demonstrated on the face" of the request.381 Article 6.2 of the DSU does not separately require a finding of prejudice to a responding party in order to determine whether or not a given claim falls within a panel's terms of reference. Rather, as we explain above, a panel request forms the basis of a panel's terms of reference and establishes a panel's jurisdiction.382 Importantly, the panel request also serves a due process function by providing the respondent notice as to the nature of the complainant's case.383 We therefore reject Turkey's arguments.384
7.242.
Accordingly, in respect of the WLP investigation, we find that Turkey's claims under Article 12.7 of the SCM Agreement concerning subsidy programmes other than the Provision of HRS for LTAR are outside the Panel's terms of reference. We now consider Turkey's Article 12.7 claims in respect of the provision of HRS for LTAR in the WLP investigation.

7.5.3.3 The Panel's evaluation of Turkey's claim regarding the use of facts available in the WLP investigation

7.243.
Turkey argues that the USDOC's reliance on facts available and its decision to draw an adverse inference in the WLP investigation are inconsistent with Article 12.7 of the SCM Agreement because the USDOC drew an adverse inference to punish Borusan for its decision not to participate in the verification, and made various inaccurate determinations which led to an inaccurate subsidy calculation.385 Turkey refers to two examples of alleged inaccurate determinations that the USDOC made.386 Turkey argues that the USDOC made no effort to evaluate the facts available to determine which facts could reasonably replace "necessary information" that was missing from the record.387 Turkey notes that there were substantiated facts on the record of the WLP investigation regarding Borusan's non‑use of, and ineligibility for, many subsidy programmes, but the USDOC ignored these facts and instead selected the worst possible rates in order to punish Borusan for its alleged failure to cooperate.388
7.244.
The United States argues that the USDOC properly applied facts available as a reasonable replacement for the missing information. The United States argues that Turkey has dramatically expanded the scope of its arguments under Article 12.7 with respect to the WLP investigation to include 14 additional subsidy programmes in its response to the Panel's questions. The United States requests that the Panel reject Turkey's challenge with respect to these 14 subsidy programmes because such a belated introduction of new evidence and arguments is contrary to the Panel's working procedures and basic procedural fairness.389 With regard to the Provision of HRS for LTAR, the United States argues that Turkey has provided no substantive argumentation or analysis.390 According to the United States, as Turkey has not properly raised any claims under Article 12.7, the Panel's analysis may therefore end here.391
7.245.
As discussed above in Section 7.5.3.2, we find that Turkey's Article 12.7 claims concerning subsidy programmes392 other than the Provision of HRS for LTAR are not properly within our term of reference.
7.246.
We reject the United States' argument that Turkey has provided no substantive argumentation concerning the Provision of HRS for LTAR. The principal arguments of Turkey are twofold: first, the subsidy rate calculations for all of the subsidy programmes in the WLP investigation, including the Provision of HRS for LTAR, are not reasonable replacements of the missing information393; and second, the USDOC purposefully selected the worst possible facts available in order to punish Borusan for its alleged failure to cooperate.394 In its first written submission, Turkey also disputes the total subsidy rate that the USDOC calculated for Borusan.395 Thus in our view, Turkey's arguments above were made with reference to all subsidy programmes it sought to challenge, including the Provision of HRS for LTAR.396 We do not agree with the United States that Turkey must repeat its arguments with respect to each and every alleged subsidy programme.397
7.247.
Given that we have concluded above that Turkey's Article 12.7 claim concerning the WLP investigation is limited to the Provision of HRS for LTAR only, the only issue before us is whether the USDOC acted inconsistently with Article 12.7 in selecting the subsidy rate for the Provision of HRS for LTAR.398
7.248.
We recall that the USDOC selected the highest‑calculated programme‑specific subsidy rate for Toscelik, a cooperating respondent in the WLP investigation, for Borusan's Provision of HRS for LTAR. The USDOC's determination stated the following:

It is the Department's practice in CVD proceedings to compute a total AFA rate for non‑cooperating companies using the highest calculated program‑specific rates determined for a cooperating respondent in the same investigation, or, if not available, rates calculated in prior CVD cases involving the same country.

In applying AFA to Borusan, we are guided by the Department's methodology detailed above.

[W]e are applying the above‑zero rates calculated for Toscelik in this investigation for the following identical programs:

• Provision of HRS for LTAR …[.]399

7.249.
In response to questioning, Turkey clarified that its Article 12.7 claim regarding the WLP investigation concerns the selection of the facts available only, and does not concern whether the USDOC was entitled to resort to facts available under Article 12.7.400 Accordingly, we consider whether an objective and unbiased investigating authority could have selected the highest‑calculated programme‑specific subsidy rates (above zero) for a cooperating respondent in the WLP investigation, Toscelik, for the Provision of HRS for LTAR as a reasonable replacement for the subsidy rate for Borusan in accordance with Article 12.7.
7.250.
We recall that the USDOC had before it a verification report and exhibits from the CWP review proceeding, which covered some of the same subsidy programmes and the same time period as the WLP investigation. Borusan requested the USDOC to rely on information in the CWP verification report and exhibits for its determination in the WLP investigation.401 The USDOC rejected Borusan's request, stating that the "[v]erification of data submitted in a separate proceeding related to a different industry does not satisfy the requirement in section 782(i) of the Act that the Department verify the information relied upon in making its final determination."402
7.251.
We express no view as to whether the USDOC properly rejected the CWP verification report and exhibits in concluding that Borusan provided information that could not be verified in the WLP investigation, thus impeding the investigation and triggering the application of facts available under Article 12.7. We also express no view as to whether the verification report and exhibits for the CWP proceeding, which were brought to the attention of the USDOC by Borusan, were part of the pool of substantiated facts on the record of the WLP investigation, as a secondary source, and whether the USDOC may have selected a fact from this source.403 We note however that the investigation record does not indicate that the USDOC engaged in a process of reasoning and evaluation of which facts available reasonably replaces the missing necessary information. Instead, the WLP Final Determination shows that the USDOC simply selected the highest possible rate for the same programme in the same proceeding.
7.252.
For this reason, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in a process of reasoning and evaluation of which facts available reasonably replaces the missing necessary information in the WLP investigation for the Provision of HRS for LTAR.

7.5.4 The use of facts available in the HWRP investigation

7.5.4.1 Factual background

7.253.
During on‑site verification in the HWRP investigation, the USDOC found that MMZ and Ozdemir used certain subsidy programmes which were not previously reported. Specifically, the USDOC found that MMZ did not report its use of the Deduction from Taxable Income for Export Revenue and Provision of Electricity for LTAR Programmes, while Ozdemir did not report its use of the Exemption from Property Tax programme. The USDOC rejected MMZ's request for revision to its questionnaire response at the commencement of the verification due to the fact that it was not a minor correction to information already on the record. The USDOC found that MMZ and Ozdemir failed to accurately answer questions regarding the subsidy programmes in their questionnaire responses and failed to provide necessary information that was in their possession. Therefore, the USDOC determined that adverse inferences were warranted. The USDOC applied subsidy rates for these programmes in the following manner404:

a. For MMZ:

i. 0.06% for the Deduction from Taxable Income from Export Revenue, the subsidy rate calculated for another interested party Ozdemir in the same investigation; and

ii. 2.08%405 for the Provision of Electricity for LTAR, the subsidy rate calculated for the Provision of HRS for LTAR in its investigation of OCTG from Turkey, a rate that was in turn based on facts available and an adverse inference.

b. For Ozdemir:

i. 14.01% for the Exemption from Property Tax, the subsidy rate calculated in the investigation of CWP from Turkey for an export tax rebate programme in effect in 1986.

7.5.4.2 The Panel's evaluation of Turkey's claim regarding the use of facts available in the HWRP investigation

7.254.
Turkey argues that the USDOC acted inconsistently with Article 12.7 by selecting the highest subsidy rates for another interested party or for similar programmes from other countervailing duty proceedings related to Turkish imports for the purpose of punishing MMZ and Ozdemir. Turkey contends that these rates were selected for the purpose of "effectuat[ing] the statutory purposes of the [adverse facts available] rule to induce respondents to provide the Department with complete and accurate information".406 Turkey also argues that the USDOC failed to ensure that the facts selected were reasonable replacements for the missing information.407 Turkey contends that there is no evidence that these subsidy rates bear any relation to the subsidy programmes that MMZ and Ozdemir failed to identify in their initial questionnaire responses.408
7.255.
The United States argues that the resort to facts available was warranted because MMZ and Ozdemir failed to accurately answer the USDOC's questions regarding the subsidy programmes, including reporting benefits which should have been discovered in the respondents' accounting system. The United States contends that the USDOC was under no obligation to accept new information at the stage of verification. The United States argues that the USDOC appropriately relied on facts available by applying subsidy rates calculated for the same or similar programmes. With respect to the Deduction from Taxable Income from Export Revenue, for which the USDOC selected a reasonable replacement based on the same programme in the same proceeding for another interested party, the United States notes that Turkey has not argued or provided evidence that the rate the USDOC selected is inconsistent with Article 12.7. With respect to the other programmes, the United States argues that the USDOC was not able to find a subsidy rate for the same programmes in the same proceeding. Therefore, the USDOC turned to a subsidy rate for each programme that was on a par with identical or similar subsidy programmes. According to the United States, these rates are not punitive, but instead reasonably estimate the level of subsidization, which is consistent with Article 12.7.409
7.256.
In response to a question from the Panel, Turkey clarified that its Article 12.7 claim regarding the HWRP proceeding concerns the selection of the facts available only, and does not concern whether the USDOC was entitled to resort to facts available under Article 12.7.410
7.257.
With respect to the USDOC's selection of facts available for the Deduction from Taxable Income for Export Revenue programme, the USDOC selected the same rate (0.06%) for MMZ that it calculated (without resorting to facts available) for Ozdemir pertaining to the same programme in the same proceeding.411 With respect to the Provision of Electricity for LTAR Programme and the Exemption from Property Tax Programme the USDOC selected subsidy rates for similar subsidy programmes in other proceedings. In particular, for the Provision of Electricity for LTAR, the USDOC selected a subsidy rate calculated for the Provision of HRS for LTAR in the OCTG from Turkey investigation, a rate that was in turn based on facts available and an adverse inference.412 For the Exemption from Property Tax Programme, the USDOC selected a subsidy rate from the investigation of CWP from Turkey that was calculated for an export tax rebate programme in effect in 1986.413 According to the United States, the USDOC matched the Provision of Electricity for LTAR and Exemption from Property Tax Programmes to similar programmes "based on program type and treatment of the benefit" from other Turkish countervailing duty proceedings.414
7.258.
The USDOC Final Determination stated the following:

The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the result is sufficiently adverse "as to effectuate the statutory purposes of the AFA rule to induce respondents to provide the Department with complete and accurate information in a timely manner." The Department's practice also ensures "that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully." In selecting AFA rates for programs on which a company has failed to fully cooperate, it is the Department's practice to use the highest calculated program‑specific rates determined for a cooperating respondent in the same investigation, or, if not available, rates calculated in prior CVD cases involving the same country. Specifically, the Department applies the highest calculated rate for the identical program in the investigation if a responding company used the identical program, and the rate is not zero. If there is no identical program match within the investigation, or if the rate is zero, the Department uses the highest non‑de minimis rate calculated for the identical program in another CVD proceeding involving the same country. If no such rate is available, the Department will use the highest non‑de minimis rate for a similar program (based on treatment of the benefit) in another CVD proceeding involving the same country. Absent an above‑de minimis subsidy rate calculated for a similar program, the Department applies the highest calculated subsidy rate for any program otherwise identified in a CVD case involving the same country that could conceivably be used by the non‑cooperating companies.

In applying AFA to MMZ and Ozdemir, we are guided by the Department's methodology detailed above.415

7.259.
Thus, the USDOC selected the highest calculated programme‑specific rates determined for a cooperating respondent in the same investigation for the Deduction from Taxable Income for Export Revenue, and the highest subsidy rates calculated in prior CVD cases involving Turkey for the Provision of Electricity for LTAR and Exemption from Property Tax. In response to the Panel's question regarding the Provision of Electricity for LTAR, the United States confirmed that, for each category of subsidy programmes, the "USDOC noted the highest rate actually calculated".416 In particular, the United States confirmed that the USDOC selected the 15.58% subsidy rate for the Provision of HRS for LTAR in the OCTG investigation instead of the 7.61% rate calculated for the Provision of HRS for LTAR for MMZ in the HWRP investigation. The USDOC selected this rate because the latter was not the highest rate for a similar subsidy programme.417
7.260.
We consider that the manner in which the USDOC selected the subsidy rates for the missing information in the HWRP proceeding does not comport with the legal standard as articulated by the Appellate Body in US – Carbon Steel (India) that "facts available" selected by the investigating authority must result from a process of reasoning and analysis. We note that this is not a situation when there were no other facts on the record for the USDOC to consider.418 By selecting the highest subsidy rates to ensure that the result is sufficiently adverse "as to effectuate the statutory purposes of the AFA rule to induce respondents to provide the Department with complete and accurate information in a timely manner"419, the USDOC failed to engage in an adequate and meaningful qualitative assessment as to which facts available might reasonably replace the missing necessary information. For this reason, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement.
7.261.
In light of our finding that the USDOC failed to engage in a process of reasoning and evaluation in selecting the subsidy rates as "reasonable replacement" for the missing information in the HWRP investigation, we do not address Turkey's argument that the rates that the USDOC selected in the HWRP investigation have no connection with the "necessary information" missing from the record of that case.420
7.262.
We therefore find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in an adequate and meaningful qualitative assessment, as to which facts available might reasonably replace the missing necessary information in the HWRP investigation.

7.5.5 Conclusions regarding Turkey's Article 12.7 claims

7.263.
Turkey raised claims under Article 12.7 of the SCM Agreement regarding the USDOC's resort to facts available in connection with the OCTG, WLP and HWRP countervailing duty proceedings.
7.264.
Turkey's claims in relation to the OCTG investigation concern the USDOC's selection of facts available regarding purchases of HRS by Borusan at two of its facilities. We find that Turkey has failed to establish that the USDOC acted inconsistently with Article 12.7 by failing to consider the difficulties experienced by Borusan in providing requested information in its questionnaire responses. However, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in a process of reasoning and evaluation in selecting facts available for missing price information for Borusan's Halkali and Izmit facilities, and in calculating the quantity of the HRS purchases at Halkali and Izmit facilities.
7.265.
Regarding Turkey's claims in relation to the WLP investigation, we find that Turkey's panel request refers only to claims under Article 12.7 of the SCM Agreement in connection with the Provision of HRS for LTAR, and thus claims under Article 12.7 concerning other subsidy programmes are outside the Panel's terms of reference. We find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in a process of reasoning and evaluation of which facts available reasonably replace the missing necessary information in the WLP investigation for the Provision of HRS for LTAR.
7.266.
Regarding Turkey's claims in relation to the HWRP investigation, we find that the USDOC acted inconsistently with Article 12.7 of the SCM Agreement by failing to engage in a process of reasoning and evaluation in selecting the subsidy rates as reasonable replacements for the missing information, in connection with MMZ's and Ozdemir's use of certain subsidies.

7.6 TURKEY'S CLAIMS UNDER ARTICLE 15.3 OF THE SCM AGREEMENT IN RELATION TO THE CUMULATIVE ASSESSMENT OF THE EFFECTS OF IMPORTS IN THE OCTG, WLP, HWRP, AND CWP PROCEEDINGS

7.6.1 Introduction

7.267.
Turkey claims that the USITC has a practice of cumulating the effects of dumped and subsidized imports in assessing injury when anti‑dumping and countervailing proceedings are brought against imports of the same product from the same country or countries (i.e"cross‑cumulation"). Turkey makes the following claims:

a. the practice of "cross‑cumulating" the effects of imports in original investigations is inconsistent "as such" with Article 15.3 of the SCM Agreement;

b. the cross‑cumulation of the effects of imports in the OCTG, WLP, and HWRP original investigations is inconsistent with Article 15.3 of the SCM Agreement;

c. the practice of "cross‑cumulating" the effects of imports in sunset reviews is inconsistent "as such" with Article 15.3 of the SCM Agreement; and

d. the cross‑cumulation of the effects of imports in the 2011 CWP sunset review is inconsistent with Article 15.3 of the SCM Agreement.

7.268.
In its first written submission, the United States requested the Panel to make a preliminary ruling, excluding Turkey's challenge to the alleged practices of "cross‑cumulation" in both original investigations and sunset reviews from the Panel's terms of reference.
7.269.
In addressing Turkey's claims, we first address the United States' request for a preliminary ruling before turning to the parties' arguments regarding the merits of Turkey's claims.

7.6.2 Whether Turkey's panel request adds a challenge regarding alleged injury determination "practices" that were not the subject of Turkey's request for consultations

7.270.
The United States has requested the Panel to rule that Turkey's panel request improperly includes measures and claims regarding alleged injury determination "practices" that were not the subject of consultations.
7.271.
We addressed a parallel request that the United States made in Section 7.3.2.1 above, regarding whether Turkey's panel request includes an alleged benefit "practice" and related "as such" claim that was not the subject of Turkey's request for consultations. In addressing that request, we recalled that a "precise and exact identity"421 is not required between the measures identified in the request for consultations and the measures identified in the panel request so long as a complainant does not "expand the scope"422 or change the "essence" of the dispute.423 We also recalled that the "legal basis" for a complaint in a panel request may reasonably evolve from the consultations request, so long as the addition of provisions does not have the effect of changing the essence of the complaint.424 Based on the content of Turkey's request for consultations and panel request, we found that Turkey's panel request did not improperly expand the scope or essence of the dispute by including a new measure and claim in connection with the alleged benefit "practice".425
7.272.
We consider that our reasoning applies mutatis mutandis in the present instance.
7.273.
Among the measures at issue, Turkey's panel request refers to "certain practices followed by the United States in the identified countervailing duty proceedings related to the cumulation of subsidized and non‑subsidized imports in the assessment of injury".426 Regarding the OCTG, WLP, and HWRP original investigations at issue, Turkey's panel request states that "the [US]ITC's practice of 'cross‑cumulating' subsidized and non‑subsidized imports, with respect to which antidumping or countervailing duty petitions are filed on the same day, is inconsistent with Article 15.3 of the SCM Agreement both 'as such', as a practice, and as applied in this proceeding".427 Regarding the CWP sunset review at issue, Turkey's panel request states that "the [US]ITC's practice of 'cross‑cumulating' subsidized and non‑subsidized imports, with respect to which five‑year reviews of antidumping or countervailing duty orders are initiated on the same day, is inconsistent with Article 15.3 of the SCM Agreement both 'as such', as a practice, and as applied in this proceeding".428
7.274.
We recall that section (A) of Turkey's request for consultations, entitled "Specific Measures at Issue", provides as follows:

This request for consultations concerns the preliminary and final countervailing duty measures imposed by the United States on Turkish imports of Certain Oil Country Tubular Goods ("OCTG"); Welded Line Pipe; Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes; and Circular Welded Carbon Steel Pipes and Tubes, as identified in Annex 1.

These measures include the determination by the United States to initiate the identified countervailing duty proceedings, the conduct of those proceedings, any preliminary or final countervailing duty or injury determinations issued in those proceedings, any definitive countervailing duties imposed as a result of those proceedings, as well as any notices, annexes, memoranda, orders, amendments, or other instruments issued by the United States, and related practices, in connection with the measures identified in Annex 1.429

7.275.
As explained in Section 7.3.2.1 above, we found that the language in the first paragraph only identifies the preliminary and final countervailing duty measures that the United States imposed on imports of OCTG, WLP, HWRP, and CWP, as identified in Annex 1.430 We observed that the second paragraph also refers to the preliminary and final countervailing duty measures imposed in the four challenged proceedings, but also refers to "related practices" in connection with the measures identified in Annex 1. While we did not find the term "related practices" to be particularly clear within this paragraph, we analysed whether the language elsewhere in Turkey's consultations request provides a sufficient basis for considering particular measures to be covered by our terms of reference.431
7.276.
Concerning the injury determinations at issue, we note that section (B) of Turkey's request for consultations, entitled "Legal Basis of the Complaint" provides as follows in part:

Turkey considers that the measures identified above, and in Annex 1, are inconsistent with the United States' obligations under the WTO Agreements. Turkey's concerns are particularly focused on, though not necessarily limited to, the following aspects of the measures and underlying administrative proceedings:

5. Injury Determination: The United States' determination of injury based on cumulated imports, including imports from countries not subject to countervailing duty investigations or reviews, which is inconsistent with Article 15.3 of the SCM Agreement.

Turkey considers that the United States' administrative proceedings and measures are inconsistent with Article VI:3 of the GATT 1994, Articles 10, 19.4, and 32.1 of the SCM Agreement, and the specific provisions cited above. Turkey's concerns relate to both the aspects of the measures and underlying administrative proceedings cited above as well as ongoing practices applied in administrative proceedings more generally.

7.277.
This excerpt also sets out that Turkey's concerns are focused on the United States' "Injury Determination" in respect of the four proceedings. In addition, the end of this excerpt specifies that "Turkey's concerns relate to both the aspects of the measures and underlying administrative proceedings cited above as well as ongoing practices applied in administrative proceedings more generally".432
7.278.
Based on the inclusion of the reference to "ongoing practices applied in administrative proceedings more generally", as consistent with our approach in Section 7.3.2.1 above, we find that a reasonable reading of section (B) discussing the "Legal Basis of the Complaint" indicates that Turkey's concerns relate not only to preliminary and final countervailing duty measures imposed in the four challenged proceedings, but also to ongoing practices applied in connection with the different aspects of the identified "legal basis" of Turkey's consultations request. One of these aspects concerns "[t]he United States' determination of injury based on cumulated imports, including imports from countries not subject to countervailing duty investigations or reviews".
7.279.
Accordingly, we do not consider that Turkey's inclusion of "practices" related to the cumulation of subsidized and non‑subsidized imports in the assessment of injury in its panel request improperly expanded the scope or changed the essence of the dispute. Therefore, we reject the United States' request to exclude the alleged injury determination practice measures concerning original investigations and sunset reviews from our terms of reference. For the same reasons as set out in Section 7.3.2.1 above, we also reject the United States' request to exclude Turkey's "as such" claims in relation to the alleged injury determination practices from our terms of reference, as the United States' sole basis for arguing that Turkey's corresponding "as such" claims are outside our terms of reference is that the alleged injury determination practice measures are not within the terms of reference.433
7.280.
We will therefore consider Turkey's claim in respect of "the [US]ITC's practice of 'cross‑cumulating' subsidized and non‑subsidized imports, with respect to which antidumping or countervailing duty petitions are filed on the same day".434

7.6.3 Turkey's claims concerning the cumulation of subsidized and dumped, non‑subsidized imports in original countervailing investigations

7.281.
We next consider Turkey's claims raised in the context of original investigations. Turkey claims that the USITC's "practice of 'cross‑cumulating' subsidized and non‑subsidized imports" in assessing injury in original investigations is inconsistent "as such" with Article 15.3 of the SCM Agreement. Turkey also claims that the USITC cumulated subsidized and dumped, non‑subsidized imports in the OCTG, WLP, and HWRP original investigations inconsistently with Article 15.3 of the SCM Agreement.435
7.282.
Article 15.3 of the SCM Agreement reads:

Where imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the investigating authorities may cumulatively assess the effects of such imports only if they determine that (a) the amount of subsidization established in relation to the imports from each country is more than de minimis as defined in paragraph 9 of Article 11 and the volume of imports from each country is not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product.

7.283.
Turkey submits that "the Appellate Body explained, in no uncertain terms, that there is 'no basis in the text of Article 15.3 of the SCM Agreement for cumulatively assessing the effects of subsidized imports with those of non‑subsidized imports.'"436 Furthermore, Turkey argues that "the Appellate Body interpreted Article 15.3 in US – Carbon Steel (India) and found that '[t]he text is clear in stipulating that being subject to countervailing duty investigations is a prerequisite for the cumulative assessment of the effects of imports under Article 15.3' and that 'the effects of imports other than [] subsidized imports must not be incorporated in a cumulative assessment pursuant to Article 15.3'".437Consequently, Turkey submits that the USITC's "practice of 'cross‑cumulating' subsidized and non‑subsidized imports, with respect to which antidumping or countervailing duty petitions are filed on the same day" is inconsistent with Article 15.3 of the SCM Agreement both "as such", as a practice, and as applied in the OCTG, WLP, and HWRP proceedings.438
7.284.
The United States argues that the Panel must reject Turkey's claims because Turkey "has failed to make its legal case"439 under Article 15.3 of the SCM Agreement. According to the United States, Turkey "has failed to engage in any analysis of Article 15.3 that would allow that burden to be met", in particular by "provid[ing] no interpretation of the text, in context, of Article 15.3, or of the object and purpose of the SCM Agreement".440 The United States submits that simply quoting statements made by the Appellate Body in a previous dispute is not a sufficient basis on which to make a legal showing.441 The United States explains:

Under DSU Article 11, a panel must make an "objective assessment" of the matter before it, and that a breach has been made out by application of a covered Agreement, properly interpreted, to the facts before it. It is not for the Panel to supply evidence or arguments necessary to make out a claim for a party. Turkey has failed to provide the Panel with any argumentation that would allow the Panel to engage in such an interpretation, and its claims thus must fail.442

7.285.
We reject the United States' argument that Turkey cannot establish a prima facie case by referring to the Appellate Body's interpretation in a previous dispute. A panel's task is to ascertain and apply the relevant law to the facts and evidence before it in making an objective assessment of the matter as required under Article 11 of the DSU.443 Turkey requests us to follow the Appellate Body's interpretation of Article 15.3 in US – Carbon Steel (India) in resolving its claim. We recall that panels may take into account the reasoning followed in prior adopted panel and Appellate Body reports when resolving similar legal issues.444 In this respect, we note that the panel and the Appellate Body in US – Carbon Steel (India) were confronted with the same interpretative issue that is pending before this Panel: whether Article 15.3 of the SCM Agreement permits the cumulation of subsidized and non‑subsidized imports in the assessment of injury in original countervailing duty investigations. We therefore find it appropriate to consider Turkey's reliance on the Appellate Body's interpretation of Article 15.3 of the SCM Agreement in our objective assessment of Turkey's claim in this dispute.
7.286.
Setting aside the alleged failure to make out its legal case, the United States argues that Turkey's claims must fail because a proper interpretation of Article 15.3 reveals that nothing in the text of that provision prohibits the cumulation of subsidized imports with non‑subsidized imports that are dumped.445
7.287.
The United States submits that Article 15.3 of the SCM Agreement is silent on whether the effects of subsidized imports may be cumulated with the effects of non‑subsidized imports that are dumped and such silence cannot be read as a prohibition of the cumulative assessment of dumped and subsidized imports in injury assessments.446 The United States also argues that a prohibition on cumulation of subsidized and non‑subsidized, dumped imports would not allow an investigating authority to capture the combined effect of dumped and subsidized imports causing simultaneously injury to the same domestic industry.447 Finally, the United States submits that, pursuant to Article VI:6(a) of the GATT 1994, a Member shall not impose anti‑dumping or countervailing duties "unless it determines that the effect of dumping or subsidization, as the case may be, is such as to cause or threaten to cause material injury to an established domestic industry".448 In the United States' view, this provision provides important context to interpret Article 15.3 of the SCM Agreement. In particular, the expression "as the case may be" contemplates the possibility for an investigating authority to cumulatively assess the injurious effects of dumped and subsidized imports.449
7.288.
We note that the United States raised these same arguments before the panel and the Appellate Body in US – Carbon Steel (India) concerning an "as such" challenge against 19 U.S.C. § 1677(7)(G), the provision in US law governing cumulative assessment of imports in injury determinations.450 The United States further argues in this dispute that reliance on the Appellate Body Report in US – Carbon Steel (India) would have the Panel read the cumulation provisions of the Anti‑Dumping Agreement and the SCM Agreement "in wilful isolation" from each other, disregarding the relevant context provided by Article VI of the GATT 1994.451 We disagree with the United States' view. As we explain below, the panel and the Appellate Body in US – Carbon Steel (India) interpreted the text of Article 15.3 in the context of the SCM Agreement, the Anti‑Dumping Agreement (in particular, in the context of Article 3.3 concerning cumulative assessment of dumped imports) and Article VI:6(a) of the GATT 1994. In making our own objective assessment of the matter before us, we are persuaded by and agree with the panel's and the Appellate Body's interpretations of Article 15.3 of the SCM Agreement in US – Carbon Steel (India), and we therefore adopt their reasoning as our own in resolving Turkey's claim in this dispute.
7.289.
We recall that, before the panel and the Appellate Body in US – Carbon Steel (India), India argued that 19 U.S.C. § 1677(7)(G) requires the USITC to assess cumulatively the effects of subsidized imports with the effects of non‑subsidized imports subject to anti‑dumping investigations, and is therefore inconsistent with Article 15.3 and Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement.452 In its interpretation of Article 15.3, the panel in US – Carbon Steel (India) found that imports from more than one country being "simultaneously subject to countervailing duty investigations" is a necessary precondition for a cumulative assessment to be undertaken consistently with that provision.453 On this basis, the panel found that the effects of imports that are not subject to a countervailing duty investigation cannot be assessed cumulatively with the effects of imports that are subject to a countervailing duty investigation. In reaching this conclusion, the panel dismissed the United States' argument that Article 15.3 of the SCM Agreement does not address the permissibility of "cross‑cumulation".454 In the view of the panel, that argument could not be reconciled with the text of the provision.455 We share this view.
7.290.
The panel found further support to its interpretation of Article 15.3 of the SCM Agreement in other paragraphs of Article 15 as well as in Article VI:6(a) of the GATT 1994. The panel found that the consistent reference to "subsidized imports" throughout Article 15 of the SCM Agreement limits the scope of imports that can be cumulated to assess injury.456 The panel also noted that Article VI:6(a) concerns the effects of subsidization "or" dumping, "as the case may be", and that the use of the conjunction "or" implies that the provision addresses injury caused either by dumping or by subsidization, and not the effects of dumping and subsidization cumulatively.457 Once again, we share this view.
7.291.
The Appellate Body upheld the panel's finding that "cross‑cumulation" is inconsistent with Article 15.3 of the SCM Agreement as well as Articles 15.1, 15.2, 15.4, and 15.5 of the SCM Agreement.458 On appeal, the United States had claimed that the panel erred in rejecting its argument that Article 15.3 of the SCM Agreement is silent on the issue of whether cross‑cumulation is permitted.459 To the contrary, the Appellate Body found that Article 15.3 of the SCM Agreement is not silent on the issue. In particular, the Appellate Body explained that Article 15.3 of the SCM Agreement stipulates that an investigating authority may cumulatively assess imports from countries that are simultaneously subject to countervailing duty investigations to determine injury, provided that the conditions established in the last clause of the provision are satisfied.460 The Appellate Body also sided with the panel's contextual analysis of Article 15 of the SCM Agreement, pursuant to which the consistent reference to "subsidized imports" throughout the various paragraphs of Article 15 supports the understanding that the cross‑cumulation of imports in injury assessments is prohibited.461
7.292.
We note that the panel and the Appellate Body both rejected the United States' view that Article 3.3 of the Anti‑Dumping Agreement as interpreted by the Appellate Body in EC – Tube and Pipe Fittings and US – Oil Country Tubular Goods Sunset Reviews supported the argument that cross‑cumulation is permitted under the SCM Agreement.462 The Appellate Body, for instance, noted that neither case involved the cumulation of the effects of dumped products with those of subsidized, non‑dumped products, but concerned instead the cumulation of the effects of dumped imports from several countries. Thus, the Appellate Body concluded – and we agree – that the rationale of the findings in those disputes does not apply to the cumulation of subsidized and dumped, non‑subsidized imports.463
7.293.
The panel and the Appellate Body also rejected the United States' argument that Article 15 must allow an investigating authority to take account of the effects that all unfairly traded imports are having on a domestic industry.464 Contrary to what the United States had argued, the Appellate Body noted that Article 15 does not contain the phrase "unfairly traded products" or similar language. Accordingly, the Appellate Body saw "no basis in the text of Article 15 for the proposition that, for the purposes of an injury determination pursuant to Article 15, an investigating authority may consider a single group of 'unfairly traded imports' rather than considering 'imports simultaneously subject to countervailing duty investigations' … as stipulated in Article 15.3".465 In addition, the Appellate Body recalled the panel's finding that the analysis under Article 15 concerns injury caused by "subsidized imports" and not generically, by unfairly traded imports.466 On this basis, the Appellate Body upheld the panel's findings and rejected the United States' argument that an analysis focusing solely on the effects of either dumped or subsidized imports alone would prevent the investigating authority from adequately taking into account the injurious effects of all unfairly traded imports, consequently frustrating the purpose of the SCM Agreement.467 We also agree with the panel's and the Appellate Body's assessments in this regard.
7.294.
Finally, we share the panel's assessment that Article VI:6(a) of the GATT 1994 does not support a reading that cumulation of the effects of subsidized and dumped, non‑subsidized imports is consistent with the provisions of Article 15 of the SCM Agreement.468 The Appellate Body agreed with this view. Like the panel, in examining the phrase "the effect of the dumping or subsidization, as the case may be" in Article VI:6(a) within the structure of the overall provision, the Appellate Body found that the use of "or" or the singular "the effect" indicates that the provision refers separately to "dumping" or to "subsidization". Therefore, the Appellate Body agreed with the panel that the phrase "as the case may be" refers to one of two alternatives expressly listed in this provision only, and does not permit investigating authorities to cumulatively assess the effects of dumped and subsidized imports at the same time.469
7.295.
In light of the above, we find the panel's and the Appellate Body's reasoning regarding the interpretation of Article 15.3 of the SCM Agreement in US – Carbon Steel (India) to be persuasive. We therefore adopt this reasoning as our own in making our own objective assessment of the matter before us. We find it all the more appropriate to do so given that the United States has raised essentially the same arguments in this dispute regarding the interpretation of Article 15.3 of the SCM Agreement as were before the panel and the Appellate Body in US – Carbon Steel (India) and were rejected in their entirety. We therefore find that Article 15.3 of the SCM Agreement does not permit the cumulative assessment of the effects of subsidized imports with the effects of dumped, non‑subsidized imports in original countervailing investigations. We will now evaluate Turkey's "as such" and as applied claims in connection with Article 15.3 of the SCM Agreement.

7.6.3.1 Whether the USITC cumulated subsidized and dumped, non‑subsidized imports in the OCTG, WLP, and HWRP original investigations inconsistently with Article 15.3 of the SCM Agreement

7.296.
In the final injury determination in the OCTG investigation, Turkey submits that the USITC "cumulated imports of OCTG from countries subject to both antidumping and countervailing duty investigations (India and Turkey) with imports from countries subject to only antidumping investigations (Korea, Ukraine, and Vietnam)".470 In the final injury determination in the WLP investigation, Turkey submits that the USITC cumulated "dumped and subsidized imports from Turkey with dumped imports from Korea".471 In the final injury determination in the HWRP investigation, Turkey submits that the USITC cumulated dumped and subsidized imports from Turkey "with imports from countries subject to only antidumping investigations, Mexico and Korea".472
7.297.
In each of the investigations, petitioners requested the launch of anti‑dumping and countervailing investigations on the same day.473 In the OCTG investigation, the USITC found that imports from the Philippines, Chinese Taipei, and Thailand were negligible, and only considered whether to cumulate subsidized and dumped, non‑subsidized imports from India, Korea, Turkey, Ukraine, and Viet Nam.474 The USITC then assessed the conditions of competition between subject imports and like domestic products to determine whether subject imports from each source competed with the domestic like products.475 In each of the challenged investigations, the USITC was satisfied that the statutory conditions were met, and as a consequence, the USITC cumulated non‑negligible imports from countries subject to both countervailing and anti‑dumping investigations with imports from countries subject to anti‑dumping investigations only. The United States does not contest that the USITC cumulated subsidized and non‑subsidized imports when assessing material injury in each of the investigations.