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Recourse to Article 21.5 of the DSU by the European Communities - Report of the Panel

TABLE OF CASES CITED IN THIS REPORT

Short TitleFull Case Title and Citation
Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515
Argentina – Poultry Anti-Dumping Duties Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil, WT/DS241/R, adopted 19 May 2003, DSR 2003:V, 1727
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, 1033
Australia – Automotive Leather II (Article 21.5 – US) Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather – Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW and Corr.1, adopted 11 February 2000, DSR 2000:III, 1189
Australia – Salmon (Article 21.5 – Canada) Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, DSR 2000:IV, 2031
Brazil – Aircraft Appellate Body Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, 1161
Brazil – Aircraft Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report, WT/DS46/AB/R, DSR 1999:III, 1221
Brazil – Aircraft (Article 21.5 – Canada) Panel Report, Brazil – Export Financing Programme for Aircraft – Recourse by Canada to Article 21.5 of the DSU, WT/DS46/RW, adopted 4 August 2000, as modified by Appellate Body Report, WT/DS46/AB/RW, DSR 2000:IX, 4093
Canada – Aircraft (Article 21.5 – Brazil) Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft – Recourse by Brazil to Article 21.5 of the DSU, WT/DS70/AB/RW, adopted 4 August 2000, DSR 2000:IX, 4299
Canada – Wheat Exports and Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain, WT/DS276/R, adopted 27 September 2004, upheld by Appellate Body Report, WT/DS276/AB/R, DSR 2004:VI, 2817
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, 3045, and Corr.1
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as modified by Appellate Body Report, WT/DS207AB/R, DSR 2002:VIII, 3127
Chile – Price Band System (Article 21.5 – Argentina) Appellate Body Report, Chile – Price Band System and Safeguard Measures Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU by Argentina, WT/DS207/AB/RW, adopted 22 May 2007
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, 7425
EC – Bananas III(Article 21.5 – Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Recourse to Article 21.5 of the DSU by Ecuador, WT/DS27/RW/ECU, adopted 6 May 1999, DSR 1999:II, 803
EC – Bananas III(Article 21.5 – US) Panel Report, 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/RW/USA and Corr.1, circulated to WTO Members 19 May 2008 [adoption pending]
EC – Bed Linen Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049
EC – Bed Linen Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/R, adopted 12 March 2001, as modified by Appellate Body Report, WT/DS141/AB/R, DSR 2001:VI, 2077
EC – Bed Linen (Article 21.5 – India) Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSUby India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III, 965
EC – Bed Linen (Article 21.5 – India) Panel Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSUby India, WT/DS141/RW, adopted 24 April 2003, as modified by Appellate Body Report, WT/DS141/AB/RW, DSR 2003:IV, 1269
EC – Chicken Cuts Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, and Corr.1, DSR 2005:XIX, 9157
EC – Salmon (Norway) Panel Report, European Communities – Anti-Dumping Measure on Farmed Salmon from Norway, WT/DS337/R, adopted 15 January 2008
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, 3767
Guatemala – Cement II Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, DSR 2000:XI, 5295
India – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, adopted 23 July 1998, and Corr.3 and 4, DSR 1998:VI, 2201
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan , WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831
US – Anti-Dumping Measures on Oil Country Tubular Goods Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/AB/R, adopted 28 November 2005, DSR 2005:XX, 10127
US – Anti-Dumping Measures on Oil Country Tubular Goods Panel Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico, WT/DS282/R, adopted 28 November 2005, as modified by Appellate Body Report, WT/DS282/AB/R, DSR 2005:XXI, 10225
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, 3779
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1, adopted 19 December 2002, as modified by Appellate Body Report, WT/DS213/AB/R, DSR 2002:IX, 3833
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, 3
US – Corrosion-Resistant Steel Sunset Review Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/R, adopted 9 January 2004, as modified by Appellate Body Report, WTDS244/AB/R, DSR 2004:I, 85
US – Cotton Yarn Appellate Body Report, United States – Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, DSR 2001:XII, 6027
US – Countervailing Measures on Certain EC Products (Article 21.5 – EC) Panel Report, United States – Countervailing Measures Concerning Certain Products from the European Communities – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS212/RW, adopted 27 September 2005, DSR 2005:XVIII, 8950
US –Customs Bond Directive Panel Report, United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, WT/DS345/R, adopted 1 August 2008, as modified by Appellate Body Report, WT/DS343/AB/R, WT/DS345/AB/R
US – FSC (Article 21.5 – EC) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW, adopted 29 January 2002, DSR 2002:I, 55
US – FSC (Article 21.5 – EC II) Appellate Body Report, United States – Tax Treatment for "Foreign Sales Corporations" – Second Recourse to Article 21.5 of the DSU by the European Communities, WT/DS108/AB/RW2, adopted 14 March 2006
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, 29
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001, DSR 2001:X, 4697
US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina) Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina – Recourse to Article 21.5 of the DSU by Argentina, WT/DS268/AB/RW, adopted 11 May 2007
US – Section 129(c)(1) URAA Panel Report, United States – Section 129(c)(1) of the Uruguay Round Agreements Act, WT/DS221/R, adopted 30 August 2002, DSR 2002:VII, 2581
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, 6481
US – Shrimp (Article 21.5 – Malaysia) Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/RW, adopted 21 November 2001, upheld by Appellate Body Report, WT/DS58/AB/RW, DSR 2001:XIII, 6529
US – Shrimp (Thailand) / US –Customs Bond Directive Appellate Body Report, United States – Measures Relating to Shrimp from Thailand / United States – Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties, WT/DS343/R, WT/DS345/R, circulated to WTO Members 16 July 2008 [adoption pending]
US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand, WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report, WT/DS343/AB/R, WT/DS345/AB/R
US – Softwood Lumber IV (Article 21.5 – Canada) Appellate Body Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 of the DSU, WT/DS257/AB/RW, adopted 20 December 2005, DSR 2005:XXIII, 11357
US – Softwood Lumber IV (Article 21.5 – Canada) Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada – Recourse by Canada to Article 21.5 [of the DSU], WT/DS257/RW, adopted 20 December 2005, upheld by Appellate Body Report, WT/DS257/AB/RW, DSR 2005:XXIII, 11401
US – Softwood Lumber V Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004, DSR 2004:V, 1875
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
US – Stainless Steel (Mexico) Panel Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/R, adopted 20 May 2008, as modified by Appellate Body Report, WT/DS344/AB/R
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R, Corr.1, and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body Report, WT/DS267/AB/R, DSR 2005:II, 299
US – Upland Cotton (Article 21.5 – Brazil) Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted 20 June 2008
US – Upland Cotton (Article 21.5 – Brazil) Panel Report, United States – Subsidies on Upland Cotton – Recourse to Article 21.5 of the DSU by Brazil, WT/DS267/RW and Corr.1, adopted 20 June 2008, as modified by Appellate Body Report, WT/DS267/AB/RW
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, 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, 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, 417
US – Zeroing (EC) Panel Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/R, adopted 9 May 2006, as modified by Appellate Body Report, WT/DS294/AB/R, DSR 2006:II, 521
US – Zeroing (Japan) Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007
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

I. INTRODUCTION

1.1.
On 13 September 2007, the European Communities requested the establishment of a panel pursuant to Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") concerning the alleged failure of the United States to implement the recommendations and rulings of the Dispute Settlement Body ("DSB") in United States – Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing").1
1.2.
At its meeting on 25 September 2007, the Dispute Settlement Body ("DSB") decided, in accordance with Article 21.5 of the DSU, to refer this matter, if possible, to the original panel.
1.3.
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 European Communities in document WT/DS294/25, the matter referred to the DSB by the European Communities in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."

1.4.
On 28 November 2007, the European Communities requested the Director-General to determine the composition of the Panel.
1.5.
Article 8.7 of the DSU provides:

"If there is no agreement on the panelists within 20 days after the date of the establishment of a panel, at the request of either party, the Director-General, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, shall determine the composition of the panel by appointing the panelists whom the Director-General considers most appropriate in accordance with any relevant special or additional rules or procedures of the covered agreement or covered agreements which are at issue in the dispute, after consulting with the parties to the dispute. The Chairman of the DSB shall inform the Members of the composition of the panel thus formed no later than 10 days after the date the Chairman receives such a request."

1.6.
On 30 November 2007, the Director-General composed the Panel as follows:

Chairperson: Mr. Felipe Jaramillo

Members: Ms Usha Dwarka-Canabady

Mr. Scott Gallacher2

1.7.
India, Japan, Korea, Mexico, Norway, Chinese Taipei and Thailand reserved their rights to participate in the Panel proceedings as third parties.
1.8.
The Panel met with the parties to the dispute on 9-10 April 2008. The Panel met with the third parties on 10 April 2008.
1.9.
The Panel submitted its interim report to the parties on 12 August 2008 and submitted its final report to the parties on 10 October 2008.

II. BACKGROUND

A. INTRODUCTION

2.1.
This dispute concerns the implementation by the United States of the DSB's recommendations and rulings in US – Zeroing (EC), the original dispute. The report of the panel in the original dispute was circulated to Members on 31 October 2005; the report of the Appellate Body was circulated to Members on 18 April 2006. On 9 May 2006, the DSB adopted the report of the Appellate Body and the report of the original panel, as modified by the Report of the Appellate Body. Pursuant to Article 21.3(b) of the DSU, the "reasonable period of time" for the US to implement the recommendations and rulings of the DSB was set, by agreement of the parties, for a period of 11 months expiring on 9 April 2007.3
2.2.
The dispute before the original panel concerned the use, by the United States Department of Commerce ("USDOC"), of "zeroing" when determining margins of dumping in original investigations, administrative (assessment) reviews, new shipper reviews, changed circumstances review, and sunset reviews.

B. THE US ANTI-DUMPING SYSTEM

2.3.
At issue, in both the original dispute and in this compliance dispute, is the use of "zeroing" in the calculation of margins of dumping in the context of the imposition, assessment and collection, by the United States, of anti-dumping duties. The US system for the imposition, assessment and collection of anti-dumping duties can be described as follows.4

1. Original investigations

2.4.
In order to determine whether the imposition of anti-dumping measures on known exporters of a product under consideration may be justified, the United States examines whether dumping existed during a given period of investigation. This determination is made by the United States Department of Commerce ("USDOC") and is published in a Notice of Final Determination of Sales at Less Than Fair Value. The Notice of Final Determination of Sales at Less Than Fair Value sets out the USDOC's assessment of the existence and level of dumping. The United States International Trade Commission ("USITC") then determines whether the relevant United States industry was injured by reason of the dumped imports. When the USDOC finds dumping and the USITC finds that dumping caused injury to the domestic industry, the USDOC issues a Notice of Antidumping Duty Order imposing final measures, including a cash deposit rate equivalent to the margin of dumping calculated for each known exporter. The Anti-Dumping Order provides the United States with the authority to require cash deposits at the time of importation and subsequently assess anti-dumping duties.5

2. Administrative reviews

2.5.
Once an Anti-Dumping Order is in place, the United States will assess the liability for anti-dumping duties on specific entries of the subject product by individual importers for a specified period of time on a retrospective basis. Under this system, an anti-dumping duty liability attaches at the time of entry, but duties are not actually assessed at that time. Rather, the United States collects security in the form of a cash deposit at the time of entry, and determines the amount of duties due on the entry at a later date. Once a year (during the anniversary month of the Order) interested parties may request an "administrative review" to determine the amount of duties – if any – owed on entries made during the previous year.6 The amount of anti-dumping duties owed by each individual importer (the assessment rate) is calculated on the basis of a comparison of each individual import to a contemporaneous average normal value. The total amount of dumping associated with each importer is then aggregated and expressed as a percentage of that importer's imports into the United States. This assessment rate is then applied to all imports by that importer during the period reviewed. The amount of dumping found on all imports from a given exporter (regardless of the importer) is also used to derive a new cash deposit rate that applies on future entries from that exporter going forward. If no review is requested, the cash deposits made on the entries during the previous year are automatically assessed as the final duties. The final anti-dumping duty liability for past entries and the new cash deposit rate for future entries is calculated by the USDOC and published in a Notice of Final Results of Antidumping Duty Administrative Reviews.
2.6.
When assessing an importer's final liability for paying anti-dumping duties and any future cash deposit rate, the United States applies a methodology that has been referred to as "simple zeroing": When comparing a weighted-average normal value with the price of an individual export transaction, the amount by which the normal value exceeds the export price is considered to be the "dumped" amount for that export transaction. If the export price exceeds normal value, the result of that particular comparison is considered to be zero. The total amount of dumping for each importer is calculated by aggregating the results of each comparison for which the average normal value exceeds the export price. (In other words, while the value of all export transactions is included in the denominator of the fraction used to calculate the importer's liability, the results of the comparisons for which export prices exceed the average normal value are excluded from the numerator of that fraction).
2.7.
Following the publication of the results of an administrative review, the USDOC communicates the results of its determination to US Customs and Border Protection ("USCBP") by issuing what are referred to as "assessment instructions". The instructions advise the USCBP of the "assessment rate", i.e., the final anti-dumping duty to be collected from a given importer. The USCBP then instructs the US ports of entries to "liquidate" the relevant entries of subject imports at the established rates.7

3. Sunset reviews

2.8.
Five years after publication of an anti-dumping duty order, the USDOC and the USITC conduct a "sunset review" to determine respectively whether revocation of the order would be likely to lead to a continuation or recurrence of dumping, and the continuation or recurrence of material injury.
2.9.
The order is revoked unless both the USDOC and the USITC make affirmative "likelihood" determinations.

C. FINDINGS BY THE PANEL AND THE APPELLATE BODY IN THE ORIGINAL DISPUTE

1. Panel

2.10.
The European Communities, in the original dispute, made "as applied" claims with respect to the use of zeroing, by the USDOC, in the calculation of dumping margins in 15 original investigations and 16 administrative reviews concerning products from the European Communities. The European Communities also made "as such" claims with respect to a number of US measures concerning the use of zeroing by the USDOC in the context of original investigations, administrative reviews, new shipper reviews, changed circumstances reviews, and sunset reviews.

(a) "As applied" claims – model zeroing in original investigations

2.11.
The European Communities claimed that the United States acted inconsistently with its obligations under the Anti-Dumping Agreement and the GATT 1994 in 15 original AD investigations8 because the USDOC, when calculating the weighted average dumping margin for exporters, performed "model zeroing". The European Communities claimed that the US application of model zeroing in the original investigations at issue violated Articles 1, 2.4, 2.4.2, 3.1, 3.2, 3.5, 5.8, 9.3, and 18.4 of the Agreement on implementation of Article VI of the GATT 1994 (the "Anti-Dumping Agreement"), Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement. The panel concluded that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement with respect to the use of zeroing in these original investigations but declined to make additional findings under the other provisions invoked by the European Communities.9

(b) "As applied" claims – zeroing in administrative reviews

2.12.
The European Communities also claimed, before the original panel, that the United States acted inconsistently with its obligations under Articles 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement as a consequence of comparing a weighted normal value with individual export transactions, without explanation or justification, and the use of zeroing in 16 periodic reviews ("administrative reviews")10 proceedings in which the USDOC had used zeroing in the context of weighted average-to-transaction ("simple zeroing"). The original panel rejected all of the EC "as applied" claims with respect to the 16 administrative reviews at issue.11

(c) "As such" claims

2.13.
The European Communities made "as such" claims against the "Standard Zeroing Procedures (or the US practice or methodology of zeroing)"12 and various sections of the United States Tariff Act of 1930 and of the USDOC Regulations with respect to the US use of zeroing in (i) original investigations, (ii) administrative reviews, and (iii) new shippers reviews, changed circumstances reviews, and sunset reviews.
2.14.
The original panel found that the US "zeroing methodology" is a norm which could be challenged in WTO dispute settlement procedures. It found that this norm, as it relates to original investigations is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement but found it unnecessary to make findings under the other provisions cited by the European Communities (Articles 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-Dumping Agreement; Articles VI:1 and VI:2 of the GATT 1994; and Article XVI:4 of the WTO Agreement).13 The panel found that the sections of the Tariff Act challenged by the European Communities (Sections 771(35)(A) and (B), 731 and 777(A)(d)) were not as such inconsistent with Articles 2.4, 2.4.2, 5.8, 9.3, 1 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement with respect to the calculation of dumping margins in original investigations.14
2.15.
The original panel rejected the EC claims in respect of administrative reviews. The panel considered the EC claims in this respect to be dependent upon a finding of violation of Articles 2.4 and 2.4.2 and on an interpretation of these provisions as prohibiting zeroing and the use of an "asymmetrical comparison" of export price and normal value, which the panel had rejected in its analysis of the EC "as applied" claims with respect to administrative reviews.15 The panel rejected the EC's "as such" claims with respect to new shipper reviews, changed circumstances reviews and sunset reviews on similar grounds.16

(d) Recommendation

2.16.
The panel recommended that the Dispute Settlement Body request the United States to bring its measures into conformity with its obligations under the Anti-Dumping Agreement.17

(e) Dissenting opinion by one panelist

2.17.
One panelist wrote a dissenting opinion. That panelist concurred in the panel's findings that model zeroing in original investigations is prohibited by Article 2.4.2 of the Anti-Dumping Agreement, that the Sections of the US Tariff Act challenged by the European Communities are not inconsistent with the provisions of the Anti-Dumping Agreement, GATT 1994 and WTO Agreement invoked by the European Communities and that the US zeroing methodology, as it relates to original investigations, is a norm which is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement, but disagreed with all other findings of the panel.18 In particular, the dissenting panelist would have accepted the EC claims (i) that simple and model zeroing are inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement in assessment proceedings (except where there is targeted dumping); (ii) that Section 351,414 (c)(2) of the US Regulations, which foresees simple zeroing in review proceedings, is inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement; and (iii) that the US zeroing methodology used in assessment and review proceedings is inconsistent with Articles 2.4 and 2.4.2 of the Anti-Dumping Agreement.19

2. Appellate Body

(a) "As applied" claims – simple zeroing in administrative reviews

2.18.
Following an appeal by the European Communities, the Appellate Body reversed the panel's finding that the United States had not acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 with respect to administrative reviews. The Appellate Body found, instead, that the United States had acted inconsistently with these provisions.20 The Appellate Body declared the panel's finding on Article VI:1 of the GATT 1994 "moot, and of no legal effect".21 The Appellate Body did not find it necessary to rule on whether the US acted inconsistently with the first sentence of Article 2.4 of the Anti-Dumping Agreement ("fair comparison" requirement"), declared "moot and of no legal effect" the panel's finding in this respect22, upheld the panel's finding that zeroing is not an impermissible allowance or adjustment (Article 2.4, third to fifth sentences),23 declined to rule on a conditional appeal of the European Communities under Article 2.4.2 Anti-Dumping Agreement24, upheld the panel's finding that the United States had not acted inconsistently with Articles 11.1 and 11.2 of the Anti-Dumping Agreement25, and considered that it was not necessary to rule on whether the zeroing methodology, as applied in the administrative reviews at issue, was also inconsistent with Articles 1 and 18.4 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.26

(b) Zeroing "as such" in original investigations

2.19.
The Appellate Body upheld the original panel's finding (albeit for reasons different from those set out by the panel) that the zeroing methodology used by the USDOC in original investigations in which the weighted-average to weighted-average method is used could be challenged, as such, in WTO dispute settlement and that it was, as such, inconsistent with Article 2.4.2 of the Agreement.27

(c) Zeroing "as such" in administrative reviews

2.20.
The European Communities appealed the original panel's findings that the zeroing methodology used by the United States in administrative reviews is not inconsistent, as such, with certain provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement. The Appellate Body declared "moot, and of no legal effect", the panel's findings in this respect. The Appellate Body considered, however, that it could not "complete the analysis", i.e., could not make a finding as to whether the zeroing methodology, as it relates to administrative reviews, was inconsistent with these provisions.28
2.21.
The Appellate Body also rejected a conditional appeal by the European Communities of the panel's conclusions or the panel's exercise of judicial economy regarding the Standard Zeroing Procedures (i.e., lines of computer code). The European Communities had requested the Appellate Body to find that the Procedures were inconsistent, as such, with the provisions invoked by the European Communities in its "as such" claims concerning the use of zeroing in administrative reviews, new shippers reviews, changed circumstances review, and sunset reviews. The Appellate Body found that the Procedures were not, per se, a measure that could be challenged and, as a consequence, that they could not be either WTO-consistent or inconsistent. It therefore declared "moot, and of no legal effect, the panel's findings that the Standard Zeroing Procedures were not inconsistent, as such, with the provisions of the Anti-Dumping Agreement, the GATT 1994 and the WTO Agreement invoked by the European Communities.29

(d) "As such" claims – USDOC Regulations

2.22.
The European Communities appealed the panel's finding that Section 351,414(c)(2) of the USDOC Regulations was not inconsistent, as such, with Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3 and 18.4 of the Anti-Dumping Agreement, Articles VI:1 and VI:2 of GATT 1994, and Article XVI:4 of the WTO Agreement. The Appellate Body declared "moot, and of no legal effect" the panel's finding that Section 351,414(c)(2) is not inconsistent with these provisions. It refrained from completing the legal analysis in this respect, i.e., from deciding whether the section of the USDOC Regulations at issue was indeed inconsistent with the provisions relied upon by the European Communities.30

(e) Recommendation

2.23.
The Appellate Body recommended that the DSB request the United States to bring its measures, which had been found in its Report, and in the report of the original panel (as modified by the Appellate Body Report), to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements.

3. DS B recommendations and rulings

2.24.
In summary, the findings of inconsistency which were adopted by the DSB are as follows:

(a) Zeroing, "as applied" in original investigations: The original panel's finding that the United States acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement as a consequence of the USDOC performing "model zeroing" in the 15 original investigations at issue in the original dispute.31

(b) Zeroing "as such" in original investigations): The original panel's finding (upheld by the Appellate Body on a different reasoning) that the US "zeroing methodology" manifested in the "Standard Zeroing Procedures" (line of computer code) as it relates original investigations, is, as such, inconsistent with Article 2.4.2 of the Anti-Dumping Agreement.32

(c) Zeroing "as applied" administrative reviews: The Appellate Body's finding that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when it zeroed (simple zeroing) in the 16 administrative reviews at issue in the original dispute.33

2.25.
The DSB recommended that the United States bring its measures, which had been found in the Appellate Body Report, and in the Panel Report as modified by the Appellate Body Report, to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements.
2.26.
Thus, the DSB adopted no findings and made no recommendation with respect to "as such" claims by the European Communities with respect to administrative reviews or other types of reviews (including sunset reviews).

III. FACTUAL ASPECTS

A. RELEVANT DEVELOPMENTS CONCERNING THE US MEASURES AT ISSUE IN THE ORIGINAL DISPUTE

3.1.
The following developments with respect to the measures at issue in the original dispute are relevant to the Panel's examination of the US implementation of the DSB recommendations and rulings:

With respect to the original investigations at issue in the original dispute:34

(a) On 27 December 2006, the United States announced that it would abandon "model zeroing" in original AD investigations in which the weighted average-to-weighted average comparison methodology is used. The modification became effective on 22 February 2007 and concerned all pending and future original investigations as of that date.35

(b) On 1 March 2007, the USDOC initiated proceedings pursuant to Section 129 of the Uruguay Round Agreements Act covering twelve of the fifteen original antidumping investigations at issue in the original dispute.3637 The remaining three AD orders had been previously revoked.38 In the Section 129 determinations, the USDOC recalculated, without zeroing, the relevant margins of dumping by applying the modification of its calculation methodology announced in December 2006. The USDOC issued its determinations with respect to eleven of the Section 129 determinations on 9 April 2007. These eleven Section 129 determinations became effective on 23 April 2007.39 The results in the last Section 129 determination were issued on 20 August 2007 and became effective on 31 August 2007.40 As a result of these recalculations:

(i) Two original AD orders were revoked (as a result of the recalculated margins being zero or de minimis for all involved producers/exporters);41

(ii) Ten original AD orders42 were partially revoked (revoked with respect to certain companies for which the USDOC found zero or de minimis margins in the Section 129 determination) whereas for other companies, duties were either reduced or increased as a result of the recalculation. The recalculated margins of dumping established in the Section 129 determinations applied (as the new cash deposit rate) with respect to unliquidated entries (imports) made on or after 23 April 2007 (31 August 2007 with respect to case 11).43

(c) In addition, the USDOC issued in the ordinary course a number of administrative review determinations with respect to AD orders concerned in the original investigations that were at issue in the original dispute. The USDOC continued to calculate margins of dumping in these administrative reviews by using zeroing (simple zeroing).

With respect to the administrative reviews at issue in the original dispute:

(d) With respect to the sixteen administrative review determinations at issue in the original dispute, the United States considered that the cash deposit rates established as a result of each of those reviews – with the exception of one company – were no longer in effect because they had been superseded by subsequent administrative reviews: consequently, no further action was taken by the United States in order to implement the DSB recommendations and rulings in respect of these administrative review determinations.44

Sunset review determinations:

(e) Following negative sunset review determinations by the USITC (no likelihood of continuation or recurrence of injury), the USDOC revoked the AD orders in 4 cases, effective 7 March 2007 (cash deposits on imports made on or after that effective date were to be refunded and the concerned imports would not be subject to a final assessment of AD duties).45 Other sunset review determinations adopted with respect to AD orders concerned in the original investigations at issue in the original dispute or in the same USDOC investigations for which administrative reviews were challenged in the original dispute resulted in the continuation of the relevant AD order.46

B. MEASURES AT ISSUE

3.2.
The measures at issue in this dispute are, according to the European Communities, the following:

(a) Certain of the Section 129 determinations adopted by the United States to implement the rulings and recommendations of the DSB.47

(b) Subsequent administrative reviews, changed circumstances reviews and sunset reviews adopted in the "cases" at issue in some of the 15 original investigation determinations and 16 administrative review determinations challenged in the original dispute (as well as assessment instructions issued by the USDOC to the USCBP). These reviews have, in the context of this dispute, been referred to as "subsequent reviews" (as opposed to the administrative reviews that were at issue in the original dispute).48

(c) Liquidation of duties by the USCBP following instructions issued by the USDOC.

(d) Related omissions and deficiencies in the US compliance with the DSB's recommendations and rulings.

3.3.
The United States argues, as part of its request for preliminary rulings, that certain of these measures – and in particular, each of the "subsequent reviews" and assessment instructions – do not fall within the Panel's terms of reference. The Panel addresses the US objection in this respect below, in Section VIII.D.

IV. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. EUROPEAN COMMUNITIES

4.1.
The European Communities requests the Panel to make the following findings:

(a) the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset review proceedings relying on margin of duties calculated with zeroing;

(b) the United States has not complied with the DSB's recommendations in the original proceeding, since it continues to collect anti-dumping duties and establish new cash deposit rates based on zeroing with respect to the original investigations and administrative reviews challenged in the original dispute;

(c) the United States remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it still collects anti-dumping duties calculated with zeroing with respect to measures challenged in the original dispute (including the measures listed in the Annex to the Panel Request and any other subsequent measures);

(d) the United States has not complied with the DSB's recommendations in the original proceeding, since it has failed to fully revoke the original investigation orders contested in the original dispute;

(e) the United States has not complied with the DSB's recommendations in the original proceeding, since the 16 administrative review investigations covered in the original dispute have not been superseded (i.e.,the United States still collects duties based on the dumping margins found in those proceedings with zeroing, and the United States has also relied on those margins for the determination of likelihood of recurrence of dumping in sunset review proceedings);

(f) the United States violated Articles 21.3 and 21.3(b) of the DSU, since it did not take any measure to comply with respect to the "as applied" measures covered in the original dispute between 9 April and 23 April/31 August 2007;

(g) the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 when making an error in the calculation of the unit value and then failing to have it removed pursuant to the Section 129 Determination in case 11;

(h) the United States violated Article 6.8, Annex II and Article 9.4 of the Anti-Dumping Agreement when using a weighted average of exporters with zero/de minimis rates and adverse facts available to calculate the "all others" rates pursuant to the Section 129 determinations in cases 2, 4 and 5; and

(i) the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 when failing to reassess the injury in light of the new volume of non-dumped imports pursuant to the Section 129 Determinations in cases 2, 3, 4 and 5 of the Annex to the Panel Request.49

4.2.
The European Communities also requests the Panel to find that its composition was not consistent with Articles 21.5 and 8.3 of the DSU.
4.3.
Further, the European Communities considers that, since the United States has failed to comply with its obligations, the original recommendations of the DSB remain in effect, and apply to the full extent of the findings requested above. The European Communities requests the Panel to confirm the original panel's recommendation, pursuant to Article 19 of the DSU, that the United States take the steps necessary to bring its measures into conformity with the cited WTO provisions.
4.4.
The European Communities also asks the Panel to make suggestions as to how the United States should bring its measures in conformity with its obligations. The European Communities asks the Panel to suggest that, in order to comply with the DSB's recommendations, the United States cease using zeroing when calculating dumping margins in any anti-dumping proceeding with respect to the measures challenged in the original dispute and any other subsequent amendments of those.50

B. UNITED STATES

4.5.
The United States requests that the Panel reject the EC claims and find that it has met its obligations to bring the measures found to be inconsistent with the Anti-Dumping Agreement and the GATT 1994 into conformity and has, therefore, complied with the recommendations and rulings of the DSB. The United States asks the Panel to decline to make the suggestion requested by the European Communities.

V. ARGUMENTS OF THE PARTIES

5.1.
The arguments of the parties are set out in their written and oral submissions to the Panel, and in their answers to questions. The parties' arguments, based on the summaries submitted by them pursuant to paragraph 10 of the Panel's working procedures, are set forth in this section. The full non-confidential text of the submissions of the European Communities can be downloaded from the EC's web site.51 The full non-confidential text of the United States submissions can be downloaded from the web site of the Office of the United States Trade Representative.52

A. US REQUEST FOR PRELIMINARY RULINGS

1. United States

5.2.
The United States requests preliminary rulings concerning the EC's apparent effort to include certain determinations within the terms of reference of this proceeding, including certain administrative reviews and sunset reviews that are not measures taken to comply with the recommendations and rulings of the DSB in the original proceeding. A number of these measures also were not identified in the EC's Article 21.5 panel request.53 The United States observes in this context that Article 21.5 of the DSU applies when there is a disagreement as to the existence or consistency with a covered agreement of a measure taken to comply with recommendations and rulings of the DSB and that the scope of an Article 21.5 compliance panel proceeding is inherently limited – it may only examine a measure that is taken to comply, and then only if that measure is specified in the request for the establishment of a panel.54
5.3.
The only measures that were the subject of the DSB recommendations and rulings were the investigations and administrative reviews listed in the annexes to the EC's original panel request. The EC pursued a challenge against zeroing in administrative reviews "as such" but did not prevail. Upon reviewing the EC's first submission, the United States notes that the EC appears to seek to include within the terms of reference determinations that are not properly within the terms of reference for two reasons: first, because they were not identified in the EC's Article 21.5 panel request, as required by Article 6.2 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), and second, because those determinations were not subject to the recommendations and rulings of the DSB, nor are they measures taken to comply.55
5.4.
Article 6.2 of the DSU provides that a panel request shall "identify the specific measures at issue." The United States submits that the key passage in the EC's Article 21.5 request is paragraph 7. This paragraph plainly states that the measures at issue are the investigations and administrative review determinations from the original proceeding. In its submission, however, the EC appears to take a different approach. The EC seeks to transform the "reviews" referenced in its panel request as separate and distinct from the "measures at issue" into "measures" within the terms of reference. Under Article 6.2, however, the EC was obliged, in its panel request, to "identify the specific measures at issue." The only measures identified as "measures in question" were the investigations and administrative reviews from the original proceeding. Therefore, any "measures" other than those reviews are not "measures" subject to findings in this proceeding.56
5.5.
For the foregoing reasons, the United States requests that the Panel reject the EC's attempt to use its first submission to expand the terms of reference beyond the specific measures identified in its panel request, i.e.,the 16 administrative reviews in the original proceeding.57 The EC's attempt to use its submission to expand the measures within the terms of reference of this proceeding is flawed for a second reason. The scope of an Article 21.5 proceeding is limited to the issue of the existence or consistency of measures taken to comply.58 Pursuant to Article 6.2 of the DSU, in its request for the establishment of a panel in the original proceeding, the EC was required to "identify the specific measures at issue" (emphasis added). That identification in turn informs the question of what is a "measure taken to comply."59 The United States argues that there must be an express link between the alleged measures taken to comply and the DSB's recommendations and rulings. Accordingly, in assessing whether a challenged measure is a measure taken to comply, the Panel must first look to the DSB's recommendations and rulings. Nonetheless, not every measure that has some connection with, or that could have some impact upon a measure taken to comply may be scrutinized in an Article 21.5 proceeding. Rather, such measures falling within the competence of an Article 21.5 panel are those "taken in the direction of, or for the purpose of achieving compliance [with the DSB's recommendations and rulings]."60 The United States argues that here, however, the EC seeks to expand the terms of reference beyond the inquiry into the existence or consistency of measures taken to comply. Precisely what the EC seeks to include is something of a moving target.61
5.6.
The United States recalls that the EC challenged 16 administrative reviews, and the Appellate Body concluded that those reviews were inconsistent with the Antidumping Agreement. Thus, those 16 reviews were the subject of the DSB recommendations and rulings. None of the other "measures" the EC seeks to include in these proceedings – such as subsequent reviews or assessment instructions – was the basis for a DSB recommendation or ruling.62
5.7.
The United States notes at the outset that proceedings under Article 21.5 address disagreements "as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings [of the DSB]."63 A complaining Member may not use a compliance proceeding to challenge measures that it could have challenged in the original panel proceeding but did not. Nor may a complaining Member use Article 21.5 to challenge measures that are not measures taken to comply. This is because Members only agreed to the truncated, expedited procedures under Article 21.5 in the specific case involving a measure taken to comply, and did not agree to have these different dispute settlement procedures used in the case of measures not taken to comply.64 The United States observes in this context that to identify the proper scope of any Article 21.5 proceeding, the appropriate starting point is the DSB's recommendations and rulings.65 A panel composed under Article 21.5, therefore, begins with the recommendations and rulings of the DSB, and examines measures that a Member has taken pursuant to those recommendations and rulings to determine if that Member is in compliance.66 In the US view, however, the EC attempts to expand the scope of these proceedings by incorporating claims regarding measures entirely distinct from those measures it originally challenged in its "as applied" claims and which were not measures taken to comply.67
5.8.
The United States recalls that in the original proceeding, the EC prevailed with respect to its "as applied" claims involving 15 investigations and 16 administrative reviews. The EC did not prevail with respect to its "as such" claims.68 According to the DSB recommendations and rulings in this dispute, 15 determinations by the US Department of Commerce ("Commerce") in antidumping investigations were found inconsistent with a covered agreement. The recommendations and rulings also include "as applied" findings of a breach with respect to 16 Commerce determinations in administrative reviews. The original panel and the Appellate Body declined to make findings concerning the EC's "as such" claim against zeroing in administrative reviews.69 In the US view, it seems clear, then, that the questions before this compliance panel pertain to US compliance with the findings concerning those specific investigations and reviews.70 Thus, the DSB's recommendations and rulings were limited to "as applied" findings.71 The United States maintains that it has removed the border measures in question and that it has therefore complied with the recommendations and rulings of the DSB.72 Therefore, this Panel should reject the EC's claims of non‑compliance and its effort to enlarge the obligations of the United States.73
5.9.
The United States next notes that the EC has relied heavily on Softwood Lumber for the proposition that these "subsequent reviews" have a sufficient "nexus" to the 15 investigations and 16 administrative reviews found to be inconsistent "as applied" in the original proceeding. According to the United States, the EC's reliance is misplaced for factual and legal reasons.74 First, the United States maintains that the assessment reviews covered distinct sales during distinct periods of time and could address different companies. As an illustration, the United States calls the Panel's attention to the cases concerning pasta from Italy. In the investigation, Commerce examined the sales of seven different Italian pasta companies. In the assessment review for the 2001‑02 period, Commerce examined a total of ten companies, nine of which had not been examined in the original investigation. Similarly, in the assessment review for the 2002‑03 period, Commerce reviewed eight companies, none of which was examined in the original investigation.75
5.10.
Furthermore, the United States notes that the legal and factual distinctions between the two types of proceedings with respect to the issue of zeroing are more relevant here than was the case in Softwood Lumber. There, the issue was the pass‑through of subsidies – and the legal basis for the panel's consideration did not differ as between the investigation and the administrative review. With respect to the issue of zeroing, however, that is not the case. Even the EC implicitly recognized this by referring to "model zeroing" in investigations and "simple zeroing" in reviews. This distinction flows through to the legal bases for the findings against zeroing – which rely significantly on the text of Article 2.4.2 and, in particular, the phrase "all comparable export transactions" in the context of investigations. In the context of reviews, however, that textual basis is absent and the Appellate Body has, instead, relied on the term "product" and the non-textual phrase "product as a whole" to find that a margin of dumping cannot be calculated in a proceeding using zeroing. Given the distinctions in the factual and legal basis for the findings on investigations as compared to reviews, it would be inappropriate to find that there is a sufficiently close nexus to address the subsequent reviews in an Article 21.5 proceeding.76
5.11.
Moreover, as the United States noted, to conclude that one administrative review always has a nexus to the previous administrative review would run counter to the Appellate Body's admonition in Softwood Lumber that administrative reviews are not per se measures taken to comply. One administrative review routinely succeeds another. To conclude on that basis that subsequent reviews are measures taken to comply would undermine the Appellate Body's express limitation of its findings in this dispute to the measures "as applied." It would also contradict the Appellate Body's view that Article 21.5 proceedings "logically must be narrower" than the original proceedings.77 Were the EC to prevail on its claims in this regard, the scope of these proceedings that the matter covered would be nearly 3 times greater than those covered by the original proceedings.78
5.12.
The United States reiterates that Commerce has revoked the antidumping duty orders relating to three of the administrative reviews in their entirety. Moreover, with respect to another antidumping duty order, Commerce has now excluded two of the companies that were the subject of the EC's "as applied" challenge from that antidumping duty order.79 Notwithstanding these revocations, and the fact that the EC accepts that relief is prospective only, the EC nevertheless contends that the United States has failed to bring its measures into compliance.80
5.13.
The United States observes that the EC advances an argument that the United States has failed to bring its measures into compliance by challenging an additional 54 determinations, identified in the annex to its Article 21.5 panel request ("the EC's annex"), and made subsequent to the 31 determinations it originally challenged in its "as applied" claims, asserting that these subsequent determinations were part of the original dispute, are measures taken to comply, or somehow constitute "omissions."81
5.14.
The United States asserts that there are several facts that expose the hollowness of the EC's argument concerning the additional 54 determinations, and, highlight the main reasons why these determinations are not within this Panel's terms of reference.82 As an initial matter, the United States notes that in its written submissions, it has shown that the EC did not identify these "subsequent reviews" as measures in its Article 21.5 panel request. Therefore, they are not within the Panel's terms of reference.83 Moreover, contrary to the EC's assertions, these subsequent determinations were not part of the original dispute because they were not identified in the EC's original panel request. The United States submits that neither the original panel nor the Appellate Body made any findings with respect to these determinations, noting that some of these determinations did not even exist when the EC made its original panel request.84
5.15.
In addition, the United States argues that these determinations cannot be considered "amendments" to the 31 determinations originally challenged. In this connection, the United States clarifies that Commerce amends its determinations to correct a ministerial error, or as a result of litigation. The EC understood this, and specifically identified in its original panel request those determinations that had been amended. In this context, the term "amendments" specifically refers to those corrected Commerce determinations. The United States argues that the term "amendments" does not refer to the 54 additional determinations identified in the EC's annex, which cover distinct periods of time and, in some cases, distinct companies and which, therefore, are separate and distinct from the 31 determinations originally challenged by the EC.85
5.16.
Turning to the issue of whether these additional determinations are "measures taken to comply," the United States observes that the EC relies on Softwood Lumber to support its argument. However, the United States considers that it is important to note that in that dispute, the Appellate Body cautioned that "not... every assessment review will necessarily fall within the jurisdiction of an Article 21.5 panel." Indeed, "[a]s a whole, Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a particular dispute." And the Softwood Lumber dispute indeed involved a determination that was made after the DSB had adopted its recommendations and rulings and that was published very close in time to the measure that both parties agreed was a measure taken to comply. In that dispute, the Appellate Body first cautioned that there was no finding that an administrative review is per se a "measure taken to comply," but rather the analysis was more nuanced. Furthermore, in concluding that an aspect of an administrative review did come within the terms of reference of an Article 21.5 proceeding, the Appellate Body found significant both this fact of timing as well as the fact that the responding Member acknowledged that the determination at issue was made "'in view of' the recommendations and rulings of the DSB."86
5.17.
The United States argues that even if it accepts the principle that determinations made "in view of" recommendations and rulings can be brought within the terms of reference of an Article 21.5 proceeding, it cannot be said in this dispute that the 54 additional determinations were made "in view of" the DSB's recommendations and rulings. Of the 54 additional determinations, 16 are determinations in sunset reviews. On this point, the United States contends that the EC's original "as applied" claims did not include any challenges to determinations in sunset reviews. Consequently, neither the original panel, nor the Appellate Body, made any findings in this dispute, whether "as such" or "as applied," with respect to sunset reviews. These sunset reviews are, therefore, not part of the terms of reference.87
5.18.
Moreover, the United States submits that in 11 of the sunset reviews, Commerce issued its determination regarding the likelihood of a continuation or recurrence of dumping before the DSB had even adopted its recommendations and rulings in this dispute. The United States notes that four resulted in the revocation of the antidumping orders. In the one remaining sunset review determination, the interested parties did not raise, and Commerce made no mention of, the issue of non-dumped sales. Thus, this determination could not have been made "in view of" the DSB's recommendations and rulings.88 Two of the additional determinations identified by the EC were made in changed circumstances reviews. The United States submits that Commerce made both of these determinations before the adoption of the DSB's recommendations and rulings. Moreover, both determinations addressed whether one company was the successor in interest of a second company, and was therefore entitled to the cash deposit rate already established for that second company. Commerce did not recalculate any margins of dumping in these two changed circumstances reviews. Neither of these determinations, therefore, can be said to have been made "in view of" the DSB's recommendations and rulings, which concerned Commerce's treatment of non-dumped sales.89 The United States further notes that the remaining 36 determinations were made in administrative reviews and that Commerce made determinations in 26 of these reviews before the DSB adopted its recommendations and rulings.90 Of the remaining 10 determinations, 4 gave no indication that Commerce's treatment of non-dumped sales was an issue in the review. Another 4 were made before the end of the reasonable period of time. The United States clarifies that in those determinations, Commerce made clear that the determinations were not being issued in view of the recommendations and rulings. Thus, the factual predicate in Softwood Lumber – the Appellate Body's conclusion that the United States acknowledged that the administrative review was conducted "in view of" the recommendations and rulings – does not exist here.91
5.19.
The United States explains that in one of the two remaining determinations, the 2005-2006 administrative review of Stainless Steel Bar from the United Kingdom, no party specifically raised the issue of non-dumped sales. However, one party raised the issue of the recalculation of the "all others" rate from the Section 129 determination. In response, Commerce stated that the recalculation of the all others rate from the Section 129 determination was not challengeable in the 2005-2006 administrative review. Commerce further noted that because the new all others rate did not take effect until 23 April 2007, any imports covered by this review that were subject to an all others rate were subject to the all others rate in existence before the recalculation. Thus, again, this determination was not made "in view of" the DSB's recommendations and rulings.92
5.20.
In respect of the only one outstanding the determination in the 2004-2005 administrative review of Hot-Rolled Steel from the Netherlands, the United States observes as an initial matter, that the EC's original "as applied" challenge covered only Commerce's determination in the investigation of Hot-Rolled Steel from the Netherlands, and not any determinations from subsequent administrative reviews of the order. Commerce complied with the DSB's recommendations and rulings in the Section 129 determination covering this investigation when it granted offsets for non-dumped sales in the recalculation of the margin of dumping. Indeed, that Section 129 determination resulted in the revocation of the antidumping order on Hot-Rolled Steel from the Netherlands with respect to all imports on or after the date of revocation. The United States argues, therefore, that it had no further obligation with respect to the Appellate Body's specific "as applied" finding, which was made only with respect to that investigation determination.93 Moreover, in the US view, Commerce's determination in the 2004-2005 review cannot be said to have been made "in view of" the DSB's recommendations and rulings. In addressing the issue of non-dumped sales, Commerce stated, "With respect to the specific administrative reviews at issue in [the US – Zeroing (EC)] dispute, the United States has determined that each of those reviews has been superseded by a subsequent administrative review and the challenged reviews are no longer in effect." Thus, Commerce clearly stated its position that the DSB's recommendations and rulings did not require Commerce to take any action with respect to the treatment of non-dumped sales in this particular review.94 In summary, the United States maintains that the EC has failed to show that any of these 54 subsequent determinations have the required timing and connection with the DSB's recommendations and rulings to qualify as "measures taken to comply." All of these additional determinations are outside of the terms of reference of this Panel.95
5.21.
Finally, the United States asserts that the EC's argument that these additional determinations constitute "omissions" which can be reviewed by this Panel is contradictory, because the EC is arguing simultaneously that the measures taken to comply both exist and do not exist at the same time.96
5.22.
The United States has raised serious concerns about the EC's Article 21.5 panel request. Noting that the EC dismisses its due process concerns as merely "formal," the United States finds that a disturbing position to take. The provisions in the DSU were specifically negotiated and agreed upon, and they cannot be casually dismissed whenever adherence to those provisions proves inconvenient.97 In addition, the EC's view on the mutable nature of "words" goes far to explain what the United States has found to be an ever-shifting scope of challenged measures, both in the original proceeding and here. For example, the United States understood from the EC's panel request that it was not challenging the subsequent reviews themselves, but rather was presenting them as evidence of the undermining of US measures taken to comply (that is, the EC was attempting to assert that these subsequent reviews resulted in the "non-existence" of measures taken to comply in the language of Article 21.5) in respect of the 15 investigations and 16 administrative reviews that were the subject of the DSB recommendations and rulings in the original proceeding. The United States did not consider that the subsequent reviews themselves would be transformed into "measures taken to comply," or measures that were part of the DSB recommendations and rulings, which is how the EC began to describe them in its first written submission. In the original panel request, the EC identified certain reviews "as amended." In its submissions in the original proceeding, the EC then referred to "any amendments," a term not found in the panel request except to refer to determinations amended under US law. The EC now seeks to construe the phrase "any amendments" to mean any subsequent acts relating to the original challenged measures. That is a far cry from the limited and specific use of the term "amended" in the original panel request.98
5.23.
Similarly, the United States notes that in its panel request in this proceeding, the EC specifically referred to the "measures in question" as the 15 investigations and 16 administrative reviews found to be inconsistent "as applied" in the original proceeding. Now the EC considers that the scope of the measures in this proceeding is not limited to the measures it identified as measures in its panel request, but rather extends to any of the reviews listed in the Annexes to its panel request. To be sure, a Member is not necessarily obliged to refer to the measures in question as "measures"; but when a Member expressly uses the term "measure" – a term of art referenced in Article 6.2 – to describe certain determinations, it can be reasonably inferred that not describing other determinations as "measures" has meaning, and that those determinations are in fact not measures subject to challenge in the proceeding. Under Article 6.2 of the DSU, the complaining party bears a clear obligation to identify, in its panel request, "the specific measures at issue."99 In that way, the responding Member and potential third parties are provided clear notification of the measures at issue. It is not for the responding Member to have to guess which measures are at issue, nor should the responding Member or potential third parties bear the adverse consequences of what the complaining party may later decide was an ill-advised word choice.100 The United States argues that it is evident that the EC wishes to undo the limited "as applied" findings of the Appellate Body – while accusing the United States of declining to accept those same findings unconditionally. However, these results cannot be obtained at the expense of the procedural requirements set out in the DSU, both in Article 6.2 and in Article 21. These concerns are not "merely formal" but flow from the results of the particular negotiation and agreement by WTO Members.101
5.24.
The United States also observes that the EC has stated repeatedly in this proceeding that the "words" don't really matter. The United States finds that this is a somewhat astonishing position to take in a dispute involving matters of treaty interpretation. The United States is reminded of similar views taken by Humpty Dumpty in Through the Looking Glass. "When I use a word, it means just what I choose it to mean." Alice replies, "The question is whether you can make words mean so many different things." And Humpty Dumpty responds: "The question is, which is to be master – that's all."102 The United States emphasizes that words do in fact matter – Members negotiated and agreed on specific words in the covered agreements. Complaining parties may not "choose to be master" by giving words different meanings over the course of a proceeding depending on what will net the best result. That is precisely why due process matters.103
5.25.
In summary, the United States argues that, by attempting to include these additional 54 determinations within the scope of this Article 21.5 proceeding, the EC seeks to gain the benefit of an "as such" finding where the Appellate Body expressly declined to make such a finding.104
5.26.
The United States notes that in the EC's original panel request, the EC identified determinations made by Commerce in sixteen administrative reviews, but specifically challenged particular margins in those determinations. The EC also challenged multiple reviews of the same product. Thus, in the original proceeding, the EC treated each review as a separate measure and in fact challenged specific margins within each such measure. Moreover, while the Appellate Body found that Commerce's determination of margins of dumping "as applied" in the sixteen administrative reviews was inconsistent with certain WTO obligations, the Appellate Body denied the EC's request that it find Commerce's methodology for calculating margins of dumping in administrative reviews to be "as such" inconsistent with any WTO obligations.105 This, according to the United States, is consistent with the fact that in each administrative review, Commerce examines different facts, a different time period, and a different set of transactions. Thus, in its initial panel request, the EC recognized that a determination from one administrative review is separate and distinct from a determination made in a subsequent administrative review.106
5.27.
The United States argues that the EC cannot ignore the consequences of this and cannot bring entirely new and distinct determinations concerning different periods of time into this compliance proceeding simply because those determinations involved the same subject merchandise. Rather, the scope of the DSB's "as applied" recommendations and rulings are limited to those specific determinations that the EC indicated that it was challenging in its original panel request. Anything else would, in view of the United States, be directly contrary to the fact that the DSB's recommendations and rulings were limited to these 16 administrative reviews "as applied" and explicitly did not include an "as such" recommendation or ruling.107 The United States considers that the EC apparently understood this, as it filed a second challenge to Commerce's calculation methodology in an entirely separate DSB proceeding. In the US – Zeroing (EC) II panel request, for example, the EC identifies the determination in the administrative review of Certain Pasta from Italy covering sales made by PAM from 1 July 2002 through 30 June 2003 as an "as applied" measure. This very same determination is also identified by the EC as a review in the annex to its panel request that is "related to" the "measures in question." The EC recognized that these subsequent determinations are distinct measures and not measures taken to comply with the DSB's recommendations and rulings in this dispute.108 The United States argues that further undermining the EC's contention that subsequent reviews are measures taken to comply is the EC's argument that it is, in fact, challenging the US "omissions" to take the necessary measures to comply. The EC cannot have it both ways: if the United States failed to comply by "omission," then any corresponding finding against the United States should be that a measure was not taken to comply, not that subsequent determinations are not consistent with US obligations.109
5.28.
The United States maintains that many of the distinct administrative review determinations identified by the EC in its 21.5 panel request cannot be considered measures taken to comply because they pre-date the adoption of the DSB's recommendations and rulings. "As a whole, Article 21 deals with events subsequent to the DSB's adoption of recommendations and rulings in a particular dispute." Determinations made by a Member prior to the adoption of a dispute settlement report are not taken for the purpose of achieving compliance and cannot be within the scope of an Article 21.5 proceeding.110
5.29.
The United States understands the EC to argue that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations which supercede the measures described in its original panel request. To this end, the EC is attempting to use these Article 21.5 proceedings to obtain the effect of an "as such" finding that the Appellate Body expressly declined to make.111 The US recalls that the EC made an "as such" claim against Commerce's methodology for calculating margins of dumping in administrative reviews in its initial panel request. The original panel rejected this claim. The Appellate Body also declined to find that Commerce's calculation methodology in administrative reviews was inconsistent with US WTO obligations "as such." Rather, the Appellate Body limited itself to "as applied" findings concerning the sixteen Commerce determinations originally challenged by the EC.112 The United States contends, however, that the EC would have the United States recalculate the margins of dumping in any subsequent determination which happened to involve the same products that were the subject of the measures challenged in the initial panel request. That is, the EC seeks the benefit of an "as such" finding, when neither the original panel nor the Appellate Body made one in this dispute. In light of the above, the United States maintains that the panel should reject the EC's efforts.113
5.30.
In its Second Written Submission, the United States notes that the EC's response to its request for a preliminary ruling only reinforces the deficiencies in the panel request. The United States considers it is telling that the EC felt the need to include an entire section defending its view on the scope of a proceeding that it initiated – before the United States had even filed its first submission. Typically a complaining Party understands, and does not doubt, that its submission is consistent with the terms of reference in its panel request and therefore feels no need to make anticipatory assertions in that regard.114
5.31.
The United States notes the EC's contention that the "subsequent determinations" identified in the Annex to its panel request in this proceeding were part of the terms of reference of the original proceeding, that they are measures taken to comply, and that they are "omissions". For instance, not only is the EC arguing that these determinations are measures from the original proceeding as well as measures taken to comply, but the EC also argues that measures taken to comply both exist and do not exist, at the same time. These propositions are, of course, mutually contradictory, in view of the United States.115 While the United States understands why the EC has great difficulty in finding a legal theory to justify why this Panel should consider those determinations to fall within its terms of reference, and why the EC would therefore write a series of contradictory arguments in the hopes that one of them might find favour, the United States regrets that – by the rebuttal submission – the complaining party in this matter has been unable to simplify matters for the Panel.116
5.32.
The United States also regrets that the EC would resort to characterizing the US arguments in connection with the preliminary ruling request as "so patently absurd as to barely require further comment." Having articulated that view, the EC nevertheless goes on to present two pages of commentary that does not address the basic question.117 The crux of the matter, according to the United States, is simple: why would the EC elect to refer in its panel request to the determinations in the 15 investigations and 16 administrative reviews as "measures" – a term with a particular meaning in the context of Article 6.2 of the DSU – but to all other determinations referenced in that request as "reviews"? The EC's own jurisdictional plea in its first submission exposes the EC's awareness that the panel request would be read just that way, and thus the EC took great pains to argue, or overargue, that the panel request should be read more broadly.118
5.33.
The United States is not ignoring or deliberately misconstruing the express terms of paragraph 7 of the panel request. According to the United States, the EC acknowledges that the panel request refers to "reviews related to the measures in question" but the EC appears to assume that the words "related to" transform the "reviews" into "measures" included within the terms of reference for purposes of its panel request. The United States contends, however, that nowhere does the panel request state that those reviews are in fact the measures in question.119 Noting that the EC continues to argue that its reference to "omissions" brings the reviews in the Annex within the terms of reference, the United States maintains that an omission is a failure to act, not an action; the reviews are "actions"; and the reviews are therefore not omissions. Thus, a fair reading of the panel request does not allow subsequent reviews to be read into the word "omission."120
5.34.
Finally, the United States notes that the EC has used a variety of terms to characterize its views on the measures at issue, i.e., the EC uses "subsequent reviews," "assessment instructions," and "amendments." The United States considers that that fact that the EC appears to use them somewhat interchangeably adds to the confusion.121 The United States understands the EC to argue that, the subsequent reviews listed in the Annex to its panel request were actually measures from the original dispute. It appears that the EC relies upon the use of the phrase "amendments" from the original proceeding as support for this proposition. The EC has failed to establish that these subsequent reviews are "amendments." The EC has failed to establish that the subsequent reviews were part of the original proceeding.122
5.35.
The United States points out that the EC, in its original panel request, directly referenced amended determinations in the context of US antidumping law. US law provides a procedure to correct or remove any faults or errors in a Commerce antidumping determination. Thus, the reference to "amendments" has a precise meaning in the context of this dispute. It refers to corrections to the measures identified in the original proceeding; but it does not refer to subsequent determinations, which involve different entries, different time periods, and perhaps even different parties. The Annex to the original dispute itself reflects this fact. In Annex II, the EC lists as separate "cases" multiple administrative reviews relating to the same order. The EC's own original panel request therefore confirms that the phrase "amendments" did not refer to subsequent determinations, and that the argument that the EC makes in this proceeding is therefore incorrect.123
5.36.
Similarly, the United States argues that sunset reviews are not amendments "to the original measures" either, despite the EC's assertion to the contrary. The United States maintains that administrative reviews are distinct proceedings because they involve different time periods and transactions. Sunset reviews are distinct from investigations and administrative reviews because they determine whether the expiration of an antidumping duty would be likely to lead to the continuation or recurrence of dumping and injury. They do not determine antidumping duty liability.124 Thus, according to the United States, a determination in a sunset review is not a mere correction or removal of the faults or errors from an investigation, but rather a separate determination for a separate purpose based on different evidentiary standards. Like many of the other determinations listed in the EC's annex to its Article 21.5 panel request, these sunset review determinations did not exist at the time of the establishment of the original panel.125
5.37.
The United States asserts that a further flaw with the EC's attempt to expand the terms of reference to include the subsequent determinations listed in the Annex is that many of these determinations did not yet exist at the time of the establishment of the original panel. A matter may only be referred to a panel if "final action has been taken by the administering authorities." Anti-Dumping Agreement, Article 17.4. Measures that are not yet in existence at the time of panel establishment are not within a panel's terms of reference under the DSU.126
5.38.
The United States argues that the EC's original "as applied" claims could not be as broad as the EC now contends because that would mean that the EC's claim encompassed Commerce determinations and actions that were not in existence at the time of the establishment of the original panel. The original panel was established at the March 19, 2004 DSB meeting. Yet most of the subsequent determinations identified by the EC in its annex to its Article 21.5 panel request were made after March 19, 2004.127 The United States further notes that some determinations listed in the Annex were made prior to the EC's original corrected panel request. Thus, the EC is using the concept of "subsequent determinations" to include in this proceeding determinations that it could have included not only in its original panel request, but in its corrected request. This is still a further expansion of the findings in the original proceeding.128
5.39.
The United States also notes the EC's argument that the subsequent determinations listed in its annex to its Article 21.5 panel request are measures taken to comply, and are thus within the scope of this proceeding.129 The EC has asserted that these determinations are "closely connected" to the original investigations and administrative reviews identified in the original proceeding. Whether a determination has a connection to the DSB recommendations and rulings is not sufficient to bring that determination within the scope of an Article 21.5 proceeding. The United States recalls that as the Appellate Body stated, not every measure that has "some connection with," "could have an impact on," or could "possibly undermine" a measure taken to comply may be scrutinized in an Article 21.5 proceeding.130
5.40.
In light of the above arguments by the EC, the United States concludes that not only is the EC seeking to have the Panel transform the as applied findings of the original proceeding to future events, but it is also trying to go back in time to have the Panel extend these findings to past events. However, the Panel's terms of reference are clear. They are limited to the determinations in the 15 investigations and 16 administrative reviews, and not to reviews occurring prior to the adoption of the recommendations and rulings in this dispute.131
5.41.
The United States further observes that the EC's argument that it is not only challenging these subsequent determinations as measures taken to comply, but that it is, rather, challenging the "omissions or deficiencies" of the United States as reflected in these subsequent determinations, only further demonstrates, that the EC is attempting to gain the benefits of an "as such" finding, when the Appellate Body declined to make one.132 That is, the "as applied" findings made by the original panel and the Appellate Body covered the determinations made in the 15 investigations and 16 administrative reviews identified by the EC in its original panel request. As demonstrated above, the "as applied" findings did not cover the subsequent determinations identified by the EC in the annex to its Article 21.5 panel request.133 An "as applied" challenge concerns the "application of a general rule to a specific set of facts." By contrast, "an 'as such' claim challenges laws, regulations, or other instruments of a Member that have general and prospective application...". As demonstrated in the US First Written Submission, the United States has removed the cash deposit rate established by the challenged determinations, and thus complied with the DSB's recommendations and rulings concerning the "as applied" claims.134
5.42.
The United States lastly reiterates that by complaining about the "continued" use of the allegedly "same methodology" that was the subject of the DSB recommendations and rulings "when carrying out dumping determinations in the subsequent review proceedings", the EC effectively complains of the general and prospective application of the so-called "zeroing" methodology and that, despite the EC's contentions to the contrary, by seeking the application of the DSB's recommendations and rulings to "subsequent review proceedings," the EC is attempting to gain the benefit of an "as such" finding, when the Appellate Body declined to make one.135

2. European Communities

5.43.
The European Communities submits that the request for a preliminary ruling by the United States is unfounded.136 The EC notes in this regard that the United States137 requests the Panel to find that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews referenced in paragraph 7 of the EC's Panel Request. In particular, the United States argues that certain administrative and sunset review proceedings listed in the EC's Panel Request are not properly before this Panel because (1) they were not identified in the EC's Panel Request, and (2) they were not subject to the DSB's recommendations and findings in the original dispute and, thus, they are not measures taken to comply.138
5.44.
The European Communities observes that proceedings under Article 21.5 of the DSU relate to "measures taken to comply with the recommendations and rulings" of the DSB. Thus, the phrase "measures taken to comply" refers to measures which have been, or which should be, adopted by a Member to bring about compliance with the recommendations and rulings of the DSB. In other words, a complaining Member can challenge either a Member's implementing actions (i.e.,measures which have been adopted) or their omissions (i.e.,measures which should have been adopted). The European Communities recalls that an Article 21.5 proceeding is not only about the consistency of a measure taken to comply with the covered agreements, but also about the existence of such a measure and that this was explicitly confirmed by the Appellate Body in US – Softwood Lumber IV (21.5). Thus, if the recommendations and rulings of the DSB have not been complied with, a measure taken to comply does not "exist".139 In this context, the European Communities argues that the United States has failed to adopt measures necessary to comply with the DSB's recommendations.140
5.45.
The European Communities asserts that the "measures taken to comply with the recommendations and rulings" for the purposes of Article 21.5 of the DSU necessarily flow from the particular "recommendations and rulings" in question: in the present case, those adopted by the DSB in May 2006.141
5.46.
The European Communities recalls in this connection that the original dispute concerned the application by the United States of the so-called "zeroing methodology" when determining dumping margins in anti-dumping proceedings, including proceedings resulting in the initial imposition of anti-dumping measures and proceedings relating to the collection of anti-dumping duties.142 The EC observes that the "as applied" measures it challenged in the original dispute were (i) 15 original investigations, including "any amendments" and "each of the assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders"; and (ii) 16 administrative reviews, also including "any amendments" and "each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results".143 In this respect, the European Communities argues that all the measures it challenges are clearly connected to the original Panel and Appellate Body reports, as explained in US – Upland Cotton (21.5). The Annex to the Panel Request describes the subsequent measures adopted by the United States from the original investigations and administrative review investigations identified in the original dispute. These include (i) administrative reviews which, in essence, collect the anti-dumping duties due with respect to a particular period of review and establish new cash deposit rates amending the ones calculated in the original investigations (or administrative reviews); and (ii) sunset reviews, which prolong the original anti-dumping order and, thus, the duties.144
5.47.
The European Communities argues that it has shown in detail in its Rebuttal Submission that those subsequent reviews were covered by the description of the measures challenged in the original dispute. In this context the European Communities specifically notes that the EC's First Written Submission in the original dispute described the measures at issue as 15 original investigations, including any amendments and assessment instructions, and 16 administrative reviews, also including any amendments and assessment instructions.145 The European Communities notes that the Panel in the original dispute correctly captured the description of the measures at issue not only in paragraph 2.6 of its Report, but also in other sections, including its findings146, and that the adopted DSB reports found the 15 original investigations and 16 administrative reviews inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and recommended the United States to bring its measures into conformity with its obligations.147 The European Communities also observes that its Notice of Appeal contained the same description of the measures. Accordingly, the Appellate Body ruled on the basis of such a description. In light of the above, the European Communities maintains that the DBS's recommendations and rulings in the original dispute comprised the 15 original investigations and the 16 administrative reviews, including any amendments and any assessment instructions.148 Therefore, according to the EC, the United States was required to bring those measures, including any amendments and assessment instructions, into conformity with the mentioned agreements.149
5.48.
The European Communities argues that according to WTO jurisprudence, a measure that essentially replaces an earlier measure remains within the terms of reference of an original panel. Thus, a 21.5 panel must be in a position to assess whether an annual administrative review determination (or sunset review) that confirms and supersedes the original determination relating to the same anti-dumping duty and the same methodology (i.e.,zeroing) constitutes a "continuing violation".150 Therefore, the European Communities considers that all matters referred to in its submission fall within the scope of this proceeding. In particular, the measures mentioned in the Annex to the Panel Request, in addition to the Section 129 Determinations explicitly mentioned by the United States as "measure taken to comply", fall within the scope of this proceeding.151
5.49.
The European Communities observes that the United States has hardly raised any substantive arguments in its First Written Submission; rather, it has relied on purely formal ones. In this respect, the European Communities notes its view that the United States misinterprets the EC's claims with respect to the scope of this proceeding. Any amendments and assessment instructions connected to the 15 original administrations and 16 administrative reviews were covered by the description of the measures at issue in the original dispute. Therefore, the subsequent review proceedings listed in the Annex to the Panel Request, as well as the US omissions and deficiencies in its compliance with the DSB's recommendations and findings, fall within the scope of this proceeding. Likewise, the European Communities claims that those subsequent reviews are measures taken to comply with the DSB's recommendations and findings and, thus, are subject to this proceeding.152
5.50.
The European Communities considers that in its Rebuttal Submission, the United States is trying to change what the Panel in the original dispute and the Appellate Body found to be the "measures at issue" in the original dispute. The United States cannot reopen now an issue that was already settled by the Panel (and the Appellate Body) in the original dispute. Moreover, the description of the measures in the original dispute referred to "any amendments", which indicates the broad coverage of the measures at issue.153 The European Communities therefore maintains that, as subsequent reviews were covered by the DSB's recommendations and rulings, the United States should have stopped using zeroing with respect to those measures, at least, after the end of the reasonable period of time (i.e.,9 April 2007). Since the United States has failed to do so, the European Communities challenges in this proceeding the US omissions and deficiencies when complying with the DSB's recommendations and rulings.154
5.51.
The European Communities argues in the alternative that, should the Panel consider that the subsequent reviews were not included in the description of the measures in the original dispute (although the European Communities finds it impossible to envisage any basis on which the Panel could reach such a conclusion), the European Communities also argues that they equally fall within the terms of reference of this Panel because they are "measures taken to comply". Even if the subsequent review proceedings were to be considered as separate determinations or different measures from those covered by the DSB's recommendations and rulings in the original dispute, the European Communities is of the view that they can be regarded as "measures taken to comply" because of their close nexus with the 15 original investigations and the 16 administrative reviews in the original dispute. The particular facts of this case show that the nature of the subsequent reviews is, in essence, the same as the measures in the original dispute. Moreover, the violation originally challenged (i.e.,the use of zeroing when calculating dumping margins) still remains in the subsequent review proceedings, either by applying simple zeroing when calculating the duties to be collected or establishing new deposit rates, or by relying on dumping margins previously calculated with zeroing. Furthermore, the subsequent review proceedings relate to the same products, the same countries and the same exporting companies. In other words, according to the EC, they are a continuation of the 15 original investigations and the 16 administrative reviews in the original dispute, whose effects based on zeroing still remain in place after the end of the reasonable period of time. Finally, as the Appellate Body observed in US – Softwood Lumber IV (21.5), the European Communities considers that measures predating the adoption of the DSB's recommendations and rulings may also be covered by Article 21.5 DSU proceedings. Otherwise, Members could adopt new measures diametrically against compliance in a particular case just the day before the adoption of the DSB report.155 In light of this close nexus, the European Communities submits that the subsequent review proceedings listed in the Annex to the Panel Request can also be considered as "measures taken to comply" falling within the scope of this proceeding.156
5.52.
The EC maintains that, despite the US efforts to argue otherwise, the measures at issue in the original dispute were the 15 original investigations and the 16 administrative reviews, including any amendments and their assessment instructions. Since the subsequent reviews proceedings listed in the Annex to the Panel Request are amendments to the original measures, they fall within the scope of this proceeding. Furthermore, an examination of those subsequent review proceedings and the acts (and omissions) taken by the United States after the end of the reasonable period of time, shows that the United States (i) has continued collecting duties and establishing cash deposits based on zeroing, and (ii) has relied on dumping margins equally based on zeroing to extend the original measures pursuant to sunset review proceedings. Therefore, the US omissions and deficiencies in this case fully confirm the jurisdiction of this Panel to examine this matter.157 Alternatively, the European Communities argues that it has shown that the subsequent reviews listed in the Annex to the Panel Request are "measures taken to comply", since they have a close nexus with the DSB's recommendations and rulings in the original dispute. Indeed, the subsequent reviews relate to the same products, the same countries and the same exporters and, thus, are a continuation of the 15 original investigations and 16 administrative reviews in the original dispute. No matter which legal theory the Panel chooses to follow, it is evident that the United States cannot escape from a ruling on the substance of this case: once again, the meaning of immediate compliance with the DSB's recommendations and rulings.158
5.53.
The European Communities emphasises that through this compliance proceeding it is merely seeking to have the "as applied" findings adopted by the DSB in the original dispute fully implemented by the United States, concluding that regardless of the characterisation of the findings made by the Panel and the Appellate Body in the original dispute, the DSB's recommendations and rulings clearly stated that the zeroing methodology applied by the United States in the 15 original investigations and the 16 administrative reviews was inconsistent with Article 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994. Consequently, in the EC view, when applying the same zeroing methodology in the subsequent reviews listed in the Annex to the Panel Request, the United States failed to comply with the DSB's recommendation to bring the measures into conformity with its obligations.159
5.54.
The European Communities argues that all matters referred to this Panel fall within the scope of this proceeding.160 The European Communities asserts that the Panel Request clearly identifies the measures at issue. It disputes the US argument that the European Communities has not complied with Article 6.2 of the DSU since it has failed to identify the specific measures at issue in its Panel Request. The European Communities argues that the US submission is entirely without merit. According to the European Communities, the United States simply ignores or deliberately misconstrues the express terms of paragraph 7 of the Panel Request, which refers to "the reviews related to the measures in question", and which expressly cross-refers to the Annex to the Panel Request, which lists the measures that the European Communities does place before this compliance Panel.161
5.55.
Moreover, the European Communities submits that it has adequately identified the measures at issue in this dispute in its Panel Request. As the Appellate Body observed in US – FSC (21.5 II), in order to identify the "specific measures at issue" in an Article 21.5 proceeding, the complaining party must (i) cite the recommendations and rulings that the DSB made in the original dispute which, according to the complaining party, have not yet been complied with; and (ii) identify, with sufficient detail, the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such measures have been taken by the implementing Member. The EC's Panel Request fully meets these requirements.162
5.56.
The European Communities contends that the measures listed in the Annex to the Panel Request fall within the scope of this proceeding. It rejects the US argument that the "subsequent reviews" listed in the Annex to the Panel Request (including administrative review and sunset review proceedings) were not covered by the original dispute and, thus, are not "measures taken to comply" subject to this proceeding. In this respect, the European Communities submits that the United States tries to narrow the scope of the Article 21.5 proceedings and seeks to exclude measures that were subject to the DSB's recommendations and findings in the original dispute and/or are measures taken to comply within the jurisdiction of this compliance Panel.163 The European Communities submits that the omissions by the United States are also covered by the Article 21.5 proceeding, and the Panel is called upon to examine the "existence" (or inexistence) of measures taken to comply by the United States, in particular, by examining the subsequent review proceedings listed in the Annex to the Panel Request.164
5.57.
The European Communities argues that the "subsequent reviews" listed in the Annex to the Panel Request are measures which were covered by the DSB's recommendations and findings in the original dispute and/or are measures taken to comply. In this regard it notes that the United States argues that the subsequent reviews and their assessment instructions that the European Communities contests in this proceeding were not the basis for the DSB's recommendations and ruling in the original dispute. According to the United States, the European Communities merely obtained DSB's recommendations and rulings with respect to the USDOC's determinations in the 15 original investigations and the 16 administrative reviews. The United States also maintains that the European Communities cannot bring new dumping determinations concerning different periods of time into this proceeding simply because those determinations involved the same product. Finally, the United States argues that many of the subsequent review proceedings listed in the Annex to the Panel Request pre-date the adoption of the DSB reports and, thus, cannot be within the scope of an Article 21.5 proceeding.165
5.58.
The European Communities considers that the United States misunderstands the EC's claim on this point. The European Communities is not only arguing that subsequent reviews and assessment instructions are "measures taken to comply" and, thus, that they fall within the scope of this proceeding. Nor is the European Communities simply arguing that it can challenge new dumping determinations because they relate to the same product. Rather, the European Communities also argues that subsequent reviews and assessment instructions with respect to the 15 original investigations and 16 administrative reviews challenged in the original dispute were covered by the DSB's recommendations and findings, and thus that US omissions or deficiencies in that respect – as reflected in the said reviews – also clearly fall within the jurisdiction of this compliance Panel.166
5.59.
The European Communities observes that its First Written Submission, the Panel Report, the EC's Notice of Appeal and the Appellate Body Report refer to "any amendments" and "assessment instructions" when describing the original investigations and administrative reviews at issue in the original dispute. Thus, the European Communities submits that the "subsequent reviews" listed in the Annex to the Panel Request (as well as any assessment instruction therein) are covered by the DSB's recommendations and finding and, thus, fall within the scope of this proceeding.167 In particular, the European Communities considers that the United States has failed to take the necessary measures to eliminate zeroing in those subsequent reviews. In other words, the United States has continued using the same methodology which was found inconsistent with the Anti-Dumping Agreement and the GATT 1994 by the reports adopted by the DSB in May 2006 when carrying out dumping determinations in the subsequent review proceedings referring to the 15 original investigations and 16 administrative reviews in the original dispute. Thus, the US omissions and deficiencies in its compliance with the DSB's recommendations and findings fall within the scope of this compliance proceeding.168
5.60.
The European Communities also argues that the subsequent review proceedings listed in the Annex to the Panel Request are "measures taken to comply" since they are closely connected to the original investigations and administrative reviews identified in the original dispute and the DSB's recommendations and rulings. The European Communities observes that the nature of the subsequent reviews is, in essence, the same as the measures in the original dispute (i.e.,collect anti-dumping duties and establish cash deposits based on zeroing). The violation originally challenged (i.e.,the use of zeroing when calculating dumping margins) still remains in the subsequent review proceedings. Further, the subsequent review proceedings relate to the same products, the same countries and the same exporting companies. In other words, they are a continuation of the 15 original investigations and 16 administrative reviews in the original dispute, whose effects based on zeroing still remain in place after the end of the reasonable period of time.169
5.61.
The European Communities submits that the sunset reviews mentioned in the Annex to the Panel Request also fall within the scope of this proceeding. In response to the argument made by the United States that, since the European Communities did not challenge any sunset reviews in the original proceeding and, thus, there are no DSB's recommendations or findings relating to these, the sunset review proceedings listed in the Annex to the Panel Request do not fall within the scope of this proceeding170, the European Communities recalls that the adopted DSB's recommendation also covered any amendments to the 15 original investigations and 16 administrative reviews. Article 11.3 of the Anti-Dumping Agreement provides for the termination of anti-dumping duties after five years in the absence of a positive determination in a sunset review, which restarts a new five-year period of application. Determinations in sunset review proceedings, which are based on previous dumping margins, may lead to the continuation of the measures based on the level of duties found in the original LTFV investigation or the most recent administrative review which reflects the most representative degree of dumping. Therefore, in view of the European Communities, by their nature, sunset review proceedings are amendments to the original measures because they restart the application of the duty for another five years (i.e.,in their absence the duty would not longer be in force) and, thus, they were covered by the DSB's recommendations and findings in the original dispute. The European Communities argues that the US omissions or deficiencies in that respect – as also reflected in the said reviews – clearly fall within the jurisdiction of this compliance Panel. Likewise, as mentioned before, the sunset reviews listed in the Annex to the Panel Request are "measures taken to comply" since they are closely connected to the original investigations and administrative reviews in the original dispute.171
5.62.
Noting the argument of the United States that the European Communities is attempting to use this Article 21.5 proceeding to obtain the effect of an "as such" finding that the Appellate Body declined to make with respect to the use of simple zeroing in administrative reviews172, the European Communities argues that the United States misinterprets the EC's claim in this regard.173 The European Communities argues that it is merely seeking the implementation of the "as applied" finding of the panel report in the original dispute. Therefore, the European Communities is not arguing in general, as the United States believes, that the US implementation obligations with respect to the "as applied" claims extend to distinct determinations – for example related to other products or other sub-regions of the European Communities, or entirely new original investigations – or indeed to measures that may or may not "supersede" the measures described in the original Panel Request. In contrast, the European Communities argues that, in this particular case, since the subsequent reviews and assessment instructions were part of the measures challenged in the original dispute, the US implementation obligations with respect to the "as applied" claims extend to any subsequent determination and assessment instruction in connection with the measures as described by the Panel and the Appellate Body in the original dispute, as well as the related US omissions or deficiencies. In other words, the scope of the "as applied" finding covered every instance of application (and omission or deficiency) of the zeroing methodology by the United States with respect to any amendments, including assessment instructions, of the 15 original investigations and 16 administrative reviews, since those were part of the measures challenged "as applied".174 In light of the foregoing, the European Communities requests this Panel to fully reject the request for preliminary ruling made by the United States. The European Communities invites this Panel to make a preliminary finding on the US request at an earlier stage of this proceeding, provided that this does not delay the conclusion of the proceeding in due time.175

B. PANEL COMPOSITION

1. European Communities

5.63.
The European Communities raises the issue of the Panel composition as a procedural matter which must be examined in this case, also in view of the obvious and important systemic interest of a finding on this point.176
5.64.
The European Communities recalls that in the context of an exchange of views between the Parties when discussing the composition of this Article 21.5 Panel, the WTO Secretariat indicated that the Chair of the Panel and one Member of the Panel were not available. It was therefore clearly necessary, in the EC's view, to appoint at least two new panelists and to appoint one of the three panelists as Chair. The remaining Panelist is from the European Communities. On 1 October 2007, the European Communities sent a letter to the WTO Secretariat opposing the exclusion of this panelist, since he was available to serve as a panelist. However, the EC states that in a meeting held with the parties on 5 October 2007, the WTO Secretariat expressed the view that, without prejudice to the correct interpretation of the DSU on this point, three new panelists should be appointed.177
5.65.
The European Communities calls upon this Panel to interpret the relevant provisions of the DSU, in the exercise of its inherent jurisdiction to consider and make findings with respect to such matters. More specifically, the European Communities submits that a correct interpretation of the relevant provisions of the DSU necessarily leads to the conclusion that, when panelists of the original dispute are available to serve in Article 21.5 proceedings, they cannot be unilaterally removed from the panel by one of the Parties. This is equally the case even if the remaining panelists are of the nationality of one of the parties, since the original agreement pursuant to Article 8.3 of the DSU cannot be revoked at any stage of the dispute proceeding, including subsequent compliance proceedings.178
5.66.
Finally, the European Communities is of the view that a panel may be requested to rule on the propriety of its own composition, resulting in findings subject to appellate review. Even if the parties do not address this issue directly in their submissions, the Panel has a duty to address it, as it is of fundamental importance for the correct interpretation of the DSU and for the smooth and equitable operation of the WTO dispute settlement system. Therefore, the European Communities requests the Panel to find that the composition of the Panel was not consistent with Articles 21.5 and 8.3 of the DSU.179

2. United States

5.67.
The United States notes that the EC has asked the Panel to rule on its own composition, and, in particular, to find that it was not composed in a manner consistent with Articles 21.5 and 8.3 of the DSU for the first time in its rebuttal submission. It would be tempting for a responding party to agree with such a claim, as it would mean the panel in question had no authority to make findings on either of these claims, or the claims in the panel request. However, taking that position would do an injustice to the dispute settlement system, and thus the United States simply points out that it is struck by the irony in the EC's self-defeating, illogical, and unsupportable claim.180 The United States submits that these claims are not within the terms of reference of this Panel because they are not part of the "matter" referred to the DSB by the EC in its panel request. It argues that these claims are not about a measure identified in that panel request and that, in fact it is unclear, in light of DSU 6.2 and 7.1, how such a claim could ever be within the scope of a panel's terms of reference.181
5.68.
At the same time, the United States notes that the EC did not have the permission of the United States to disclose anything that the United States may or may not have said during the panel composition process. The United States is deeply concerned by the EC's unilateral actions in this regard. The United States therefore requests the Panel to strike from the record any discussion of the panel selection process (other than the EC's own selective allegations concerning its own positions) and request that third parties destroy or return this information.182

C. VIOLATIONS WITH RESPECT TO ALL MEASURES COVERED IN THIS PROCEEDING

1. Whether the United States extended the measures challenged in the original dispute pursuant to sunset review proceedings which relied on dumping margins calculated with zeroing

(a) European Communities

5.69.
The European Communities argues that the United States has extended the duration of the original measures challenged in the original dispute pursuant to sunset review proceedings concluded before and after 9 April 2007183, i.e., beyond the end of the reasonable period of time, notably as a result of sunset review investigations.184 The European Communities observes that although the future duty rate has generally been set based on the non-zeroed "Section 129" re-determinations, the fact remains that, in the sunset reviews, the United States expressly relied on the results of previous administrative review investigations, based on zeroing.185 In particular, it asserts that the USDOC decided to extend the measures challenged in the original dispute because, based on the previous levels of dumping found with zeroing in prior proceedings, it considered that it was likely that dumping would recur. In this respect, the European Communities submits that the United States violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement.186 The European Communities argues that the Anti-Dumping Agreement and the established case-law are clear on this point. If a sunset review relies on a zeroed dumping margin, the sunset review is necessarily inconsistent with the Anti-Dumping Agreement.187
5.70.
The European Communities maintains that the United States has relied on the dumping margins calculated with zeroing when finding the likelihood of recurrence of dumping in sunset review proceedings. In this sense, the European Communities challenges the omissions by the United States to take the necessary measures to comply in this case, i.e.,(i) that the United States should, on 9 April 2007, have stopped collecting anti-dumping duties based on zeroing in connection with any of the measures described in the original dispute and, thus, with respect to the measures contained in the Annex to the Panel Request; and (ii) that the United States should have recalculated, without zeroing, the previous dumping margins based on zeroing, in order to rely on them for the assessment of likelihood of recurrence of dumping in sunset review proceedings with respect to the measures mentioned above.188
5.71.
The European Communities recalls that, as highlighted by the Appellate Body in US – Corrosion-Resistant Steel Sunset Review, if a likelihood determination under Article 11.3 of the Anti-Dumping Agreement is based on a dumping margin calculated using a methodology inconsistent with Article 2.4 of the Anti-Dumping Agreement, then this defect taints the likelihood determination too and, thus, the USDOC's likelihood determination could not constitute a proper foundation for the continuation of anti-dumping duties under Article 11.3 of the Anti-Dumping Agreement. Moreover, the Appellate Body had the occasion to rule on the inconsistency of the use of zeroing in sunset review proceedings in measures adopted by the United States in US – Zeroing (Japan), where it also noted that the USDOC relied on past margins that were calculated during administrative reviews on the basis of "simple zeroing". Having previously concluded that zeroing in administrative review investigations is inconsistent with Articles 2.4 and 9.3 of the Anti-Dumping Agreement, the Appellate Body found that the determinations in the sunset reviews at issue were inconsistent with Article 11.3 of the Anti-Dumping Agreement.189 In light of the foregoing, the European Communities submits that, by relying in the sunset review proceedings mentioned in the Annex to the Panel Request on margins calculated in prior proceedings using model or simple zeroing, the United States did not comply with its obligations pursuant to Articles 2.1, 2.4 and 2.4.2 because these margins were not based on a fair comparison and not calculated for the product as a whole. As a result, the United States acted in breach of Article 11.3 of the Anti-Dumping Agreement.190
5.72.
The European Communities notes that the United States has not contested this claim in substance191, and that it has not produced any substantive evidence to rebut the EC's claims.192 The European Communities observes that on this point, the United States only argues that, since the European Communities did not challenge any sunset reviews in the original proceeding, there are no DSB's recommendations or findings relating to these and, therefore, the sunset reviews listed in the Annex to the Panel Request do not fall within the scope of this proceeding. In this respect, the European Communities recalls its arguments that the adopted DSB's recommendation also covered any amendments to the 15 original investigations and 16 administrative reviews, including sunset review proceedings, and related US omissions or deficiencies therein. Thus, the sunset reviews proceedings listed in the Annex to the Panel Request fall under the scope of this proceeding.193 Therefore, the European Communities requests the Panel to find that United States did not comply with the DSB's recommendations and rulings and violated Articles 2.1, 2.4, 2.4.2 and 11.3 of the Anti-Dumping Agreement when extending the measures contained in the original dispute pursuant to sunset review proceedings relying on margin of duties calculated with zeroing.194

(b) United States

5.73.
In response to the EC's attempts to challenge certain sunset reviews, the United States recalls that the EC did not challenge any sunset reviews in the original proceeding and, thus, there are no DSB recommendations or rulings relating to sunset reviews. Consequently, the sunset reviews identified in the EC's 21.5 panel request cannot be within the terms of reference of this panel.195 The EC relies on US – Zeroing (Japan) for support. However, in view of the United States, that dispute only confirms the fundamental flaw in the EC's posture. In US – Zeroing (Japan), Japan in its panel request in the original proceeding expressly challenged sunset reviews and included a claim that the United States had acted inconsistently with Article 11.3. By contrast, in its panel request in the original proceeding, the EC did not challenge sunset reviews nor set out a claim concerning Article 11.3. (Indeed, the EC appears to have recognized that claims against sunset reviews must be made in the original panel request, because it has expressly done so in its other zeroing dispute against the United States.) The United States argues that the EC cannot cure its failure to pursue a claim in the original proceeding by seeking to include it in a compliance proceeding.196 In addition, the United States argues that the EC's Article 21.5 panel request did not identify the sunset reviews as measures within the terms of reference of this proceeding. Rather, the sunset reviews are simply identified as "reviews" related to the measures in question. Therefore, with respect to those reviews, the EC did not "specify the measures at issue" as required by Article 6.2.197 Thus, the United States respectfully requests the Panel to find that the only measures within the terms of reference of this proceeding are the 15 original investigations and 16 administrative reviews referenced in paragraph 7 of the EC's Article 21.5 panel request.198

2. Whether the United States continues to collect anti-dumping duties and impose cash deposits inflated by zeroing after 9 April 2007, has failed to revoke the original orders entirely, and whether the 16 administrative reviews challenged in the original dispute have been "superseded"

(a) European Communities

5.74.
The European Communities argues that after the end of the reasonable period of time, the United States continues to take positive acts, including new administrative review investigations, assessment instructions and final liquidations, based on zeroing.
5.75.
The European Communities clarifies that it had challenged certain US legal instruments, procedures, methodologies and practice, "as such" and "as applied". In the 15 "as applied" cases referred to by the European Communities as "original investigations" the challenged measures were: the 15 Notices of Final Determinations of Sales at Less Than Fair Value, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; each of the 15 Anti-dumping Duty Orders; each of the assessment instructions issued pursuant to any of the 15 Anti-dumping Duty Orders; and each of the USITC final injury determinations. In the 16 "as applied" cases referred to by the European Communities as "administrative reviews" the challenged measures were: the 16 Notices of Final Results of Antidumping Duty Administrative Reviews, including any amendments, and including all the Issues and Decision Memoranda to which they refer, and all the Final Margin Program Logs and Outputs to which they in turn refer, for all the firms investigated; and each of the assessment instructions issued pursuant to any of the 16 Notices of Final Results.199
5.76.
The European Communities notes that on 31 October 2005, the Panel in the original proceedings circulated its report, finding that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement when, in the original anti-dumping investigations concerned, the USDOC used "model zeroing". The Panel in the original proceedings also found that the same methodology was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping Agreement. However, the Panel concluded that the United States did not act inconsistently with Article 2.4.2 of the Anti-Dumping Agreement when using "simple zeroing" in the administrative reviews at issue. On 18 April 2006, the Appellate Body, following an appeal by the European Communities, issued its report, finding that the United States had acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 in the administrative review investigations at issue due to its use of a "simple zeroing" methodology, and reversing Panel's finding to the contrary. Moreover, the Appellate Body upheld the Panel's conclusion that "model zeroing" was inconsistent, "as such", with Article 2.4.2 of the Anti-Dumping Agreement. However, the Appellate Body was unable to complete the analysis to determine whether "simple zeroing" in administrative reviews was inconsistent, "as such", with the provisions of the Anti-Dumping Agreement.200
5.77.
The European Communities recalls that the Appellate Body recommended that the DSB request the United States to bring its measures, which had been found to be inconsistent with the Anti-Dumping Agreement and with the GATT 1994, into conformity with its obligations under those Agreements. On 9 May 2006, the DSB adopted the Appellate Body Report contained in WT/DS294/AB/R and the Panel Report contained in WT/DS294/R, as modified by the Appellate Body Report.201
5.78.
The European Communities observes that on 28 July 2006, the European Communities and the United States agreed, pursuant to Article 21.3(b) of the DSU, that the reasonable period of time for the United States to implement the recommendations and rulings of the DSB in the original dispute "shall be 11 months", expiring on 9 April 2007.202 The European Communities points out that on 27 December 2006, the United States published a notice whereby it announced that it was abandoning "zeroing" in average-to-average comparisons in anti dumping original investigations. The final modification became effective on 22 February 2007. The European Communities explains that with this, the United States committed to abandon the use of "model zeroing" in all current and future anti-dumping original investigations as of the effective date. Subsequently, the United States began a recalculation of the margins of dumping in 12 of the 15 original investigations challenged in the original dispute. In three of the 15 original investigation measures, the United States considered that it did not have to take any action since the anti-dumping orders had been previously revoked for reasons other than zeroing. The United States, having issued provisional findings on 26 February 2007, issued its final findings in 11 of the revised original investigations on 9 April 2007, which entered into effect on 23 April 2007, and on 20 August 2007 issued its final findings in Certain Stainless Steel Sheet and Strip from Italy (which entered into force on 31 August 2007) (the "Section 129 Determinations").203
5.79.
Despite the fact that the subsequent measures amended the 15 original orders and 16 administrative reviews challenged in the original dispute, the European Communities asserts that the United States continued after the end of the reasonable period of implementation and still now continues collecting duties calculated using zeroing as a result of those measures.204 In other words, the EC argues that despite the fact that the use of zeroing has been found repeatedly inconsistent with WTO rules in previous cases, the United States is reluctant to comply with its obligations and, thus, has failed to fully implement the recommendations of the DSB in the original dispute.205
5.80.
The European Communities asserts that the United States cannot change reality: after the end of the reasonable period of time, it has taken positive acts providing for final payment of the duties due or retention of the cash deposits made based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period.206
5.81.
In the EC's view, in order to comply immediately with the DSB's recommendations and rulings in the original dispute, (i) the United States should have stopped taking any positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period in connection with any of the measures described in the original dispute and, thus, with respect to the measures contained in the Annex to the Panel Request; and (ii) the United States should have recalculated, without zeroing, the previous dumping margins based on zeroing, in order to rely on them for the assessment of likelihood of recurrence of dumping in sunset review proceedings with respect to the measures mentioned above. In addition, the United States, once it recalculated the dumping margins without zeroing pursuant to the Section 129 Determinations and revoked the measures, should have stopped collecting any duties at all, since the measures were thereby, in effect, void. All these acts are, in the EC's view, prospective in nature.207 The European Communities observes that it cannot understand why the United States, would not, in a simple accounting exercise, adjust its calculations so as to properly reflect the degree of dumping, if any, (i.e. without zeroing) that occurred, having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them) and at least with effect from the end of the reasonable period of time, noting that the United States has failed to provide any explanation on this point.208
5.82.
In the particular circumstances of this case, in which such positive acts were expressly found to be part of the original measures at issue, the European Communities is of the view that it is impossible to characterise the actions (and omissions) of the United States as constituting immediate compliance.209 The European Communities recalls that the matter addressed by the Panel in the original proceedings was the use of zeroing when calculating dumping margins in original investigations as well as in administrative reviews and that the European Communities referred to 15 original investigations and 16 administrative reviews in order to demonstrate how the US zeroing methodology was inconsistent, inter alia, with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement. The Appellate Body agreed with the European Communities position. Despite the DSB's findings and recommendation to bring its measures into conformity, the United States has manifestly failed to do so.210
5.83.
In support of its position, the European Communities asserts that, first, with respect to the original investigations covered in the original dispute, the United States has issued assessment instructions to collect anti-dumping duties in subsequent administrative reviews where simple zeroing was used and whose results were obtained after 9 April 2007. Second, even in cases where administrative review proceedings were not requested by the companies concerned, after 9 April 2007 the United States still seeks to collect duties at the rate established in the original investigations covered by the original dispute, where "model zeroing" was used. Third, in addition to issuing assessment instructions to collect anti-dumping duties, the United States has also established new cash deposits as a result of subsequent administrative reviews proceedings in connection with the original investigations challenged in the original dispute using simple zeroing after the end of the reasonable period. Fourth, with respect to administrative review proceedings covered in the original dispute, the United States has also issued assessment instructions to collect anti-dumping duties and has established new cash deposits in subsequent administrative reviews where simple zeroing was used and whose results were obtained after 9 April 2007. Fifth, with respect to both the original investigations and administrative reviews covered in the original dispute, after 9 April 2007 the United States still actively seeks to collect anti-dumping duties as a result of modifications of the original measures pursuant to subsequent administrative review proceedings for which assessment instructions were sent before 9 April 2007 and where "simple zeroing" was used and that after 9 April 2007, the United States still takes positive acts providing for final payment of the duties due or retention of the cash deposits made based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period to implement the DSB's recommendations.211
5.84.
The European Communities submits that the measures adopted by the United States described above cannot be considered as "compliance with the DSB's recommendations". The European Communities observes that the DSB recommended that the United States bring the measures found inconsistent with the Anti-Dumping Agreement and the GATT 1994 into conformity and maintains that those measures included in the original dispute "any amendments" as well as "each assessment instructions issued pursuant to" the original order and/or administrative review.212
5.85.
The European Communities argues that the modifications made by the United States have not changed the "essence" of the contested measure in the original dispute (i.e.,use of zeroing in original investigations and administrative reviews) because the products from the countries concerned in the original dispute still are subject to anti-dumping duties unfairly imposed pursuant to the use of a methodology which has been found inconsistent by the adopted DSB reports and by the Appellate Body in other occasions.213 Therefore, the European Communities considers that, since the United States still collects anti-dumping duties calculated with zeroing with respect to the cases identified in the original dispute after 9 April 2007, the United States continues to violate Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.214
5.86.
Since it is not possible to relitigate the same issue twice in Article 21.5 proceedings, the European Communities submits that this Panel should not enter again into the conformity of the zeroing methodology with the mentioned agreements. This has already been confirmed by the adopted DSB reports in the original dispute, and is res judicata.215 Accordingly, since it is established that the United States still collects anti-dumping duties calculated with zeroing with respect to measures challenged in the original dispute, the European Communities requests the Panel to find that the measures listed in the Annex to the Panel Request are inconsistent with Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, and that the United States remains in violation of these provisions.216
5.87.
The European Communities notes that the United States has not contested the facts provided by the European Communities that it has continued collecting duties and imposing cash deposits based on zeroing with respect to the measures challenged in the original dispute.217 The European Communities observes that, instead the United States argues that it has complied with the DSB's recommendations and rulings in the original dispute since no duties, as resulting from the determinations made in the 15 original investigations and 16 administrative reviews identified in the original dispute, are collected with respect to imports made on or after the end of the reasonable period. Moreover, the United States considers that the cash deposits resulting from the 16 administrative review proceedings challenged in the original dispute (the only element which may have remained after the end of the reasonable period), are no longer in place since they have been superseded and replaced by new determinations in subsequent administrative review proceedings.218
5.88.
As a preliminary remark, the European Communities notes that the US arguments purporting to demonstrate compliance with the DSB's recommendations and rulings in the original dispute are incorrect. But even following the US theory that compliance in this case means that no imports relating to the 15 original investigations and the 16 administrative reviews made after the end of the reasonable period of time are subject to duties based on zeroing, the European Communities argues that the facts of the case show something different. The European Communities notes in this context that the United States has recognised that imports of stainless steel wire rod from Sweden (Case 6 in the Annex of the Panel Request) after 9 April 2007 are subject to the original anti-dumping duties based on model zeroing. Likewise, the United States has admitted that it continues collecting anti-dumping duties and imposing cash deposits on imports of ball bearings from the United Kingdom (Case 31 in the Annex to the Panel Request) made by one company (NSK) at the rate based on simple zeroing in the administrative review challenged in the original dispute. Therefore, according to the EC, even under the US own theory, it is evident that the United States has not complied with the DSB's recommendations and rulings in the original dispute219, and that the US lack of compliance with the DSB's recommendations and rulings in the original dispute is obvious and manifest.220
5.89.
The European Communities explains that the liability to pay anti-dumping duties in the US system is determined at a later stage than the time of importation. The United States argues that the anti-dumping liability is created at the time of importation and, thus, imports made before or during the reasonable period of time to comply with the DSB's recommendations and rulings can be subject to WTO-inconsistent measures. In contrast, the European Communities considers that, in light of the particularities of the US system of duty assessment, the final amount to be collected and, thus, the obligation to pay any anti-dumping duties, is determined at a later stage than the time of importation. According to the US system of duty assessment, the final and true liabilities are established by the USDOC based on a subsequent retrospective accounting exercise. This exercise may lead to the conclusion that the importer is not responsible for the payment of duties. Moreover, importers can appeal the amounts established by the USDOC in accordance with US municipal law. These proceedings may result in a finding of no liability at all and, thus, no obligation to pay duties (or, alternatively, a modification of the amounts to be collected due to, for example, arithmetical errors made by the USDOC when calculating the duties).221 In these circumstances, the European Communities cannot understand why the United States would not adjust its calculations so as to properly reflect the degree of dumping (i.e.,without zeroing) that occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them), and at least with effect from the end of the reasonable period of time.222
5.90.
According to the EC, what the United States argues in this case is that it can collect duties based on zeroing after the end of the reasonable period of time even if the original anti-dumping order has been revoked because, absent zeroing, no dumping was found (or because of any other reason). Therefore, the United States acknowledges that its measure should never have been taken in the first place, while still claiming the right to collect anti-dumping duties (on a non-existent measure) long after its revocation.223 In other words, in the view of the EC, the United States is seeking to squeeze the juices out of the WTO-inconsistent measures until their last drop, even after the end of the reasonable period to comply agreed by the Parties to the dispute. Once more, this cannot be the meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply that the measures have been withdrawn, as required by Article 3.7 of the DSU.224 Moreover, the US interpretation of compliance will render the US system of duty assessment untouchable, as a moving target that escapes from anti-dumping duty disciplines. Each administrative review proceeding would have to be subject to a new panel request, and by the time the panel, Appellate Body and implementation procedure was completed, another administrative review proceeding would have superseded the results of any previous review. A new panel would have to be started against this review. The European Communities considers that this would run diametrically contrary to the purpose and objective of Article 21 of the DSU.225
5.91.
The European Communities maintains that the US theory to assess compliance in this case is inappropriate226, as well as inaccurate and insufficient.227 The European Communities considers that the application of the US theory as regards implementation would lead to absurd results in light of the circumstances of this case228, because it would imply that a Member whose measure has been found to be inconsistent with the WTO Agreements could still effectively apply that measure even after the end of the reasonable period of time to comply with the DSB's recommendations and findings.229 Thus, the European Communities submits that the Panel should reject it.230
5.92.
The European Communities sets out why it considers the US's compliance theoryis inaccurate. As the United States has acknowledged and not contested, it has continued levying anti-dumping duties at the rates originally established pursuant to model zeroing on imports of stainless steel wire rod from Sweden (Case 6 in the Annex of the Panel Request) after 9 April 2007; and has equally continued collecting anti-dumping duties and imposing cash deposits at the rates based on simple zeroing on imports of ball bearings from the United Kingdom (Case 31 in the Annex to the Panel Request), i.e.,the same rates of the administrative review challenged in the original dispute. Therefore, it is evident that the United States has not complied with the DSB's recommendations and rulings in the original dispute.231 Next, the European Communities explains why it considers the US's compliance theoryis insufficient - because, in the EC view, it allows the United States to keep its so-declared WTO inconsistent measures effectively in placeeven after the end of the reasonable period of time. In simple terms, what the United States argues in this case is that it can collect duties based on zeroing after the end of the reasonable period of time even if the original anti-dumping order has been revoked because, absent zeroing, no dumping was found. Likewise, the United States also claims that it can, after the end of the reasonable period to comply, liquidate duties at rates that were significantly higher than those which should have been collected absent zeroing. In this respect, the measures challenged in the original dispute are still in place since, until the United States stops taking positive acts to enforce them, their effects persist even after the end of the reasonable period. Once more, this cannot be the meaning of "prompt compliance" in Article 21 of the DSU. Nor can it imply that the measures have been withdrawn, as required by Article 3.7 of the DSU.232 In addition, the European Communities notes that the United States also seeks to make the "date of entry" the backbone principle as regards compliance in anti-dumping disputes. In this respect, the US theory on compliance disregards its own system, where the "date of entry" is not determinative of final liability.233
5.93.
Therefore, the European Communities considers that, in light of the characteristics of the US system, the anti-dumping liability – whether or not it is "created" at the time of importation – is not finally determined at that time, but only at a later stage. In these circumstances, the European Communities cannot understand why the United States would not, in that simple accounting exercise, adjust its calculations so as to properly reflect the degree of dumping (i.e.,without zeroing) that occurred (if any), having a full opportunity to do so (in subsequent reviews of the measures concerned or in the appeals and protests filed by importers against them), and at least with effect from the end of the reasonable period of time. Simply put, in the EC's view, the US efforts to find arguments to keep its measures in place even after the end of the reasonable period should be confronted by a clear ruling from this Panel.234
5.94.
The European Communities considers that, in order for the United States to comply with the DSB's recommendations and rulings, immediately after the end of the reasonable period of time the United States should have refrained from taking positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period, regardless of when those imports where made. The European Communities asserts that this approach does not imply a retrospective relief, as the United States argues235 and that it does not argue that the WTO dispute settlement system provides for retrospective relief. The European Communities considers that it has clarified in its First Written Submission that it asks for prospective implementation of the DSB's recommendations after the end of the reasonable period.236 In addition, the European Communities notes that it is possible for the United States to take positive steps after the end of the reasonable period to comply with the DSB's recommendations and rulings in respect of entries which were made before then, without this involving any retrospective relief. In fact, the European Communities observes that, according to the United States, Section 129(c)(1) permits the USDOC to apply new, WTO-consistent methodologies to entries made before the date of implementation of a Section 129 Determination.237 Therefore, the European Communities considers that the United States would comply with the DSB's recommendations and findings in a prospective manner in this case if it stops taking any positive acts providing for the final payment of duties or retention of cash deposits based on zeroing with respect to those entries not finally liquidated before the end of the reasonable period. However, the European Communities contends that this has not yet been the case.238
5.95.
The European Communities notes that the United States has also argued that the "date of entry" should be the reference for assessing compliance in the case of anti-dumping measures. In particular, it has emphasised that prospective and retrospective anti-dumping systems should lead to the same results when bringing WTO-inconsistent measures into conformity with the Anti-Dumping Agreement. The European Communities agrees. Under both systems, WTO Members are prevented from taking positive acts that are contrary to the adopted DSB reports after the end of the reasonable period of time.239
5.96.
Further, as a result of the 12 Section 129 Determinations, (i) two original orders were revoked because of the new calculation of dumping margins without zeroing; and (ii) ten original orders were partially revoked with respect to certain companies, whereas with respect to others, duties were reduced or increased as a result of specific calculations of dumping margins without zeroing or the general application of new "all others" duty levels.240 The European Communities considers that any future liquidation of entries subject to a revoked order (including those revoked because of reasons other than zeroing) or with respect to an exporter excluded from the scope of the relevant order would be illegal since, again, as mentioned in the previous section, this would amount to taking a positive act, already found to be WTO inconsistent, after the expiry of the implementation period.241 The European Communities argues that the United States seems to ignore the fact that, under its duty assessment system, the final liability of importers is determined at a later stage than the time of importation. Thus, any time after the end of the reasonable period of time the United States could carry out a simply accounting exercise to establish without zeroing the true and final liabilities to which entries are subject (if any). Finally, even if the legal basis for collecting duties has been revoked, the United States has not stayed proceedings to obtain final payment of those duties.242
5.97.
Finally, the European Communities submits, with respect to the 16 administrative reviews at issue in the original dispute, that the United States considered that in each case the results were superseded by subsequent reviews and, thus, no further action was necessary for the United States to bring the challenged measures into compliance with the recommendations and rulings of the DSB.243
5.98.
The European Communities argues that in order for the 16 administrative reviews challenged in the original dispute to be "superseded", the United States should have stopped them (by not collecting duties calculated with "simple zeroing") and replaced them (by collecting the duties and establishing new cash deposits based on a methodology without zeroing). The United States has failed in both respects.244 Firstly, the European Communities notes that the United States still collects duties established in the administrative reviews contested in the original dispute. Second, the European Communities argues that the United States has failed to recalculate the dumping margins without zeroing in all the administrative reviews covered in the original dispute. Finally, the fact that the United States has not recalculated the dumping margins in the administrative reviews concerned also affects the extension of the original orders pursuant to sunset review investigations.245

(b) United States

5.99.
The United States considers that it has implemented the DSB's recommendations and rulings and thus, has complied with the its obligations under the DSU. The Panel should reject the EC's claims non-compliance and its efforts to enlarge the obligations of the United States.246 Turning to the 15 antidumping investigations, the United States notes that by the time the DSB adopted its recommendations and rulings, Commerce had already revoked 3 of the antidumping orders resulting from those investigations. With respect to the other 12 investigations where antidumping orders remained in place, Commerce conducted proceedings under US domestic law, called Section 129 proceedings, to recalculate the margins of dumping. The Section 129 determinations resulted in the revocation of two additional orders. Later, Commerce revoked 4 more orders as a result of sunset reviews. Thus, with respect to the 15 determinations made in investigations, 9 concern antidumping orders that are now revoked. Thus, the United States submits that for all nine of the revoked antidumping duty orders, no antidumping duties will be assessed on entries of the goods made after the effective date of the revocation.247
5.100.
Turning to the 16 administrative reviews, the United States notes that the purpose of such reviews is to determine the final assessment rate on imports that occurred before the review commenced, and to calculate a new cash deposit rate that will be applicable to subject imports occurring after the determination is made.248 What the United States considers is noteworthy for purposes of this proceeding is that the 16 administrative reviews in question all involved entries that occurred prior to the adoption of the DSB recommendations and rulings. Noting that the EC concedes, that implementation of WTO obligations is prospective, the United States observes that nevertheless, according to the EC, the United States was obligated to refund duties in respect of entries that were made prior to the adoption of the recommendations and rulings. In other words, in the US view, the EC attempts to argue that the United States was effectively required to provide retroactive relief – i.e.,refunds of duties collected on prior entries solely as a result of the WTO dispute. However, in view of the principle of prospective relief to which even the EC subscribes, the United States submits that it was under no obligation to do so.249
5.101.
The United States observes that in the underlying dispute, the EC obtained DSB recommendations and rulings with respect to Commerce determinations in sixteen administrative reviews. The United States has taken measures to comply with respect to each of those determinations, and as a result of those measures, the United States has complied with those recommendations and rulings.250
5.102.
The United States clarifies that in some instances, the United States has revoked the antidumping duty order giving rise to the determinations challenged by the EC. Under US law, the United States no longer has the authority to collect cash deposits, or assess antidumping duties, on products subject to a revoked antidumping order which are imported on or after the date of revocation. This is the situation with respect to the four of the sixteen determinations challenged by the EC. With respect to the remaining reviews that the EC challenged, the cash deposit rate established in the challenged determination (the only aspect of the administrative review that could – absent the US compliance – have continued beyond the expiration of the RPT), is no longer in effect. To the extent that a cash deposit rate is currently in effect with respect to these same products from the same Member States of the EC, that is the result of a separate determination of dumping made in a separate administrative review examining distinct facts during a subsequent period of time.251
5.103.
Turning first to the antidumping duty orders revoked, the United States notes that these orders form the basis under US law for the authority to impose antidumping duties. That is, without an antidumping duty order in place, the United States cannot collect cash deposits and assess antidumping duties on imports made on or after the date of revocation.252 The United States observes that, in its annex to its panel request, the EC acknowledges that the following antidumping orders have been revoked in whole or with respect to certain companies identified in the EC's original panel request:

(1) Industrial Nitrocellulose from France (revocation effective 1 August 2003)

(2) Industrial Nitrocellulose from the United Kingdom (revocation effective 1 July 2003)

(3) Certain Pasta from Italy (revoked for Ferrara effective 9 February 2005, and for Pallante on 29 November 2005); and

(4) Stainless Steel Sheet and Strip in Coils from France (revocation effective 27 July 2004).253

5.104.
The United States observes, by way of example, with regard to Industrial Nitrocellulose from France, that it revoked the antidumping duty order effective 1 August 2003. This means that the United States ceased collecting cash deposits on imports occurring on or after that date, and such imports incur no antidumping duty liability. Therefore, as of the date of the EC's panel request in this Article 21.5 proceeding (and, in fact, as of the expiry of the reasonable period of time established in this dispute), no imports are affected by that antidumping duty order, and the measure challenged by the EC in the underlying proceeding has been terminated. The same is true with respect to the other antidumping duty orders that the United States has revoked. The United States submits that the elimination of these orders has thus brought the United States into compliance with the recommendations and rulings related to those orders.254
5.105.
The United States maintains that it has implemented the recommendations and rulings because each of the reviews has been superseded by Commerce determinations in subsequent administrative reviews. The chart attached as Exhibit US-17 specifies the subsequent Commerce determinations that have superseded each of the administrative reviews subject to the DSB's recommendations and rulings. The determinations in these subsequent reviews cover the same merchandise and the same exporters or producers identified by the EC. However, the subsequent reviews examined a wholly different set of sales transactions occurring during a different period of time. Given that in these subsequent determinations, Commerce calculated new margins of dumping, and put in place new cash deposits for the companies examined, as a result, the cash deposit rates that had been established in the determinations that the EC originally challenged have been superceded, because cash deposit rates from a determination in one administrative remain in effect only until a determination in a subsequent administrative review establishes a new cash deposit rate – once Commerce issues a determination in a subsequent administrative review involving the same merchandise and the same exporter or producer, the former cash deposit rate is terminated.255 Consequently, as of the date of the EC's panel request in this Article 21.5 proceeding (and in fact, as of the expiry of the reasonable period of time established in this dispute), no further entries are subject to antidumping rates established in the administrative reviews that the EC challenged in the underlying proceeding. Accordingly, because the challenged determinations, and in particular their cash deposit rates, have been superceded, the United States maintains that it has brought the challenged measures into compliance with the DSB's recommendations and rulings.256
5.106.
In this connection, the United States notes that it is puzzled by the occasional references in the EC's first submission to "definitive assessment of duties" and "collect[ion] of duties pursuant to liquidation instructions" after April 9, 2007 (the end of the reasonable period of time established in this dispute). While the point of these references is not at all clear, the United States assumes that the EC remains faithful to its long-held and oft-repeated position that, for purposes of assessing compliance with the rulings and recommendations of the DSB relating to duties, one examines the treatment accorded to goods entered on or after the expiration of the reasonable period of time. The EC took a similar view when it implemented the recommendations and rulings of the DSB in the dispute EC – Customs Classification of Frozen Boneless Chicken Cuts.257
5.107.
The United States notes that this EC position follows logically from the fact that the WTO dispute settlement provides prospective relief, not retrospective relief. For example, Article 19.1 of the DSU provides, "Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement" (footnotes omitted). The ordinary meaning of the term "bring" is to "[p]roduce as a consequence," or "cause to become." These definitions give an indication of future action. Furthermore, under DSU Article 3.7, "the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements." The withdrawal of the inconsistent measure is meant to provide a prospective solution to the nullification or impairment of the benefits accruing under the covered agreements, and not to provide compensation for any past harm.258
5.108.
Furthermore, the United States observes that in a WTO dispute challenging an antidumping or countervailing duty measure, the measure in question is a border measure. Accordingly, eliminating a WTO-inconsistent antidumping or countervailing duty measure prospectively at the border will constitute "withdrawal" of the measure within the meaning of DSU Article 3.7. And in this case, by superceding the administrative reviews at issue in the underlying proceeding, the United States has withdrawn the challenged measures.259
5.109.
The United States notes that in its First Written Submission, the EC raised two arguments concerning the determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands. First, the EC argued that the United States has assessed antidumping duties pursuant to determinations made in subsequent administrative reviews, where Commerce continued to deny offsets for non-dumped sales. Second, the EC contends that as a result of a rescission of an administrative review, the United States assessed antidumping duties at the cash deposit rate established in the original investigation.260 The United States clarifies in this connection that these final assessments are the result of determinations distinct from the determination made in the investigation. With respect to the EC's first argument, those assessment instructions were issued pursuant to the determination made in the 2004-05 administrative review. With respect to the EC's second argument, those assessment instructions were issued pursuant to the determination (in that case to terminate) the 2005-06 administrative review.261 The United States argues that neither of these two subsequent determinations are within the scope of this Article 21.5 proceeding. The EC's original panel request identified only Commerce's determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands. Similarly, the original panel's "as applied" findings covered only Commerce's determination from the investigation. Thus, the United States maintains that the Panel should reject the EC's claims as beyond the scope of this Article 21.5 dispute.262
5.110.
Turning to Commerce's Section 129 determination concerning the investigation of Stainless Steel Wire Rod from Sweden, the United States points out that Commerce complied with the recommendations and rulings of the DSB by providing offsets for non-dumped sales in the recalculation of the margin of dumping. As a result of the Section 129 determination, Commerce revoked the antidumping duty order on Stainless Steel Wire Rod from Sweden effective 23 April 2007.263 The United States argues that the EC contention that that the United States has established new cash deposit rates in Stainless Steel Wire Rod from Sweden based on an administrative review that Commerce published after concluding the Section 129 determination, however, is in error.264 Commerce did publish the amended final results of the 2004-05 administrative review of Stainless Steel Wire Rod from Sweden on 9 May 2007. According to the United States, in those amended final results, Commerce did state that it would notify CBP of the revised cash deposit resulting from the review, that the cash deposit rate would be effective as of the date of publication, and that "the cash deposit requirement shall remain in effect until further notice." However, on 10 May 2007, Commerce provided "further notice" by issuing instructions to CBP informing it of the revocation resulting from the Section 129 determination. These instructions informed CBP that any cash deposits paid on imports of wire rod from Sweden made on or after 23 April 2007, were to be refunded. All imports made on or after 23 April 2007, would not be subject to the final assessment of antidumping duties.265 The United States submits that as a result of the revocation of the antidumping duty order on stainless steel wire rod from Sweden, Commerce did not issue new cash deposit instructions to CBP based on the determination made in the 2004-05 administrative review. Accordingly, the United States requests that this Panel reject the EC's claim regarding the Section 129 determination in Stainless Steel Wire Rod from Sweden because Commerce provided offsets for non-dumped sales in the recalculation of the margin of dumping and that measure is no longer in effect.266
5.111.
The United States observes that when the DSB's recommendations and rulings concern a border measure, such as an antidumping duty, implementation occurs when the Member removes the border measure. Thus, the United States complied with the DSB's recommendations and rulings in two ways. First, with respect to some of the antidumping measures challenged by the EC, the United States revoked the antidumping duty orders, thereby removing the antidumping duty liability for entries occurring on or after the date of revocation. Second, the United States removed the border measure, the cash deposit rate, with respect to entries occurring on or after the date of implementation.267 The United States notes that the text of GATT 1994 and the Anti-Dumping Agreement confirms that it is the legal regime in existence at the time that an import enters the Member's territory that determines whether the import is liable for the payment of antidumping duties.268
5.112.
The interpretive note to GATT Article VI clarifies that, notwithstanding that duties are generally levied at the time of importation, Members may instead require a cash deposit or other security, in lieu of the duty, pending final determination of the relevant information. Thus, the cash deposit serves as a place-holder for the liability which is incurred at the time of entry. Consistent with the interpretive note, final assessment in the US system occurs after the date of importation. Indeed, a Commerce determination in an administrative review normally covers importations of the subject merchandise during the 12 months prior to the month in which the review is initiated.269 Several provisions of the Anti-Dumping Agreement further demonstrate that determining whether relief is "prospective" or "retroactive" can only be determined by reference to date of entry. Thus, by implementing the DSB's recommendations and rulings regarding its antidumping measures with respect to entries made on or after the date of implementation, the United States has complied with those recommendations and rulings. The United States has acted consistently with the principle of prospective implementation, as understood in the antidumping duty context.270
5.113.
This result is consistent with the effect that a finding of inconsistency would have on an antidumping measure in a prospective antidumping system. Under such systems, the Member collects the amount of antidumping duties at the time of importation. If an antidumping measure is found to be inconsistent with the Anti-Dumping Agreement, the Member's obligation is merely to modify the measure as it applies at the border to imports occurring on or after the date of importation [sic]. That is, the Member changes the amount of antidumping duties to be collected on importations occurring after the end of the reasonable period of time. The Member need not remedy the effects of the measure on imports that occurred prior to the date of implementation. That is, the Member is under no obligation to refund any antidumping duties assessed on importations occurring prior to the end of the reasonable period of time.271
5.114.
The EC argues that prospective implementation of the DSB's recommendations and rulings with respect to US administrative reviews would make the US system of duty collection "untouchable" and a "moving target." In this regard, the US system is no different from a prospective antidumping system – the EC's system. An "as applied" challenge to the allegedly improper collection of antidumping duties in a prospective system would necessarily come after the duties have been collected. By that time, the complaining Member could not recover the duties collected. Moreover, if the allegedly inconsistent collection continues during the pendency of the dispute, the complaining Member will be required to initiate further disputes in order to address the situation pursuant to the WTO dispute settlement system. This is the system to which the Members agreed, and it applies to all Members equally. This Panel should reject the attempts of the EC to gain a greater degree of relief from this system than that the Members provided for.272
5.115.
Finally, the United States notes that there is a fundamental problem with the EC's arguments in this dispute. In paragraph 72 of its Rebuttal Submission the EC argues, "Therefore, even if the products at the time of importation are potentially liable for anti-dumping duties, the US system of duty assessment implies that such a responsibility only materializes when the amount of the duties due for a particular period is determined pursuant to administrative review proceedings." If it were true that liability for antidumping duties only arose after the completion of an administrative review, this would mean that there would be no "final action" as required by Article 17.4 of the Anti-Dumping Agreement for the EC to challenge whenever Commerce issued a determination in an antidumping investigation. Rather, the EC could only challenge a Commerce antidumping duty determination after such a determination was made in an administrative review.273
5.116.
The United States notes that the EC agreed in its written submissions that WTO relief is prospective. In its submissions, the EC took pains to describe the US duty assessment system and the fact that "final" liability attaches at a point later in time than entry. Thus, it is the EC that emphasized the relevance of a retrospective system to the issues in this dispute. The United States argues that it responded by pointing out that "final" liability is not germane to the question of when a Member's duty to provide relief is triggered. The United States pointed out that the date of entry of the good is the only date upon which to evaluate whether relief is due. To conclude otherwise would be to discriminate against Members like the United States for having a retrospective duty assessment system, one expressly provided for under Article 9.3.1 of the Antidumping Agreement. As the United States explained, and as the original panel found, in a retrospective system, liability attaches at the time of entry, but final liability attaches at a later date. By contrast, in a prospective system, final liability is determined at the time of entry. This is precisely the distinction the EC emphasized when, as recently as its rebuttal submission, it referred to the "particularities of the US system of duty assessment."274 If final liability is the relevant point for assessing whether relief must be provided, then Members with prospective systems will have no implementation obligations in respect of entries made prior to the expiry of the reasonable period of time, but Members with retrospective systems will have such obligations in the event that final liability is calculated after the expiry of the RPT.275
5.117.
Notably, the EC seems to be abandoning its theory that the determination of final liability after importation is "particular" to retrospective systems, implying that it is equally applicable to prospective systems. Perhaps this new theory reflects acknowledgment of the fact that, otherwise, using final liability as the basis for establishing implementation obligations would put retrospective systems at a disadvantage. However, the EC's sudden change of position is not supported by the text of Articles 9.3.1 and 9.3.2, its written submissions276, or the panel report277, all of which make clear that calculation of "final liability" after importation is a facet "particular" (to borrow the EC's term) to the US retrospective system.278
5.118.
In addition, the EC argued that the Ikea case is an example of how the EC provides retrospective relief. Ikea does not stand for the proposition that the EC provides retrospective relief in connection with its implementation of recommendations and rulings. In the Ikea case, the European Court of Justice expressly rejected the notion of refunding the duties on that basis.279 Instead, the Court found that zeroing was inconsistent with paragraph 2(11) of the EC's basic regulation and was "a manifest error of assessment with regard to Community law."280 On that basis – that zeroing was inconsistent with the EC's own regulations, rather than the Antidumping Agreement – the Court ordered repayment of duties.281 Thus, the EC may in some circumstances provide refunds under its municipal law; but that does not mean that there is any WTO obligation to do so.282
5.119.
The United States observes that it has great trouble reconciling the EC's current litigation position – that entries made before the end of the reasonable period of time are subject to refunds – with: (1) EC statements to the contrary, as cited in the US first submission at paragraph 100, in which the EC makes clear that it will not provide reimbursements for prior entries; (2) the very nature of "prospective relief"; and (3) the EC's emphasis on the fact that "final liability" attaches at a later point in time in a retrospective system.283 If the United States accepts the theory proffered by the EC at the panel meeting – that refunds must be given on imports dating back to some undetermined date preceding the expiry of the RPT – the question of "final" liability particular to a retrospective assessment system would be irrelevant.284
5.120.
Turning to the EC's claims regarding the determination in the investigation of Certain Hot-Rolled Carbon Steel Products from the Netherlands, the United States asserts that it has complied with the recommendations and rulings of the DSB by providing offsets for non-dumped sales when it recalculated the margin of dumping in the Section 129 determination. As a result of the Section 129 determination, the antidumping duty order was revoked effective 23 April 2007. Moreover, as a result of a subsequent Commerce determination in a sunset review, the revocation of the antidumping duty order became effective as of November 29, 2006. All cash deposits made on imports occurring on or after 29 November 2006 have been or will be refunded. Additionally, imports made on or after 29 November 2006 are not subject to any final assessment of antidumping duties. Thus, the United States submits that the EC's claims concern a measure that is no longer in effect.285

3. Whether the United States failed to put into effect new measures between 9 April and 23 April/31 August 2007

(a) European Communities

5.121.
The EC submits that it is not contested that the United States was late in its implementation. The European Communities seeks findings from the Panel also on this point. The EC notes that the Appellate Body has made clear that it is for the complaining Member to judge whether or not dispute settlement may be fruitful. In this case, the European Communities observes that it remains of the view that the findings it seeks may have autonomous consequences in US municipal law.286
5.122.
The European Communities notes that the measures adopted by the United States to comply with the DSB's recommendations and rulings concerning the "as applied" violations, i.e.,the Section 129 Determinations, entered into force on 23 April and 31 August 2007. However, the parties had agreed on a reasonable period of time which ended on 9 April 2007. This allows the United States to still collect duties which refer to a period of time where compliance should have been achieved.287
5.123.
Article 21 of the DSU requires WTO Members to comply immediately with the recommendations of an adopted DSB report. In particular, Article 21.1 of the DSU states that "[p]rompt compliance with the recommendations and rulings of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all Members" (emphasis added). Article 21.3 of the DSU also highlights that "[i]f it is impracticable to comply immediately with the recommendations and rulings, the Member concerned shall have a reasonable period of time in which to do so" (emphasis added). In this respect, WTO Members must bring their measures found inconsistent with their obligations immediately after the date of adoption of the DSB report or, should a reasonable period be agreed between the parties to the dispute, at the end of such a period at the latest.288
5.124.
Since the United States manifestly failed to do so with respect to the "as applied" violations found in the original dispute, the European Communities considers that the United States violated Articles 21.3 and 21.3(b) of the DSU when failing to adopt new measures between 9 April and 23 April/31August 2007.289
5.125.
The European Communities requests this Panel to make an explicit finding that no measure taken to comply existed at all during the mentioned period of time. This is different from a finding on the existence or consistency with a covered agreement of measures taken to comply "at the end of the reasonable period of time" in addition to a finding on the existence of a measure taken to comply "as of the date of the establishment of a panel". In other words, the European Communities is not asking the Panel to rule on the existence of measures taken to comply "at the end of the reasonable period of time", i.e.,on 9 April 2007. In contrast, the European Communities wants the Panel to declare that no measure taken to comply existed between 9 April 2007 and 23 April/31 August 2007. A similar finding of non-compliance in past periods was made by the panel in Australia – Salmon (21.5).290
5.126.
The European Communities notes that the United States opposes the request for a specific finding by the European Communities that, since the United States did not take new measures between 9 April 2007 (i.e.,the end of the reasonable period) and 23 April/31 August 2007 (when all the Section 129 Determinations were completed and entered into force), it failed to comply with the DSB's recommendations and ruling in a timely manner and, thus, violated Articles 21.3 and 21.3(b) of the DSU. In particular, it argues that Articles 21.3 and 21.3(b) of the DSU do not impose obligations on Members.291 The European Communities argues that a careful reading of Article 21 of the DSU implies that WTO Members must bring their measures found inconsistent with their obligations immediately after the date of adoption of the DSB report or, should a reasonable period be agreed between the parties to the dispute, at the end of such a period at the latest.292 The European Communities considers that unlike in US – Upland Cotton (21.5), in this case the European Communities is not asking the Panel to rule on the existence of measures taken to comply "at the end of the reasonable period of time", i.e.,on 9 April 2007. In contrast, the European Communities wants the Panel to declare that no measure taken to comply existed between 9 April 2007 and 23 April/31 August 2007. The EC's request is similar to the one made by Canada in Australia – Salmon (21.5), which was granted by the panel.293
5.127.
Finally, the European Communities argues that the United States seems to agree with its observation that the Panel should refrain from entering into the analysis of the effects of its report in the US municipal law jurisdiction. The European Communities considers that the Panel is called upon to interpret Article 21.3 of the DSU and infer the necessary consequences from the facts of this case.294
5.128.
The European Communities argues that it has shown that the United States failed to take new measures to comply with the DSB's recommendations and rulings in the original dispute before the end of the reasonable period of time (i.e.,9 April 2007) and the United States has not contested that imports subject to anti-dumping duties in the original proceeding made between 9 April 2007 and 23 April/31 August 2007 must pay duties based on zeroing. The European Communities asks a specific finding from this Panel on this issue, again, showing that this cannot be immediate compliance.295 The European Communities considers that, by failing to put into effect the measures taken to comply between 9 April and 23 April/31 August 2007, the United States violated Articles 21.3 and 21.3(b) of the DSU, and failed to comply with the DSB's recommendations and rulings.296 In light of the foregoing, the European Communities submits that the United States has not complied with the DSB's recommendations in the original proceeding and, thus, remains in violation of Articles 2.4.2 and 9.3 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994, since it continues collecting anti-dumping duties and establishing new cash deposit rates based on zeroing with respect to the original investigations and administrative reviews as described in the original dispute.297
5.129.
In conclusion, the European Communities requests the Panel to make an explicit finding on this matter since there are entries which have not yet been liquidated by the United States. Such a finding may lead the relevant authorities to stop proceedings for collection of duties and, thus, is of relevance to the effective resolution of the present dispute.298 In light of the foregoing, the European Communities considers that the United States has failed to show that it has complied with the DSB's recommendations and ruling in the original dispute.299

(b) United States

5.130.
The United States understands the EC to claim that the United States breached Article 21.3 and Article 21.3(a) by implementing its measures taken to comply on April 23, 2007, two weeks after the conclusion of the reasonable period of time. However the United States argues, the EC fails to explain how US implementation of the recommendations and rulings of the DSB constituted a breach of Article 21.3 or Article 21.3(a).300 The United States argues that contrary to the EC's assertion, the report in Australia – Salmon does not support the EC's position. That panel simply concluded that the measures taken to comply did not exist at the end of the reasonable period of time. The panel made no finding that Australia had breached Article 21.3, or any of its subparagraphs, as a result. By contrast, the United States does find support for the futility of such a finding in the report in US – Upland Cotton (21.5). There, the panel explained that a finding of a breach of Article 21.3 would "be of little relevance to the effective resolution of disputes."301
5.131.
In light of the above, the United States submits that this Panel should decline to make the suggestion requested by the EC. It observes in this context that a Member retains the right to determine the manner of implementing DSB recommendations and rulings. The question in this proceeding is the existence or consistency of the measure taken to comply, not what future actions the United States should take to ensure compliance.302
5.132.
The United States reiterates that there is no textual basis for the EC's claim of a breach of Article 21.3. The EC has continued to fail to explain the textual basis for its claim. The EC asserts that Article 21.3 "requires WTO Members to comply immediately with the recommendations of adopted DSB reports." Article 21.3 does no such thing. Indeed, Article 21.3 acknowledges that immediate compliance may be impracticable and thus confers a right on the responding Member to a reasonable period of time.303 The United States observes that the EC's reliance on Australia – Salmon (21.5) is of no help in this regard. The panel in that dispute did not find a breach of Article 21.3, which is what the EC is requesting here. In that context, the EC's attempt to distinguish US – Cotton Subsidies (Article 21.5) (Panel) is unavailing. The panel in that dispute squarely rejected the claim the EC is advancing here: a breach of Article 21.3.304

D. VIOLATIONS WITH RESPECT TO SPECIFIC MEASURES (SECTION 129 DETERMINATIONS)

1. Whether there has been a violation in respect of case 11 – Stainless Steel Sheet and Strip in Coils from Italy

(a) European Communities

5.133.
The European Communities considers that the "measures taken to comply" by the United States in this case (i.e.,the Section 129 Determinations relating to the original investigations challenged in the previous Panel proceedings) are inconsistent with its WTO obligations.305 The European Communities submits that the Section 129 Determinations adopted by the United States to bring its measures into conformity violated certain provisions of the Anti-Dumping Agreement and the GATT 1994. In this respect, the European Communities notes that the scope of Article 21.5 proceedings allows for new legal claims against "measures taken to comply". The Appellate Body has already clarified that panels are to review the "totality" of claims relating to the consistency of "measures taken to comply" with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements). Thus, a compliance panel is not limited to examining the consistency of the "measures taken to comply" with the original DSB's rulings and recommendations. The task of a compliance panel is rather to examine the consistency of the measures with "the covered agreements".306
5.134.
The European Communities submits that the United States committed, and then failed to remove, an obvious calculation error when adopting a Section 129 Determination in Stainless Steel Sheet and Strip in Coils from Italy, listed in the Annex to the Panel Request as Case 11.307
5.135.
The Section 129 Determination covered one manufacturer/exporter of stainless steel sheet and strips in coil from Italy, ThyssenKrupp Acciai Speciali Terni S.p.A and ThyssenKrupp AST USA (collectively "TKAST"). Errors were made in the dumping margin calculation by the USDOC in the original less-than-fair value (LTFV) investigation. In particular, the USDOC incorrectly calculated the average unit value of 84 TKAST US sales. The USDOC applied a "facts available" rate to these 84 unreported US sales. The USDOC, in its calculation, erroneously inverted the fraction: instead of dividing total value by total volume, it divided total volume by total value. This error artificially inflated the unit value and, therefore, the amount of dumping found. Despite realising this obvious error, the United States failed to correct it.308
5.136.
The European Communities notes that if, in addition to eliminating zeroing, the United States had corrected this obvious calculation error, the dumping margin would have been negative and, thus, the measure would have been revoked. Thus, as regards this obvious calculation error, the European Communities submits that the United States violated Articles 2, 5.8, 6.8, 9.3, 11.1 and 11.2 of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994.309
5.137.
The European Communities notes the argument made by the United States that the EC's claim that the USDOC made an error in the calculation of the unit value and then failed to have it removed pursuant to the Section 129 Determination at hand is beyond the scope of this proceeding, since that clerical error is not part of the measure taken to comply with the DSB's recommendations and rulings in the original dispute. It also notes that the United States also maintains that the European Communities has not made a prima facie case since the EC's claims are based on unsupported assertions. Finally, the EC observes that the United States notes that the failure by the USDOC to disregard the allegations of error made by the respondents in that Section 129 Determination is consistent with an investigating authority's right to the orderly conduct of its proceedings. The European Communities submits that these arguments should be rejected.310
5.138.
The European Communities is of the view that the Section 129 Determinations are "measures taken to comply". The United States agrees with this. The European Communities also notes that the scope of Article 21.5 proceedings allows for new legal claims against "measures taken to comply" and, thus, panels are to review the "totality" of claims relating to the consistency of "measures taken to comply" with the covered agreements (continuing violations, new violations and consequential violations of the covered agreements). Consequently, since the existence of the calculation error has not been contested by the United States, and remains in the "measure taken to comply" (i.e.,the Section 129 Determination concerning stainless steel sheet and strip in coils from Italy), it is part of that measure and, thus, may be subject to claims within this Article 21.5 proceeding. Indeed, when the USDOC recalculated the non-zeroed anti-dumping duty for TKAST in the Section 129 proceeding, it repeated exactly the same calculation error (the inversion of the fraction) that it had made in the original investigation. Without this error, the dumping margin for TKAST would have been negative. Therefore, the calculation error in question was actually committed in the Section 129 proceeding, while makes it even clearer that it is part of the "measure taken to comply".311
5.139.
The European Communities argues that even assuming arguendo the US argument that the calculation error is not part of the "measure take to comply", the European Communities considers that it would still fall under the scope of this proceeding. Indeed, measures having a close nexus with the "measure taken to comply" can also fall within the scope of Article 21.5 proceedings. The European Communities observes that the arithmetical error in question artificially inflated the unit value and, therefore, affected the amount of dumping found by the USDOC. In this respect, the error it is part of the calculation exercise carried out by the USDOC when determining the new amount of dumping in the Section 129 Determination. The United States could not recalculate the correct dumping margin without zeroing and bring the measure into compliance if there are basic errors in the data used for this purpose.312 Consequently, the European Communities maintains that EC's claim that the USDOC made an error in the calculation of the unit value and then failed to have it removed pursuant to the Section 129 Determination at hand falls within the scope of this proceeding. The calculation error is part of the new dumping determination, i.e.,the measure taken to comply by the United States in this case.313 On the basis of the above, the European Communities considers that it has sufficiently made a prima facie case that the failure by the United States to correct the arithmetical error pursuant to the Section 129 Determination at hand violates the Anti-Dumping Agreement.314
5.140.
In addition, the European Communities rejects the argument of the United States that, in the Section 129 Determination at hand, the USDOC rejected all claims of errors by all interested parties on the basis of the need for finality of proceedings and for equitable treatment of all parties. The European Communities submits that the USDOC, in this particular case, should have taken into account all claims of errors and, in fact, had enough time to do so.315 It notes that, as the United States confirmed, the Section 129 Determination concerning this case was delayed for four months precisely because the USDOC was examining the claims brought by interested parties. The European Communities explains that the USDOC decided to do so even if the scope of the Section 129 Determination was, allegedly, "limited to recalculate the margins of dumping by applying a methodology without zeroing". However, at the end of the proceeding, the USDOC decided to reject all claims. Thus, contrary to what the United States asserts, the examination of the claims concerning errors made by the USDOC in the calculation of the new margin of dumping was part of the Section 129 proceeding. Moreover, the European Communities notes that the USDOC has taken into account (and corrected) other errors in Section 129 proceedings. Finally, the European Communities submits that the USDOC could not have remained passive and refuse to correct its own mistake. Otherwise, this would imply that clerical errors made by the investigating authorities remain untouchable for interested parties.316 In light of the above, the European Communities submits that the Panel should reject the arguments raised by the United States with respect to Case 11 relating to the arithmetical error.317
5.141.
The European Communities notes that the United States has made several arguments to try to justify the fact that, thanks to an arithmetical error, anti-dumping duties have remained in place as a result of its Section 129 Determination in Stainless Steel Sheet and Strip in Coils from Italy. However, in the EC's view, this Panel should reject those unfounded arguments in order to avoid the abusive application of the Anti-Dumping Agreement by the United States and provide compliance proceedings with effectiveness.318
5.142.
In particular, the European Communities notes that the calculation error is part of the measure taken to comply and, thus, may be subject to claims within this Article 21.5 proceeding. The fact that the USDOC decided, at the last moment, to disregard the claim on the clerical error and stated so in its decision, shows that the error (and particularly the decision to fail to correct it) was part of the measure taken to comply. Further, the European Communities observes that there is an important difference between EC – Bed Linen (21.5) and the case at hand. In the present case, the clerical error affecting the calculation of the normal value is one of the elements included in the set of data necessary to recalculate the correct amount of dumping. In other words, both the error and the zeroing methodology affect the calculation of the dumping margin, which the United States had to "bring into conformity with its obligations". Therefore, it is not possible to separate in the re-determination made by the USDOC pursuant to the Section 129 proceeding one of the elements (i.e.,the normal value) from the rest of the calculation of the dumping margin.319 Moreover, the European Communities has sufficiently made a prima facie case that the failure by the United States to correct the arithmetical error pursuant to the Section 129 Determination at hand violates the Anti-Dumping Agreement.320
5.143.
Finally, the European Communities considers that the United States cannot maintain its anti-dumping duties in force, once it has been alerted repeatedly by the interested parties in the context of the Section 129 Determination, since it is evident that, without the arithmetical error, there is no dumping. Therefore, the United States is ignoring the basic principle that anti-dumping duties can only be levied in order to offset dumping.321 In sum, the European Communities maintains that the Panel should reject the arguments raised by the United States with respect to Case 11 relating to the arithmetical error.322

(b) United States

5.144.
In respect of the EC's claims that in the original investigation of stainless steel sheet and strip in coils ("SSSS") from Italy, Commerce made a calculation error, the United States contends that these claims are made for the first time in this compliance proceeding. Although the EC could have made these claims in the original dispute, it did not. Therefore, the United States submits that the EC's claims are beyond the terms of reference of this proceeding.323 In addition, the United States argues that the EC has failed to make a prima facie case with respect to the claims asserted.324 Moreover, according to the United States, Commerce's decision not to consider the respondent's argument, when raised for the first time in the section 129 proceeding, is fully consistent with an investigating authority's right to the orderly conduct of its proceedings.325
5.145.
The United States observes that, in its rebuttal submission, the EC continues to maintain that the alleged error in question is within the terms of reference of this Article 21.5 panel. Specifically, the EC contends that the alleged error is part of the measure taken to comply because it "was actually committed" in the context of the Section 129 proceeding. Additionally, the EC avers that it has established a prima facie case with respect to its claims, and that the United States could not disregard an "obvious mistake" in the Section 129 proceeding.326
5.146.
The EC's arguments are without merit. As the United States discusses below, the alleged error is an unchanged aspect of the original measure and, therefore, is not a part of the measure taken to comply. Moreover, the EC still has not made a prima facie case with respect to the claims asserted, nor has it put forth any authority to support its contention that the United States could not disregard an "obvious mistake" in the instant proceeding.327
5.147.
As a preliminary matter, the EC advances factual inaccuracies in support of its argument that the alleged error "was actually committed" in the Section 129 proceeding. The only change that Commerce made within the computer program applied to the part of the program that caused the program to disregard non-dumped comparisons. Once that part of the program was changed in a manner consistent with the DSB's recommendations and rulings, Commerce re-ran the program to calculate a revised margin for the respondent.328
5.148.
Commerce made no other changes to the program and made no changes to the sets of data used by the program to calculate the dumping margin. Moreover, to the extent that Commerce had found, in the original investigation, that the respondent had failed to provide information with respect to 84 transactions, the original program included certain information in order to address those transactions, using "the facts available." In the course of the Section 129 proceeding, Commerce made no changes to the program related to these 84 unreported transactions. Thus, to the extent that the EC contends that an error was made with respect to the treatment of these 84 unreported transactions, it is clear that the alleged error was not "actually committed" in the Section 129 proceeding as the EC asserts.329
5.149.
This fact is of critical importance because an unchanged aspect of the original measure is not a part of the measure taken to comply. The Appellate Body's decision in EC – Bed Linen (21.5) (AB) confirms this point.330
5.150.
The EC's alternative argument – that the alleged error is within the scope of this proceeding because it bears a close nexus to the measure taken to comply – is inapposite. In Softwood Lumber, there was an original investigation, which was found inconsistent with the covered agreements. The United States revised the determination relating to the original investigation. Canada argued that a separate measure, an administrative review, constituted a measure taken to comply. For the reasons described above, the Appellate Body concluded that, under those particular facts, the administrative review was within the scope of that Article 21.5 proceeding.331
5.151.
Here, however, there is no third measure. There is the original investigation and the measure taken to comply. Thus, this situation is analogous to Bed Linen, not Softwood Lumber. The EC failed to advance a claim (assuming arguendo that there is a basis in the Antidumping Agreement for such a claim) in the original proceeding, and is using the Article 21.5 proceeding to challenge an aspect of the original measure that was unchanged, and that the United States did not have to change, to bring its measure into compliance. Here, the EC is seeking precisely what it opposed (and the Appellate Body did not permit) in EC – Bed Linen: affording complaining parties a second bite at the apple.332
5.152.
The United States notes that in its first submission, the EC asserted that the United States' failure to address the alleged errors is inconsistent with various Articles of the Anti-Dumping Agreement. Even if, arguendo, this Panel could reach this claim (though for the reasons given in the previous subsection it should not), the EC's claims fail. The United States rebutted the EC's arguments by noting that the EC failed to make a prima facie case with respect to the claims asserted. The EC has not responded to that argument, other than to assert that "the mere text of those provisions reflects the obligations that the United States, by failing to correct the error, has infringed."333 As the United States noted in its first written submission, the Appellate Body has stated that "a prima facie case must be based on 'evidence and legal argument' put forward by the complaining party in relation to each of the elements of the claim." The EC, as the complaining party, bears the burden of coming forward with evidence and legal argument to establish a prima facie case of a violation. A bald assertion that a clerical error breaches a series of provisions is insufficient. Having failed at that task yet again, the United States respectfully requests that this Panel reject the EC's claims.334
5.153.
The EC argues that "obvious mistakes" should have been addressed in the Section 129 proceeding. According to the EC, the United States should have addressed all claims of error and, in fact, had ample time to do so. The EC is offering a test that is not found in the Anti-Dumping Agreement or the DSU – indeed, the EC offers no textual support for its assertion. Moreover, the EC's test would tend to create more problems than it solves. What is an "obvious" mistake? To whom? Why would "obvious" mistakes be exempt from the limitations on compliance proceedings, but "non-obvious" mistakes would not? And if the mistake were "obvious," why did the EC fail to raise it in the original proceedings?335 To support its view that obvious mistakes should be corrected, the EC attempts to demonstrate that the United States has corrected mistakes in the past. The United States maintains that whether the United States has used section 129 proceedings to correct mistakes is not germane to the question at hand, which is whether the United States – or any other responding party – is obligated to do so.336

2. Whether there has been a violation in respect of cases 2, 4 and 5 – Stainless Steel Bar from France, Italy and the United Kingdom ("all others" rate)

(a) European Communities

5.154.
The European Communities submits that in the Section 129 Determinations adopted by the United States in the Cases listed in the Annex to the Panel Request as 2, 4 and 5, the United States established new duty levels based on an unjustified increase in the "all others" rates.337 In two of the cases, Stainless Steel Bar from France and Stainless Steel Bar from the United Kingdom, the Section 129 Determination led to the revocation of the order for Ugitech and Corus respectively and created a situation where all the company-specific dumping margins were either zero/de minimis or based on adverse facts available. In both cases, the USDOC changed the "all others" rate (previously equivalent to the "zeroed" rate of Ugitech and Corus) to a simple weighted average of the zero/de minimis and adverse facts available rates. This resulted in an astronomic increase in the "all others" rate, from 3.9 per cent to 35.92 per cent in France and 4.48 per cent to 83.85 per cent in the United Kingdom.338
5.155.
In the case of Stainless Steel Bar from Italy, the exclusion of Valbruna and Foroni led to an increase of the "all others" rate from 3.81 per cent to 6.6 per cent, following a similar averaging exercise which included an adverse facts available rate.339
5.156.
The European Communities observes that the above situations have come about because the USDOC, following the provisions of Article 9.4 of the Anti-Dumping Agreement, had originally based the "all others" rate on the highest dumping margin for a co-operating exporter, thus excluding zero/de minimis margins and margins based on facts available from the calculation. Once the impact of zeroing was removed in the Section 129 proceeding, all co-operating exporters had zero or de minimis margins. Thus, USDOC had to find another basis for setting the "all others" rate. The method it chose led to the steep increases described above. The European Communities submits that such increases in the "all others rate" are unreasonable and inconsistent with Articles 9.4 and 6.8 of the Anti-Dumping Agreement.340
5.157.
According to the European Communities, in the three cases concerned, the United States had originally used a methodology consistent with Article 9.4 of the Anti-Dumping Agreement. In contrast, when carrying out the Section 129 Determinations, in the absence of any remaining co-operating exporters with a dumping margin above de minimis, not only did the United States use margins based on facts available, but also zero/de minimis margins (i.e.,the new ones calculated without zeroing). In fact, the United States made a weighted average between the two types of margins to calculate the final "all others" rates. The European Communities considers that this is directly contrary to the text of Article 9.4 of the Anti-Dumping Agreement, as interpreted by the Appellate Body.341
5.158.
In addition, the European Communities argues that, basing the "all others" rate on adverse facts available rates also violates Article 6.8 and Annex II of the Anti-Dumping Agreement. Indeed, the method applied by the USDOC to calculate the "all others" rate in practice moves from a situation where the "all others" rate is based on "facts available" (i.e.,the highest rate for a co-operating exporter) to one where it is largely based on "adverse inferences" (i.e.,a rate for an exporter which has failed to "act to the best of its ability to comply with a request for information"). By basing the rate on adverse facts available, the USDOC effectively determined that exporters subject to the "all others" rate were guilty of behaviour that would warrant the application of adverse inferences and has put them in the same basket as firms which are alleged to have actively impeded the investigation, without demonstrating that such treatment is appropriate.342
5.159.
The European Communities notes that the United States asks the Panel to reject the EC's claim concerning the Section 129 Determinations on Stainless Steel Bar from France, Italy and the United Kingdom because the original anti-dumping orders were revoked and, thus, the measures are no longer in place. Moreover, the United States maintains that the European Communities has failed to demonstrate that the calculation of the "all others" rates from the Section 129 Determinations was inconsistent with the Anti-Dumping Agreement. The European Communities submits that the US arguments should be rejected in light of the following reasons.343 First, as the United States points out, pursuant to sunset reviews of the anti-dumping duty orders on Stainless Steel Bar from, inter alia, France, Italy and the United Kingdom, the USITC found that the revocation of the orders would not be likely to lead to the continuation or recurrence of material injury to the domestic industry. Thus, on 7 February 2008 the USDOC revoked the original order. However, this revocation is not final and conclusive because, under US law, interested parties may challenge the USITC's determination within 30 days after the publication of the notice in the Federal Register. Should the appeal be successful, the measure would be reintroduced. Therefore, the European Communities considers that the Panel should examine the conformity of this measure with the Anti-Dumping Agreement and the GATT 1994.344 Second, the European Communities observes that the fact that a challenged measure is no longer in effect, of itself, does not necessarily prevent the Panel from assessing that measure, even though it may affect the Panel's rulings in connection with implementation. The European Communities recalls that several panels have indicated their willingness to examine and make findings regarding measures that have already expired or allegedly expired. The European Communities argues that this approach is necessary in order to provide a positive solution to the dispute, and to prevent the purpose of the dispute settlement system from being defeated.345 Third, the European Communities contends that it has demonstrated that the calculation of the "all others" rates from the Section 129 Determinations is inconsistent with the Anti-Dumping Agreement, having sufficiently addressed this issue in its First Written Submission.346 In light of the above, the European Communities submits that the Panel should reject the arguments raised by the United States with respect to Cases 2, 4 and 5 relating to the unjustified increased of "all others" rates.347
5.160.
The European Communities observes that it has explained in its submissions how the significant increase of "all others" rates (sometimes even almost twenty times higher that the original "all others" rates") as a result of the Section 129 Determinations in the cases concerning Stainless Steel Bar from France, Italy and the United Kingdom violates Articles 9.4 and 6.8 of the Anti-Dumping Agreement. The United States has not contested these claims.348
5.161.
As for the revocation of the original orders, the European Communities requests this Panel to continue with its analysis of consistency of all the measures challenged in this proceeding with the Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders have been revoked or not. Otherwise, it would need to come back to a new panel to discuss the same issue and, thus, a positive solution to the dispute on this point would have to wait. This cannot be the purpose of the dispute settlement system which, according to Article 3.2 of the DSU, must provide "security and predictability" and serves to "clarify the existing provisions" of the covered agreements.349
5.162.
As regards the observation made by the United States that the EC's arguments are result-oriented, the European Communities adds that the situation is rather the contrary. It is the United States which is seeking to artificially increase the "all others" rates, in disregard of its obligations contained in Articles 9.4 and 6.8 of the Anti-Dumping Agreement. If the United States finds it difficult to justify its duties on the basis of the Anti-Dumping Agreement, it might well be, as the European Communities has suggested, that the only WTO-consistent solution available for the United States is that the level of "all others" rate should be zero. Yet it should not be forgotten that this situation arose because the anti-dumping duties for the major exporters, as selected by the United States in the original investigation, were revokedafter zeroing was eliminated from the calculation. Should the United States have disregarded those companies at the very beginning of the original investigation (because dumping would not have been found without zeroing), the United States could have selected other sources of information in order to calculate the "all others" rates.350 Consequently, the European Communities submits that it has demonstrated that the calculations of the "all others" rates in the Section 129 Determinations in question are inconsistent with Articles 9.4 and 6.8 of the Anti-Dumping Agreement, and that the United States has not rebutted this claim.351

(b) United States

5.163.
The United States first submits that the EC's claims regarding the Section 129 determinations on Stainless Steel Bar from France, Germany, Italy and the United Kingdom should be rejected because these claims concern measures that are no longer in effect. Commerce revoked the orders covering Stainless Steel Bar from France, Germany, Italy and the United Kingdom effective as of 7 March 2007.352
5.164.
The United States observes in this context that the Section 129 determinations, which resulted in a change to the all others rates, became effective on April 23, 2007. Thus, imports made on or after 23 April 2007, from exporters or producers who did not have their own cash deposit rate were subject to the posting of a cash deposit at the new all others rate. However, the revocation of the antidumping duty orders on Stainless Steel Bar from France, Italy and the United Kingdom became effective as of 7 March 2007. Pursuant to this revocation, the United States will refund any cash deposits posted on imports of stainless steel bar from these countries made on or after 7 March 2007 and those imports will not be subject to any final assessment of antidumping duties. Alternatively, the EC also has failed to demonstrate that the calculation of the all others rates from the Section 129 determinations was inconsistent with the Anti-Dumping Agreement.353
5.165.
Despite the revocation of the antidumping duty orders covering Stainless Steel Bar from France, Italy and the United Kingdom, the EC persists with its claim against the "all others" rate resulting from Commerce's Section 129 determinations. The United States argues that the EC's claim continues to be unfounded.354
5.166.
The United States explains that consistent with Article 6.10, in the original investigations Commerce limited its examination to the largest percentage of the volume of the exports from the country in question which could reasonably be investigated. Commerce then calculated an all others rate to apply to imports from those exporters or producers who did not have their own margin of dumping, consistent with Article 9.4. In the Section 129 Determinations, Commerce recalculated the rates for the selected respondents as well as the all others rate. For the three stainless steel bar determinations challenged by the EC, each of the margins of dumping Commerce calculated were either zero or de minimis, or based on facts available. Article 9.4 does not address this situation, and Commerce determined the simple average of the margins of dumping calculated in each of the Section 129 Determinations to establish the all others rate for that determination.355 The United States notes in this regard that the EC's contention here is not with the reasonableness of the methodology Commerce employed. Rather, the EC's arguments are results-oriented, pointing to the fact that the resulting all others rates were higher than those calculated in the original investigations. Should the Panel reach this claim, which it need not, the United States argues that the EC has failed to demonstrate that Commerce acted inconsistently with Articles 6.8, 6.10 or 9.4 of the Anti-Dumping Agreement, and the Panel should so find.356
5.167.
According to the United States, the EC contends that under Article 9.4 of the Anti-Dumping Agreement, the United States could not use zero or de minimis margins or margins based on facts available in calculating the new all others rate. This is despite the fact that these were the only margins remaining after Commerce recalculated the margins of dumping to implement the DSB's recommendations and rulings.357 The EC contends that its alternative methods would be consistent with WTO obligations. Namely, the EC argues that Commerce could have continued to use the original all others rates. The EC, however, ignores the inconsistency of its own argument. The EC originally challenged Commerce's determinations in these investigations because Commerce did not grant offsets for the non-dumped sales. The original all others rates were based on the very margins of dumping challenged by the EC. Following the EC's logic in the original dispute, therefore, the original all others rates were tainted with the same inconsistencies present in the challenged margins of dumping. Accordingly, when implementing the DSB's recommendations and rulings, Commerce could not simply use those same all others rates.358
5.168.
The United States observes indeed that, had Commerce used the original all others rates, as advocated by the EC in this dispute, and had an average of zero or de minimis margins and margins based on facts available resulted in lower all other rates, the United States anticipates that the EC would have claimed that the use of the original all others rates was inappropriate as the underlying margins were tainted with "zeroing." The EC's arguments in this dispute are thus clearly results-oriented, and not based on the obligations found in the Anti-Dumping Agreement.359

3. Whether there has been a violation in respect of cases 2, 3, 4 and 5 – Stainless Steel Bar from France, Germany, Italy and the United Kingdom ("injury")

(a) European Communities

5.169.
The European Communities observes that pursuant to the Section 129 Determinations concerning Cases 2 to 5 listed in the Annex to the Panel Request, the United States recalculated the dumping margins without zeroing and found that some exporters were not dumping or had de minimis dumping margins. However, in those cases the United States maintained the anti-dumping duties without establishing (i) whether the remaining amount of dumped imports was causing injury to the domestic industry, and (ii) whether this volume of dumped imports was not negligible. In particular, the United States disregarded the fact that, after the recalculation of duties without zeroing, on average around 75 per cent of the volume of imports which had been considered as dumped, could no longer be considered as dumped. The European Communities submits that this is inconsistent with Articles 3.1, 3.2, 3.5, 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994.360
5.170.
The European Communities notes that the United States argues that the EC's claim concerning the Section 129 Determinations on Stainless Steel Bar from France, Germany, Italy and the United Kingdom should be rejected because the original anti-dumping orders were revoked and, thus, the measure is no longer in place. In this respect, the European Communities refers the Panel to the arguments made in Section IV.2(a) of its Rebuttal Submission, arguing that the Panel must continue with its analysis of consistency of all the measures challenged in this proceeding with the Anti-Dumping Agreement and the GATT 1994, regardless of whether the original anti-dumping orders have been revoked or not.361
5.171.
The European Communities further notes that the United States is of the view that the European Communities made the same claim in the original proceeding, but the Panel in the original dispute declined to consider it. Thus, the United States argues that such claims are not within the terms of reference of this proceeding. The European Communities observes in this respect that the United States has not based this argument on any legal claims or provisions of the DSU. Nor have the United States referred to the specific documents where the European Communities made such claims in the original proceeding. Thus, the Panel should reject it as unfounded.362
5.172.
In any event the European Communities maintains, that, should the Panel examine the argument raised by the United States on this point, the claim concerning the failure to reassess the injury in the Section 129 Determinations concerned refers to new measures (i.e.,measures taken to comply) and, thus, new claims can be made against them.363 In light of the foregoing, the European Communities submits that the Panel should reject the arguments made by the United States against the violations identified by the European Communities with respect to the Section 129 Determinations covered in this proceeding.364
5.173.
The European Communities observes that it has extensively argued that the US failure to reassess injury when, after the recalculation of duties without zeroing, on average around 75 per cent of the volume of imports which had been considered as dumped could no longer be considered as dumped, is inconsistent with Articles 3.1, 3.2, 3.5, 5.8 of the Anti-DumpingAgreement and Article VI:1 of the GATT 1994.365
5.174.
The European Communities argues that the claims made by the European Communities with respect to the Section 129 Determinations at issue are not "dependent claims" as the United States has characterised them. They relate to new measures (i.e.,the Section 129 Determinations), against which new claims can be made, and with respect to which the European Communities is asking for a finding from this Panel.366
5.175.
In addition, the European Communities notes that the Panel in the original dispute did not reject the EC's claims, as the US pretends to argue; rather, the Panel exercised judicial economy since the EC's claims were consequential of the violation when calculating the dumping margin. In this respect, it is worth remembering that, in US – OCTG (Sunset Reviews) (21.5), the Appellate Body held that a claim relating to an aspect of a measure on which the panel in the original proceeding had exercised judicial economy was properly within the scope of Article 21.5 of the DSU. Therefore, the EC's claim in the present case is equally properly before this Panel.367
5.176.
Thus, the European Communities requests a finding that the United States violated Articles 3.1, 3.2, 3.5 and 5.8 of the Anti-Dumping Agreement and Article VI:1 of the GATT1994 when failing to reassess the injury in light of the new volume of non-dumped imports in the Section 129 Determinations concerned.368
5.177.
As regards the Section 129 Determinations specifically challenged in this proceeding, the European Communities requests this Panel to find that the calculation error, the unjustified increase in "all others" rates and the failure to reassess injury amount to violations of the Anti-Dumping Agreement and the GATT 1994. Even if the United States has revoked some of these measures, it is vital for a proper solution to this dispute, including the correct interpretation of the relevant provisions of the Anti-Dumping Agreement and the GATT 1994, that this Panel provides a clarification of the relevant rules. Otherwise, nothing would prevent the United States from infringing the rules again in new anti-dumping measures. In fact, a lack of a ruling on this issue would allow the United States to introduce WTO inconsistent measures at one point, wait for a challenge brought by a WTO Member, wait for the panel proceedings to be initiated and then modify the measure at the last minute, in order to prevent a negative finding. Again, this would set a bad example not only applicable to compliance cases, but to the dispute settlement system in general.369

(b) United States

5.178.
The United States asserts that the Panel should reject the EC's contention that the United States acted inconsistently with the Anti-Dumping Agreement and GATT 1994 by maintaining the orders with respect to Stainless Steel Bar from France, Germany, Italy and the United Kingdom without reconsidering the issue of injury after the Section 129 Determinations found that some of the exporters originally investigated were not dumping because it concerns measures that are no longer in effect.370 The United States clarifies that pursuant to the sunset reviews, it revoked the orders on Stainless Steel Bar from France, Germany, Italy and the United Kingdom effective March 7, 2007. Thus, contrary to the EC's contention, the United States no longer maintains antidumping duties on products subject to these orders. Indeed, the revocation is effective more than one month prior to the end of the reasonable period of time. The United States observes that it will refund the cash deposits on any imports occurring on or after March 7, 2007. Additionally, these imports will not be subject to any final assessment of antidumping duties in the future.371
5.179.
As a procedural matter, the United States notes that the EC asserted these claims in the original proceeding, and the original panel declined to consider them. Should the EC pursue these claims even though the order has been revoked, the United States reserves its right to request a ruling from the Panel that such claims are not within its terms of reference.372