WORLD TRADE
ORGANIZATIONWT/DS244/R
14 August 2003
(03-4104)
Original: English
UNITED STATES – SUNSET REVIEW OF ANTI-DUMPING
DUTIES ON CORROSION-RESISTANT CARBON STEEL
FLAT PRODUCTS FROM JAPAN
Report of the Panel
The report of the Panel on United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan  is being circulated to all Members, pursuant to the
DSU.  The report is being circulated as an unrest ricted document from 14 August 2003 pursuant to the
Procedures for the Circulation and Derestricti on of WTO Documents (WT/L/452).  Members are
reminded that in accordance with the DSU only parties to the dispute may appeal a panel report.  An
appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed
by the Panel.  There shall be no ex parte  communications with the Panel or Appellate Body
concerning matters under consideration by the Panel or Appellate Body.
Note by the Secretariat :  This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within
60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides byconsensus not to adopt the report.  If the Panel Report is appealed to the Appellate Body, it shall not be
considered for adoption by the DSB until after the completion of the appeal.  Information on the current status
of the Panel Report is available from the WTO Secretariat.WT/DS244/R
Page i
TABLE OF CONTENTS
Page
I. INTRO DUCTION ................................................................................................................. ...1
A. COMPLAINT OF JAPAN .................................................................................................................1
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL ...................................................................1
C. PANEL PROCEEDINGS ...................................................................................................................2
II. FACTUAL ASPECTS ............................................................................................................. .2
III. PARTIES' REQUESTS FOR FINDINGS AND RECO MMENDATIONS ........................3
A. JAPAN ............................................................................................................................... ...........3
B. UNITED STATES ............................................................................................................................4
IV. ARGUMENTS OF THE PART IES ........................................................................................4
V. ARGUMENTS OF THE THIRD PART IES ..........................................................................4
VI. INTERIM  REVI EW.............................................................................................................. ...4
A. REQUEST OF  JAPAN............................................................................................................. ..5
B. REQUEST OF THE UNITED ST ATES ....................................................................................6
VII. FINDINGS................................................................................................................... ..............7
A. GENERAL ISSUES .........................................................................................................................7
1. Standard of Review........................................................................................................... ........7
2. Burden of Proof.............................................................................................................. ...........8
B. ISSUES RAISED IN THIS DISPUTE ..................................................................................................8
1. Overview of the Panel's approach to  consideration of Japan's claims ................................8
2. Evidentiary standards applicable to the self-initiation of sunset reviews............................9
(a) US law as such.............................................................................................................. ..............9
(i) Arguments of parties........................................................................................................ ...........9
(ii) Arguments of  third parties ................................................................................................. .......11
(iii) Evaluation by  the Panel................................................................................................... .........11
(b) US law as applied in th e instant suns et review .........................................................................19
(i) Arguments of parties........................................................................................................ .........19
(ii) Evaluation by  the Panel.................................................................................................... ........20
3. De minimis  standard in sunset reviews .................................................................................20
(a) US law as such.............................................................................................................. ............20
(i) Arguments of parties........................................................................................................ .........20
(ii) Arguments of  third parties ................................................................................................. .......21
(iii) Evaluation by  the Panel................................................................................................... .........21
(b) US law as applied in th e instant suns et review .........................................................................26
(i) Arguments of parties........................................................................................................ .........26WT/DS244/R
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(ii) Evaluation by  the Panel.................................................................................................... ........26
4. Cumulation in sunset reviews ................................................................................................2 7
(a) US law as applied in th e instant suns et review .........................................................................27
(i) Arguments of parties........................................................................................................ .........27
(ii) Arguments of  third parties ................................................................................................. .......27
(iii) Evaluation by  the Panel................................................................................................... .........28
5. Use of dumping margins in sunset reviews...........................................................................30
(a) US Sunset Policy Bulletin as such........................................................................................... .30
(i) Arguments of parties........................................................................................................ .........30
(ii) Arguments of  third parties ................................................................................................. .......31
(iii) Evaluation by  the Panel................................................................................................... .........31
(b) US Sunset Policy Bulletin as appl ied in the instant sunset review ...........................................40
(i) Arguments of parties........................................................................................................ .........40
(ii) Evaluation by  the Panel.................................................................................................... ........40
6. Basis of determination of likelihood of continuation or recurrence of dumping:
order-wide or company-specific? ..........................................................................................49
(a) US Sunset Policy Bulletin as such........................................................................................... .49
(i) Arguments of parties........................................................................................................ .........49
(ii) Arguments of  third parties ................................................................................................. .......50
(iii) Evaluation by  the Panel................................................................................................... .........50
(b) US Sunset Policy Bulletin as appl ied in the instant sunset review ...........................................51
(i) Arguments of parties........................................................................................................ .........51
(ii) Evaluation by  the Panel.................................................................................................... ........51
7. Obligation to determine likelihood of co ntinuation or recurrence of dumping ................53
(a) US law and Sunset Policy Bulletin as such ..............................................................................53
(i) Arguments of parties........................................................................................................ .........53
(ii) Arguments of  third parties ................................................................................................. .......54
(iii) Evaluation by  the Panel................................................................................................... .........55
(b) US law and Sunset Policy Bulletin as applied in the instan t sunset review..............................60
(i) Claims under Articles 6.1, 6.2 and 6.6 of the Anti-dumping Agreement ..................................60
(ii) Claim under Article 11.3 of the Anti-dumping Agreement .......................................................65
8. Article X:3(a) of GATT 1994 .................................................................................................7 0
(a) US law as such.............................................................................................................. ............70
(i) Arguments of parties........................................................................................................ .........70
(ii) Evaluation by  the Panel.................................................................................................... ........71
(b) US law as applied in th e instant suns et review .........................................................................72
(i) Arguments of parties........................................................................................................ .........72WT/DS244/R
Page iii
9. Article 18.4 of the Anti-dumping Agreement and Article XVI:4 of the WTO
Agreement ............................................................................................................................... .75
(a) US law as such.............................................................................................................. ............75
(i) Arguments of parties........................................................................................................ .........75
(ii) Arguments of  third parties ................................................................................................. .......75
(iii) Evaluation by  the Panel................................................................................................... .........75
VIII. CONCLUSIONS AND RECOMMENDAT ION..................................................................76
IX. JAPAN'S REQUEST FOR ESTABLISHM ENT OF THE PANEL (WT/DS244/4).........78WT/DS244/R
Page iv
ANNEX A
First Written Submissions by the Parties
Contents Page
Annex A-1 Executive Summary of the First Written Submission by Japan A-2
Annex A-2 Executive Summary of the First Written Submission by the
United StatesA-12
ANNEX B
Third Party Submissions
Contents Page
Annex B-1 Third Party Submission of Brazil B-2
Annex B-2 Third Party Submission of Chile B-12
Annex B-3 Third Party Submission of the European Communities B-17
Annex B-4 Third Party Submission of Korea B-27
Annex B-5 Third Party Submission of Norway B-35
ANNEX C
Second Written Submissions by the Parties
Contents Page
Annex C-1 Executive Summary of the Second Written Submission by Japan C-1
Annex C-2 Executive Summary of the Second Written Submission by the
United StatesC-12
ANNEX D
Oral Statements, First and Second Panel meetings
Contents Page
Annex D-1 Executive Summary of the Oral Statement of Japan – First meeting D-2
Annex D-2 Executive Summary of the Oral Statement of the United States – 
First meetingD-7
Annex D-3 Third Party Oral Statement of Brazil D-11
Annex D-4 Third Party Oral Statement of Chile D-16
Annex D-5 Third Party Oral Statement of the European Communities D-19
Annex D-6 Third Party Oral Statement of Korea D-25
Annex D-7 Third Party Oral Statement of Norway D-29
Annex D-8 Executive Summary of the Oral Statement of Japan – Second 
meetingD-33
Annex D-9 Executive Summary of the Oral Statement of the United States – 
Second meetingD-38WT/DS244/R
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ANNEX E
Questions and Answers
Contents Page
Annex E-1 Replies of Japan to Questions of the Panel – First meeting E-2
Annex E-2 Reply of Japan to Question 27 of the Panel – Appendix I E-46
Annex E-3 Replies of the United States to Questions of the Panel – First 
meetingE-53
Annex E-4 Comments by Japan on US Replies to Panel Questions – First 
meetingE-85
Annex E-5 Comments by the United States on Japan’s Replies to Panel 
Questions – First meetingE-94
Annex E-6 Third party replies by Brazil to Questions of the Panel E-100
Annex E-7 Third party replies by the European Communities to Questions of 
the PanelE-103
Annex E-8 Third Party replies by Norway to Questions of the Panel E-114
Annex E-9 Replies of Japan to Questions of the Panel – Second meeting E-117
Annex E-10 Replies of the United States to Questions of the Panel – Second 
meetingE-133
Annex E-11 Comments by Japan on US Replies to Panel Questions – Second 
meetingE-151
Annex E-12 Comments by the United States on Japan's Replies to Panel 
Questions – Second meetingE-160WT/DS244/R
Page 1
I. INTRODUCTION
A. COMPLAINT OF JAPAN
1.1 On 30 January 2002, Japan requested consultations1 with the United States pursuant to
Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes
("DSU "), Article XXII:1 of the General Agreemen t on Tariffs and Trade 1994 ("GATT 1994"), and
Article 17.2 of the Agreement on Implementation of Article VI of GATT 1994  (the Anti-dumping
Agreement ), regarding the affirmative final determinations of both the United States Department of
Commerce ("DOC") and the United States International Trade Commission ("ITC") on the full sunset
review of Corrosion-Resistant Carbon Steel Flat Products from Japan issued on 2 August 2000 and
2 November 2000, respectively.
1.2 Consultations were held on 14 March 2002, but parties failed to settle the dispute.
1.3 On 4 April 2002, Japan requested the establishment of a panel2 pursuant to Article XXIII of
the GATT 1994, Articles 4.7 and 6 of the DSU , as well as Article 17 of the Anti-dumping Agreement .
B. ESTABLISHMENT AND COMPOSITION OF THE PANEL
1.4 The Dispute Settlement Body ("DSB") established a panel on 22 May 2002, with standard
terms of reference.  The terms of reference of the Panel are:
To examine, in the light of the relevant provisions of the covered agreements cited by
Japan in document WT/DS244/4, the matter referred by Japan to the DSB 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.
1.5 On 9 July 2002, Japan requested the Director-General to determine the composition of the
Panel, pursuant to paragraph 7 of Article 8 of the DSU.  This paragraph 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 orcovered 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 17 July 2002, the Director-General accordingly composed the Panel as follows
 3:
Chairman: Mr. Dariusz Rosati
Members: Mr. Martin Garcia
Mr. David Unterhalter
                                                     
1 See WT/DS244/1.
2 See WT/DS244/4.
3 See WT/DS244/5.WT/DS244/R
Page 2
1.7 Brazil, Canada, Chile, the European Communities, India, Korea, Norway and Venezuela4
reserved their rights to participate in the Panel proceedings as third parties.
C. PANEL PROCEEDINGS
1.8 The Panel met with the parties on 5-6 November 2002, and on 9 January 2003.  The Panel
met with the third parties on 6 November 2002.
1.9 The Panel submitted its interim report to the parties on 31 March 2003.  Comments were
received from the parties on the interim report on 14 April 2003, and on each other's comments on
22 April 2003.  The Panel submitted its final report to the parties on 22 May 2003.
II. FACTUAL ASPECTS
2.1 At issue in this dispute are certain aspects of the US sunset statute, regulations and Sunset
Policy Bulletin  -- as such, and/or as applied -- in respect of a sunset review carried out by the United
States of an anti-dumping duty order on imports of corrosion-resistant carbon steel flat products from
Japan.  In August 2000, the DOC determined that revo cation of the order "would be likely to lead to
continuation or recurrence of dumping".5  The DOC transmitted this determination to the ITC, along
with a determination regarding the magnitude of dumping likely to prevail in case of revocation of the
order – 36.41 per cent  in the review at issue.  In November 2000, the ITC determined that revocation
of the order would be likely to lead to continuation or recurrence of material injury to an industry in
the United States within a reasonably foreseeable time.6  Accordingly, the United States decided not
to revoke the anti-dumping duty order under review on imports of the product in question.
2.2 Japan challenges aspects of the following as violating Articles VI and X of the GATT 1994,
Articles 2, 3, 5, 6, 11, 12 and 18 of the Anti-dumping Agreement , and Article XVI:4 of the Marrakesh
Agreement Establishing the World Trade Organization  ("WTO Agreement") :
1. the US Statute in respect of sunset reviews of anti-dumping duties7 and, in
conjunction with it, the Statement of Administrative Action ("SAA")8;
2. the US Sunset Regulations9;
3. the US Sunset Policy Bulletin10; and
4. their application in this instance, in the sunset review determination in respect of
certain corrosion-resistant carbon steel flat products from Japan.11
                                                     
4 Venezuela subsequently indicated that it no longer  wished to participate in  the Panel proceedings as
third party.
5 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8d).
6 Certain Carbon Steel Products from Japan; Injury Determination , USITC Pub. No. 3364, Inv. No.
731-TA-617 (Review) (November 2000) (Exhibit JPN-9b).
7 The Tariff Act of 1930 ("Tariff Act").  Codified in 19 USC 1675(c) (Exhibit  JPN-1d and e).
8 Uruguay Round Agreements Act Statement of Administrative Action, accompanying P.L. 103-465
(1994) (Exhibit JPN-2).
9 Implementing Regulations: Procedures for Conducting Five-Year ("Sunset") Reviews of Anti-
dumping and Countervailing Duty Orders.  Codified in 19 CFR part 351 (Exhibit JPN-3).
10 Policies Regarding the Conduct of Five-Year ("Sunset") Reviews of Anti-dumping and
Countervailing Duty Orders; Policy Bulletin, 63 Fed. Reg. 18871 (16 April 1998) (Exhibit JPN-6).
11 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8d); Certain Carbon Steel Products from
Japan; Injury Determination , USITC Pub. No. 3364, Inv. No. 731-TA-617 (Review) (November 2000)
(Exhibit JPN-9b).WT/DS244/R
Page 11
(ii) Arguments of third parties
European Communities
7.16 The European Communities agrees with Japan that  the US automatic self-initiation of sunset
reviews unavoidably leads to a violation of Articl e 11.3.  According to the European Communities, a
proper analysis of the text, context, and object and purpose of Article 11.3 reveals that all provisions
of the Anti-dumping Agreement  are potentially applicable mutatis mutandis  to sunset reviews, to the
extent that they are relevant to sunset reviews and that their application to Article 11.3 does not create
a situation of conflict or is not specifically excl uded. The European Communities also argues that it is
clear from the terms of Article 12.3 that the same guarantees that apply to the initiation of an original
investigation apply to the initiation of a sunset review.  In particular, when read in conjunction with
Article 12.1, Article 12.3 clearly provides that, even in a sunset review, domestic authorities must
have sufficient evidence before they self-initiate sunset reviews.  According to the European
Communities, the “duly substantiated” standard set forth in Article 11.3 for initiations of sunsetreviews upon request also applies to self-initiations.
26  The European Communities also considers that
“the term “initiate”, as used in Article 11.3, means the same thing as in footnote 1 of the Anti-dumping
Agreement .”27
Korea
7.17 Korea argues that automatic self-initiation is contrary to the United States’ obligations under
Articles 11.3 and 12.1 of the Anti-dumping Agreement .  The text of Article 11.3 is silent on the
threshold of evidence that must be met for a self-initiated review, but does not provide that there must
be a review in every case.  By providing for auto matic initiation of reviews in every case, US law
makes the conduct of a review a sine qua non of termination and precludes the possibility of a
measure terminating under the normal operation of Article 11.3.
Norway
7.18 Norway argues that, despite the silence of the text on this point, the object and purpose of the
Anti-dumping Agreement  and contextual considerations support the view that the standard in
Article 5.6 applies equally to sunset reviews.
(iii) Evaluation by the Panel28
7.19 Japan argues that the same evidentiary standard s that apply to the self-initiation of original
investigations under Article 5.6 also apply to the self-initiation of sunset reviews under Article 11.3.
According to the United States, however, no such requirement exists under the Anti-dumping
Agreement .
7.20 Section 751(c)(1) of the US Statute requires that five years after the date of publication of an
antidumping duty order, the administering authority and the Commission shall conduct a review to
determine whether revocation of the antidumping duty order would be likely to lead to continuation orrecurrence of dumping and of material injury.  Section 751(c)(2) provides: "Not later than 30 days
before the fifth anniversary of the date described  in paragraph (1), the administering authority shall
publish in the Federal Register a notice of initiation of a review under this subsection…".  Similarly,
Section 351.218(a) of the Regulations provides that "…no later than once every five years, the
Secretary must determine whether dumping … would be likely to continue or recur…", while
                                                     
26 Response of the European Communities to Question 2 from the Panel.
27 Response of the European Communities to Question 3 (c) from the Panel.
28 In this section, we address Japan's allegation that the US statute and regulations requiring automatic
self-initiation of sunset reviews without sufficient eviden ce are, as such,  inconsistent with Articles 5.6, 11.1,
11.3, 12.1 and 12.3 of the Anti-dumping Agreement .WT/DS244/R
Page 12
section 351.218(c)(1) states that "…No later than 30 days before the fifth anniversary date of an order
or suspension of an investigation…the Secretary will publish a notice of initiation of a sunset
review…".
7.21 The United States does not contest that, under US law, the DOC must automatically self-
initiate sunset reviews29 and that it did so in the instant sunset review.30  Consequently, the issue
before us is whether, as Japan alleges, such automatic self-initiation of sunset reviews is inconsistentwith Articles 11.1, 11.3, 12.1, 12.3, and 5.6 of the Anti-dumping Agreement .
7.22 We understand Japan's claim to be based on an alleged violation of Article 11.3 of the Anti-
dumping Agreement , as the core legal obligation governing sunset reviews, as well as Articles 11.1,
12.1, 12.3, and 5.6.  We understand Japan to have structured its arguments on the basis of the text of
Article 11.3
31, in light of textual links and its context32 and the object and purpose33, as reflected in the
other cited provisions.  With this in mind, we therefore commence our analysis with Article 11.3, the
core provision in the Anti-dumping Agreement  governing sunset  reviews.
7.23 Article 3.2 of the DSU  indicates that Members recognize that the dispute settlement system
serves to clarify the provisions of the covered agreements "in accordance with customary rules of
interpretation of public international law".  Article 31.1 of the Vienna Convention on the Law of
Treaties  ('Vienna Convention ')34, which is generally accepted as reflecting such a customary rule,
reads as follows:
"A treaty shall be interpreted in good fait h in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose."
7.24 It is clear that interpretation must be based, first and foremost, on the text of the treaty, while
context and object and purpose may also play a role.35  It is also well-established that these principles
of interpretation "neither require nor condone the imputation into a treaty of words that are not there
or the importation into a treaty of concepts that were not intended."36  Furthermore, panels "must be
guided by the rules of treaty interpretation set out in the Vienna Convention , and must not add to or
diminish rights and obligations provided in the WTO Agreement ."37
7.25 With this in mind, we begin our analysis with the text of Article 11.3.  It  reads:
                                                     
29 The Statement of Administrative Action (Exhibit JPN- 2) and the Sunset Policy Bulletin (Exhibit
JPN-6, p. 18872) both describe the initiation of sunset re views pursuant to section 751(c)(1) as "automatic".  In
Response of the United States to Question 85 from the Panel, the United States states that the DOC generally"automatically self-initiates sunset reviews in every cas e, unless the U.S. domestic industry provides Commerce
with written notice that the industry no longer had an interest in the maintenance of a particular antidumping
duty order".
30 First Written Submission of the United States, para. 97.
31 e.g. First Written Submission of Japan, Section III:A:1.
32 e.g.  Ibid., Section III.A.3.  In this regard, Japan also refers to the textual and contextual indications
in Articles 12 and 5.6 and footnote 1.  See, for example, First Oral Submission of Japan, paras. 18-22.
33 e.g. Ibid. , Section III.A.2.
34 (1969) 8 International Legal Materials  679.
35 Appellate Body Report, Japan – Taxes on Alcoholic Beverages ("Japan – Alcoholic Beverages II "),
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, p. 11.  TheAppellate Body has recently emphasized the importance of the "ordinary meaning" of the terms used in the treatytext in, for example, Appellate Body Report, United States – Continued Dumping and Subsidy Offset Act of 2000
("US – Offset Act (Byrd Amendment
 )"), WT/DS217/AB/R, WT/DS234/AB/R, adopted 27 January 2003.
36 Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical
Products ("India – Patents (US) "), WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9, para.45.
37 Ibid, para. 46.WT/DS244/R
Page 13
"Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not later than five years from its imposition (or
from the date of the most recent review under paragraph 2 if that review has covered
both dumping and injury, or under this paragraph),  unless the authorities determine,
in a review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within areasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence  of dumping and injury. The duty may remain in
force pending the outcome of such a review."  (footnote omitted)
7.26 As Japan concedes
38 Article 11.3, on its face, does not mention, either explicitly or by way of
reference, any evidentiary standard that should or mu st apply to the self-initiation of sunset reviews.
Article 11.3 contemplates initiation of a sunset review  in two alternative ways, as is evident through
the use of the word "or".  Either the authorities make their determination in a review initiated "on theirown initiative", or they make their determinatio n in a review initiated "upon a duly substantiated
request made by or on behalf of the domestic indu stry".  Although Article 11.3 provides for a certain
qualification regarding initiations based on complaints lodged by the domestic industry - that such
requests be "duly substantiated" - the text clearly indicates that this qualification is germane only to
that specific situation and does not apply to self-initiations.  Consequently, since the drafters did notset forth any evidentiary requirements for the self-initiation of sunset reviews in the text of
Article 11.3 itself, at first blush, it seems to us that they intended not to impose any evidentiary
standards in respect of the self-initiation of a sunset review.  However, our task does not end with this
bare examination of the text.
7.27 We also note that the text of Article 11.3 does not contain any cross-reference to the
evidentiary rules relating to initiation of investigations contained in Article 5.6 of the Anti-dumping
Agreement . Therefore, Article 11.3 itself does not explicitly provide that the evidentiary standard of
Article 5.6 (or any other evidentiary standard) is applicable to sunset reviews.  Although paragraphs 4
and 5 of Article 11 contain several cross-references to other articles in the Anti-dumping Agreement ,
no such cross-reference has been made in the text of Article 11 to Article 5.6.  These cross-references(as well as other cross-references in the Anti-dumping Agreement , such as, for example, in
Article 12.3) indicate that, when the drafters intended to make a particular provision also applicable in
a different context, they did so explicitly.  Therefore, their failure to include a cross-reference in the
text of Article 11.3, or, for that matter, in any other paragraph of Article 11, to Article 5.6 (or vice
versa ) demonstrates that they did not intend to make the evidentiary standards of Article 5.6
applicable to sunset review s.  The Appellate Body, in US – Carbon Steel , drew the same conclusion
from the non-existence of a cross-reference in Article 21.3 of the Agreement on Subsidies and
Countervailing Measures (the "SCM Agreement")  to Article 11.6 of that Agreement, which contains
the evidentiary standard for the self-initiation of countervailing duty investigations.
39
7.28 However, "[s]uch silence does not exclude the possibility that the requirement was intended
to be included by implication."40  We therefore look to the context of Article 11.3.  To us, the
immediate context of Article 11.3 does not yield a different result.  Article 11.1 sets out the generalrule that an anti-dumping  duty can remain in force only as long as and to the extent necessary to
                                                     
38 First Written Submission of Japan, para. 51.
39 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 105.  Regarding the issue whether
prior panel and Appellate Body decisions on countervailing measures can be taken into account by, and provideguidance for, panels dealing with disputes under the Anti-dumping Agreement  (and vice versa ), we note the
Ministerial Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of theGeneral Agreement on Tariffs and Trade 1994 or Part  V of the Agreement on Subsidies and Countervailing
Measures , in which Ministers recognized the need for the consistent resolution of disputes arising from anti-
dumping and countervailing duty measures.  We find support in this declaration for the application of a similarinterpretative analysis by this Panel in addressing analogous issues under the Anti-dumping Agreement .
40 Ibid. , para. 65.WT/DS244/R
Page 14
counteract injurious dumping.  Articles 11.2 and 11.3 reflect the application of this general rule to
reviews under different circumstances.  Article 11.2 provides, in part:
"The authorities shall review the need for the continued imposition of the duty, where
warranted, on their own initiative or, provided that a reasonable period of time has
elapsed since the imposition of the definitive anti-dumping duty, upon request by any
interested party which submits positive information substantiating the need for a
review ." (emphasis added, footnote omitted)
7.29 Article 11.2 thus sets down an explicit evidentiary standard for requests by interested parties
for a review under that provision.  To trigger the authorities' obligation to conduct a review, a request
must include "positive information substantiating the need for a review".  Self-initiated reviews under
Article 11.2 are not governed by the same standards that apply to initiation upon request of an
interested party.  This supports a reading of the text which clearly distinguishes between the
evidentiary standards applicable to initiation in various specific circumstances.
7.30 Japan also argues that the cross-references in Article 12.3 to Article 11, and in Article 12.1 to
Article 5, suggest that Article 5.6 is applicable to sunset reviews.  Article 12 is entitled "Public Notice
and Explanation of Determinations".  It sets forth the investigating authorities' obligations relating to
public notice and explanation of determinations throughout an investigation.
7.31 Article 12.1 states:
"When the authorities are satisfied that there is sufficient evidence to justify the
initiation of an anti-dumping investigation pursuant to Article 5, the Member or
Members the products of which are subject to such investigation and other interested
parties known to the investigating authorities to have an interest therein shall be
notified and a public notice shall be given."
7.32 Article 12.1 imposes certain notice obligations "when the authorities are satisfied that there is
sufficient evidence to justify the initiation of an inve stigation pursuant to Article 5".  Rather than itself
establishing any evidentiary obligation, the text of Article 12.1 indicates that the reference to Article 5
in Article 12.1 is a reference to the evidentiary standard established in Article 5.  This clause in
Article 12.1 appears to us to serve a timing purpose: it explains when  during an anti-dumping
proceeding the public notice of initiation should be given.
7.33 Paragraph 3 of Article 12 states that the provisions of that Article apply mutatis mutandis to
reviews under Article 11.  Therefore, it is clear that the public notice requirements of Article 12 apply
mutatis mutandis  to sunset reviews.  However, the use of the term " mutatis mutandis " demonstrates
that the drafters foresaw that certain provisions of Article 12 could not be applied, at all, or at the very
least not in an identical manner, in the case of sunset reviews.  The provisions of Article 12 apply in
sunset reviews, with whatever changes the nature of sunset reviews may necessitate.  Thus, just asArticle 12.1 imposes notice requirements on investigating authorities that have decided, in accordance
with the standards established in Article 5, to initiate an investigation, Article 12.1 (by virtue of
Article 12.3) imposes notice obligations on investigating authorities that have decided, in accordance
with Article 11, to initiate a review.  However, just as Article 12.1 does not itself establish evidentiary
standards applicable to the initiation of investigations, so too it does not itself establish evidentiarystandards applicable to the initiation of sunset reviews.
7.34 The Appellate Body, in US – Carbon Steel , also reached the same conclusion regarding the
relationship between the analogous provisions - Articles 21.3 and 22 - of the SCM Agreement .  The
Appellate Body stated:
"[I]n the same way that Article 22.1 does  not  itself establish evidentiary standards
applicable to the initiation of an  investigation ,  it does  not  itself establishWT/DS244/R
Page 15
evidentiary standards applicable to the initia tion of sunset reviews.  Such standards, if
they exist, must be found elsewhere."41 (emphasis in original)
7.35 Next, we turn to the text of Article 5.6 of the Anti-dumping Agreement .  Article 5.6 contains
evidentiary standards applicable to the self-initiation of investigations, which, in Japan's view, also
apply to the self-initiation of sunset reviews.  It states:
"5.6 If, in special circumstances, the authorities concerned decide to initiate an
investigation without having received a written application by or on behalf of a
domestic industry for the initiation of such investigation, they shall proceed only if
they have sufficient evidence of dumping, injury and a causal link, as described in
paragraph 2, to justify the initiation of an investigation. " (emphasis added)
7.36 The text of Article 5.6 gives no indication that its evidentiary standards apply to anything but
the self-initiation of investigations.
7.37 Read in the context of the other provisions of Article 5, there also does not seem to be
anything to suggest that evidentiary standards for the self-initiation of investigations also apply to
sunset reviews. Article 5 is entitled "Initiation and Subsequent Investigation".  It sets forth rules that
govern the filing of an application by domestic producers and the steps to be taken by investigating
authorities after the application has been received.  The text of various provisions of Article 5 contain
frequent references to "investigations".  For example, Article 5.1 states that  "… an investigation to
determine the existence, degree and effect of any alleged dumping shall be initiated …" (emphasis
added).  Article 5.3 refers to "sufficient evidence to justify the initiation of an investigation "
(emphasis added).  Article 5.4 provides that, "[a]n investigation  shall not be initiated…" (emphasis
added).  Article 5.5 contains three references to the term "investigation".  Article 5.6 provides that, "If
… the authorities concerned decide to initiate an investigation  without having received a written
application …for the initiation of such an investigation , they shall proceed only if they have sufficient
evidence … to justify the initiation of an investigation "(emphasis added).  Article 5.7 refers to the
"decision whether or not to initiate an investigation " (emphasis added).  Article 5.8 states:  "An
application … shall be rejected and an investigation  shall be terminated promptly…".  Article 5.10
refers to "investigations".
7.38 If original investigations and reviews existed for the same purposes and served the same
functions, it would appear to us illogical that the same obligations did not apply to both processes.
However, as we have already indicated supra , para. 7.8, original investigations and reviews are
different processes which serve distinct purposes.  These considerations underlie, and are apparent in,
the text of the Anti-dumping Agreement .  It is therefore unsurprising to us that the textual obligations
applicable to the two are not identical.  The Appellate Body, in US – Carbon Steel , acknowledged the
differences between original investigations and sunset reviews, recognizing that they are "distinctprocesses" with "different purposes".  The qual itative differences between the two processes may
explain the differences in the specific WTO obligations that apply to each of them.
42
7.39 This brief textual examination of the provisions of Article 5 reveals that nowhere in the text
of Article 5 can one find language that suggests that the obligations therein apply generally (much less
                                                     
41 Ibid. , para. 112.
42Ibid. , para. 87.  While an analysis on the basis of the ordinary meaning of the words "investigation"
and "review" would also lead us to the conclusion that they are different, we did not deem it necessary in this
case to rely on this consideration in light of the clear Appellate Body language, which unequivocally states thatinvestigations and reviews are two distinct proceedings.  In  this respect, we note that investigations and reviews
deal with two different substantive determinations.  Article 5.6 requires "sufficient evidence" of dumping, injury
and causal link in order to self-initiate an investigation in which dumping, injury and causal link must be
established in order to make an affirmative determination.  As Article 11.3 sunset reviews deal withdeterminations of "likelihood of continuation or recurrence of dumping", the substantive considerationssurrounding initiation would logically also be different.WT/DS244/R
Page 16
specifically) to sunset reviews.43  Virtually all paragraphs of Article 5 refer to "investigation", while
there is no mention in the text of the term "sunset review", nor "review" in general.
7.40 Japan submits that footnote 1 to Article 1 of the Anti-dumping Agreement  suggests that the
evidentiary standards of Article 5.6 apply to sunset reviews.44  According to Japan, the word  "initiate"
has the same meaning under Article 11.3 that it has in footnote 1.  Therefore, the cross-reference in
footnote 1 to Article 5 implies that the evidentiary standards set forth in Article 5.6 also apply insunset reviews.
45
7.41 We disagree.  Footnote 1 reads:
"The term "initiated" as used in this Agreement means the procedural action by which
a Member formally commences an investigation as provided in Article 5."
7.42 We note that footnote 1 uses the word "investigation".  The word "review" does not appear in
this footnote.  Secondly, the footnote refers only to Article 5.  Therefore, there is no textual support
for the view that the word "initiated" in footnot e 1 necessarily means that the surrounding terms must
have the same meaning in Article 11.3 of the Anti-dumping Agreement .  In our view, the use of the
word "review" before the word "initiated" in Article 11.3 also suggests that "initiated" as used in
Article 11.3 refers to reviews, rather than investigations.  As a matter of treaty interpretation based on
the text of the treaty, we, as a treaty interpreter, are not permitted to find that the phrase "in a review
initiated" in Article 11.3 is equivalent to the initiation of an " investigation " rather than the initiation of
a "review ".  The duty of an investigating authority in an investigation is to determine the existence of
dumping and injury whereas in a sunset review the inquiry is about whether the dumping and injury
that once existed are likely to continue or recu r in the future.  The main differences between
investigations and sunset reviews that we highlighted supra , para. 7.8 justify the fact that certain rules
that apply to investigations do not apply in the context of sunset reviews.
7.43 Next, we address Japan's arguments based on the object and purpose of the Anti-dumping
Agreement .  Japan argues that sunset reviews and original investigations are functionally similar in
that they both give rise to the imposition/continua tion of an anti-dumping measure for a period of five
years.  According to Japan, therefore, the object and purpose of the Anti-dumping Agreement  requires
that the same evidentiary standard that applies to th e self-initiation of investigations should also apply
to the self-initiation of sunset reviews.
7.44 As stated above, under Article 31 of the Vienna Convention , interpretation should be based
first and foremost on the text of the treaty.  The Vienna Convention  also permits recourse to context
and the object and purpose of the treaty.  The Anti-dumping Agreement  itself does not contain
provisions which specify its object and purpose.  However, even assuming that Japan's argument
about the object and purpose of the Anti-dumping Agreement  is correct, that alone would not be
sufficient to require or entitle us to change our analysis based on the text of the Anti-dumping
Agreement .  Article 31 of the Vienna Convention requires that the text of the treaty be read in light of
the object and purpose of the treaty, not that object  and purpose alone override the text.  We therefore
decline to accept Japan's object and purpose arguments.
                                                     
43 There is, however, language in Article 5 that would support the proposition that Article 5 does not
apply generally to sunset reviews:  Article 5.10 and Article 11.4 set forth different time frames for the conductof investigations and sunset reviews, respectively.  Under Article 5.10, investigations are to be carried outwithin one year and in no case are they to last more than 18 months.  By contrast, Article 11.4 stipulates thatsunset reviews should be carried out within one year.  This would support the view that the obligations with
respect to time frames for investigations do not apply to sunset reviews, and even more generally, that the
drafters intended that the provisions of Article 5 do not generally apply to sunset reviews.
44 Second Written Submission of Japan, paras. 37-39.
45 Response of Japan to Question 12 (c) from the Panel.WT/DS244/R
Page 17
7.45 On the basis of this textual analysis of the relevant provisions of the Anti-dumping Agreement
cited by Japan, we do not agree with the view that the drafters intended to apply the evidentiary
standards of Article 5.6 to the self-initiation of sunset reviews under Article 11.3.  However, as the
Appellate Body pointed out in US – Carbon Steel , this does not mean that the authorities are not
bound by any evidentiary standard in deciding whether to continue the application of the measure for
another five years in a sunset review.46  Our finding applies exclusively to the initiation  of the sunset
review on an ex officio basis and has no bearing on the evidentiary basis of the subsequent sunset
review determinations.  We therefore do not agree with Japan's argument47 that automatic self-
initiation necessarily results in the continued application of the measure for another five years.  Once
the review is initiated, in order to properly decide  to keep the measure in place the authorities are
required to establish, on the basis of positive evidence48, that there is a likelihood of continuation or
recurrence of dumping and injury.
7.46 Finally in this respect, we note that, in its response to Question 84 from the Panel, Japan
argues that its claim regarding the self-initiation of sunset reviews under US law is not limited to
evidentiary standards applicable to self-initiation.  Japan asserts that it has also alleged that US law is
inconsistent with Article 11.3 in that it fails to give the DOC discretion to consider whether self-
initiation is necessary in a particular case.  That runs counter to the phrase "on their own initiative" in
Article 11.3.  According to Japan, this phrase implies that the authorities should be given thediscretion to consider whether self-initiation is necessary on the basis of the particular circumstances
surrounding a given case.
7.47 We recall that the claims – but not the arguments – of the complaining party should be
specified in its request for panel establishment.
49  A complaining party who fails to raise a claim in its
request for establishment of a panel cannot cure that deficiency by presenting additional arguments inits submissions to, or communications with, the Panel.
50
7.48 The issue before us is whether Japan's Panel request provides "a brief summary of the legal
basis of the complaint sufficient to present the problem clearly" and therefore satisfies the standard set
out in Article 6.2 of the DSU51 with respect to Japan's allegation as to the consistency with the cited
provisions of the Anti-dumping Agreement  of the alleged preclusion under US law of the exercise by
the DOC of any discretion as to whether or not to self-initiate a sunset review under certain
circumstances.
                                                     
46 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 117.
47 See, First Oral Submission of Japan, para. 16.
48 Regarding the factual basis of an investigating authority's determinations, we recall and endorse the
following statement of the panel in US – DRAMS : "[S]uch continued imposition must, in our view, be
essentially dependent on, and therefore assignable to, a foundation of positive evidence that circumstancesdemand it. In other words, the need for the continued imposition of the duty must be demonstrable on the basisof the evidence adduced."  Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea  ("US – DRAMS
 "), WT/DS99/R,
adopted 19 March 1999, DSR 1999:II, 521, para. 6.42.  We also note the Appellate Body's statement that "afresh determination, based on credible evidence, will be necessary to establish that the continuation of thecountervailing duty is warranted to remove the injury to the domestic industry." Appellate Body Report, US –
Carbon Steel , supra , note 22, para. 88.
49 Appellate Body Report, European Communities – Regime for th e Importation, Sale and Distribution of
Bananas ("EC – Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 143.
50 Ibid.
51 Article 6.2 of the DSU provides, in relevant part:
"The request for the establishment of a panel shall be made in writing.  It shall …identify the
specific measures at issue and provide a brief summary of the legal basis of the complaintsufficient to present the problem clearly…"WT/DS244/R
Page 18
7.49 We must closely scrutinize the Panel request to ensure its compliance with both the letter and
the spirit of Article 6.2 of the DSU .52  In examining the sufficiency of the Panel request under
Article 6.2 of the DSU , we must consider the text of the Panel request itself.53  If necessary, we would
also take into account whether the ability of the respondent to defend itself was prejudiced, given the
actual course of the panel proceedings, by any alleged lack of specificity in the text of the Panel
request.54
7.50 Japan submits that it challenged this aspect of US law in addition to the evidentiary aspect of
self-initiation in its request for establishment of the Panel.  The section that Japan cites in its request
for establishment in this respect, reads:
"Article 11.1 of the AD Agreement sets forth the overriding principle that
antidumping duties shall remain in force "only as long as and to the extent necessary"
to counteract injurious dumping.  Article 11.3 provides that antidumping duties must
be terminated after five years, unless the au thorities determine that their expiry would
be likely to lead to the continuation or recurrence of dumping and injury.   In this
context, Article 12 calls on the authorities to satisfy themselves that sufficient
evidence (as defined by Article 5) exists to justify an initiation of the review before
notifying the public of such initiation.  Notwithstanding these provisions of the AD
Agreement, Section 751(c)(1) and (2) of the Act and the DOC regulation 19 C.F.R. §351.218(a) and (c)(1) mandate the DOC to automatically self-initiate sunset reviews
without sufficient evidence.  This initiation standard does not require sufficient
positive evidence that the above-mentioned provisions of the AD Agreement require
to be shown.  In this particular case, as in all others, the DOC automatically initiated
the sunset review without presenting a scintilla of evidence of the likelihood of
continued or recurrent dumping or injury.  Therefore, Section 751(c)(1) and (2) of the
Act and the DOC regulation 19 C.F.R. § 351.218(a) and (c)(1), on the face and as
applied in this case, are inconsistent with Articles 5.6, 11.1, 11.3, 12.1, and 12.3 of
the AD Agreement and Article X:3(a) of the GATT 1994."55  (emphasis added)
7.51 In this part of its request for Panel establishment Japan starts by citing relevant provisions of
the Anti-dumping Agreement .  Japan then presents arguments to demonstrate that US law is
inconsistent with the Anti-dumping Agreement  in that it fails to require its investigating authorities to
have sufficient evidence in order to self-initiate a sunset review.  It is apparent on the face of the
request that the only aspect of US law that Japan ch allenges in this respect relates to the evidentiary
standards.  Nowhere does Japan take issue with the US law's alleged failure to provide its
investigating authorities with the discretion not to self-initiate a sunset review where appropriate.  In
particular, nowhere does Japan refer to the phrase "on their own initiative" in Article 11.3, which, inJapan's arguments submitted in these Panel proceedings, supports the proposition that Article 11.3
requires that the investigating authorities should be given the discretion not to self-initiate a sunset
review.  Indeed, we do not view this allegation as ever having been at the heart of Japan's submissions
in this case.  The first clear reference by Japan to this alleged claim based on the particular text of
Article 11.3 in isolation (i.e. the reference to "on their own initiative" alone) was in response to aPanel question following the second Panel meeting.
56
                                                     
52 We find support for this approach in Appellate Body Report, EC – Bananas III , supra , note 49,
para. 142.
53 Each of the treaty provisions we examine here is cited in the Panel request and therefore meets at
least that minimum standard.
54  We find support for this approach in Appellate Body Report, Korea – Definitive Safeguard Measure
on Imports of Certain Dairy Products ("Korea – Dairy "), WT/DS98/AB/R, adopted 12 January 2000, DSR
2000:1, p. 3.
55 WT/DS/244/4, p. 2, para. 1.
56 See, Response of Japan to Question 84 from the Panel.WT/DS244/R
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7.52 We, as a panel, have the mandate and the duty to manage the Panel proceedings and the
ability to pose questions to the parties in order to clarify and distil the claims of the parties, as well as
the legal arguments that are asserted by the parties in support of their claims.  However, we are
conscious that we may not relieve Japan of its task of delineating the parameters of its claims, as set
out in its Panel request.  In particular, we are aware that, in our questions posed to the parties, we
must not "overstep the bounds of legitimate management or guidance of the proceedings …  in theinterest of efficiency and dispatch."
57
7.53 We consider Japan's claim concerning the evidentiary standards applicable to the self-
initiation of sunset reviews to be legally distinct from the issue of whether the US law gives the DOC
the discretion to determine whether or not to self-i nitiate a sunset review under certain circumstances.
Therefore, although these two claims have the same legal basis in the Anti-dumping Agreement  –
Article 11.3 – we find that the text of the Panel request limits Japan's claim in this dispute to the issue
of the evidentiary standards applicable to the self-initiation of sunset reviews.  The Panel request isnot unclear and does not lack specificity:  it is abso lutely and clearly mute with respect to the issue of
whether the US law gives the DOC the discretion to determine whether or not to self-initiate.  It is
thus insufficient on its face to provide the foundation sought by Japan.  Under these circumstances,
we do not believe it is necessary to examine the issue of prejudice to the United States by any alleged
"lack of specificity" in the Panel request.
58  We therefore find that the alleged claim by Japan
challenging the US law's alleged failure to give the DOC the discretion not to self-initiate a sunset
review under certain circumstances is not before us.  We thus decline to examine it.59
7.54 For these reasons, we find that Section 751(c)(1) and (2) of the US Statute and Section
351.218(a) and (c)(1) of the US Regulation are not inconsistent with Article 11.3 of the Anti-dumping
Agreement , nor with the other provisions of the Anti-dumping Agreement  invoked by Japan  --  i.e.
Articles 11.1, 12.1, 12.3, and 5.6 –- in respect of the evidentiary standards applicable to the self-
initiation of sunset reviews.
(b) US law as applied in the instant sunset review
(i) Arguments of parties
Japan7.55 Japan submits that the DOC, by self-initiating the sunset review at issue without any
evidence, acted inconsistently with Articles 5.6, 11.1, 11.3, 12.1, and 12.3 of the Anti-dumping
Agreement .  In this respect, Japan refers to the language used by the DOC in the notice of initiation of
this sunset review, in which the DOC explicitly stated that it was initiating this sunset review without
reference to any evidentiary standard.
                                                                                                                                                                    
In response to Panel Questions 10-13 following the first meeting, we understand Japan to have
continued to refer to the textual cross-references to Article 12.1 and footnote 1, and the concept of "withoutsufficient evidence" to support its argument, and we do not understand Japan to have focused on the Article 11.3phrase "on their own initiative" in isolation.
57 Appellate Body Report, Korea – Dairy  Safeguard , supra , note 54, para. 149.
58 We note, however, that Japan's response to Question 84 was not provided until two weeks after  the
second Panel meeting.  Thus, the United States had virtually no opportunity to address this allegation by Japanin response to our question.
59 Our finding here is without prejudice to the possible ramifications that the terms "on their own
initiative" in Article 11.3 may have in terms of an investigating authority's discretion regarding the self-initiation of sunset reviews.  In particular, in this respect, we take note of Japan's assertion, albeit tardy,  that the
US law is inconsistent with the alleged requirement in Article 11.3 that the investigating authorities initiate a
sunset review "on their own initiative" because  automatic initiation mandated by the US Statute precludes theUS investigating authorities from exercising discretion in deciding whether or not to initiate a sunset reviewother than on the basis of a written application.WT/DS244/R
Page 20
United States
7.56 The United States submits that the application of the US law in this sunset review was not
inconsistent with the Anti-dumping Agreement  as there is no evidentiary standard for self-initiation in
Article 11.3 or elsewhere in the Anti-dumping Agreement .
(ii) Evaluation by the Panel60
7.57 On the basis of our finding above that the Anti-dumping Agreement does not impose any
evidentiary standard in order to self-initiate a sunset review, we also find that the United States did
not act inconsistently with the Anti-dumping Agreement  by automatically self-initiating the instant
sunset review as mandated by Section 751(c)(1) and (2) of the US Statute and Section 351.218(a) and
(c)(1) of the US Regulation.
3. De minimis  standard in sunset reviews
(a) US law as such
(i) Arguments of parties
Japan
7.58 According to Japan, section 351.106(c) of the US Regulation -- which requires the DOC to
treat as de minimis  only those dumping margins less than 0.5 per cent in sunset reviews -- is
inconsistent with Articles 5.8 and 11.3 of the Anti-dumping Agreement .  According to Japan, the 2 per
cent de minimis  standard in Article 5.8 of the Anti-dumping Agreement  also applies to sunset reviews.
The rationale for having the de minimis  standard set out in Article 5.8 is the presumption that
dumping below de minimis  cannot cause injury to the domestic industry.  Given that sunset reviews
cover both dumping and injury determinations, no duty can be maintained for a further five years in
cases where the dumping margin is de minimis  because the injury element will be missing.  Japan
considers that the mandatory language of Article 5.8. and Article 11.1 – i.e. the use of words such as"shall" and "immediate" -- supports its proposition that the drafters intended the duty to terminate
after five years if the dumping margin found is de minimis , as established in Article 5.8.
United States
7.59 The United States contends that no de minimis  standard applies to sunset reviews under the
Anti-dumping Agreement .  Article 11.3 does not mention de minimis , nor is there any reference to
Article 11.3 in the text of Article 5.8, which provides for a 2 per cent de minimis  standard for
investigations.  Therefore, it is impermissible to maintain, on the basis of the object and purpose
alone, that the 2 per cent de minimis  standard set out in Article 5.8 for investigations also applies to
sunset reviews.  The United States also submits that footnote 22 to Article 11.3 makes it clear that the
current margin of dumping is not relevant in determining likelihood of continuation or recurrence of
dumping in a  sunset review.  According to the United States, the fact that the United States itself has
a de minimis  standard for sunset reviews does not change the obligations of WTO Members under the
Anti-dumping Agreement  because WTO Members are allowed to go beyond their obligations.
                                                     
60 In this section, we address Japan's allegation that the US statute and regulations requiring automatic
self-initiation of sunset reviews without sufficient evid ence are, as applied in this case, inconsistent with
Articles 5.6, 11.1, 11.3, 12.1 and 12.3 of the Anti-dumping Agreement .WT/DS244/R
Page 21
(ii) Arguments of third parties
Chile
7.60 Chile submits that dumping margins below de minimis  cannot cause injury.  This non-
injurious rationale means that the 2 per cent de minimis  standard in Article 5.8 that applies to
investigations should also apply to sunset reviews under Article 11.3.
Brazil7.61 Brazil submits that, under the Anti-dumping Agreement , a de minimis  dumping margin means
a margin that cannot cause injury.  Therefore, the same de minimis  standard in Article 5.8 that applies
to investigations should also apply to sunset reviews under Article 11.3.  According to Brazil, the
requirement of immediate termination in Article 5.8 in cases where the dumping margin is below de
minimis  supports this view.
61
European Communities
7.62 The European Communities agrees with Japan's view that the US requirement to treat as de
minimis  in sunset reviews only those margins that are le ss than 0.5 per cent is inconsistent with the 2
per cent  de minimis  rule contained in Articles 5.8 and 11.3 of the Anti-dumping Agreement .  The
European Communities considers generally that a coherent reading of the Anti-dumping Agreement
calls for the application to sunset reviews of all of the provisions of the Anti-dumping Agreement  set
forth for original investigations.62
Korea
7.63 Korea supports Japan's view that the 2 per cent threshold for de minimis  margins, applied
under Article 5.8, also applies to Article 11.3.
Norway
7.64 According to Norway, the US Regula tions are inconsistent with the Anti-dumping Agreement
in that they provide for the application of a 0.5 per cent de minimis  standard to sunset reviews, rather
than the proper 2 per cent de minimis  standard as provided for in Article 5.8.  Norway argues that
given that de minimis  dumping is not countervailable [ sic] in original investigations because it can not
cause injury, it follows that it can not be countervailed [ sic] in sunset reviews either.63
(iii) Evaluation by the Panel64
7.65 It is undisputed that US law -- Section 351.106(c) of the US Regulation65 -- provides for a
different (and lower) de minimis  standard for sunset reviews than that applicable in investigations (0.5
per cent as opposed to 2 per cent).  Therefore, the issue before us is whether the Anti-dumping
                                                     
61 Response of Brazil to Question 7 from the Panel.
62 Response of the European Communities to Question 4 from the Panel.
63 Response of Norway to Question 13 from the Panel.
64 In this section, we examine Japan's allegation that  the provision of U.S. law establishing two
different de minimis  standards for original investigations and sunset reviews, as such, is inconsistent with
Articles 5.8 and 11.3 of the Anti-dumping Agreement .
65 Section 351.106(c)(1)of the US Regulations states:
"In making any determination other than a preliminary or final antidumping ... duty
determination in an investigation ... the Secretary will treat as de minimis  any weighted-
average dumping margin ... that is less than 0.5 percent ad valorem , or the equivalent specific
rate. "WT/DS244/R
Page 22
Agreement  requires that the same de minimis  standard that applies to investigations under Article 5.8
also applies to sunset reviews.
7.66 We understand Japan's claim to be based on an alleged violation of Article 11.3 of the Anti-
dumping Agreement , as well as Article  5.8.  We understand Japan to have structured its arguments on
the basis of the text of Article 11.3, in light of textual links and the context in which it operates and
the object and purpose as reflected in the other cited provisions.  With this in mind, we begin ourconsideration of this issue with the text of Article 11.3.  We recall that Article 11.3 provides:
"11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five years from its
imposition (or from the date of the most recent review under paragraph 2 if that
review has covered both dumping and injury, or under this paragraph),  unless the
authorities determine, in a review initiated before that date on their own initiative or
upon a duly substantiated request made by or on behalf of the domestic industrywithin a reasonable period of time prior to th at date, that the expiry of the duty would
be likely to lead to continuation or recurrence  of dumping and injury.  The duty may
remain in force pending the outcome of such a review." (footnote omitted)
7.67 On its face, Article 11.3 does not provide, either explicitly or by way of reference, for any de
minimis  standard in making the likelihood of continuation or recurrence of dumping determinations in
sunset reviews.
66  Therefore, Article 11.3 itself is silent as to whether the de minimis  standard of
Article 5.8 (or any other de minimis  standard) is applicable to sunset reviews.  However, "[s]uch
silence does not exclude the possibility that the requirement was intended to be included by
implication."67
7.68 We therefore look to the context of Article 11.3.  The immediate context of Article 11.3 does
not, however, yield a different result.  Article 11.1 sets out the general rule that an anti-dumping  duty
can remain in force only as long as and to the extent necessary to counteract injurious dumping.
Articles 11.2 and 11.3 reflect the application of that general rule under different circumstances.
Article 11.4 contains a cross-reference to Article 6, which sets forth rules relating to evidence and
procedure applicable to investigations.  Given that, similar to Article 6, Article 5 also contains rulesapplicable to original investigations, we consider the absence in Article 11.4 of a similar cross-
reference to Article 5 to indicate that the drafters  did not intend to have the obligations in Article 5
apply also to sunset reviews.
7.69 With that in mind, we next consider the text of Article 5.8, which contains the de minimis
standard applicable to investigations.  Article 5.8 states, in pertinent part:
"5.8 An application under paragraph 1 shall be rejected and an investigation shall
be terminated promptly as soon as the authorities concerned are satisfied that there isnot sufficient evidence of either dumping or of injury to justify proceeding with the
case.  There shall be immediate termination in cases where the authorities determine
that the margin of dumping is  de minimis , or that the volume of dumped imports,
actual or potential, or the injury, is negligible.  The margin of dumping shall be
considered to be de minimis  if this margin is less than 2 per cent, expressed as a
percentage of the export price...."  (emphasis in original)
7.70 Article 5.8 does not suggest that the de minimis  standard set out for investigations also applies
to sunset reviews.  In particular, the text of paragr aph 8 of Article 5 refers expressly to the termination
of an investigation  in the event of de minimis  dumping margins.  There is, therefore, no textual
                                                     
66 We understand Japan not to contest this, as Japan's arguments have focused on the textual linkages to
Article 5.8, as well as contextual and "object and purpose" considerations.
67 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 65.WT/DS244/R
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indication in Article 5.8 that would suggest or require that the obligation in Article 5.8 also applies to
sunset reviews.  Nor is there any such suggestion or requirement in the other provisions of Article 5.
In this respect, we refer to our earlier textual analysis of Article 5 ( supra , paras. 7.35-7.39).
7.71 Furthermore, although paragraphs 4 and 5 of Article 11 contain several cross-references to
other articles of the Anti-dumping Agreement , no such cross-reference has been made to Article 5.8.
We consider the existence of these cross-references in Article 11 to indicate that when the draftersintended to have certain provisions in a given article of the Anti-dumping Agreement  also apply in
different contexts, they did so in a clear manner.  Therefore, the absence of a cross-reference that
would make the de minimis  standard of Article 5.8 also applicable to sunset reviews is a further
indication that the drafters did not intend to make th at standard applicable to sunset reviews.  The
Appellate Body, in US – Carbon Steel , drew the same conclusion from the non-existence of a cross-
reference in Article 21.3 of the SCM Agreement  to Article to Article 11.9, which contains the general
de minimis  standard for CVD investigations.
68
7.72 Japan argues that the rationale for having a de minimis standard is the presumption that a de
minimis margin of dumping is non-injurious.  According to Japan, “Article 3 incorporates the de
minimis standard into the injury determination.”69  Under Article 3, the margin of dumping is one of
the injury factors.  Article 3.5 requires the investigating authorities to determine whether the dumped
imports are, through the effects of dumping, causing injury.
7.73 We fail to find any textual support in the Anti-dumping Agreement  for the proposition that de
minimis  dumping is, by definition, non-injurious.  The terms "dumping" and "injury" have different
meanings in the Anti-dumping Agreement , independent from one another.  Injury is not defined in the
Anti-dumping Agreement  in relation to any particular level of dumping.70  Therefore, we consider
Japan's argument to be unfounded.
7.74 In this respect, we find support in the following statements of the Appellate Body in US –
Carbon Steel :
Thus, in our view, the terms "subsidization" and "injury" each have an independent
meaning in the  SCM Agreement   which is not derived by reference to the other.  It is
 unlikely   that very low levels of subsidization could be demonstrated to  cause  
"material" injury.  Yet such a possibility is not,  per se ,  precluded by the Agreement
itself, as injury is not defined in the  SCM Agreement   in relation to any specific level
of subsidization.71 (emphasis in original)
To us, there is nothing in Article 11.9 to suggest that its  de minimis  standard was
intended to create a special category of " non-injurious " subsidization, or that it
reflects a concept that subsidization at less than a  de minimis   threshold  can never  
cause injury.  For us, the  de minimis  standard in Article 11.9 does no more than lay
down an agreed rule that if  de minimis   subsidization is found to exist in an original
investigation, authorities are obliged to terminate their investigation, with the result
that no countervailing duty can be imposed in such cases.72 (emphasis in original)
                                                     
68 Ibid., para. 69.
69 Response of Japan to Question 20 from the Panel.
70 Footnote 9 of the Anti-dumping Agreement  states:
"Under this Agreement the term "injury" shall, unless otherwise specified, be taken to meanmaterial injury to a domestic industry, threat of material injury to a domestic industry or
material retardation of the establishment of such an industry and shall be interpreted in
accordance with the provisions of [Article 3]".
71 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 81.
72 Ibid., para. 83.WT/DS244/R
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Accordingly, we do not believe that there is a clear "rationale" behind the 1 percent
de minimis  rule of Article 11.9 that must also apply in the context of reviews carried
out under Article 21.3.73 (emphasis in original)
7.75 Considering that the relationship between the concepts of "dumping" and "injury" in the Anti-
dumping Agreement  is analogous to the relationship between "subsidization" and "injury" under the
SCM Agreement74, we find the ruling of the Appellate Body in US – Carbon Steel  to be highly
relevant for the present case in this respect.
7.76 Japan argues that the decision of the Appellate Body in US – Carbon Steel does not apply in
this case for a number of reasons.  First, according to Japan, the fact that the phrase "For the purpose
of this paragraph" found in Article 11.9 of the SCM Agreement  does not exist in Article 5.8 of the
Anti-dumping Agreement makes the latter different from the former in this respect.75  We note that the
Appellate Body did not base its conclusion that the de minimis  standard of Article 11.9 does not apply
to sunset reviews on this phrase cited by Japan.  Moreover, independently from the existence inArticle 11.9 of the SCM Agreement  of the phrase cited by Japan, the Appellate Body made it clear that
"original investigations and sunset reviews are distinct processes with different purposes"
76.  We thus
see no merit in this argument of Japan.
7.77 Secondly, Japan argues that another reason why that decision is not applicable to the present
case is the existence of more than one de minimis  standard in the SCM Agreement .  The Anti-dumping
Agreement  contains only one such standard.77  In this respect, Japan refers to the statement of the
Appellate Body in para. 82, in US – Carbon Steel, which reads in relevant part:
"To accept the Panel's reasoning—that  de minimis  subsidization is non-injurious
subsidization—would imply that, for th e same product, imported into the same
country, and affecting the same domestic industry, the SCM Agreement  establishes
different thresholds at which the same industry can be said to suffer injury, depending
on the origin of the product.  This unreasonable implication casts further doubt on the
"rationale" attributed by the Panel to Article 11.9  's  de minimis   standard."78
(emphasis in original)
7.78 The Appellate Body referred to the different de minimis  rates set forth for developing
countries in Article 27 of the SCM Agreement  and opined that, if one accepts the proposition that de
minimis  subsidization is non-injurious, that would mean that the threshold at which imports of a
certain product can cause injury on a domestic industry would depend on the origin of those imports.
That, in the view of the Appellate Body, is indicative of why the panel's approach that tied de minimis
to injury was wrong.  In that case, the Appellate Body used the existence of more than one de minimis
standard in the SCM Agreement  as one of several elements supporting its finding that no de minimis
standard applies to sunset reviews under the SCM Agreement .
7.79 By contrast to the SCM Agreement , the Anti-dumping Agreement  contains only one de
minimis  standard.  However, this distinction between the Agreements does not alone necessarily mean
that the Appellate Body would have arrived at a different conclusion under the Anti-dumping
Agreement  on this issue.  In this connection, we recall that the Appellate Body based its decision on a
                                                     
73 Ibid., para. 84.
74 We recognise that unlike the Anti-dumping Agreement , the amount of subsidisation has not been
identified as an injury factor in the SCM Agreement .  However, we consider this not to be determinative for
purposes of the legal issue we are dealing with here.  In our view, whether the amount of subsidization or themargin of dumping has been identified as an injury factor does not answer the question whether the same de
minimis  standard that has been set for original investigations also applies to sunset reviews.
75 Second Written Submission of Japan, para. 134.
76 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 87.
77 Second Written Submission of Japan, para. 136.
78 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 82.WT/DS244/R
Page 25
textual analysis of the SCM Agreement  and found that no de minimis  standard applies to sunset
reviews under the SCM Agreement .  The Appellate Body's discussion concerning the existence of
more than one de minimis  standard in the SCM Agreement  related specifically to the reasoning of the
panel in that case that  de minimis  subsidization was non-injurious subsidization.  Therefore, we
consider that this consideration of the Appellate Body in US – Carbon Steel  does not preclude us from
finding that no de minimis standard was intended by the drafters to apply to sunset reviews under the
Anti-dumping Agreement .
7.80 Thirdly, Japan argues that the Appellate Body was not required to discuss the significance of
footnote 37 of the SCM Agreement  (corollary of footnote 1 of the Anti-dumping Agreement ) in US –
Carbon Steel .  Here, Japan repeats its argument that the use of the word "initiated" in footnote 1 and
Article 11.3 indicates that the provisions of Articl e 5, including paragraph 8 thereof, apply to sunset
reviews.79  For the same reasons stated above in this respect ( supra , paras. 7.40-7.42) we consider that
we are not permitted to derive that meaning from the text of footnote 1.
7.81 Fourthly, Japan refers to the finding of the panel in US – DRAMs  (that the term "case" in
Article 5.8 does not encompass duty assessment procedures under Article 9.3 of the Anti-dumping
Agreement ), coupled with the following statement:
"[I]n the context of Article 5.8, the function of the de minimis  test is to determine
whether or not an exporter is subject to an anti-dumping order.  In the context ofArticle 9.3 duty assessment procedures, however, the function of any de minimis  test
applied by Members is to determine whether or not an exporter should pay a duty."
80
7.82 For Japan, the US-DRAMs  panel's reasoning implies that the word "case" in Article 5.8 is
sufficiently broad to also cover sunset reviews and, therefore, the de minimis  standard of Article 5.8
also applies to sunset reviews.  However, we recall that that panel was called upon to decide whetherthe de minimis  standard of Article 5.8 applied to duty assessment procedures under Article 9.3 of the
Anti-dumping Agreement .  That panel found that it did not.
81  In the present case, the issue is the
application of that standard in sunset reviews.  Therefore, we do not find it appropriate to draw
Japan's conclusion from the above statement of the panel in US – DRAMs .
7.83 Finally, Japan refers to the negotiating history of Article 5.8.  Japan points out that the phrase
"for purposes of this paragraph" (or certain similar phrases), that would tend to limit the scope of
application of that paragraph which had appeared in draft texts proposed earlier by different Members,
was finally not included in the final text of the provision.  It follows, asserts Japan,  that the drafters
intended to apply the de minimis  standard of Article 5.8 to sunset reviews.  In this respect, we recall
that Article 32 of the Vienna Convention  on the Law of Treaties, which deals with supplementary
means of treaty interpretation including the negotiating history of the treaty, reads:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine themeaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
                                                     
79 Second Written Submission of Japan, para. 137.
80 Panel Report,  US – DRAMS , supra , note 48,para. 6.90.
81 Ibid., para. 6.89.WT/DS244/R
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7.84 This provision of the Vienna Convention  limits recourse to the negotiating history of a treaty
to two instances: (i) to confirm the meaning of the treaty's provisions or in cases where either a
meaning cannot be derived from the treaty; or (ii) where the interpretation would lead to absurd
results.  Neither is the case here.  Therefore, th ere is no need to have recourse to the negotiating
history of the Anti-dumping Agreement .  Nevertheless, we consider that none of the various phrases
cited by Japan as intending to limit the scope of application of Article 5.8 mentions sunset reviews, orreviews in general.  Even if one had to take thes e documents into account, one would not be required
to reach the legal conclusion, on the basis of these documents alone, that the drafters intended to have
the de minimis  standard of Article 5.8 apply to sunset reviews.  As stated above, various cross-
references found throughout the Anti-dumping Agreement , including, in particular, those in Article 11,
reveal that when the drafters desired to have certain provisions also apply in different contexts, they
did so clearly.  The historical documents cited by Japan relate to the provisions of Article 5 of the
Anti-dumping Agreement , which, as we have already found, generally do not apply to sunset reviews
(supra , paras. 7.35-7.39).  Japan has not pointed to any document in the negotiating history of
Article 11 of the Anti-dumping Agreement  which shows the drafters' intent to have a de minimis
standard for sunset reviews, or to have the de minimis  standard of Article 5.8 apply in the context of
sunset reviews.
7.85 On the basis of this textual analysis of the relevant provisions of the Anti-dumping Agreement ,
we conclude that the 2 per cent de minimis standard of Article 5.8 does not apply in the context of
sunset reviews.  In this context, we again observe that, in light of the qualitative differences between
sunset reviews and investigations, it is unsurprising that the obligations applying to these two distinct
processes are not identical.
82  We therefore find that Section 351.106(c) of the US Regulation is not
inconsistent with Article 11.3, or Article 5.8, of the Anti-dumping Agreement in respect of the de
minimis  standard applicable in sunset reviews.
(b) US law as applied in the instant sunset review
(i) Arguments of parties
Japan
7.86 According to Japan, since the DOC failed to apply the 2 per cent de minimis  standard of
Article 5.8, the application of US law in the instant sunset review was also inconsistent with
Articles 5.8 and 11.3 of the Anti-dumping Agreement .
United States
7.87 The United States presents no additional argument about the application of US law in the
instant sunset review in respect of this claim.
(ii) Evaluation by the Panel83
7.88 On the basis of our finding above that the de minimis  standard of Article 5.8 does not apply to
sunset reviews, we also find that the United States did not act inconsistently with Articles 5.8 and 11.3
by not applying that standard in the instant sunset review.
                                                     
82 See, supra , para. 7.42
83 In this section, we examine Japan's allegation that the provision of US law establishing two different
de minimis  standards for original investigations and sunset reviews, as applied in this case, is inconsistent with
Articles 5.8 and 11.3 of the Anti-dumping Agreement .WT/DS244/R
Page 27
4. Cumulation in sunset reviews
(a) US law as applied in the instant sunset review
(i) Arguments of parties
Japan
7.89 According to Japan, footnote 9 to Article 3 of the Anti-dumping Agreement  suggests that any
injury determination under the Agreement should conform to the provisions of Article 3, includingparagraph 3 thereof, which deals with cumulation.  Japan further argues that the quantitative
negligibility standards of Article 5.8 are incorporated into Article 3.3 by virtue of the cross-reference
to Article 5.8 contained in the latter.  The drafters' failure to include, in Article 11,  a cross-reference
to Article 3.3 is not dispositive because the term "injury" has been defined in Article 3 for purposes of
the Anti-dumping Agreement , including for purposes of sunset reviews under Article 11.3.  It follows
that an investigating authority in a sunset review must demonstrate that imports from a particular
country are not negligible before it can cumulate those imports with imports from other countries.Otherwise, the determination of likelihood of continuation or recurrence of injury will be inconsistent
with the Anti-dumping Agreement .
7.90 Japan contends that, in the instant sunset review, the ITC acted inconsistently with
Articles 3.3, 5.8 and 11.3 by cumulating imports from Japan with those from other subject countries
without applying the negligibility standard of Arti cle 5.8.  According to Japan, the ITC record showed
not only that imports from Japan were "negligible" under this standard, but also that the total share of
countries individually accounting for less than 3 per cent was below 7 per cent.  Under Articles  5.8
and 11.3, therefore, the United States was under an obligation to terminate the review and repeal the
measure with respect to Japan.
United States7.91 The United States submits that the investigating authority in a sunset review is not required to
carry out a quantitative cumulation analysis.  No such requirement can be found in Article 11.3.  Nor
is it stated in Article 3.3 or 5.8 that the rules governing cumulation in investigations also apply to
sunset reviews.  Articles 3 and 5 apply to investigations only.  Footnote 9 of the Anti-dumping
Agreement , which defines the term "injury", does not refer to a particular level of dumping as an
element of injury.  Therefore, the fact that this footnote to Article 3 states that the term "injury" should
be interpreted in accordance with Article 3 does not make the quantitative negligibility criteria in
Article 3.3 or 5.8 directly applicable to sunset reviews.
(ii) Arguments of third parties
European Communities
7.92 While the European Communities does not comment on the appropriateness of the inclusion
of imports from Japan in the US cumulative analysis in the instant sunset review, it agrees withJapan's view that the requirements of Articles 3.3 and 5.8 for the cumulation of imports in an injury
determination also apply within the context of  a sunset review under Article 11.3.  The European
Communities submits that negligible imports must not be included in a cumulative assessment of
injury unless the authorities have determined that these imports are likely to become non-negligible
upon revocation of the duty.WT/DS244/R
Page 28
(iii) Evaluation by the Panel84
7.93 It is undisputed that the US law does not provid e for the application in sunset reviews of the
negligibility standard set out in Article 5.8 as cross-referenced in Article 3.3 (the provision in the
Anti-dumping Agreement  concerning cumulation in an injury analysis) for investigations.
Accordingly, the United States did not apply such a negligibility standard in its cumulative analysis in
the instant sunset review.  Therefore, the issue before us is whether the obligation relating to thenegligibility standard under Article 5.8 for the purposes of a cumulative injury assessment under
Article 3.3 in investigations also applies to sunset reviews under Article 11.3.
7.94 We naturally begin our examination with the text of the core treaty provision governing
sunset reviews.  Article 11.3 provides:
"11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five years from its
imposition (or from the date of the most recent review under paragraph 2 if thatreview has covered both dumping and injury, or under this paragraph),  unless the
authorities determine, in a review initiated before that date on their own initiative or
upon a duly substantiated request made by or on behalf of the domestic industry
within a reasonable period of time prior to th at date, that the expiry of the duty would
be likely to lead to continuation or recurrence of dumping and injury.  The duty mayremain in force pending the outcome of such a review." (footnote omitted)
7.95 Article 11.3 speaks of a review to determine, inter alia , the likelihood of continuation or
recurrence of injury.  On its face, Article 11.3 does not mention, either explicitly or by way of
reference, any negligibility standard that applie s to the likelihood of continuation or recurrence of
injury determinations in sunset reviews.  Nor does the immediate context of Article 11.3 yield adifferent result.  Article 11.1 sets out the general rule that an anti-dumping  duty can remain in force
only as long as and to the extent necessary to counteract injurious dumping.  Article 11.2
85 and 11.3
reflect the application of that general rule under different circumstances.  Although paragraphs 4 and
5 of Article 11 contain several cross-references to other articles of the Anti-dumping Agreement , no
such cross-reference has been made to Articles 3.3 or 5.8.
7.96 We next turn to the text of Article 3.3 of the Anti-dumping Agreement , which reads:
"Where imports of a product from more than one country are simultaneously subject
to anti-dumping investigations, the invest igating authorities may cumulatively assess
the effects of such imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de minimis   as
defined in paragraph 8 of Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported products
and the conditions of competition between the imported products and the like
domestic product."  (italics in original, underline emphasis added)
7.97 Paragraph 3 of Article 3, which contains a cross-reference to Article 5.8, explicitly refers to
the term "investigations".  At first blush, this appears to us to be an explicit textual limitation of thescope of application of the obligations contained in paragraph 3 to "investigations", suggesting that
they are not also applicable to "sunset reviews".
                                                     
84 In this section, we examine Japan's allegation that in this sunset review, by not considering whether
imports were negligible before determining whether to cumulate subject imports, the ITC actedinconsistently with the US obligations under Articles 3.3, 5.8 and 11.3 of the Anti-dumping Agreement .
85 We refer to the text of Article 11.2, cited supra , para. 7.28.WT/DS244/R
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7.98 Turning to the immediate context of Article 3.3, we note that, by contrast, nowhere else in the
text of any other paragraph of Article 3 is the word "investigation" mentioned.  This supports our
preliminary conclusion that the obligations contained in Article 3.3 pertain to cumulative analysis in
"investigations", and that they are not also applicable to "sunset reviews".  In particular, the
immediate context of Article 3.3 indicates to us the following.
7.99 First, Article 3 is entitled "Injury".  This title is linked to footnote 9 of the Anti-dumping
Agreement , which indicates that: "[u]nder this Agreement the term "injury" shall, unless otherwise
specified, be taken to mean material injury to a domestic industry, threat of material injury to a
domestic industry or material retardation of the establishment of such an industry and shall be
interpreted in accordance with the provisions of this  Article."  This seems to demonstrate that the term
"injury" as it appears throughout the Anti-dumping Agreement  – including Article 11 -- is to be
construed in accordance with this footnote, unless otherwise specified.  This would seem to support
the view that the provisions of Article 3 concerning injury may be generally applicable throughout theAnti-dumping Agreement  and are not limited in application to investigations.  Article 11 does not
seem to explicitly specify otherwise in the case of sunset reviews.
7.100  There are other textual indications that the Article 3 injury obligations may generally apply
throughout the Agreement.  For example, the use of the language "for purposes of Article VI of
GATT 1994"
86 in Article 3.1 also suggests that, in general, the obligations in Article 3 pertaining to
injury may apply throughout the Anti-dumping Agreement , i.e. they are not limited to investigations.
7.101  However, even assuming arguendo  that the provisions of Article 3 may be generally
applicable throughout the Anti-dumping Agreement , an issue we need not and do not decide, this
would not necessarily make every single provision in that article applicable throughout the
Agreement.  An article that has been found generally to apply throughout the Agreement may wellcontain certain specific provisions whose scope of application is limited, by their own terms, in
certain respects.  In our view, Article 3.3 is such a specific provision, which limits its scope of
application by its own terms.
7.102  As stated above, even if the provisions of Article 3, including the definition of injury in
footnote 9, are generally applicable throughout the Anti-dumping Agreement , paragraph 3 of Article 3
is exceptional, in that it alone explicitly refers to the term "investigations".  Nowhere else in the text
of any other paragraph of Article 3 is the word "investigation" mentioned.  Therefore we are of the
view that Article 3.3, by its own terms, is limited in application to investigations and does not apply to
sunset reviews.  It follows that the cross-refere nce in Article 3.3 to the negligibility standard in
Article 5.8 does not apply to sunset reviews.
7.103  Furthermore, such a textual interpretation of Article 3.3 allows an examination consistent
with our examination relating to the alle ged application to sunset reviews of the de minimis  standard
in Article 5.8.  That is, on the basis of our textual analysis of Article 5 made in reaching our finding
that the de minimis  standard of Article 5.8 does not apply to sunset reviews ( supra , para. 7.70), we
consider that the text of Article 5 similarly fails to support the proposition that the negligibility
standard of Article 5.8 applies to sunset reviews.
7.104  According to Japan, the logical consequence of the US proposition that the quantitative
criteria set out in Article 3.3 do not apply in sunset reviews is that the US administering authorities
cannot cumulate in sunset reviews.  However, Japan clarified that it is not arguing before us that
                                                     
86 We note that in accordance with the provisions of Article 1 of the Anti-dumping Agreement , the
reference to Article VI of GATT 1994 in Article 3 is also a general reference to the Anti-dumping Agreement
itself.WT/DS244/R
Page 30
cumulation cannot be used at all in the injury component of a sunset review.87  For this reason, we do
not address the more general issue of whether or not cumulation is permitted in sunset reviews.
7.105  For these reasons, we conclude that the United States did not act inconsistently with
Articles 11.3, 3.3 or 5.8 in the instant sunset review by cumulating imports from Japan with imports
from other countries without applying the negligibility standard set out in Article 3.3 and 5.8 for
original investigations.
5. Use of dumping margins in sunset reviews
(a) US Sunset Policy Bulletin as such
(i) Arguments of parties
Japan
7.106  Japan submits that Article 2 of the Anti-dumping Agreement  contains general rules on
dumping calculations which apply throughout the Agreement.  It follows that likelihood of
continuation or recurrence of dumping determinations in sunset reviews must also conform to theserules.  The US Sunset Policy Bulletin  requires the DOC to base its likelihood of continuation or
recurrence of dumping determinations in a sunset review on past dumping margins obtained in
original investigations and subsequent administrative reviews.  It does not, however, contain any
provision that allows the DOC to adjust pre-WTO dumping margins in accordance with the provisions
of the present Anti-dumping Agreement .  It follows that the DOC's likelihood of continuation or
recurrence of dumping determinations in sunset reviews are inconsistent with Articles 2, 11.3 and
18.3 of the Anti-dumping Agreement  to the extent that they are based on pre-WTO original margins
and past administrative review dumping margins.  Japan provides certain examples of the
inconsistencies between pre-WTO rules and the provisions of the present Anti-dumping Agreement ,
one of which is the so-called practice of zeroing
  that has been found to be inconsistent with
Article 2.4.2 of the Anti-dumping Agreement .88  Japan is not challenging the dumping determinations
made in the original investigations or administrative reviews, per se .  Rather, it challenges the use of
these pre-WTO original margins and post-WTO administrative review margins in sunset reviews
conducted after the entry into force of the WTO Agreement .
7.107  Secondly, Japan submits that the Sunset Policy Bulletin89 as such is inconsistent with
Article 11.3 also because it directs the DOC in a sunset review to report to the ITC the dumping
margin found in original investigations as the margin that is likely to continue or recur should the duty
be terminated.  Japan considers DOC's duty to determine the likelihood of continuation or recurrence
of dumping in a sunset review under US law as being legally distinct from its duty to report to the ITC
the likely dumping margin to be used by the ITC in its injury determinations.
                                                     
87 See Second Oral Submission of Japan, para. 51; Response of Japan to Question 22 from the Panel.
88 Other inconsistencies cited by Japan in respect of the original (pre-WTO) dumping margins are the
calculation of the dumping margin on the basis of a co mparison of individual US transactions to weighted
average home market prices; use of home market sales of the exporting country to determine normal value only
when fewer than 10 per cent of those sales are below cost of production (as opposed to the current "20 per cent"
level Japan points to in  Article 2.2.1); and application of statutory minimum 10 per cent for  SG&A expensesand statutory minimum 8 per cent for profit in constructing normal value.  See First Written Submission of
Japan, paras. 14, 172 and 181; Response of Japan to Question 27 from the Panel.
89 In this context, Japan also cites the following language in the SAA:
"In providing information to the Commission, the Administration does not intend that
Commerce calculate future dumping margins or net countervailable subsidies . . . Only under
the most extraordinary circumstances should Commerce rely on dumping margins or netcountervailable subsidies other than those it calculated and published in its priordetermination."  SAA, at 891 (Exhibit JPN-2 at 4214)WT/DS244/R
Page 31
United States
7.108  United States argues that  Japan cannot challenge the Sunset Policy Bulletin as such in respect
of the use of past dumping margins as Japan has not established that it is mandatory and, therefore,
binding upon the DOC in its dumping determinatio ns in a sunset review in this respect.90  According
to the United States, Article 11.3 does not impose a particular methodology for the determination of
the likelihood of continuation or recurrence of dumping in a sunset review.  Therefore reliance on  theevidence of dumping and volume of imports over the life of the order is not inconsistent with
Article 11.3.
(ii) Arguments of third parties
Brazil
7.109  Brazil submits that the US law and practice which fails to take into account any margin
comparisons that do not result in a positive margin, i.e., the practice of zeroing, violates Articles 2.4
and 2.4.2 of the Anti-dumping Agreement .  According to Brazil, investigating authorities in sunset
reviews are required to re-calculate dumping margins.
91
Korea
7.110  Korea submits that the practice of “zeroing” that is prohibited under Article 2.4 is also
prohibited under Article 11.3 of the Anti-dumping Agreement .
Norway7.111  According to Norway, the United States is unde r an obligation to apply Article 2-consistent
dumping margins in its sunset reviews.  The DOC’s use of dumping margins including the “zeroing”
methodology is therefore inconsistent with Articles 2.2.1, 2.2.2, 2.4.2, 11.3 and 18.3 both as a general
practice and as applied in this case.
(iii) Evaluation by the Panel
92
7.112  Japan challenges what it refers to as the "US general practice" as such regarding the use of old
dumping margins as part of the likelihood of continuation or recurrence of dumping determinations in
sunset reviews.  According to Japan, since the dumping margins in the original investigation and the
administrative reviews were calculated in accordance with methodologies which do not conform to
                                                     
90 First Written Submission of the United States, para. 126.
91 Response of Brazil to Question 16 (c) from the Panel.
92 In this section, we examine the following allegations of Japan:
the DOC's use, as envisaged in the Sunset Policy Bulletin, as such, of pre-
WTO Agreement dumping margins to determine the likelihood of continuedor recurring dumping in a sunset review context is inconsistent with Articles2, 11.3, and 18.3 of the Anti-dumping Agreement ;
the DOC’s use, as envisaged in the Sunset Policy Bulletin, as such, of
dumping margins with zeroed negative margins in its sunset review analysisis inconsistent with Article 2.4 of the Anti-dumping Agreement ;
as envisaged in the Sunset Policy Bulletin, as such, the DOC's relying on
and reporting to the ITC WTO-inconsistent dumping margins which DOC
calculated in prior antidumping proceedings based on pre-WTO
methodologies and/or on dumping margins with zeroed negative margins, isinconsistent with the United States’ obligations under Articles 2, 11.3 and18.3 of the Anti-dumping Agreement ;WT/DS244/R
Page 32
the provisions of the Anti-dumping Agreement , DOC's likelihood of continuation or recurrence of
dumping determinations in sunset reviews, which make use of these old determinations, are also
inconsistent with the Anti-dumping Agreement .  The United States argues that the legal instruments
cited by Japan to support its claim are not binding under US law.  Therefore, the United States argues
that these legal instruments are not susceptible to give rise to WTO violations.
7.113  Although Japan cited certain provisions of the SAA in this respect93, it then made it clear that
"[it] is not challenging the WTO-consistency of the SAA itself."94  Therefore, we shall limit our
analysis of Japan's "as such" claim to the Sunset Policy Bulletin.  Before proceeding to the merits of
Japan's claim, we consider it necessary to consider whether or not the Sunset Policy Bulletin is a
measure in itself susceptible to challenge, as such, under the WTO Agreement .
7.114  It is now well established that a WTO Member's law as such can be challenged before a WTO
panel if the law mandates WTO-inconsistent behaviour.  WTO panels have found that a law is WTO-
inconsistent if they find that it mandates  WTO-inconsistent behaviour.95  If, on the other hand, the law
provides the executive branch of a Member's government with discretionary authority to act in a
WTO-consistent manner, then WTO panels have generally found that the law is not WTO-
inconsistent.96  This test has been generally applied by GATT/WTO panels.97
                                                     
93 First Written Submission of Japan, footnote 207 to para. 168.
94 Response of Japan to Question 6 from the Panel.
95 For example, the panel in US – Section 301 Trade Act , recognized the "classical test in the pre-
existing jurisprudence that only legislation mandating a WTO inconsistency or precluding WTO consistency,could, as such, violate WTO provisions". Panel Report, United States – Sections 301-310 of the Trade Act of
1974 ("US- Section 301 Trade Act") , WT/DS152/R; adopted 27 January 2000, DSR 2000:II, 815, para. 7.54.
See also the decision of the panel in US – Steel Plate , in which the panel stated: 
"The Appellate Body has recognized the distinction, but has not specifically ruled that it is
determinative in consideration of whether a statute is inconsistent with relevant WTOobligations.  However, it did state, in United States – Anti-Dumping Act of 1916 :
"88. As indicated above, the concept of mandatory as distinguished from discretionary
legislation was developed by a number of GATT panels as a threshold consideration in
determining when legislation as such – rather than a specific application of that legislation – wasinconsistent with a Contracting Party's GATT 1947 obligations.  The practice of GATT panelswas summed up in United States – Tobacco   as follows:
"… panels had consistently ruled that legislation which mandated
action inconsistent with the General Agreement could be challenged assuch, whereas legislation which merely gave the discretion to the  executive
authority  of a contracting party to act inconsistently with the General
Agreement could not be challenged as such;  only the actual application of
such legislation inconsistent with the General Agreement could be subject tochallenge."  (emphasis added)
Panel Report, United States – Anti-Dumping and Counterva iling Measures on Steel  Plate from India
("US – Steel Plate
 "), WT/DS206/R and Corr.1, adopted 29 July 2002, para. 7.88.
The Appellate Body has recently stated the following in connection with an examination as to whether
a statutory provision was inconsistent per se  with WTO obligations because it mandated  an inconsistency:  "We
are not, by implication, precluding the possibility that  a Member could violate its WTO obligations by enacting
legislation granting discretion to its authorities to act in violation of its WTO obligation.  We make no finding inthis respect...".  See, Appellate Body Report, United States – Countervailing Measures Concerning Certain
Products from the European Communities ("US – Countervailing Measures on Certain EC Products
 "),
WT/DS212/AB/R, adopted 8 January 2003, para. 159 and note 334.
96 See for example, Panel Report, United States – Measures Treating Exports Restraints as Subsidies
("US – Export Restraints "), WT/DS194/R and Corr.2, adopted 23 August 2001, para. 8.131.
97 See supra , note 95.WT/DS244/R
Page 33
7.115  There are two issues to be considered in a case where a WTO Member's law is being
challenged before a panel: first, whether the Member's law mandates a certain course of action; and
second, whether that course of action is inconsistent with the WTO provision cited by the
complainant.
7.116  As regards the sequence in which these two issues are to be addressed, we note that previous
WTO panels have followed different approaches.  Some panels98 examined the meaning of the
particular WTO provision first and then decided whether the Member's law mandated  behaviour that
would be inconsistent with that provision; while others99 first examined whether the challenged law
mandated  a particular course of action and, if so, whether or not the mandated action constituted a
violation.  However, as the panel in US – Section 129(c)(1) URAA stated, the sequence in which these
two issues are considered will not change the ultimate conclusion of the panel.100  That is because
whatever sequence a panel follows, in order to conclude that certain aspects of a WTO Member's law
are inconsistent with the WTO provisions, the panel has to conclude that both elements are present,i.e. that the challenged provision under US law mandates WTO-inconsistent behaviour.
7.117  We find the circumstances underlying this particular claim of Japan to be similar to the
circumstances in US – Section 129(c)(1) URAA
 .  In that case, the panel decided to inquire first
whether the law under challenge mandated a particular course of action or not and if so, whether that
course of action was WTO-inconsistent.  The panel followed this analytical approach because therewas a dispute between the parties as to whether the challenged law mandated certain action.  The
panel found it more practical to resolve this disagreement first.
101
7.118  In the instant case, there is also a disagreement between the parties as to whether the legal
instruments relied upon by Japan mandate a certain course  of action, i.e. whether they can give rise to a
violation of WTO obligations.  We shall, therefore, resolve the issue whether the legal instrument cited
by Japan in support of its claim here, i.e. the Sunset Policy Bulletin, is binding under US law and
therefore can mandate WTO-inconsistent behaviour.  If we find that the Bulletin is not a mandatory
legal instrument containing legally binding obliga tions under US law, we will not need to go on to
analyze what is required under the WTO provision that  Japan alleges to have been violated by the
United States in connection with the Sunset Policy Bulletin alone.  In that case, we will conclude that
there is no "as such" WTO-inconsistency.  If, however, we find that the Bulletin is a mandatory legal
instrument containing legally binding obligations, we  will analyze the Bulletin's provisions in light of
the requirements set forth in the WTO provisions ci ted by Japan and then decide whether US law as
such is WTO-inconsistent or not.
7.119  On the basis of this analytical framework, we proceed with our analysis as to whether the US
Sunset Policy Bulletin mandates WTO-inconsistent behaviour.102,103  We underline that the purpose of
                                                     
98 The first approach was followed by the Panel in US – Export Restraints. See  Panel Report, US –
Export Restraints , supra , note 96, para.8.14.
99 The Panel in US – Section 129(c)(1) URAA , followed the second approach.  See Panel Report, United
States – Section 129(c)(1) of the Uruguay Round Agreements Act ("US – Section 129(c)(1) URAA "),
WT/DS221/R, adopted 30 August 2002, para. 6.25.
100 Ibid.,  footnote 72 to para. 6.25.
101 Ibid.
102 Regarding the question of whether, and under what circumstances, the Sunset Policy Bulletin could, as
such, violate the United States' WTO obligations, we recall that the US – Export Restraints  panel has considered
that the essential question is whether it operates, in some concrete way, independently and in its own right:
"In considering whether any or all of the measures individually can give rise to a violation of
WTO obligations, the central question that must be answered is whether each measure
operates in some concrete way in its own right.  By this we mean that each measure would
have to constitute an instrument with a functional life of its own, i. e., that it would have to do
something concrete, independently of any other instruments, for it to be able to give riseindependently to a violation of WTO obligations." (emphasis in original)WT/DS244/R
Page 34
our examination of the structure and design of the Sunset Policy Bulletin, and its function within US
municipal law, is to discern whether the Sunset Policy Bulletin, in and of itself, mandates WTO-
inconsistent behaviour.104
7.120  According to Japan, the Bulletin has its own ope rational life under US law, independently
from other legal instruments, i.e. the Statute and the Regulations.105  Japan argues that the best
evidence of the binding nature of the Bulletin is th e consistent result that it has created in the sunset
reviews carried out by the DOC thus far.  Although the use of the words such as "normally" in the text
of the Bulletin seems to make it discretionary, given the large number and proportion of sunset
reviews in which the Bulletin has given rise to a determination of "likelihood" (and thus to a
continuation of the measure) Japan asserts that the Bulletin is, in fact, binding.106  Japan characterizes
the Bulletin as a " de facto  mandatory" legal instrument.107  Japan distinguishes the Bulletin from the
practice discussed in US – Export Restraints  and US – Steel Plate  in that the Bulletin "is an actual
written codification of [DOC]'s concrete practice".108  
7.121  The United States counters Japan and argues that the Bulletin is not a "codification" and is not
binding under US law.  In this respect the United States asserts:
Under U.S. law, the Sunset Policy Bulletin  is considered a non-binding statement,
providing evidence of Commerce’s understanding of sunset-related issues not
                                                                                                                                                                    
Panel Report, US – Export Restraints , supra , note 96, para.8.85.
The focus of our examination is whether the Sunset Policy Bulletin, in and of itself, mandates  certain
behaviour.
103 We consider that the nature of a "measure" that is challengeable in WTO dispute settlement is a
fundamental matter relating to our mandate and jurisdiction in this case.  In this regard, we recall that previouspanels and the Appellate Body have discussed the nature of "measures" that may form part of the "matter"referred to the DSB under the DSU.  See, for example, Appellate Body Report, Guatemala – Anti-Dumping
Investigation Regarding Portland Cement  from Mexico ("Guatemala – Cement I
 "), WT/DS60/AB/R, adopted
25 November 1998, DSR 1998:IX, 3767, para. 64 and footnote. 43 to para. 64.
104  We recall the Appellate Body's statement in Appellate Body Report, India – Patent Protection for
Pharmaceutical and Agricultural Chemical Products ("India – Patents (US) "), WT/DS50/AB/R, adopted
16 January 1998, DSR 1998:I, 9 that "municipal law may ...constitute evidence of compliance or non-compliance with international obligations", and that an examination of the relevant aspects of a WTO Member's
municipal law may be necessary in order to determine whether that Member has complied with its obligations
under the WTO Agreement.   We further recall that the Appellate Body has stated, in US – Carbon Steel , 
 supra ,
note 22, para. 157,  that:
"...a responding Member's law will be treated as WTO- consistent   until proven otherwise.  The
party asserting that another party's municipal law, as such, is inconsistent with relevant treatyobligations bears the burden of introducing evid ence as to the scope and meaning of such law
to substantiate that assertion....  The nature an d extent of the evidence required to satisfy the
burden of proof will vary from case to case."
105 Response of Japan to Question 1 from the Panel.
106 Ibid.
107 Response of Japan to Questions 2 and 4 from the Panel.   Japan explains the notion of " de facto
mandatory" as follows:
"Japan uses the term “ de facto ” to mean a situation where the domestic “administrative
procedures,” as those codified in the Sunset Policy Bulletin,  appear to be discretionary, but in
reality the administering authority consistently follows the directives of the Sunset Policy
Bulletin  as if they were mandatory. In the present case, USDOC has followed the directives of
the Sunset Policy Bulletin  in every single sunset review -- 228 times.  It is hard to imagine a
better example of a measure that functions as a mandatory rule, regardless of the labelapplied." (emphasis in original, footnote omitted)
108 Response of Japan to Question 2 from the Panel.WT/DS244/R
Page 35
explicitly addressed by the statute and regulations. In this regard, the Sunset Policy
Bulletin has a legal status comparable to that of agency precedent.  As with its
administrative precedent, Commerce may depart from its policy bulletin in any
particular case, so long as it explains the reasons for doing so. The Sunset Policy
Bulletin  does nothing more than provide Commerce and the public with a guide as to
how Commerce may interpret and apply the statute and its regulations in individual
cases.  Absent application in a particular case, and in conjunction with U.S. sunset
laws and regulations, the Sunset Policy Bulletin  does not “do something concrete” for
which it could be subject to independent legal challenge under the WTO
agreements.109 (italic emphasis in original, underline emphasis added, footnotes
omitted)
7.122  The United States asserts that the Bulletin only provides guidance to the public as to how the
DOC will behave regarding certain issues in sunset reviews.
7.123  We note that the legal status of the Sunset Policy Bulletin under US law has not been directly
addressed by a WTO panel or the Appellate Body before.110
7.124  We commence our analysis of whether the Bulletin mandates certain behaviour under US
law, independently from other legal instruments such as the Statute and the Regulations,  with the text
of the Bulletin itself.  In this respect, we note the following language in the text of the Bulletin:
Sunset Review Policies
I. Overview
…Sunset reviews of anti-dumping … duty or ders … will be conducted pursuant to
the provisions of the act, including sections 751(c) and 752 of the act, and the
Department's regulations … These policies are intended to complement the applicable
statutory and regulatory provisions by providing guidance on methodological or
analytical issues not explicitly addressed by the statute and regulations.111 (emphasis
added)
7.125  This general introductory language found in the Bulletin itself indicates that, as far as the
conduct of sunset reviews under US law is concerned, the Bulletin operates on the basis of, and withinthe parameters set by, the Statute and the Regulations.  The Bulletin provides guidance on certain
methodological issues regarding the applicable statut ory and regulatory provisions.  In our view, this
text indicates that the Bulletin, in and of itself, does not mandate any obligatory behaviour.   On its
face, the Bulletin clearly states that sunset reviews are to be carried out in accordance with the
provisions of the Statute and the Regulations.  Japan has pointed to no other provision in the US
legislation that would suggest that the Bulletin can in fact operate independently from other legal
instruments under US law in such a way as to mandate a particular course of action.
7.126  We therefore find that the Sunset Policy Bulletin, in and of itself, is not a legal instrument that
operates so as to mandate a course of action.  It follows that the Bulletin can not constitute a measure
that can be challenged in WTO dispute settlement proceedings.
                                                     
109 Response of the United States to Question 1 from the Panel.
110 In US – Carbon Steel , the Panel and the Appellate Body both referred to the Bulletin, but did not
need to make a determination as to its legal nature and status in order to resolve the claims before them in thatdispute.  The Appellate Body noted, in passing, that "the United States indicated that the Sunset Policy Bulletin
represents a statement of existing USDOC practice.  Th e United States explained that the Sunset Policy Bulletin,
as such, is not binding upon USDOC, but that USDOC may not depart from it in an arbitrary or capriciousmanner ." See Appellate Body Report, US – Carbon Steel , supra , note 22, note 45.
111 Sunset Policy Bulletin , 63 FR at 18872 (Exhibit JPN-6)WT/DS244/R
Page 36
7.127  In our view, the fact that the DOC may depart from the Sunset Policy Bulletin under US law
under certain conditions further supports our finding that it is not a binding legal instrument under US
law.
7.128  The implication of our finding regarding the status of the Bulletin under US law is that we
will disregard any argumentation by Japan based exclusively on the Bulletin in its claims challenging
US "practice" as such.  Therefore, in the absence of any direct invocation of binding legal instruments-- such as the Statute or the Regulation -- we will find that Japan's claims challenging US "general
practice" "as such" fail.  If, however, in addition to the Bulletin, Japan also refers to other legal
instruments in its "as such" claims, then we will address such claims on the basis of these other legal
instruments.
7.129  That is not to say that we will completely disregard the provisions of the Bulletin in our
inquiry.  Rather, we will take into account the provisions of the Bulletin alongside the SAA in
interpreting the other legal instruments that do have independent operational status under US law.  Inparticular, given the status of the SAA as an aut horitative interpretative tool for the interpretation of
the US Statute, we will certainly consider it in inte rpreting the Statute.  However, in cases where the
sole ground for a claim targeting US general practice as such  is the Bulletin, we will find that that
claim fails because it does not rest on legal instruments that can independently give rise to a WTO
violation.
7.130  We further believe that an instrument can be either  mandatory or not mandatory.
Conceptually, an instrument must fall within one of  these two categories.  We see no justification for
the creation of a " de facto " mandatory category, as advocated by Japan, that would transform an
otherwise non-mandatory instrument into a mandatory one on the basis of a record of past actions.  If
an instrument is not binding, a record of past conduct thereunder cannot alter that status, as it will notnecessarily determine future behaviour.
7.131  We note that initially Japan characterized the Bulletin as "practice" regarding the conduct of
sunset reviews under US law.
112  However, given that the Sunset Policy Bulletin was promulgated
before any sunset review was initiated under US law, we find it difficult to accept the proposition that
the Bulletin contains or reflects the US practice regard ing sunset reviews.  In our view, "a practice is a
repeated pattern of similar responses to a set of circumstances."113  Given that, at the time the Bulletin
was promulgated, the United States had not yet carried out any sunset reviews, we find that it can not
possibly be characterized as "practice".  However, even assuming arguendo  that the Bulletin
constitutes practice, we find that practice as such can not be challenged before a WTO panel.  We find
support for our view in the reports of previous panels.114
                                                     
112 First Written Submission of Japan, paras. 215-216.
113 Panel Report, US – Steel Plate ,  supra , note 95, para. 7.22.
114 The panel in US – Export Restraints stated:
"[P]ast practice can be departed from as long as a reasoned explanation, which prevents such
practice from achieving independent operational status in the sense of doing  something or
requiring  some particular action…US "practi ce" therefore does not appear to have
independent operational status such that it could independently give rise to a WTO violationas alleged by Canada."  Panel Report, US – Export Restraints , supra , note 96, para.8.126.
The same issue was also raised before the panel in US – Steel Plate , supra , note 95 where the panel
stated:
"That a particular response to a particular set of circumstances has been repeated, and may be
predicted to be repeated in the future, does not, in our view transform it into a measure.  Sucha conclusion would leave the question of what is a measure vague and subject to dispute itself,which we consider an unacceptable outcome.  Moreover, we do not consider that merely byWT/DS244/R
Page 37
7.132  Japan also describes the Bulletin as an "administrative procedure" within the meaning of
Article 18.4 of the Anti-dumping Agreement .115  According to Japan, that Article deals with
administrative procedures that are not only explicitly, but also implicitly, mandatory in nature.116  In
Japan's view, this confirms that the Bulletin is a measure that, as such, may be subject to WTO
challenge.  Article 18.4 of the Anti-dumping Agreement  provides:
"Each Member shall take all necessary steps, of a general or particular character, to
ensure, not later than the date of entry into force of the WTO Agreement for it, the
conformity of its laws, regulations and administrative procedures with the provisions
of this Agreement as they may apply for the Member in question."
7.133  We understand Japan to argue that the characterization of the Bulletin as an "administrative
procedure" within the meaning of this provis ion makes the Bulletin challengeable under the
Agreement.  We do not agree. Even assuming arguendo  that Article 18.4 were a provision that
determines the measures that can give rise to a WTO violation, we are not convinced that thereference to "administrative procedure" in Article 18.4 embraces the Bulletin.
7.134  We understand the phrase "administrative procedure" in Article 18.4 to refer to a pre-
established rule for the conduct of an anti-dumping investigation.  We find support for our view in the
following finding of the panel, in US – Steel Plate :
In particular, we do not agree with the notion that the practice is an "administrative
procedure" in the sense of Article 18.4 of the Agreement.  It is not a pre-established
rule for the conduct of anti-dumping investigations.
117
7.135  Japan's argument that the Sunset Policy Bulletin is an “administrative procedure” rests, at
least in part, on its observation that DOC has "applied" the Bulletin in all 227 sunset reviews
conducted by DOC in which petitioners have participated.118  According to Japan, it is notable that in
all of those reviews, the DOC has made an affirmative determination of likelihood of continuation or
recurrence of dumping.  Japan recalls the statement of the Appellate Body in US – Carbon Steel , that
the Appellate Body,
".... [was] not persuaded that the conduct of a single sunset review can serve as
conclusive evidence of USDOC practice, and, thereby, of the meaning of UnitedStates law.  This is particularly so in the absence of information as to the number of
sunset reviews that have been conducted, the methodology employed by USDOC in
other reviews, and the overall results of such reviews."
119
7.136  For Japan, this statement leaves open the possibility to establish that the Sunset Policy
Bulletin is binding through the submission of evidence as to the number of sunset reviews (227) and
the fact that an affirmative determination of likelihood has been made in each review.  The United
States, however, argues that since the DOC is allowed to depart from the provisions of the SunsetPolicy Bulletin as long as it provides an explanation for such departure this argument of Japan fails.
According to the United States, the figures stated by Japan in this respect are not correct because they
do not reflect the completed sunset reviews, i.e. sunset reviews in which both the DOC and the ITC
                                                                                                                                                                    
repetition, a Member becomes obligated to follow its past practice." Panel Report, US – Steel
Plate , supra , note 95, para. 7.22.
Both panels thus concluded that practice, as such, could not independently give rise to a WTO
violation.  We find these reports relevant in our analysis of the Bulletin in the present case.
115 Response of Japan to Question 6 from the Panel.
116 Response of Japan to Question 4 from the Panel.
117 Panel Report, US – Steel Plate , supra , note 95 , para 7.22.
118 See Response of Japan to Question 79(b) from the Panel.
119 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 148.WT/DS244/R
Page 38
have made their likelihood determinations.120  The United States submits that out of 321 sunset
reviews of anti-dumping and countervailing duty orders initiated between July 1998 and December
1999 (including the instant sunset review),  150 resulted in determinations under which orders were
revoked.121
7.137  We are not convinced by this argument of Japan.  In particular, we do not agree that the
Sunset Policy Bulletin is a pre-established rule th at mandates certain conduct for sunset reviews.  That
a particular response to a particular set of circumstances has been repeated, and may even be predicted
to be repeated in the future on the basis of a single written document, does not, in our view have the
effect of transforming the Sunset Policy Bulletin into an "administrative procedure".
7.138  A conclusion that at some point, certain behaviour could transform the Bulletin into an
“administrative procedure”, does not allow for the fact that the DOC is not bound to follow the
Bulletin and indeed may, at some future point, choose to depart therefrom.  Moreover, we do not
consider that merely by repetition, the DOC w ould somehow become compelled to follow the
Bulletin.  We find support for our view in the panel decision in US – Steel Plate from India.122  We
note the United States' assertion that under its governing laws, the DOC may change a practice
provided it explains its decision.123
7.139  Furthermore, we are of the view that the form  in which the Sunset Policy Bulletin is
maintained does not transform it into a mandatory lega l instrument.  The fact that the contents of the
Bulletin have been compiled in a single instrument does not affect our view as to its nature or
function.  In this respect, we note that in US – Export Restraints  and US – Steel Plate , the "practice" at
issue had not been reduced to writing.  That is, parties were unable to prove on the basis of a single,
integrated instrument the existence and substance of the challenged practice.  Had the contents of the
Sunset Policy Bulletin in the instant case remain ed similarly uncompiled, we would more comfortably
share the view of these previous panels in deciding that the Bulletin can not give rise to a WTO
violation.
7.140  We find it neither appropriate nor legally justifiable to infer that the Bulletin obligates the
investigating authority to follow its provisions in s unset reviews, from the mere fact that it has been
reduced to writing in a single instrument.  Such a conclusion should rather be based on the nature,operation and discernable substance of the practice, considered in the overall context of the legal
framework of the Member concerned.  In particular, had the substance of the Sunset Policy Bulletin
not been reduced to a single, integrated document, it would be more difficult for a WTO panel to
discern – with even a minimum degree of certainty - their nature, operation and substance.  We do not
believe that we should discourage efforts by WTO Members to provide transparency, certainty and
                                                     
120 Response of the United States to Question 81 from the Panel.
121 Ibid.  According to the United States, 163 orders have been continued as a result of sunset review
based on affirmative likelihood determinations by both DOC and ITC.   Japan submits that the differences in thenumbers cited by the parties are due to the fact that the United States refers to both AD and CVD sunsetreviews, whereas Japan focuses upon AD sunset reviews,  and that the US figures include only those reviews
completed by December 2000, whereas Japan's include reviews through August 2002.   Because of the nature of
our findings here, we do not believe that these "differences" in the cited data are material.
122 Panel Report, US – Steel Plate , supra , note 95, para 7.22.
123 In this respect the United States stated:
"An interested party would expect Commer ce to not be arbitrary and capricious in
Commerce’s application of the law and in its analysis of identical or similar factual situations.If Commerce determined to change its analysis and to do so would represent a change frompast practice, Commerce would explain its determination in the case and normally provide
parties an opportunity to comment on the change before issuing a final determination.  In the
final determination, Commerce would then address comments made by a party on that issue."Response of the United States to Question 9 (d) from the Panel.We do not consider that Japan has effectively refuted this.WT/DS244/R
Page 39
predictability in the conduct of sunset reviews.  This would run counter to the objectives of the WTO
dispute settlement system as laid down in Article 3.2 of the DSU , which states:  "The dispute
settlement system of the WTO is a central element in providing security and predictability to the
multilateral trading system."
7.141  As Japan has cited no language elsewhere in the applicable US legal instruments to suggest
that the Bulletin is binding on the US administrative  authorities, we conclude that the Bulletin does
not, in and of itself, mandate certain conduct and therefore can not be challenged as such under WTO
law.
7.142  Finally in this respect, we note the following statement by the Appellate Body in US –
Carbon Steel :
Thus, a responding Member's law will be treated as WTO- consistent   until proven
otherwise.  The party asserting that another party's municipal law, as such, is
inconsistent with relevant treaty obligations bears the burden of introducing evidenceas to the scope and meaning of such law to substantiate that assertion.
  Such evidence
will typically be produced in the form of the text of the relevant legislation or legal
instruments, which may be supported, as appropriate, by evidence of the consistent
application of such laws, the pronouncements of domestic courts on the meaning of
such laws, the opinions of legal experts and the writings of recognized scholars.  Thenature and extent of the evidence required to satisfy the burden of proof will vary
from case to case.
124 (footnote omitted, emphasis in original)
7.143  Japan argues that the above statement of the Appellate Body stands for the proposition that
the Sunset Policy Bulletin as such can be challenged before a WTO panel.125  According to the United
States, however, this statement cannot be interpreted to mean that the Sunset Policy Bulletin as such ischallengeable under WTO law.  The United States argues that the Appellate Body explains the type of
evidence that can be introduced by the party that challenges a WTO Member's law as such before a
WTO panel or the Appellate Body in its effort to establish its case.
126  We agree with the United
States that the above statement of Appellate Body can not be interpreted to mean that the Sunset
Policy Bulletin "as such" can be challenged under WT O law.  It rather sets out the type of evidence
that can be introduced by the complaining party in cases where the law of a WTO Member is
challenged.  Therefore, this decision does not affect our finding that the Sunset Policy Bulletin as such
cannot be challenged before a WTO panel.
7.144  In this regard, we also note that the Appellate Body, in US – Countervailing Measures on
Certain EC Products , reviewed that panel's finding regarding the consistency with the US' WTO
obligations of a certain methodology used  by the DOC in CVD investigations.127  The Appellate Body
reviewed the panel's finding as to the WTO-consiste ncy of the methodology, on the basis of the panel's
characterization thereof.  There is no indication, in eith er the panel or the Appella te Body report, that the
threshold issue of whether the methodology "as such " could be challenged before a WTO panel was
raised in that case.  In our view, in the absence of  such discussion on the part of the Appellate Body, the
mere fact that the Appellate Body made a finding as to the "as such" consistency of a certain
methodology with certain WTO provisions cannot be taken to mean that the Sunset Policy Bulletin as
such is necessarily challengeable.
                                                     
124 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 157.
125 Response of Japan to Question 79 (b) from the Panel.
126 Response of Japan to Question 79 (a) from the Panel.
127 Appellate Body Report, US – Countervailing Measures on Certain EC Products , supra , note 95,
paras. 129 and 146.WT/DS244/R
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7.145  For all of these reasons, we find that Japan's "as such" claim fails because the Sunset Policy
Bulletin is not a mandatory legal instrument obligating a certain course of conduct and thus can not, in
and of itself, give rise to a WTO violation.
(b) US Sunset Policy Bulletin as applied in the instant sunset review
(i) Arguments of parties
Japan7.146  Japan alleges that, in the instant sunset review: i) the DOC acted inconsistently with
Articles 2, 11.3 and 18.3 of the Anti-dumping Agreement  by relying on pre- WTO Agreement  dumping
margins, based upon WTO-inconsistent methodologies, in making its determination of continuation or
recurrence of dumping;  ii) the DOC acted inconsistently with Article 2.4 in relying upon dumping
margins calculated in the original investigation and administrative reviews on the basis of "zeroing";
and iii) the DOC acted inconsistently with Articl es 2, 11.3 and 18.3 in reporting the dumping margins
calculated in the original investigation to the ITC to be used by the latter in its sunset likelihood ofcontinuation or recurrence of injury determination.
United States
7.147  The United States contends that the methodologies used in the calculation of pre-WTO
dumping margins can not be challenged under the present Anti-dumping Agreement  because
Article 18.3 provides that the Anti-dumping Agreement  applies only to investigations and reviews
initiated on the basis of petitions filed after the entry into force of the Agreement, 1 January 1995 for
the United States.  Given that the original investigation in question was carried out before that date
DOC's determinations made in that investigation can not be challenged before this Panel.
7.148  The United States submits that all that Article 11.3 requires the DOC to do in a sunset review
is to determine the likelihood of continuation or recurrence of dumping should the order be terminatedafter five years of application.  It does not require the quantification of the margin that is likely to
continue or recur, nor does it set out any particular methodology to be followed in making such a
determination.  It follows that the DOC's re liance on old dumping margins, including the
administrative review margins, as part of its likelihood analysis in this sunset review is not
inconsistent with the requirements of Article 11.3.
7.149  With respect to the dumping margins reported  by the DOC to the ITC, the United States
asserts that the fact that the DOC reports to the ITC the margin at which dumping is likely to continue
or recur is irrelevant because no such obligation has been imposed by the Anti-dumping Agreement  on
WTO Members.  The United States points out that under US law
128 in a sunset review the DOC
reports the original dumping margin to the ITC unless the DOC determines that dumping has been
eliminated or the dumping margin has declined and the volume of imports remained steady or
increased after the imposition of the anti-dumping   order.  Since these two conditions were not met in
the instant review, the DOC reported the original margin to the ITC.
(ii) Evaluation by the Panel
7.150  We recall the following facts that are relevant for the consideration of Japan's allegations:  the
original investigation was carried out and the original measure was imposed before the entry into
force of the WTO Agreement , and thus the present Anti-dumping Agreement .  Four administrative
reviews were carried out after the imposition of th e original anti-dumping measure and following the
                                                     
128 In this respect the United States refers to sections 752(a)(6) and 752(c)(3) of the Statute, to the SAA
and the Sunset Policy Bulletin.  See, First Written Submission of the United States, para. 139.WT/DS244/R
Page 41
entry into force of the WTO Agreement .  In the first two of these administrative reviews129, the DOC
calculated new dumping margins for the review periods.  At levels of approximately 12 per cent and 2
per cent, respectively, these dumping margins were considerably lower than the original margin of
approximately 36 per cent.  The last two such administrative reviews130 were rescinded.  Thus, no
calculation was made in these reviews.  In the instant sunset review, the DOC opined that since
dumping was found in all administrative reviews carried out after the imposition of the order andsince import volumes declined after the imposition and remained at relatively low levels, dumping
was likely to continue or recur should the duty be terminated.
131
7.151  On this basis, we examine each of Japan's three allegations in turn.
i) DOC's Alleged Reliance upon Dumping Margins Established in the Original Investigation
7.152  Japan alleges that in its affirmative determination of likelihood of continuation or recurrence
of dumping in this sunset review, the DOC used margins calculated in the original investigation in
accordance with the pre-WTO rules because the present Agreement had not yet entered into effect atthat time.  Given that certain practices used in dumping determinations before the entry into force of
the present Agreement are now WTO-inconsistent, reliance on those margins infected the likelihood
determinations made in this sunset review.
7.153  Before addressing this issue, we identify what we are not asked to examine.  It is undisputed
that the DOC did not engage in the calculation or re-calculation of any dumping margins in this sunset
review.  Nor does Japan claim that the now WTO-inconsistent techniques it cites were used by the
DOC in this sunset review.  Rather, Japan's claim is that the DOC acted inconsistently with its
obligations under the cited provisions by using pre-WTO dumping margins calculated in accordance
with certain methodologies that are WTO-inconsistent.  Japan is not arguing that the use in sunset
reviews of dumping margins calculated in original investigations is per se  WTO-inconsistent.  In
Japan's view, it is the now-WTO-inconsistent methodologies used in the calculation of these pre-
WTO margins that renders the US sunset determination inconsistent with Articles 2, 11.3 and 18.3 of
the Anti-dumping Agreement .
7.154  The first issue before us is to determine whether,  in this sunset review, the DOC in fact relied
upon the original margins as a basis for its determination of likelihood of continuation or recurrenceof dumping.  We therefore look to the DOC's dete rmination to discern whether the DOC relied upon
the original margins in this way.
7.155  It is apparent to us from the face of the DOC Final Determination that the DOC did not rely
upon the original margins of dumping in order to make its determination as to whether there was a
likelihood of continuation or recurrence of dumping.  Rather, the DOC's determination makes it clear
that the DOC relied solely  upon the dumping margins calculated in the administrative reviews in order
to make its determination as to whether there was a likelihood of continuation or recurrence ofdumping.
132
                                                     
129For the initiation of the first administrative review, see, 62 FR 50292 (25 September 1997) (Exhibit
JPN-14a at p. 50292).  For the initiation of the second administrative review, see, 63 FR 51893 (29 September
1998) (Exhibit JPN-15a at p. 51893).
130 For the initiation of the third administrative review, see, 64 FR 53318 (1 October 1999) (Exhibit
JPN-16a at p. 53318). For the initiation of the fourth administrative review, see, 65 FR 58733 (2 October 2000)(Exhibit JPN-17a at p. 58733).
131 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e at p. 5).
132 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e at pp. 5 and 6):  "As stated in our
preliminary results, and, as domestic interested parties observe, margins have remained above de minimis  in
every administrative review since the issuance of the order."   The Determination also states:  "...the DepartmentWT/DS244/R
Page 42
7.156  We therefore find that the DOC did not rely upon the original determinations of dumping as a
basis for its determination of likelihood of continuation or recurrence of dumping in the instant sunset
review.  It is therefore not necessary for us to address whether such alleged reliance on the
determination of dumping in an original pre-WTO investigation would have been inconsistent with
Articles 2, 11.3 and 18.3 of the Anti-dumping Agreement .133
ii) DOC's Reliance upon Dumping Margins Established in Administrative Reviews since the
Imposition of the Original Measures in This Sunset Review
7.157   We understand Japan to challenge the DOC's reliance upon dumping margins established in
administrative reviews following the imposition of the original measure, and after the entry into force
of the WTO Agreement , because they were calculated on the basis of "zeroing".134  To be clear, Japan
is not arguing that the use in sunset reviews of dumping margins calculated in administrative reviews
is per se  WTO-inconsistent.  Nor is Japan claiming before us that duties collected pursuant to the
administrative review determinations were inconsistent measures.  Rather, Japan alleges that theDOC's reliance upon the administrative review margins, which had been calculated on the basis of
"zeroing", is inconsistent with Article 2.4 of the Anti-dumping Agreement  as the DOC did not ensure
that such margins were WTO-consistent before it relied upon them as a basis for its likelihood
determination.
135
7.158  The DOC applied a weighted average-to-transaction methodology in establishing the
dumping margins in administrative reviews.  We understand that Japan is not contesting the US use of
this methodology, in and of itself.136  Rather, Japan alleges that the DOC's reliance, in this sunset
                                                                                                                                                                    
finds that the existence of dumping margins after the issuance of the order is highly probative of the likelihood
of continuation or recurrence of dumping."
133The inconsistencies cited by Japan in respect of the DOC's alleged reliance upon the original margins
of dumping are: the use of "zeroing"; the calculation of the dumping margin on the basis of a comparison ofindividual US transactions to weighted average home ma rket prices; use of home market sales of the exporting
country to determine normal value only when fewer than 10 per cent of those sales are below cost of production
(as opposed to the current "20 per cent" level Japan points to in  Article 2.2.1); and application of statutory
minimum 10 per cent for  SG&A expenses and statutory minimum 8 per cent for profit in constructing normalvalue.  See First Written Submission of Japan, paras. 14, 172 and 181; Response of Japan to Question 27 from
the Panel.
134 Fourth Administrative Review (Exhibit. Japan 14(c) and (d)); Fifth Administrative Review (Exhibit
Japan 15(c) and (d)).
135 The Appellate Body has consistently stated that a panel's terms of reference is a fundamental issue –
"going to the  jurisdiction  of a panel"-- that a panel must consider.  We recall the framework for our analysis of
the scope of our terms of reference under Article 6.2 DSU , supra , 7.49.  We would point out that Japan's Panel
request (WT/DS244/4) refers only to a claim in this connection under Article 2.4 (particularly 2.4.2) and not
under Article 11.3.  It states, in pertinent part:
"The dumping margins that the DOC used in its sunset reviews ... are inconsistent with the
WTO obligations as follows: ....(ii) The DOC has a traditional practice of zeroing negative margins when calculating
dumping margins.  The DOC applied this practice in its calculation of dumpingmargins in the original investigations and the administrative reviews in this case.The Appellate Body found this practice of zeroing to be inconsistent with Article 2.4
of the AD Agreement in the EC – Bed-Linen  case (WT/DS141).  The United States'
general practice and its application of the practice in this case are thereforeinconsistent with Article 2.4 (particularly 2.4.2) of the AD Agreement and ArticleX:3 of the GATT 1994."
Furthermore, in response to Questions 27 and 33 from the Panel, Japan identified Article 2.4 as the legal basisthat allegedly precludes the use of zeroed-out margins as a basis for a sunset review determination.  We
therefore consider that Japan's claim in this respect  is based upon an alleged violation of Article 2.4.
Nevertheless, because Japan also refers to Article 11.3 in  its Panel request generally, we also take into account
the obligations in that Article in examining this allegation of Japan.
136 Japan's responses to Panel Questions following the first Panel meeting.WT/DS244/R
Page 43
review, upon administrative review dumping margins calculated on the basis of "zeroing" is
inconsistent with Article 2.4 of the Anti-dumping Agreement .
7.159  We are aware that the zeroing methodology has the potential of increasing the dumping
margin – in relation to a dumping methodology that  gives full credit to negative dumping margins --
because it does not allow for an offset for negative dumping margins in the calculation of the overall
margin.  Perhaps more importantly here, zeroing may affect the finding as to the very existence  of
dumping, i.e. it may lead to an affirmative determination that dumping exists where no dumping
would have been established in the absence of zeroin g.  Japan alleges in this case that there would
have been no finding of dumping in at least the mo st recent administrative review in question had the
DOC not "zeroed".137  That, in turn, could have changed the outcome of the subsequent sunset review
where the DOC relied upon affirmative dumping determinations in the administrative review as one
of the factual bases to establish the likelihood of continuation or recurrence of dumping.
7.160  Therefore, the issue before us is whether the reliance by the DOC in this sunset review on the
dumping margins that were calculated in the administrative reviews on the basis of "zeroing" is
inconsistent with Article 2.4.
7.161  In our view, two fundamental threshold question s arise in our consideration of this issue:
first, whether Article 2.4 requires the calculation in a sunset review of a likely future margin of
dumping in order to make a determination of likelihood of continuation or recurrence of dumping; andsecond, whether Article 2.4 applies to an Article 11.3 likelihood determination so as to require that a
determination of likelihood of continuation or recu rrence of dumping in a sunset review must be
based on a determination of dumping or a dumping margin calculated in conformity with Article 2.4.
7.162  With respect to the first issue, while Japan submits that a likelihood determination involves
quantification
138, Japan does not dispute that there is no need to make a precise calculation of the
likely future dumping margin as a basis for a determination of likelihood of continuation or recurrence
of dumping.  Japan concedes139 that investigating authorities are not required to engage in the same
type of dumping margin (re-)calculation in a sunset  review that they are required to conduct in an
original investigation.  Nor did the United States do so.  There is, therefore, no need for us to examine
whether a violation of Article 2.4 exists with respect to any calculation of a likely future margin ofdumping in order to make a determination of likelihood.
7.163  With respect to the second issue, Japan does not contest that evidence relating to the existence
of dumping since the imposition of the measure may constitute relevant evidence which may be taken
into account by an authority in making a determination of likelihood of continuation or recurrence of
dumping.  Rather, we understand Japan to allege that, if an authority relies upon evidence relating to
the existence of dumping in the form of past dumping margins, the provisions of Article 2 are relevant
and the investigating authority must ensure the consistency of those margins with the obligations inArticle 2.4 of the Anti-dumping Agreement .
7.164  We therefore consider whether the DOC acted inconsistently with Article 2.4 in relying upon
the administrative review dumping margins in the instant sunset review.
7.165  We believe that this examination requires us first to examine the text of Article 11.3, as that
Article provides the core obligations applicable to sunset reviews.  We once again recall thatArticle 11.3 provides:
                                                     
137 Second Written Submission of Japan , para. 113.  See also First Written Submission of Japan ,
para. 183 and footnote 226.
138 For example, Second Oral Statement of Japan, para . 28.   Japan refers in this context to a need to
assess the magnitude of the probable margin of dumping.
139 First Written Submission of Japan, para. 170.WT/DS244/R
Page 44
"Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping
duty shall be terminated on a date not later than five years from its imposition (or
from the date of the most recent review under paragraph 2 if that review has covered
both dumping and injury, or under this paragraph),  unless the authorities determine,
in a review initiated before that date on their own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within areasonable period of time prior to that date, that the expiry of the duty would be likely
to lead to continuation or recurrence of dumping and injury.  The duty may remain in
force pending the outcome of such a review." (footnote omitted)
7.166  We recall our analysis of Article 11.3 in respect of Japan's claims concerning the evidentiary
standards for the self-initiation of sunset reviews ( supra , paras. 7.25-7.27) and the de minimis
standard applicable in sunset reviews ( supra , paras. 7.67-7.68).  Similarly, we observe that
Article 11.3 is silent as to how an authority should or  must establish that dumping is likely to continue
or recur in a sunset review.  That provision itself prescribes no parameters as to any methodological
requirements that must be fulfilled by a Memb er's investigating authority in making such a
"likelihood" determination.  It does not explicitly require that an authority consider evidence of
dumping since the imposition of the order, nor that any dumping determinations used in sunset
reviews should or must be made in accordance with the requirements of Article 2, entitled"Determination of Dumping".  Although paragraphs 4 and 5 of Article 11 contain several cross-
references to other articles of the Anti-dumping Agreement , no such cross-reference has been made to
the determination of dumping under Article 2.  These cross-references indicate that, had the drafters
intended to make the disciplines of Article 2 on the calculation of dumping margins also applicable in
sunset reviews, they would have done so explicitly.
7.167  As we have stated, the text of Article 11.3 sets out no precise methodology that must be
followed in reaching a determination of likelihood of continuation or recurrence.  In this respect, we
recall our statements ( supra , para. 7.24) concerning the provisions of the Vienna Convention , which
require us to base our interpretation of the Anti-dumping Agreement  on its text.  We, as a treaty
interpreter, are not allowed to read into the text words and concepts which are not there, nor to readout of the text terms that are there.  We see a substantial difference between the textual reference in
Article 11.3 to a determination  of likelihood of continuation or recurrence  of dumping and the textual
reference to a determination  of dumping under Article 2.  Article 11.3 certainly does not require a
determination of dumping , as set forth in Article 2.
7.168  We thus do not believe that the substantive disciplines in Article 2 governing the calculation
of dumping margins in making a determination of dumping apply in making a determination of
likelihood of continuation or recurrence of  dumping under Article 11.3.  To hold otherwise would
mean that a new and full determination regarding the existence of dumping since the imposition of the
order would be necessary in a sunset review.  We find no such obligation in the text of Article 11.3
nor in Article 2 of the Anti-dumping Agreement .
7.169  We therefore do not believe that it is necessary to examine further Japan's claims based on the
allegation that the use of margins obtained in the administrative reviews calculated on the basis ofzeroing rendered the DOC's determination of likelihood of continuation or recurrence of dumping
inconsistent with Article 2.4.
140
7.170   For these reasons, we find that the United States did not act inconsistently with its obligations
under Article 2.4 in this respect.
                                                     
140 Accordingly, we need not decide, and expr ess no view as to, whether "zeroing" in an
"administrative review" would be inconsistent with the "fair comparison" requirement in Article 2.4.WT/DS244/R
Page 45
7.171  We understand Japan's claim concerning the DOC's use of the dumping margins established
in the administrative reviews – on the basis of a weighted average-to-transaction methodology
applying zeroing – to be predicated on an inconsistency with Article 2.4.141
7.172  We do not understand Japan to have alleged that, even in the absence of a violation of
Article 2.4, reliance by the DOC on the existence of dumping as established in the administrative
reviews in order to reach its affirmative likeli hood determination had the effect of tainting or
undermining the factual basis of that determination so  as to preclude the possibility that the DOC had
before it sufficient positive evidence on which to base its determination, in violation of Article 11.3.142
To the extent they involve Article 11.3, Japan's arguments in support of its claim appear to us toallude exclusively  to a potential consequential violation of Article 11.3, resulting from an Article 2.4
violation.
143  Nevertheless, in the event that we have construed Japan's claims and arguments and our
terms of reference in an overly restrictive manner, we believe that it would also be constructive to
examine, in the alternative, whether, even if Japan made this allegation on the basis of Article 11.3 (inthe absence of a violation of Article 2.4), the United States acted inconsistently with this aspect of
Article 11.3.  We are of the view that the United States did not act inconsistently with Article 11.3, for
the following reasons.
7.173  Article 11.3 refers to a determination of "likelihood of continuation or recurrence of dumping "
(emphasis added).  Article 11.3 itself does not, however, contain any specific or special definition ofthat term for the purposes of sunset reviews alone.
7.174  We thus consider the meaning and effect of the reference to the term "dumping" in the text of
Article 11.3. In our view, the "dumping" referred to in Article 11.3 corresponds to the type of
situation governed by the Anti-dumping Agreement and Article VI of the GATT 1994.  Article 2 of the
Anti-dumping Agreement sets out rules pertaining to the "determination of dumping", where such a
determination is required.
144  In clarifying the requirements of a determination of dumping, we believe
that Article 2 also provides guidance as to the type of information that may be relevant to a sunset
review examination of the presence or absenc e of dumping since the imposition of the order.
                                                     
141 See, supra , note 135.
142 See, supra ., note 135.  Indeed, we understand Japan's claims relating to the "likelihood
determination" under Article 11.3 to concentrate u pon those allegedly relevant factors that the DOC failed  to
take into account, rather than possible flaws within those factors that the DOC actually took into account in this
sunset review.
143 For example, second oral statement of Japan, para. 42: "[A] dumping determination using a zeroing
methodology is not consistent with the obligations of Article 2.  Because USDOC continues to use dumpingmargins that “zero out” negative margins in its original investigations and administrative reviews to determine“dumping” and its magnitude in sunset reviews, the United States acts inconsistently with its obligations underArticle 11.3."; first written submission of Japan, para. 179: "The provisions of Article 2.4, 2.4.2 and the
rationale of the Appellate Body in EC – Bed Linens  must be applied with equal force to “dumping”
determinations under Article 11.3."; first written submission of Japan, para. 175: "Articles 2.4 and 2.4.2 aretherefore incorporated into the “dumping” determination in sunset reviews under Article 11.3."
144 We find support for this view in the text of Article 2, entitled "Determination of Dumping".
Article 2.1 provides:
"For the purpose of this Agreement , a product is to be considered as being dumped, i.e.
introduced into the commerce of another country at less than its normal value, if the exportprice of the product exported from one country to another is less than the comparable price, inthe ordinary course of trade, for the like pr oduct when destined for consumption in the
exporting country." (emphasis added)
The first paragraph of Article 2.1 begins with the phrase "For the purpose of this Agreement …".  This
introductory language suggests that this provision describes a concept which is generally relevant throughout theAnti-dumping Agreement.WT/DS244/R
Page 46
7.175  We recall again the difference between the textua l reference in Article 11.3 to a determination
of likelihood of continuation or recurrence  of dumping and the textual reference to a determination  of
dumping under Article 2.  We believe that this difference is also critical in determining the nature of
the obligation of an investigating authority in term s of the evidence relating to dumping (or absence
thereof) since the imposition of the order upon which it may rely in reaching a sunset review
likelihood determination.
7.176  Indeed, this textual difference leads us to conclude that evidence relating to the existence (or
absence) of dumping during the period of imposition of the duty that may be examined by an
investigating authority in a sunset review under Article 11.3 is not limited to a full-blown
determination of dumping made pursuant to Article 2.  That Article 2 may inform the type of
information that an investigating authority may consider relevant for the purposes of an Article 11.3
sunset review likelihood determination does not, in our view, impose an obligation upon an
investigating authority in a suns et review that relies upon evidence relating to dumping since the
imposition of the order to rely only upon a determination of dumping that fully conforms to the
dictates of Article 2.145
7.177  By this, we do not mean to say that the Anti-dumping Agreement  is devoid of any obligation
governing the requisite nature of a sunset review likelihood determination.146  The text of Article 11.3
contains an obligation "to determine" likelihood of continuation or recurrence of dumping.  Therequirement to make a “determination” concerning likelihood therefore precludes an investigating
authority from simply assuming that likelihood exists.  In order to continue the imposition of the
measure after the expiry of the five-year imposition period, it is clear that the investigating authority
has to determine, on the basis of positive evidence
147, that termination of the duty is likely to lead to
continuation or recurrence of dumping.  An investigating authority must have a sufficient factual basisto allow it to draw reasoned and adequate conclusions concerning the likelihood of such continuation
or recurrence.
7.178  As for the nature of the "likelihood of continuation or recurrence of dumping" determination
under Article 11.3, we believe that "likelihood" is an inherently prospective notion.  It involves a
probabilistic judgment that must necessarily involve less certainty and precision than would beattainable under a purely retrospective analysis.  Arithmetic certainty is not required, but the
                                                     
145 We find support for our view in Panel Report, Guatemala – Definitive Anti-Dumping Measures on
Grey Portland Cement from Mexico ("Guatemala – Cement II "), WT/DS156/R, adopted 17 November 2000, para.
8.35.   In that case, the panel was faced with the question of the relationship between the evidence necessary to
form the basis for initiation of an anti-dumping investigation under Article 5.3, and the definition of dumping in
Article 2 of the Agreement.  That panel stated:
"... reading Article 5.3 in the context of Article 5.2, the evidence mentioned in Article 5.3must be evidence of dumping, injury and causation. We further observe that the onlyclarification of the term "dumping" in the AD Agreement is that contained in Article 2.  In
consequence, in order to determine that there is sufficient evidence of dumping, the
investigating authority cannot entirely disregard the elements that configure the existence ofthis practice as outlined in Article 2. This analysis is done not with a view to making adetermination that Article 2 has been violated through the initiation of an investigation, butrather to provide guidance in our review of the Ministry's determination that there wassufficient evidence of dumping to warrant an investigation.  We do not of course mean to
suggest that an investigating authority must have before it at the time it initiates an
investigation evidence of dumping within the meaning of Article 2 of the quantity and qualitythat would be necessary to support a preliminary or final determination. An anti-dumpinginvestigation is a process where certainty on the existence of all the elements necessary inorder to adopt a measure is reached gradually as the investigation moves forward.  However,
the evidence must be such that an unbiased and objective investigating authority could
determine that there was sufficient evidence of dumping within the meaning of Article 2 to
justify initiation of an  investigation."
146 We discuss the nature of the likelihood determination in Article 11.3 in more detail infra .
147 See, supra , note 48.WT/DS244/R
Page 47
conclusions reached by an investigating authority must be reasonably demonstrable on the basis of the
evidence adduced.  In this respect, we endorse the view of the US-DRAMs  panel that, "analysis
involving prediction can scarcely aspire to a standard of inevitability".148  There is thus a considerable
difference in the degree of certainty and precision required in a determination of likelihood of
continuation or recurrence of dumping under Ar ticle 11.3 and a determination of dumping under
Article 2, which involves a calculation of dumping margins in accordance with the rules set outtherein.
7.179  Moreover, in order to make a determination of likelihood of continuation or recurrence, it is
not necessary for dumping to have been found to exist or continue since the imposition of the
measure.  We derive this from the reference to "recurrence", which we understand to refer to the re-
commencement of a phenomenon that has ceased.  We note that in some circumstances the imposition
of the order may have resulted in the cessation of dumping.
149  As we have already said, the text of
Article 11.3 does not require a determination  of dumping.  Rather, it requires a determination of the
likelihood of continuation or recurrence  of dumping.
7.180  Nevertheless, evidence relating to "dumping" (or absence thereof) since the imposition of the
order, while perhaps not mandated by Article 11.3, may well be a relevant fact to take into account in
determining likelihood of continuation or recurrence of dumping in the future.150  It is logical to us
that evidence relating to dumping (or the absence thereof) since the imposition of the order could wellbe instructive in a likelihood of continuation or recurrence of dumping determination.  In our view,
this evidence could be drawn from the results of ad ministrative or other review procedures, or on the
basis of other evidence gathered by the investigat ing authority during the sunset review itself and
indicating the existence of dumping during the relevant period.  Evidence of the existence of dumping
in another jurisdiction might also be potentially relevant.  We see no reason to believe, however, thatthe only evidence relating to the existence of du mping during the period of imposition of the order
that can be considered is a full-blown determinati on of dumping made pursuant to Article 2.  It must,
however, be evidence which a reasonable mind would consider relevant to establishing the existence
of dumping since the imposition of the order.
7.181  We note that, in the instant sunset review, the evidence that the DOC had before it included
the dumping margins calculated in the administrative reviews since the imposition of the original
order.
7.182  If any interested party in the underlying sunset review had been of the view that the
administrative review dumping margins were flawed such that they were not probative as to the
existence of dumping during the period of imposit ion of the anti-dumping order, they could have
brought that to the attention of the DOC.  We therefore look to the record of the underlying review in
order to discern whether the DOC was made aware of any such concerns - in particular, with respectto the use of margins calculated on the basis of "zeroing" by a weighted average-to-transaction
methodology -- regarding the facts pertaining to dumping before the DOC.
                                                     
148 Panel Report, US – DRAMS , supra , note 45, para. 6.43.  Although that panel was addressing
obligations under Article 11.2, we consider that its treatment of the nature of a prospective analysis to be
relevant.
149 In this context, we note that the provisions of Article 9.3 of the Anti-dumping Agreement  are
designed to ensure that the amount of the anti-dum ping duty collected corresponds to the actual margin of
dumping at the time of importation and that any excess payment is refunded to the importer(s).
150 We observe that the imposition of an anti-dumping measure may affect the behaviour of exporters,
and that, even if an authority conducted a full-blown dumping determination with respect to the period since the
imposition of the order, the result, while perhaps relevant, may not, in and of itself, necessarily be determinative
as to the likelihood of continuation or recurrence of dumping if the order were revoked.  We need not decide,and express no view, as to whether evidence relating solely to the existence of dumping since the imposition ofthe order would be a sufficient basis for the purposes of an Article 11.3 likelihood determination.WT/DS244/R
Page 48
7.183  We are unable to find, in any of NSC's submissions to the DOC in this sunset review, any
indication that the NSC asked the DOC to question or scrutinize the validity of the administrative
review dumping margins because they had been calculated on the basis of "zeroing".  Rather, these
submissions indicate that the NSC itself relied upon  the decrease in the margins that had been found
to exist in the administrative revi ews in order to support its sunset  review argument to the DOC that
there was no likelihood of continuation or recurrence of dumping in the event the order would berevoked.
151  Such positive reliance by the NSC itself upon the administrative review dumping margins
as a "fact" – without questioning the methodology by which they had been calculated – leads us to
conclude that it would not have been unreasonable for the DOC, in the particular circumstances of this
case, to have considered that these administrative review dumping margins could properly be taken
into account in considering whether likelihood of continuation or recurrence of "dumping" existed.
Japan has not demonstrated before us that, in the particular circumstances of this case, an objective
and unbiased authority could not reasonably have made the likelihood determination made by theDOC on the basis of the facts that were before it at that time.
7.184  For these reasons, we find, in the alternative, that the United States has not acted
inconsistently with Article 11.3 in this respect.
152
iii) DOC's Reporting to the ITC the Likely Dumping Margin
7.185  Japan argues that the DOC acted inconsistently  with Article 11.3 by reporting to the ITC the
original dumping margins as the margins that were likely to continue or recur.153  This, in Japan's
view, does not conform to the prospective nature of sunset reviews.  The United States asserts that
nothing in the text of the Anti-dumping Agreement  prevents the DOC from determining the likely
margin on the basis of the original dumping ma rgin.  Given that dumping continued after the
imposition of the order and that import volumes de creased, the DOC did not find it appropriate to
report to the ITC a more recently calculated margin.154
7.186  It is clear that, in this case, the DOC reported to the ITC the dumping margins calculated in
the original investigation as the ma rgins that were likely to continue or recur if the order were to be
terminated.  It is also clear that the DOC did not report these margins to the ITC because they were
(re-)calculated in this sunset review.  Rather, the DOC points out that it reported the original marginsbecause it found that there was dumping after the imposition of the original measure and that import
volumes had decreased.  On the basis of this reasoning, the DOC decided to report the original
margins -- as the margins that were likely to conti nue or recur if the order were to be terminated -- to
the ITC although it was in the possession of more recent margins, i.e. margins calculated in the
subsequent administrative reviews.
7.187  We note Japan's statement that the only injury claim Japan is making in the present case
relates to cumulation.
155  Therefore we need to clarify the legal basis of this allegation of Japan.  As
we have stated above ( supra , para. 7.162), Japan does not argue that Article 11.3 requires
                                                     
151 For example, NSC's substantive response to the notice of initiation (Exhibit JPN-19a), stated:
"...NSC has reduced its margin in the two recent administrative reviews ..." (at p. 5); and, referring to the SAA:"The unambiguous meaning of that statement is that a declining trend  in dumping margins ....will support a
determination to revoke the antidumping order under review" (at p. 6).  NSC's rebuttal comments (Exhibit JPN-
19b) indicate that the NSC did have concerns about the validity of some of the "facts" before the DOC, and that
the NSC complained about incorrectly compiled import volume  data.  However, NSC nowhere contested the
validity of the administrative review dumping margins on the grounds that they were possibly flawed due to"zeroing".  Similarly, NSC's case brief (Exhibit JPN-19c) contains no indication of any possible flaw in theadministrative review dumping margins due to "zeroing".
152 We examine infra , para. 7.278 ff, Japan's remaining arguments concerning the sufficiency of the
factual basis before the DOC in reaching its likelihood determination.
153 First Written Submission of Japan, para. 225.
154 First Written Submission of the United States, para. 140.
155 Response of Japan to Question 92 from the Panel.WT/DS244/R
Page 49
investigating authorities to calculate precisely the likely future margin of dumping in sunset reviews.
Also as stated above ( supra , para. 7.162), it is undisputed between the parties that the DOC did not
calculate a likely future margin in this sunset review.  The DOC did, however, report margins from
the original investigation to the ITC as the margin s that would prevail if the duty were terminated.
7.188  It is clear that reporting of these margins to the ITC is not part of DOC's determination of
likelihood  of continuation or recurrence of dumping.  Rather, such reporting occurs as a result of the
finding of likelihood.  At most, it seems to us that this element could be raised as part of a claim
challenging ITC's injury determinations, since the margin of dumping is one of the injury elements set
out in Article 3.4, which may arguably have to be considered in the likelihood of continuation or
recurrence of injury  determinations in sunset reviews (an issue which we need not resolve here).
However, Japan has confirmed to us that the only injury claim that Japan raised in its request for
establishment relates to cumulation.  Thus, we must consider whether the claim Japan is making is
properly before us in this dispute.
7.189  As we stated above ( supra , para. 7.49) concerning our terms of reference, we must closely
scrutinize the Panel request to ensure its compliance w ith both the letter and the spirit of Article 6.2 of
the DSU .156  In examining the sufficiency of the Panel request under Article 6.2 of the DSU , we must
consider the text of the Panel request itself.157  If necessary, we would also take into account whether
the ability of the respondent to defend itself was prejudiced, given the actual course of the panelproceedings, by any alleged lack of specificity in the text of the Panel request.
158
7.190  Japan's request for the establishment reads in relevant part:
The ITC does not consider whether imports were negligible as defined in Article 5.8
of the AD Agreement when determining whether to cumulate imports in a five-year
"sunset" review.  In addition, the ITC, in this case, never examined whether importswere negligible and therefore whether they should, or should not, be cumulated.   In
light of footnote 9 of the AD Agreement, the United States has acted inconsistently
with Articles 3.3, 5.8, 11.3, 12.2 and 12.3 of the AD Agreement and Article X:3 of
the GATT 1994.
159
7.191  The cited section of Japan's Panel request only refers to the ITC's alleged failure to consider
the quantitative criterion of Article 5.8 before deciding to apply the cumulation methodology.  It does
not mention any other aspect of the ITC's likelihood of continuation or recurrence of injury
determinations in this sunset review.  Thus, it is clear that Japan's only injury-related claim concerns
cumulation.  Therefore, we do not believe it is necessary to examine the issue of prejudice to the
United States by any alleged "lack of specificity" in the Panel request.  We therefore find that the
alleged claim by Japan challenging the DOC's reporting of the original dumping margins to the ITC to
be used by the latter in its likelihood of continuation or recurrence of  injury  determinations is not
properly before us.  We thus decline to examine it.
6. Basis of determination of likelihood of continuation or recurrence of dumping: order-
wide or company-specific?
(a) US Sunset Policy Bulletin as such
(i) Arguments of parties
                                                     
156 We find support for this approach in Appellate Body Report, EC – Bananas III , supra , note 49,
para. 142.
157 Each of the treaty provisions we examine here is cited in the Panel request and therefore meets at
least that minimum standard.
158  We find support for this approach in Appellate Body Report, Korea – Dairy , supra , note 54.
159 WT/DS244/4, p. 5, para. 4.WT/DS244/R
Page 50
Japan
7.192  According to Japan, Article 6.10 -- which is expressly incorporated into Article 11 by virtue
of the cross-reference in paragraph 4 thereof to "[t]he provisions of Article 6 regarding evidence and
procedure" -- requires an investigating authority in a sunset review to determine likelihood of
continuation or recurrence of dumping for each known exporter.  Japan submits that all provisions of
Article 6 are procedural in nature.  The fact that some of these procedural provisions might havesubstantive implications does not make them inapp licable in sunset reviews.  The Sunset Policy
Bulletin
160, however, directs the DOC to make its de termination of likelihood of continuation or
recurrence of dumping on an order-wide basis in sunset reviews.  Therefore, submits Japan, this
aspect of the Sunset Policy Bulletin is inconsistent with Articles 6.10 and 11.3 of the Anti-dumping
Agreement .
United States
7.193  The United States does not contest that the US law requires that determinations of likelihood
of continuation or recurrence of dumping in sunset reviews be made on an order-wide basis, and that
the Sunset Policy Bulletin states the determinations of likelihood will be made on an order-wide
basis.161  However, the United States submits that there is nothing in Article 11.3, the provision of the
Anti-dumping Agreement  that contains a substantive requirement, relating to sunset reviews, that
requires that the investigating authorities carry out their likelihood of continuation or recurrence ofdumping determinations in sunset reviews on a company-specific basis.  The United States also
argues that the inclusion of the phrase "regarding evidence and procedure" in the cross-reference to
Article 6 in Article 11.4 limits the provisions of Ar ticle 6 that apply to sunset reviews to procedural
provisions only.  The provisions in Article 6 that set forth substantive rules, such as paragraph 10, do
not therefore apply to sunset reviews.  Therefore, the US law does not violate the Anti-dumping
Agreement  in requiring that the determination of the likelihood of continuation of dumping be made
on an order-wide basis in a sunset review.
(ii) Arguments of third parties
Chile
7.194  Chile submits that dumping determinations in sunset reviews under Article 11.3 should be
made on an company-specific basis.
(iii) Evaluation by the Panel
162
7.195  Japan bases its "as such" claim solely on the Sunset Policy Bulletin.  Japan has not directly
invoked any provision of US law.  Accordingly, we also limit our analysis to the provisions of the
Sunset Policy Bulletin.  We have found above ( supra , para. 7.145) that the Sunset Policy Bulletin is
not a measure that is challengeable, as such, under the WTO Agreement .  Therefore, we examine this
claim by Japan no further.
                                                     
160 Exhibit JPN-6, Section II:A.2 at 18872.
161 The United States points out that the US Statute requires the DOC to carry out its likelihood of
continuation or recurrence of dumping determinations on an order-wide basis in sunset reviews.  Section751(c)(1) of the Statute states:  "[T]he administering authority and the Commission shall conduct a review todetermine ... whether revocation of the  ... anti-dumping order ... would be likely to lead to continuation or
recurrence of dumping."  See First Written Submission of the United States, para. 162.
162 In this section, we examine Japan's allegation that the DOC’s making of its likelihood determination
on an order-wide basis as envisaged in the Sunset Policy Bulletin, as such, is inconsistent with Article 6.10 andArticle 11.3 of the Anti-dumping Agreement .WT/DS244/R
Page 51
(b) US Sunset Policy Bulletin as applied in the instant sunset review
(i) Arguments of parties
Japan
7.196  Japan submits that the United States acted inconsistently with Articles 6.10 and 11.3 of the
Anti-dumping Agreement , by virtue of the cross-reference in Article 11.4 to the "[t]he provisions of
Article 6 regarding evidence and procedure", as the likelihood of continuation or recurrence ofdumping determination in this case was made on an order-wide basis.
United States
7.197  The United States submits that it made its likelihood determination on an order-wide basis in
the instant sunset review and argues that the Anti-dumping Agreement  does not require the
investigating authorities to carry out their likelihood of continuation or recurrence of dumping
determinations in sunset reviews on a company-specific basis.  The United States nevertheless
contends that, in the instant sunset review, the DOC also identified company-specific dumpingmargins likely to prevail in the event of revocation of the order.
163
(ii) Evaluation by the Panel164
7.198  We understand Japan's claim to be based on an alleged violation of Article 11.3 of the Anti-
dumping Agreement , as well as of Article 6.10, by virtue of the cross-reference in Article 11.4 to
"[t]he provisions of Article 6 regarding evidence and procedure".
7.199  The United States does not contest that it made its determination of likelihood of continuation
or recurrence of dumping on an order-wide basis in the instant sunset review.  The United States also
submits that it reported company-specific margins of dumping likely to prevail in the event of
revocation of the order to the ITC.165
7.200  The issue before us is, therefore, whether Article 6.10, to the extent applicable by virtue of the
cross-reference in Article 11.4, requires likelihood of continuation or recurrence of dumping
determinations in sunset reviews under Article 11.3 to be made on a company-specific basis.  We
understand Japan to base this claim on the interrelationship between Articles 6.10, 11.4 and 11.3,
rather than on the text of Article 11.3 itself.  We therefore examine the nature of this interrelationship.
This examination naturally focuses upon the text of the relevant treaty provisions.  It turns upon therole of the qualifying phrase in the Article 11.4 cross-reference, as well as the nature of the
obligations in Article 6.10.
7.201  Article 11.4 states, in part:
"The provisions of Article 6 regarding evidence and procedure  shall apply to any
review carried out under this Article..." (emphasis added)
                                                     
163 First Written Submission of the United States, para. 167.
164 In this section, we examine Japan's allegation that the DOC’s making of its likelihood determination
on an order-wide basis, in this case, is inconsistent with Article 6.10 and Article 11.3 of the Anti-dumping
Agreement .
165 Response of the United States to Question 26 (a) from the Panel.  The United States stated:
"Likelihood of dumping in the event of revocation was determined by Commerce in the
instant sunset review on an order-wide basis.  Margins likely to prevail in the event ofrevocation, however, were reported to the USITC on a company-specific basis for itsconsideration in making the likelihood of injury determination."WT/DS244/R
Page 52
7.202  Article 11.4 contains a cross-reference to "the provisions of Article 6 regarding evidence and
procedure".  The cross-reference to Article 6 is therefore qualified by the phrase "regarding evidence
and procedure".
7.203  Considering that the drafters often chose not to qualify the scope of application of many of
the other cross-references elsewhere in the Anti-dumping Agreement166, the threshold question that we
address is the effect of this qualifying phrase.  As a treaty interpreter, we are bound to heed the text ofthe treaty and to give effect to all of the terms.   We are not entitled to reduce words in a treaty to
redundancy or inutility.  Given this, we must consider whether or not this cross-reference operates so
as to render all the obligations contained in Article 6.10 applicable to sunset reviews, and if so, what
effect this would have on the nature of the suns et review determination that must be made.  We
therefore examine the nature and scope of the cross- reference in Article 11.4 in order to determine
whether it encompasses all provisions of Articl e 6 or only a subgroup of, or aspects of, those
provisions that relate to evidence and procedure.
7.204  The chapeau of Article 6.10 states:
"The authorities shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation.  In cases
where the number of exporters, producers, importers or types of products involved is
so large as to make such a determination impracticable, the authorities may limit their
examination either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information available to the
authorities at the time of the selection, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated."
7.205  This provision requires the investigating authorities in an investigation to calculate margins of
dumping, as a rule, on a company-specific basis.  According to the United States, Article 6.10
contains substantive provisions; it thus does not apply to sunset reviews because the cross-reference in
Article 11.4 renders only the procedural and evidentiary  provisions of Article 6 applicable to reviews.
7.206  Even assuming arguendo  that the cross-reference in Article 11.4 has the effect of rendering
any evidentiary and procedural obligations of Article 6.10 generally applicable in sunset reviews, wewould not be permitted to find, because of this, that  an investigating authority in a sunset review is
required to re-calculate a likely future dumping margin.  In other words, by finding that the provisions
of Article 6.10 may contain evidentiary and procedural obligations that are, in general, applicable in
sunset reviews, we do not (and cannot) find that Article 6.10, by virtue of the cross-reference in
Article 11.4, operates so as to super-impose an additional  substantive requirement of re-calculation of
the likely dumping margin in sunset reviews, a requirement that not even Japan argues is found in the
text of Article 11.3, or elsewhere in the text of the Anti-dumping Agreement .  We, as a treaty
interpreter, are not allowed to derive substantive obligations out of the application of the evidentiary
and procedural provisions of Article 6.
167  Equally, however, an interpreter is not allowed to disregard
the plain text of Article 6.10, which requires the investigating authorities to determine an individual
margin of dumping for each known exporter, where an operational provision elsewhere in the Anti-
dumping Agreement  requires the calculation of a dumping margin.
7.207  The issue therefore is how Article 6.10 is to be understood in the context of sunset reviews.
Article 11.3 requires the authorities to determine, inter alia , "that the expiry of the duty would be
likely to lead to continuation or recurrence of dumping and injury".  It therefore refers to a
determination of likelihood of continuation or recurrence of dumping, rather than a "determination of
                                                     
166 For example, the cross-references in Article 4.4 and the one in the chapeau of Article 9.3 seemingly
fall under this category, where the cross-reference is not qualified.
167 We note in this respect that both parties in this dispute agree that the likelihood determination under
Article 11.3 does not require the calculation of the likely margin of dumping.WT/DS244/R
Page 53
dumping".  It also refers to "dumping" but not "the margin of dumping".  By contrast, Article 6.10
applies to the calculation of "margins of dumping" for each known exporter or producer concerned of
the product under investigation.  Considering that we have found no substantive requirement imposed
by Article 11.3 or any other provision in the Anti-dumping Agreement , that an investigating authority
must actually calculate the (likely) margin of dumping in a sunset review, we also find that the
determination of likelihood of continuation or recurrence of dumping does not fall within the ambit ofthis aspect of Article 6.10, regulating the process of calculating margins of dumping.   The provisions
of Article 6.10 concerning the calculation of individual margins of dumping in investigations do not
require that the determination of likelihood  of continuation or recurrence of dumping under
Article 11.3 be made on a company-specific basis.
7.208  Having found that the obligation in Article 6.10 to determine company-specific margins of
dumping does not operate so as to require that the likelihood determination that must be made under
Article 11.3 must be made on a company-specific basis, we find that the United States did not actinconsistently with its obligations in this case by determining likelihood of continuation or recurrence
of dumping on an order-wide basis.
7. Obligation to determine likelihood of co ntinuation or recurrence of dumping
(a) US law and Sunset Policy Bulletin as such
(i) Arguments of parties
Japan
a. "likely" vs. "not likely" standard
7.209  Japan submits that Article 11.3 requires a determination that the expiry of the anti-dumping
duty would be likely to lead to continuation or recurrence of dumping and injury, and therefore
requires the application by investigating authorities of a "likely" standard.  According to Japan, theUS Sunset Regulations require the application of a "not likely" standard in respect of the DOC's
determinations in sunset reviews, which runs afoul of this "likely" standard of Article 11.3.  Japan
contends that the meaning of "likely" is not identi cal to that of "not unlikely" in that the former
provides for a greater degree of certainty as to the continuation or recurrence of dumping than the
latter.
b. obligation to determine likelihood
7.210  Japan also contends that the Sunset Policy Bulletin follows this "not likely" standard of the
Regulations and "creates an irrebuttable presumption that dumping is “likely” to continue."
168
According to Japan, investigating authorities in sunset reviews should base their likelihooddeterminations on a prospective analysis of positive evidence.  To do so, the investigating authorities
are required to gather factual evidence on which th ey will base their determinations.  The US Sunset
Policy Bulletin, however, bars the DOC from fulfilli ng this obligation.  It simply creates certain
factual scenarios, draws certain presumptions from each one of these scenarios and directs the DOC to
examine under which scenario the facts of a given sunset review fall.
169  Japan submits that, applied
together, these factual scenarios create an irrefutable presumption that dumping is likely to continue
or recur, thereby barring the DOC from conducting a meaningful examination of the facts of the
particular sunset review it is dealing with.
                                                     
168 Response of Japan to Question 38 from the Panel.
169 In this respect, Japan cites the Sunset Policy Bulletin (Exhibit JPN-6, p. 18872).  See, First Written
Submission of Japan, para. 118.WT/DS244/R
Page 54
7.211  Japan submits that, in a sunset review, the investigating authority is required to carry out a
prospective analysis regarding the likelihood of continuation or recurrence of dumping.  That analysis
should rest on sufficient evidence.  It is up to the investigating authority to make sure that its findings
in this respect are premised on sufficient evidence.  The US Sunset Policy Bulletin, however,
precludes the DOC from fulfilling that requirement imposed under Article 11.3 of the Anti-dumping
Agreement , because under the "good cause" requirement, the DOC does not consider evidence about
factors other than those listed in the US legisla tion unless "good cause" has been shown as to why the
DOC should consider those other factors.170
United States
a. "likely" vs. "not likely" standard
7.212  The United States submits that under US law what determines the standard for determining
likelihood of continuation or recurrence of dumping in a sunset review is the Statute and not the
Sunset Regulations.  The Statute itself contains the "likely" standard as provided for in Article 11.3.The relevant provision in the Sunset Regulation cited by Japan, which refers to "not likely", is not
operative: it is a timing provision and "ministerial" in nature.  This provision refers to a negative
likelihood determination in terms of procedure and does not define the substance of the determination
to be made in a sunset review.  The United States also argues that even assuming that the Regulations
in fact contained a substantive standard inconsistent with that of the Statute, the US administeringauthorities would have to follow the provisions of the Statute, not those of the Regulation.
171
b. obligation to determine likelihood
7.213  The United States also disputes Japan's argument that the factual scenarios set out in the SAA
and the Sunset Policy Bulletin bar the DOC from carrying out a prospective likelihood analysis in
sunset reviews.  The United States submits that neither the SAA nor the Bulletin are binding legalinstruments under US law, hence they can not be challenged independently as a violation of WTO
obligations.
(ii) Arguments of third parties
Chile
7.214  Chile argues that the structure of the US law based on presumptions is contrary to Article 11.3
and inconsistent with the pro-active approach envisaged in the Anti-dumping Agreement .
European Communities
7.215  The European Communities is of the view th at the US law with respect to likelihood
determinations in sunset reviews of anti-dumping orders, as well as the DOC's general practice based
on it, as described in its Sunset Policy Bulletin, falls short of the requirements of Article 11.3.
Whereas Article 11.3 requires that anti-dumping duties be terminated no later than five years from
their imposition unless the authorities determine that the expiry of the duty would be likely to lead tocontinuation or recurrence of dumping and injury, the Sunset Regulations require the DOC to
effectively apply a "not likely" standard. The European Communities also agrees with Japan's
argument that Article 11.3 requires that the "likel ihood" of the continuation or recurrence of dumping
must be established on a prospective, rather than a retrospective, basis and that the "determination"
must be based on positive evidence (while not requiring absolute certainty).
                                                     
170 First Written Submission of Japan, paras. 127-129.
171 Second Written Submission of the United States, para. 23.WT/DS244/R
Page 55
7.216  The European Communities does not disagree with the use of past dumping margins in sunset
reviews, per se .  However, it asserts that the US law violates the Anti-dumping Agreement  in requiring
the DOC to rely solely on historical margins in sunset reviews.172
Korea
7.217  Korea submits that, on the basis of reasoning analogous to that of the US-DRAMs  panel, the
use of a “not likely” standard for sunset reviews rather than the “likely” standard of Article 11.3
indicates that the US law is biased in favour of the continuation of the dumping order and is therefore
inconsistent with US obligations. Korea also asserts that the Sunset Policy Bulletin directs the DOC to
examine whether the facts of the particular sunset review fall into certain factual scenarios and that
that these scenarios create an irrefutable presumption of the likelihood of dumping.
Norway
7.218  Norway considers that the DOC does not take the proper prospective approach to determine
whether dumping is likely to continue in a sunset review and therefore acts inconsistently withArticle 11.3 as a general practice and in this case.  Notwithstanding the previous panel decision (in
US-DRAMS ), the United States continues to maintain th e “not likely” standard in its Regulations with
respect to sunset reviews.  Moreover, the Sunset Policy Bulletin impermissibly restricts any real
factual investigation to determine prospectively whether dumping is “likely” to continue or recur,
nonetheless the terms “likely” and “determine” in Article 11.3 require that the authorities undertake aprospective analysis of positive evidence to establish whether dumping is likely to continue or recur.
7.219  Norway does not disagree with the use of past dumping margins in sunset reviews, per se .
However, argues Norway, the investigating authorit ies should also consider evidence regarding the
present situation.
173
(iii) Evaluation by the Panel174
a. "likely" vs. "not likely" standard
7.220  As always, we begin with the text of the relevant treaty provision.  The relevant part of
Article 11.3 states:
"…[U]nless the authorities determine, in a re view initiated before that date on their
own initiative or upon a duly substantiated request made by or on behalf of thedomestic industry within a reasonable period of time prior to that date, that the expiry
of the duty would be likely to lead to co ntinuation or recurrence  of dumping and
injury…"  (footnote omitted)
7.221  The parties agree that the standard that applies to the likelihood determinations under
Article 11.3 of the Anti-dumping Agreement  is the "likely" standard.  Therefore, the issue before us is
whether the standard set forth under US law corresponds to the "likely" standard of Article 11.3.
                                                     
172 Response of the European Communities to Question 11 from the Panel.
173 Response of Norway to Question 14 from the Panel.
174 In this section, we first examine Japan's allegation that the DOC regulation's allegedly imposing a
“not likely” standard rather than a “likely” standard is, as such, inconsistent with Article 11.3 of the Anti-
dumping Agreement .  We then examine Japan's allegation that the Sunset Policy Bulletin, as such, establishes an
irrefutable presumption that dumping is likely to continue where import volumes decline or where dumping
margins remain after imposition of the order which is inconsistent with the requirement in Article 11.3 of the
Anti-dumping Agreement  that authorities make a prospective determination that dumping is likely to recur or
continue.WT/DS244/R
Page 56
7.222  We shall carry out our analysis on the basis of the relevant provisions under US law in order
to decide what standard that law provides for.  We recall that the purpose of our examination of US
municipal law is to determine the consistency of the law with the obligations of the United States
under the WTO Agreement .175
7.223  We turn to the Statute first.  We note that Section 751(c) of the Tariff Act of 1930 which,
according to the United States176, sets forth the likelihood standard under US law reads in relevant
part:
"(c) Five-year review
(1) In general
…5 years after the publication of --…an antidumping duty order…the administering
authority and the Commission shall conduct a review to determine…whether
revocation of the …antidumping duty order …would be likely to lead to continuation
or recurrence of dumping…and of material injury."177 (emphasis added)
7.224  Section 751(d)(2) of the Statute provides in relevant part:
"Five-year reviews
In the case of a review conducted under subsection (c) of this section, the
administering authority shall revoke a countervailing duty order or an antidumping
duty order or finding, or terminate a suspended investigation, unless --
the administering authority makes a determination that dumping or a countervailable
subsidy, as the case may be, would be likely to continue or recur[.]"178 (emphasis
added)
7.225  On the basis of the relevant provisions of the Statute, it appears to us that, on its face, the
Statute provides for the same standard as Article 11.3 of the Anti-dumping Agreement , i.e. the "likely"
standard.  In fact the language of the Statute is very similar to the text of Article 11.3 in this respect.
7.226  Next we turn to the Regulations.  The US Regulations provide in relevant part:
"(i) Revocation or termination based on sunset review-- (1) Circumstances under
which the Secretary will revoke an order or terminate a suspended investigation.  In
the case of a sunset review under §351.218, the Secretary will revoke an order orterminate a suspended investigation:
…
(ii) Under section 751(d)(2) of the Act, where the Secretary determines that
revocation or termination is not likely to lead to continuation or recurrence of a
countervailable subsidy or dumping (see section 752(b) and section 752(c) of the Act)as applicable not later than 240 days…after the date of publication in FEDERAL
REGISTER of the notice of initiation…"
179 (italic emphasis in original, underline
emphasis added)
                                                     
175 See supra , note 104.
176 Response of the United States to Question 37 from the Panel.
177 Codified in 19 U.S.C. § 1675(c)(1) (Exhibit  JPN-1d at 473-474).
178 Codified in 19 U.S.C. § 1675(d)(2) (Exhibit  JPN-1d at 477).
179 Codified in 19. C.F.R. §351.222(i)(1)(ii) (Exhibit JPN-3 at 234).WT/DS244/R
Page 57
7.227  The phrase "not likely" rather than "likely" thus  appears in the text of the Regulations.  The
crux of the disagreement between the parties is whether the language "not likely" in the Regulations
sets forth the standard under US law regarding th e likelihood determinations in sunset reviews.  We
thus analyze the provisions of the Regulations in their legal context and in conjunction with the
Statute.
7.228  Under US law (as is probably the case in most other jurisdictions as well), a regulation is
subordinate to a statute.180  In addition to that general observation, we note that the above text of the
Regulations further confirms, by its own terms, that the Regulations are subservient to the Statute, by
referring to the Statute's relevant provisions.  Therefore, the Regulations set forth the procedural
means of implementing the "likely" standard provided for in the Statute regarding sunset
determinations.  In the context of its sunset review determinations, the DOC may come up with two
possible conclusions: it may find that the continuation or recurrence of dumping is either likely or not
likely.  In each case, there are procedural steps to be taken by the DOC in order to proceed with andimplement the sunset review determination.  The text of the quotation above from the Regulations
indicates what happens when the US administering authorities make a negative determination with
respect to whether there is a likelihood of continuation or recurrence of dumping in a sunset review.
7.229  The fact that the Regulations do not change the standard applicable to sunset reviews under
the Statute is further confirmed on the basis of a comparison of the language used in these two legalinstruments.  For example, the Statute contains the word "shall" whereas the Regulations contain
"will".  Also, the phrase "where the Secretary determines" confirms the view that the Regulations
describe what occurs when a negative determination is formally made, and not the standard by which
that determination is made.
7.230  We also note that the text of the Regulations following the above quotation deals with further
procedural issues, such as the effective date of revocation.
181  Therefore, we agree with the US
argument that this does not operate so as to undermine the "likely" standard set by the Statute.
7.231  Furthermore, we consider the use of the "likely" standard in the notice of continuation in this
case to be also indicative of the fact that under US law the standard for the likelihood determinations
in sunset reviews is the "likely" standard.182
7.232  Finally in this respect, given that the parties expressed divergent views regarding the
relevance of the panel's decision in US – DRAMs , we find it necessary to distinguish that case from
the present proceedings.
7.233  As an initial matter, we note that the US – DRAMs  case involved the standard used by the
United States in Article 11.2 changed-circumstances reviews.  The panel in US – DRAMs  found that a
"likely" standard was not equal to a "not likely" st andard in the sense that the former provided for a
greater degree of certainty than the latter.183  Therefore, that panel's decision may be relevant to the
case at hand.  In other words, had we found in this case that the standard under US law was "not
likely" rather than "likely", we could follow the same line of reasoning of the panel in US – DRAMs
and conclude that US law was WTO-inconsistent.  However, we did not.  Therefore the panel's
decision in US – DRAMs is not relevant to this aspect of our case.
                                                     
180 Second Written Submission of the United States, para. 23.
181 Codified in 19. C.F.R. §351.222(i)(1)(ii) (Exhibit JPN-3 at 234).
182 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e, pp. 6 and 8).  The Final
Determination states, inter alia :  "Therefore, an analysis of the relationship between dumping margins and
import volumes before and after the issuance of the order demonstrates that dumping will continue if the order
were revoked";  and "[t]herefore, given that dumping continued after the issuance of the order and imports
continued in 1998 at levels far below pre-order levels, we determine that dumping is likely  to continue if the
order were revoked." (emphasis added)
183 Panel Report,  US – DRAMS , supra , note 48, paras. 6.45-6.46.WT/DS244/R
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7.234  We also note that there are a number of important factual differences between the two cases.
In US – DRAMs , the language contained in the US Regulations gave the impression that the use of the
phrase "not likely" in the Regulations aimed at setting the relevant standard under US law for
purposes of Article 11.2 reviews.  The Regulations in that case read in relevant part:
"The Secretary may revoke an order in part if the Secretary concludes that:
(…)(ii)  It is not likely that those persons will in the future sell the
merchandise at less than foreign market value;
(…)"
184
7.235  This text seems to indicate that the Secretary would apply a "not likely" standard in order to
determine whether there is a likelihood of continuation or recurrence.
7.236  Secondly, in US – DRAMs  the DOC's Final Determination clearly stated that it applied the
"not likely" standard in its determination.  That also distinguishes US - DRAMs  from the present case
where the DOC's Final Determination clearly uses the "likely" standard.
7.237  Finally, in US – DRAMs , unlike the present case, there was no discussion of a statute
providing for the "likely" standard.  The panel in US – DRAMs  made its decision on the basis of the
text of the Regulations and the DOC's Final Determination.  In this case, however, the Statute, which
is before us, provides for the "likely" standard.  By the same token, the DOC's Final Determinationregarding the likelihood of continuation or recurrence of dumping contains the "likely" standard.
7.238  Therefore, in light of these factual differences between the two cases, we find that the
findings of the panel in US – DRAMs  regarding the type of the likelihood standard used under US law
are not determinative for the present case.
7.239  On the basis of the above considerations, we conclude that the US law is not inconsistent with
Article 11.3 of the Anti-dumping Agreement  regarding the standard that applies to sunset
determinations.
b. Obligation to "determine" likelihood
7.240  The US legal framework relevant to this allegation of Japan is as follows.
7.241  The US Statute reads in relevant part:
"(c) Determination of likelihood of continuation or recurrence of dumping
(1) In general
In a review conducted under section 1675(c) of this title, the administering authority
shall determine whether revocation of an antidumping duty order or termination of a
suspended investigation under section 1673c of this title would be likely to lead to
continuation or recurrence of sales of the subject merchandise at less than fair value.
The administering authority shall consider—
(A) the weighted average dumping margins determined in the investigation and
subsequent reviews, and
                                                     
184 Panel Report,  US – DRAMS , supra , note 48, para. 6.37.WT/DS244/R
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(B) the volume of imports of the subject merchandise for the period before and the
period after the issuance of the antidumping duty order or acceptance of the
suspension agreement.
(2) Consideration of other factors
If good cause is shown, the administering authority shall also consider such other
price, cost, market, or economic factors as it deems relevant."185 (emphasis added)
7.242  The Statute stipulates that under US law the DOC in a sunset review will base its likelihood
determinations normally on two sets of informati on provided for in the Statute: dumping margins
determined in the investigation and subsequent reviews, and the volume of imports before and after
the imposition of the measure.  Interested parties wishing to submit certain pieces of information
(other than the two sets of information set out in the Statute) to the DOC for consideration in a sunset
review must show that there is good cause that ju stifies the consideration of that evidence in that
sunset review.
7.243  In addition to these statutory provisions, the Regulations stipulate that evidence showing that
there is good cause for the DOC to consider certain information has to be submitted in the substantive
response of the interested party submitting the info rmation, i.e. 30 days after the notice of initiation
has been published.  The Regulations read, in relevant part:
"(3)  Substantive response to a notice of initiation – (i) Time limit for substantive
response to a notice of initiation .  A complete substantive response to a notice of
initiation, filed under this section, must be submitted to the Department not later than
30 days after the date of publication in the FEDERAL REGISTER of the notice of
initiation.
…(iv) Optional information to be filed by interested parties in substantive response to a
notice of initiation –(A) Showing good cause .  An interested party may submit
information or evidence to show good cause for the Secretary to consider other
factors…Such information or evidence must be submitted in the party's substantive
response to the notice of initiation under paragraph d(3) of this section."186 (italic
emphasis in original, underline emphasis added)
7.244  The Sunset Policy Bulletin states that the DOC will examine whether the facts of a particular
sunset review fall into one of four factual scenar ios (all relating to historical dumping margins and/or
import volumes).  In respect of three of the fo ur factual scenarios, the Department will normally
determine that revocation of an antidumping order is "likely" to lead to continuation or recurrence of
dumping:
"(a) dumping continued at any level above de minimis  after the issuance of the
order or suspension agreement, as applicable;
(b) imports of the subject merchandise ceased after issuance of the order or the
suspension agreement, as applicable; or
                                                     
185 Codified in 19 U.S.C. §1675(a)(c)(1) and (2) (Exhibit JPN-1e at 496-497).
186 Codified in 19 C.F.R. §351.218(d)(3)(i) and  (iv) (Exhibit JPN-3 at 223-225).WT/DS244/R
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(c) dumping was eliminated after the issuance of the order or the suspension
agreement, as applicable, and import volumes for the subject merchandise declined
significantly."187
In respect of the fourth scenario, the Sunset Policy Bulletin also states:
"…the Department normally will determine that revocation of an antidumping order
… is not likely to lead to continuation or  recurrence of dumping where dumping was
eliminated after issuance of the order  … and import volumes remained steady or
increased."188
7.245  Japan presents two arguments to demonstrate that the US law as such is inconsistent with the
Anti-dumping Agreement  in respect of the investigating authorities' obligation to determine likelihood
under Article 11.3.  First, Japan argues that by creating in the Bulletin certain factual scenarios under
which the DOC is to find likelihood and other scenarios under which it will find no likelihood, the US
law limits the DOC's ability to consider fully the circumstances of a particular sunset review on whichto base its determinations.
189  Secondly, Japan argues (again on the basis of the Bulletin) that the fact
that under US law an interested party has to show good cause in order for the DOC to consider certain
evidence submitted by that party is also inconsistent with Article 11.3.190
7.246  Regarding both arguments, Japan exclusively invokes the provisions of the Bulletin (as
opposed to the Statute or the Regulations).  Japan has referred to no provision under US law tosupport its arguments.
191  We have found above ( supra , para. 7.145) that the Sunset Policy Bulletin is
not challengeable as such under the WTO Agreement .  We therefore examine no further Japan's "as
such" allegations relying solely on the Sunset Policy Bulletin.
(b) US law and Sunset Policy Bulletin as applied in the instant sunset review
(i) Claims under Articles 6.1, 6.2 and 6.6  of the Anti-dumping Agreement
Arguments of parties
Japan
7.247  Japan submits that in this sunset review the DOC violated Articles 6.1, 6.2 and 6.6 of the
Anti-dumping Agreement  by refusing to consider information submitted by NSC on 11 May 2000 on
the grounds that it was submitted after the expiry of the 30-day deadline provided under US law forthe submission of substantive information in a sunset review.
 192  That, in Japan's view, amounted to a
denial of NSC's right to defend its interests in this sunset review.  According to Japan, the DOC
impermissibly narrowed NSC's ability to submit evidence for its defense and therefore acted
inconsistently with Article 6.193
United States
7.248  The United States submits that the Japanese exporters were given 15 months advance notice
of the forthcoming initiation of the instant sunset review.  Following the initiation, exporters were
                                                     
187 Sunset Policy Bulletin , 63 FR at 18872 (Exhibit JPN-6)
188 Sunset Policy Bulletin , 63 FR at 18872 (Exhibit JPN-6)
189 First Written Submission of Japan, paras. 118-119.
190 First Written Submission of Japan, paras. 127-129.
191 In this respect we note in particular Japan's statement that it did not challenge the US Regulations as
part of its argument about the good cause requirement under US law.  See, Response of Japan to Question 93
from the Panel.
192 First Written Submission of Japan, para. 146.
193 First Written Submission of Japan, para. 149.WT/DS244/R
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given 30 days - the same amount of time provided for under Article 6.1.1 - to submit their substantive
response.  It is therefore evident that NSC was gi ven full opportunity to present evidence in this
sunset review.  According to the United States, ther efore, Japan fails to demonstrate how requiring the
exporters to submit all their evidence within 30 days following the initiation of the sunset review
violates Article 6.
Findings of the Panel194
7.249  Before proceeding to our analysis of this claim, we find it useful to refer to the facts relevant
to the resolution of this dispute.  As stated above, under US law, an interested party in a sunset review
wishing the DOC to consider information other than the information set out in the Statute has to
provide the DOC with good cause for the consideration of that evidence.195  Good cause evidence
needs to be submitted to the DOC within 30 days after the initiation of the sunset review, i.e. together
with the party's substantive response.196  Interested parties can request an extension of that deadline.197
7.250  The sunset review at issue was initiated on 1 September 1999.  After the initiation, NSC
submitted its substantive response in a timely manner.  Also submitted in a timely manner was NSC's
case brief and rebuttal case brief.198  In its rebuttal case brief submitted on 11 May 2000, NSC also
submitted information about an "other factor" that it thought should be considered by the DOC in its
determinations, as Japan was of the view that this information tended to demonstrate why its volume
of shipments to the US had not been dependent on the existence of dumping margins over the period.In this context, NSC asserted that the termination of  the duty would not result in an increase in NSC's
exports of the subject product into the United States because NSC had a controlling interest in a US
company that produced the same product in the United States.
199  Under US law, NSC had to show
good cause to the DOC within 30 days from the initia tion of the sunset review, i.e. by 1 October 1999,
for the DOC to consider this information.  NSC submitted the additional information in May 2000,approximately seven months after the deadline.  The US law provides for the possibility of extension
of this deadline.  However, while NSC requested and received an extension for another of its
submissions, it did not make such a request in this context.  The DOC informed NSC of its decision to
refuse to consider the information in question in it s Final Determination, issued two months after the
11 May 2000 submission was made.  The DOC's Final De termination in this sunset review states the
following regarding its decision to refuse to cons ider the additional information in the 11 May 2000
submission of NSC:
"We agree with domestic interested parties that NSC has not shown good cause for
the Department to consider other factors, including whether NSC's 50 percent-owned
galvanizing plant achieved full production or NSC has maintained a steady base of
customers.  As specified in 19 CFR 351.218(d)(3)(iv), if an interested party wants the
Department to consider other factors during the course of a sunset review, the partymust submit the evidence of good cause in its substantive response.  Because the NSC
did not submit the additional information in their substantive response, we do not find
good cause to examine other factors in this review.  Further, as domestic interested
                                                     
194 In this section, we examine Japan's allegatio n that the DOC’s refusal to accept and consider
additional information submitted by a Japanese respondent in this case is inconsistent with Articles 6.1, 6.2, and
6.6 of the Anti-dumping Agreement .  Subsequently, we examine Japan's allegation that the Sunset Policy
Bulletin, as applied in this case, establishes an irrefutable presumption that dumping is likely to continue where
import volumes decline or where dumping margins remain after imposition of the order, which is inconsistent
with the requirement in Article 11.3 of the Anti-dumping Agreement  that authorities make a prospective
determination that dumping is likely to recur or continue.
195 Codified in 19 U.S.C. §1675(a)(c)(1) and (2) (Exhibit JPN-1e at 496-497).
196 Ibid.
197 Response of the United States to Question 62 (f) from the Panel.
198 As stated, infra , in para. 7.259 , NSC had requested an extension to the deadline for the submission
of its case brief, which was granted by the DOC.
199 Response of the United States to Question 59 from the Panel.WT/DS244/R
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parties point out, even if the Department were to consider these factors, they would
be outweighed by the margin and import volume evidence on record.  The factors do
not provide sufficient evidence that NSC is not likely to dump in the future.200
7.251  It is apparent from the text of the Final Determination that the DOC's ground for refusing to
consider the additional information in question was because the information was not submitted, and
no good cause was shown, within the time-period provided for under US law, for the consideration ofthe additional information.
7.252  Japan claims that DOC's refusal to consider certain additional information contained in NSC's
11 May 2000 submission violated Articles 6.1,6.2 and 6.6 of the Anti-dumping Agreement .  In
response to Panel questioning, Japan clarified that its claim concerns more the timing  aspect of the
DOC's refusal as opposed to the requirement of good cause.
201  Therefore, we shall limit our analysis
to the timing aspect of DOC's refusal to consider this information.
7.253  The issue before us is, therefore, whether the DOC's refusal to consider the information in
NSC's 11 May 2000 submission on the basis of untimeliness was inconsistent with the provisions of
Article 6 of the Anti-dumping Agreement  which Japan has invoked (Articles 6.1, 6.2 and 6.6).
7.254  Turning to the relevant provision of the Anti-dumping Agreement , i.e. Article 6, we first note
the provisions of Article 6.1 of the Anti-dumping Agreement , which deal with interested parties' right
to submit evidence to the investigating authorities in  an investigation and which is applicable to sunset
reviews by virtue of the cross-reference to the provisions of Article 6 concerning evidence and
procedure in Article 11.4.  The chapeau of Article 6.1 reads:
"Article 6
Evidence
6.1 All interested parties in an anti-dumping investigation shall be given notice of
the information which the authorities require and ample opportunity to present in
writing all evidence which they consider relevant in respect of the investigation in
question."
Article 6.2 reads, in part:
"Throughout the anti-dumping investigation all interested parties shall have a full
opportunity for the defence of their interests."
Article 6.6 provides:
"... the authorities shall during the course of an investigation satisfy themselves as to
the accuracy of the information supplied by interested parties upon which their
findings are based."
7.255  Articles 6.1 and 6.2 make it clear that interested parties have a broadly-defined right to submit
evidence to the investigating authority during a sunset  review and are entitled to a full opportunity for
                                                     
200 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e at p.6).
201 In this respect we note the following statement by Japan:
The “good cause” requirement itself may also be inconsistent with Article 6, as it
unreasonably restricts a respondent’s ability to defend itself by improperly restricting the
presentation of prospective information, and unreasonably restricted USDOC’s ability to
examine NSC’s submitted information.  But, Japan did not include this claim in its panelrequest.  See, Response of Japan to Question 105 from the Panel.WT/DS244/R
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the defense of their interests.  Article 6.6 requires that the authorities satisfy themselves as to the
accuracy of information submitted upon which they base their findings.  In this respect, while
recalling the distinction between rules of procedure and substance in the Anti-dumping Agreement202,
we also note the Appellate Body's statement, in US – Carbon Steel203, that a determination of
likelihood under Article 11.3 of the Anti-dumping Agreement  requires the investigating authority to
find, on the basis of adequate evidence, that there is likelihood.  We consider that, in contrast toArticle 6.6, the provisions of Articles 6.1 and 6.2 deal with the right of a party to submit information,
including the temporal aspects of the submission of evidence.  For its part, Article 6.6 addresses the
obligations of the investigating authority in respec t of the information supplied on which its findings
are based.  If we find that the United States did not act inconsistently with the temporal component of
Articles 6.1 and 6.2 , we consider that there will be no need for us to address Japan's allegation under
Article 6.6.
7.256  We therefore examine whether the DOC acted inconsistently with Articles 6.1 or 6.2 in this
case by refusing to consider evidence for which no good cause had been shown by the 30-day
deadline for filing the substantive response in US sunset reviews.
7.257  The focus of our inquiry under Article 6.1 of the Anti-dumping Agreement  is whether NSC
was given "ample opportunity" to submit all evidence which it considered relevant in respect of this
sunset review and, under Article 6.2, whether NSC had a full opportunity for the defence of itsinterests throughout this sunset review.
7.258  The right of interested parties to submit information in a sunset review cannot be unlimited.
One of the important limitations that can legitimately be imposed on that right is deadlines for the
submission of information.  We endorse the view of  the panel – with which the Appellate Body also
agreed -- in US-Hot-Rolled Steel  that "in the interest of orderly administration investigating
authorities do, and indeed must establish such deadlines."
 204
    Investigating authorities must be able to
control the conduct of their review and to carry out the multiple steps in a re view required to reach a
final determination.  Indeed, in the absence of time-limits, authorities would effectively cede control
of investigations to the interested parties, and co uld find themselves unable to complete their review
within the time-limits mandated under the  Anti-Dumping Agreement .205  We note, in that respect, that
Article 11.4 of the  Anti-Dumping Agreement  stipulates that reviews under Article 11 "shall be
carried out expeditiously  and shall normally be concluded within 12 months of the date of initiation of
the review". (emphasis added)   Furthermore, Article 6.14 provides generally that the procedures set
out in Article 6 "are not intended to prevent the authorities of a Member from proceeding
 expeditiously ". (emphasis added)  Deadlines are, therefore, necessary and legitimate tools that allow
investigating authorities to carry out and complete sunset reviews in a timely manner.  Obviously, in
cases where the Anti-dumping Agreement  sets a certain deadline for the submission of certain
information, the investigating authorities are bound by the deadline imposed by the Anti-dumping
Agreement .  An example of such a provision is Article 6.1.1 of the Anti-dumping Agreement , which
requires that exporters be given at least 30 days to respond to the questionnaires sent by the
investigating authority.  In other cases, the national law of a WTO Member may set a deadline for the
exercise of a certain procedural right during an investigation, even where the Anti-dumping
Agreement  may not expressly require such a deadline, provided that the deadline is consistent with a
Member's WTO obligations.  There must be a balance struck between the rights of the investigating
                                                     
202 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel and H-Beams from Poland ("Thailand – H-Beams "), WT/DS122/AB/R, adopted 5 April 2001,
paras. 106-110.
203 Appellate Body Report, US – Carbon Steel , supra , note 22, para. 117.
204Panel Report, United States – Anti-dumping measures on certain Hot-Rolled Steel Products from
Japan ("US-Hot-Rolled Steel"), WT/DS184/R, adopted 23 August 2001 as modified by Appellate Body Reportsupra , note 19, para. 7.54.
205 Appellate Body Report, US – Hot-Rolled Steel , supra , note 19, para. 73.WT/DS244/R
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authorities to control and expedite the investigating process, and the legitimate interests of the parties
to submit information and to have that information taken into account.206
7.259  In our view, the DOC's application in this case  of the 30-day deadline in the US Regulation
for the submission of information or evidence to  show good cause for the DOC to consider NSC's
additional information relating to possible "other factors" did not undermine NSC's "ample
opportunity" to submit information that it considered relevant to the review.  We do not find 30 days
to be an unreasonable period of time for the submission of information in a sunset review.  If this
timeframe was not sufficient in this particular case, NSC could have requested an extension.
However, NSC never requested an extension of the time-period provided for under US law for the
submission of this information, although such extens ion is envisaged in the Regulation and could have
been granted by the DOC.  In fact, once during this sunset review NSC requested an extension for the
submission of its case brief and that request was granted by the DOC.207  Japan has pointed to no
particular reason concerning the nature of the information contained in this submission that wouldjustify such delay.  Indeed, Japan has confirmed, in response to a Panel question, that the information
in question was in NSC's possession at the time of  its submission of the substantive response within
the 30-day deadline.
208
7.260  Japan argues that, since the decision of the Appellate Body in US – Hot-Rolled Steel
concerned time-limits applicable to the submission of responses to questionnaires, it does not applyhere because no questionnaire was sent to the parties in the sunset review at issue.
209  Indeed, the
factual circumstances of the US – Hot-Rolled Steel  case were different, in that it concerned the
submission of responses to the questionnaires sent by the investigating authority in an investigation.
Moreover, the legal claim was made and examined under Article 6.8 and Annex II of the Anti-
dumping Agreement . These treaty provisions contain different obligations and terms, including the
terms "reasonable period [of time]".  However, to the extent that the Appellate Body's reasoning in
US-Hot Rolled Steel  may be relevant here, we consider that the submission of information seven
months after the established deadline and approximately two months before the date established for
the investigating authority's determination would, in any event, not be seen as timely even under the
approach set by the Appellate Body in that case.   We emphasize, however, that Japan has made no
claim under Article 6.8 in this dispute.
7.261  We do not find relevant the US argument that the Japanese exporters had 15 months advance
notice of the initiation of this particular sunset review, and thus had ample time to prepare their
substantive responses in this sunset review.  The procedural rules in the Anti-dumping Agreement  are
concerned with the conduct of investigations and reviews.  The fact that a Member identifies, in
advance, in its national legislation and regulations the date of initiation of a sunset review cannot
mean that the rights of interested parties in a particular sunset review are limited.  We by no meanswish to discourage the exercise of transparency by Members.  However, the fact that the parties may
have received advanced notice of initiation does not limit their right to an ample opportunity to submit
evidence in the particular review in which they are involved.
210
                                                     
206 Ibid., para. 86.
207 Response of the United States to Question 62 (c) from the Panel.
208 In this respect we note the following statement of Japan: "This information was in USDOC’s files
from its administrative reviews involving corrosion-resistant steel from Japan.  As a result, NSC’s case brief
was the first opportunity to present information and argumentation after NSC learned what facts USDOCintended to consider in its final determination."  Response of Japan to Question 107 from the Panel.
209 Response of Japan to Question 106 from the Panel.
210 Moreover, to the extent that the United States argu es that the information required in a sunset review
was published and widely available in advance of the initiation of this review, we note that while the Regulation
refers to "optional information to be submitted by interested parties in substantive response…", and states, in
accordance with the US Statute, that "good cause" eviden ce must be shown in order for the DOC to consider
other factors, it does not explicitly identify what would constitute such evidence.  Thus, although  parties wereput on notice that "good cause" evidence had to be submitted in the substantive response, the 15-month advanceWT/DS244/R
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7.262  We note Japan's argument that in this sunset review the Japanese exporters did not know until
15 days after the initiation of the sunset review whether the domestic industry would participate in the
review.  In Japan's view this meant that the expor ters in fact had only 15 days to respond to the
questionnaires, not even 30 days.  According to Japan this violated Article 6.1.211  In our view, the
fact that the domestic producers informed the DOC of their intent to participate in the sunset review
on day 15 after the initiation of the sunset review does not change the fact that the Japanese exportershad 30 days to respond to the notice of initiation.  In our view, the fact that the domestic producers
were given 15 days to inform the DOC as to whether they would participate in the sunset review did
not affect Japanese exporters' right to be given ample opportunity to present evidence under
Article 6.1.
7.263  We therefore find that the DOC did not act inconsistently with Articles 6.1 or 6.2 of the Anti-
dumping Agreement  by declining to consider the information contained in NSC's submission dated
11 May 2000 on the grounds of untimeliness.
212
7.264  Having made this finding, we do not consider that it is necessary for us to proceed to an
examination of the merits of Japan's claim under Article 6.6.
(ii) Claim under Article 11.3 of the Anti-dumping Agreement
Arguments of parties
Japan7.265  Japan contends that the application by the DOC of the "not likely" standard in this sunset
review is inconsistent with Article 11.3.  Japan submits that in this sunset review the DOC did not
carry out a prospective likelihood analysis; instead it applied the above-mentioned strict factual
presumptions set forth in the Sunset Policy Bulletin and concluded that dumping was likely to
continue.  In Japan's view, the fact that the DOC refused to consider NSC's 11 May 2000 submissionalso points to its unwillingness to carry out a forward-looking likelihood analysis.  Japan argues that
the DOC's conclusion could have changed had it not refused to consider NSC's submission.
United States
7.266  The United States argues that the DOC applied the "likely" standard of Article 11.3 in this
sunset review.  In its likelihood analysis the DOC considered -- in addition to the informationsubmitted by interested parties -- its findings in the administrative reviews and found that the Japanese
exporters had continued to dump the subject product into the US market after the imposition of the
anti-dumping  order.  It also found that imports from Japan decreased significantly after the imposition
of the anti-dumping  order and remained at low levels thereafter.  Therefore, the DOC concluded that
there was a likelihood of continuation or recurrence of dumping should the order be terminated.  The
United States also submits that NSC had the right to submit evidence on factors other than DOC's
findings in the original investigation and the intervening administrative reviews for DOC's
consideration, but it failed to do so in a timely manner.  Therefore, the United States acted
consistently with Article 11.3 in this sunset review.
                                                                                                                                                                    
notice that the United States asserts existed in this case did not in fact exist in respect of the nature and content
of "good cause" evidence.
211 Second Written Submission of Japan, para. 76.
212 In any event, that the DOC also indicated in its Final Determination that "...even if the Department
were to consider these factors, they would be outweighed by the margin and import volume evidence onrecord."  We consider the nature and import of this statement  infra  7.276 ff.WT/DS244/R
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Evaluation by the Panel
7.267  Regarding the standard applied by the DOC in its determinations in this sunset review, we
recall our finding, supra , that the United States' Regulation does not require the application by the
DOC of a "not lik ely" standard.213  On this basis, we therefore do not consider that the Sunset Policy
Bulletin, in its application pursuant to the Statute and the Regulation, contemplates the imposition of a
"not likely" standard.  Furthermore, the Final Determination214 of the DOC and the Notice of
Continuation215 of the Anti-dumping Order in the instant sunset review state, on their face, that the
standard applied is the "likely" standard.  Japan fails  to refer to any document in the record that would
suggest that the DOC in fact used the "not likely" standard in this sunset review.  Japan refers to
DOC's statement in its Final Determination, which reads:
"Therefore the fact that NSC reduced its dumping margins during the same time that
its import levels have remained stable does not lead us to conclude that dumping is
unlikely to occur in the future."216 (emphasis added)
7.268  However, this statement reflects DOC's explanation regarding a comment made by NSC and
thus does not reflect the standard by which the DOC reached its ultimate conclusion.  As stated above,
this document clearly states on its face that the standard used by the DOC in its sunset determinations
is the "likely" standard.  Therefore we find that the United States did not act inconsistently with the
Anti-dumping Agreement  in this respect.
7.269  Next, we turn to the other elements of Japan's claim that the DOC's determination of
likelihood of continuation or recurrence of dumping was inconsistent with Article 11.3.  We
understand Japan's arguments here to be two-pronged:  first, that the DOC's non-consideration of the
information submitted by NSC near the end of the investigation period indicates that the DOC failed
to properly determine likelihood in this sunset review; and second, that the DOC failed to make aproper, prospective likelihood determination within the meaning of Article 11.3 in that the DOC
followed the factual presumptions of the Sunset Policy Bulletin and based its determination
exclusively on historical data relating to dumping and the volume of dumped imports.
7.270  We must, therefore, examine the consistency with Article 11.3 of the determination of
likelihood of continuation or recurrence of dumping made by the DOC in this sunset review.
7.271  We recall, once again, the text of the relevant treaty provision, which requires the termination
of an anti-dumping duty not later than five years from its imposition,
"…unless the authorities determine, in a review initiated before that date … that the
expiry of the duty would be likely to lead to continuation or recurrence of dumping
and injury."
Here, we recall that Article 11.3 does not impose a particular methodology that must be followed for
the "likelihood" determination to be made in a sunset review.  This does not mean that the Anti-
                                                     
213 Supra , para. 7.239.
214 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e at p. 6 and 8).  The Final
Determination states, inter alia :  "Therefore, an analysis of the relationship between dumping margins and
import volumes before and after the issuance of the order demonstrates that dumping will continue if the orderwere revoked";  and, "[t]herefore, given that dumping continued after the issuance of the order and importscontinued in 1998 at levels far below pre-order levels, we determine that dumping is likely  to continue if the
order were revoked." (emphasis added)
215 Notice of Continuation of An tidumping and Countervailing Duty Orders on Certain Steel Products
from Japan , 65 FR 78469 (Exhibit US-5)
216 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e, p. 6).WT/DS244/R
Page 67
dumping Agreement  is devoid of any obligation governing the requisite nature of a sunset review
determination.  The text of Article 11.3 contains an obligation "to determine" likelihood of
continuation or recurrence of dumping and injury.  The text of Article 11.3 does not, however,
provide explicit guidance regarding the meaning of the term "determine".  The ordinary meaning of
the word “determine” is to “find out or establish precisely” or to “decide or settle”.217  T h e
requirement to make a “determination” concerning likelihood therefore precludes an investigatingauthority from simply assuming that likelihood exists.  In order to continue the imposition of the
measure after the expiry of the five-year application period, it is clear that the investigating authority
has to determine, on the basis of positive evidence
218, that termination of the duty is likely to lead to
continuation or recurrence of dumping and injury.219  An investigating authority must have a
sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning the
likelihood of such continuation or recurrence.
7.272  In this case, the DOC's Final Determination in dicates that the basis of the DOC's likelihood
determination in this sunset review was an analysis  of the trends of changes in dumping margins and
import volumes before and after the imposition of th e measure.  In particular, the DOC based its
likelihood determination on the following two factual elements:  first, that dumping continued after
the imposition of the duty and, second, that import volumes dropped following the imposition of the
measure and remained at relatively low levels.  The DOC concluded that termination of the measurewould be likely to lead to the continuation or recurrence of dumping.
220
7.273  We first examine Japan's allegation that the DOC's non-consideration of the information
submitted by NSC near the end of the investigation period indicates that the DOC failed to properly
determine likelihood in this sunset review.  Japan argues that since the DOC applied its 30-day "good
cause" requirement in this sunset review and thereb y restricted the type of information that could be
submitted by interested parties, it acted inconsistently with Article 11.3.221  This is the only specific
information that Japan submits the DOC should have considered, but did not, in this sunset review.
7.274  At first blush, the DOC's refusal might seem to run counter to the legal framework we have
outlined, in that it shows that the DOC declined to consider certain information that could have been
relevant in its determinations in this sunset review.  However, we find the ground for such rejection tobe highly relevant.  We found above ( supra , para. 7.263) that the DOC was justified in rejecting this
submission on procedural grounds of untimeliness.  On the basis that the DOC did not act
inconsistently with the Anti-dumping Agreement  in declining to consider a certain piece of
information on procedural grounds, we do not believe that the United States could still be found to
have nevertheless violated its substantive obligation under Article 11.3, i.e. obligation to determine
likelihood of continuation or recurrence of dumping, by not considering that information in its
substantive analysis.  Finding otherwise would render the procedural rules of the Anti-dumping
Agreement  meaningless.  If procedural rules allow an investigating authority to disregard certain
information under certain circumstances, it follows logically that that investigating authority cannot
be required to nevertheless consider that information in its substantive analysis.  Otherwise,
procedural rules would have been rendered meaningless and would serve no purpose.
                                                     
217 Oxford English Encyclopaedic Dictionary  (1991).
218 See, supra , note 48.
219 We recall our statement supra , para. 7.45, that:  "Once the review is initiated, in order to properly
decide to keep the measure in place the authorities are required to establish, on the basis of positive evidence,that there is a likelihood of continuation or recurrence of dumping and injury."
220 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e, p. 5).  As far as Japan's claim
challenging the application of US law in the instant sunset review is concerned, whether or not this analysis
reflects the provisions of the Sunset Policy Bulletin is i mmaterial.  Here, we are reviewing the application of US
law and the Sunset Policy Bulletin in the instant review, as opposed to the law and Sunset Policy Bulletin "assuch".
221 Response of Japan to Question 42 from the Panel.WT/DS244/R
Page 68
7.275  We therefore find that the United States did not fail to determine likelihood of continuation or
recurrence of dumping by declining to consider the additional information as to possible "other
factors" contained in the 11 May 2000 submission of NSC.
7.276  In any event, we recall the following statement in the Final Determination in respect of the
additional information in question:
"…even if the Department were to consider these factors, they would be outweighed
by the margin and import volume evidence on record.  The factors do not provide
sufficient evidence that NSC is not likely to dump in the future."222
7.277  Even assuming arguendo  that the DOC were required to consider the information contained
in NSC's 11 May 2000 submission, in our view, the above statement demonstrates that it did, in fact,
consider it.  It is clear that the DOC nevertheless considered the substance of the evidence and
determined that it would not have changed its affirmative determination of likelihood.
7.278  We next examine whether the DOC met its obligation under Article 11.3 to make a reasoned
finding on the basis of positive evidence223 that dumping was likely to continue or recur upon
revocation of the order.  We recall the text on the face of the DOC's Final Determination, as follows:
"As discussed in section II:A.3 of the Suns et Policy Bulletin, the SAA at 890 and the
House Report at 63-64, if companies continue dumping with the discipline of an
order in place, the Department may reasonably infer that dumping would continue ifthe discipline were removed.  We agree with domestic interested parties that the
Department's preliminary determination that dumping is likely to continue if the order
is revoked is supported by substantial evidence on the record.  As stated in our
preliminary results, and, as domestic interested parties observe, margins have
remained above de minimis in every administrative review since the issuance of theorder.
Consistent with section 752(c) of the Act, the Department also considered the volume
of imports before and after the issuance of the order.  We noted in our preliminary
results that import statistics provided by domestic interested parties and NSC on
imports of subject merchandise declined from 1992 to 1993, the year of the order, andhave remained at much lower levels.  Therefore, an analysis of the relationship
between dumping margins and import volumes before and after the issuance of the
order demonstrates that dumping will continue if the order were revoked.
In addition, we disagree with NSC that the Department has disregarded the plain
language of the statute and selectively used language from the SAA to establish a
policy of continuing an order unless respondents show that future dumping is not
likely.  In accordance with section 752(c) of the statute, we have analyzed therelationship between dumping margins and import volumes before and after the
issuance of the order.  We find that dumping has continued to occur throughout the
life of the order and import volumes have been significantly lower than pre-order
volumes.  Therefore, the fact that NSC reduced its dumping margins during the same
time that its import levels have remained stable does not lead us to conclude thatdumping is unlikely to occur in the future.
                                                     
222 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e, p.6).
223 See, supra , note 48.WT/DS244/R
Page 69
NSC also argues that the Department has reversed the presumption with respect to
revocation.  We disagree.  Rather, the Sunset Policy Bulletin sets for[th] the
conditions that must be satisfied for the revocation standard to be established…..
Based on this analysis, the Department finds that the existence of dumping margins
after the issuance of the order is highly probative of the likelihood of continuation or
recurrence of dumping.  Deposit rates above a de minimis level continue in effect forexports of the subject merchandise by all known Japanese producers and exporters.
Therefore, given that dumping continued after the issuance of the order and imports
continued in 1998 at levels far below pre-order levels, we determine that dumping is
likely to continue if the order were revoked."
224
7.279  It is clear from this Final Determination that the DOC considered data relating to dumping
margins, as established in administrative reviews following the imposition of the measure, and import
volumes preceding and following the imposition of the measure.225  This data relates to facts
preceding the determination, and thus could be re ferred to as "historical" in nature.  We do not
disagree with Japan's argument, which the United States does not contest226, that the likelihood
determination is inherently "prospective" in nature, as it must necessarily relate to a hypothetical
future point in time, following the determinati on.  It is, however, impossible to predict future
developments with certainty or absolute precision.  Future "facts" do not exist.  The only type of factsthat exist and that may be established with certainty and precision relate to the past and, to the extent
they may be accurately recorded and evaluated , to the present.  We recall that one of the fundamental
goals of the Anti-dumping Agreement  as a whole is to ensure that objective determinations are made,
based, to the extent possible, on facts.
227  Thus, to the extent that it will rest upon a factual foundation,
the prospective likelihood determination will inevitably rest on a factual foundation relating to thepast and present.  The investigating authority must evaluate this factual foundation and come to a
reasoned conclusion about likely future developments.
7.280  Japan does not contest that past dumping margins and import volumes may be relevant, and
may be taken into account, in a likelihood determination.  However, for Japan, they are not a
sufficient basis for a likelihood determination.  Japan argues that the investigating authorities shouldconsider all relevant facts, which may include past margins and import volumes, in order to come up
with the likely rate of dumping which is likely to continue or recur should the duty be terminated.
228
7.281  The underlying data on the record before the DOC indicated that:
                                                     
224 Corrosion-Resistant Carbon Steel Flat Products from Japan; Final Results of Full Sunset Review of
Antidumping Duty Order , 65 FR 47380 (2 August 2000) (Exhibit JPN-8e at p. 5).
225 We recall the following statement by the Appellate Body in US – Carbon Steel :
"The continuation of a countervailing duty must therefore be based on a properly conducted
review and a positive determination that the revocation of the countervailing duty would "belikely to lead to continuation or recurrence of subsidization and injury."  Where the level ofsubsidization at the time of the review is very low, there must be persuasive evidence thatrevocation of the duty would nevertheless lead to injury to the domestic industry.  Merereliance by the authorities on the injury determination made in the original investigation will
not be sufficient.  Rather, a fresh determination, based on credible evidence, will be necessary
to establish that the continuation of the countervailing duty is warranted to remove the injuryto the domestic industry." (footnote omitted)Appellate Body Report, US – Carbon Steel , supra , note 22, para. 88.
226 First Written Submission of the United States, para. 3.
227 See Panel Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel
Flat Products from Germany ("US – Carbon Steel "), WT/DS213/R and Corr.1, adopted 19 December 2002 as
modified by Appellate Body Report, supra , note 22, para. 8.94 and Panel Report, US – Hot-Rolled Steel , supra,
note 204, para. 7.55.
228 Response of Japan to Questions 41 and 42 from the Panel.WT/DS244/R
Page 70
"In the first [administrative] review covering the period from August 1, 1996, through
July 31, 1997, the Department assigned the NSC a margin of 12.51 percent.  In the
final results of the second review, covering the period from August 1, 1997, through
July 31, 1998, the Department determined margins of 2.47 percent and 1.61 percent
for NSC and Kawasaki…"229
…
The import statistics provided by domestic interested parties and NSC on imports of
subject merchandise from 1991 to 1997, and those examined by the
Department…demonstrate that imports of the subject merchandise declined from
1992 to 1993, the year of the order, and have remained at much lower levels.230
7.282  The DOC examined this evidence and reasoned  that the evidence supported the view that
dumping was likely to continue or recur upon revocation of the duty.
7.283  With our standard of review firmly in mind, given the factual foundation and reasoning
apparent in the Final Determination, and in light of the particular circumstances of this sunset review,
we see no reason to conclude that the DOC did not have before it relevant facts constituting a
sufficient factual basis to allow it to reasonably draw the conclusions concerning the likelihood of
such continuation or recurrence that it did.231  We therefore find that the United States did not act
inconsistently with Article 11.3 in this respect in this case.
8. Article X:3(a) of GATT 1994
(a) US law as such
(i) Arguments of parties
Japan
7.284  Japan submits that the US sunset review laws are administrative in nature and therefore
challengeable under Article X:3(a) in accordance with established WTO jurisprudence. According to
Japan the United States administers its sunset review laws in a manner inconsistent with the
requirements of Article X:3(a) of GATT 1994.  Japa n contends that automatic self-initiation of sunset
reviews gives rise to unreasonable administration of sunset review laws because it allows the DOC to
disregard the substantive requirements for the initiation.  The fact that automatic initiation favours the
domestic industry makes it also partial.  Differen t approaches taken by the DOC with respect to
Article 11.2 reviews and sunset reviews under Arti cle 11.3 also allegedly demonstrate that the
administration of US sunset review laws is not uniform.  According to Japan, given the similarities
between the fundamental elements of the two reviews, and in particular the obligation to carry out aprospective determination, these two reviews should be administered in a uniform manner.
                                                     
229 See Corrosion-Resistant Carbon Steel Flat Products From Japan; Preliminary Results of Full
Sunset Review of Antidumping Duty Order , 65 Fed. Reg. 16169 (27 March 2000) (Exhibit JPN-8c at p. 1).
230 See Corrosion-Resistant Carbon Steel Flat Products From Japan; Preliminary Results of Full
Sunset Review of Antidumping Duty Order , 65 Fed. Reg. 16169 (27 March 2000) (Exhibit JPN-8c at p. 6).
231 We recall our findings supra, paras. 7.157and 7.184, concerning the use by the United States of the
dumping margins calculated in administrative reviews, and our view that the United States did not actinconsistently with Articles 2.4 or 11.3 in that respect.WT/DS244/R
Page 76
7.315  Since we did not find any aspect of US law to be inconsistent with the covered agreements,
we do not find any violation of Article 18.4 of the Anti-dumping Agreement  and Article XVI:4 of the
WTO Agreement  either.
VIII.  CONCLUSIONS AND RECOMMENDATION
8.1 In conclusion, we find that:
(a) In respect of the evidentiary standards applicable to the self-initiation of sunset
reviews:
(i) Section 751(c)(1) and (2) of the US Statute and section 351.218(a) and (c)(1)
of the US Sunset Regulations, which contain no evidentiary standard for the
DOC to self-initiate a sunset review, are not inconsistent with Articles 11.1,
11.3, 12.1, 12.3, and 5.6 of the Anti-dumping Agreement ,
(ii) the DOC did not act inconsistently with Articles 5.6, 11.1, 11.3, 12.1, and
12.3 of the Anti-dumping Agreement  by self-initiating the sunset review at
issue in application of Section 751(c)(1) and (2) of the US Statute and section
351.218(a) and (c)(1) of the US Sunset Regulations.
(b) In respect of the de minimis  standard applicable in sunset reviews:
(i) Section 351.106(c) of the US Sunset Regulations, which requires that a 0.5
per cent de minimis standard apply in sunset reviews, is not inconsistent with
Articles 5.8 and 11.3 of the Anti-dumping Agreement,
(ii) the DOC did not act inconsistently with Articles 5.8 and 11.3 of the Anti-
dumping Agreement  by not applying in this sunset review the de minimis
standard set out in Article 5.8 ,
(c) In respect of cumulation in sunset reviews:
(i) the ITC did not act inconsistently with Articles 3.3, 5.8 and 11.3 of the Anti-
dumping Agreement  in this sunset review by cumulating imports from Japan
with those from other subject countries without applying the negligibility
standard of Article 5.8,
(d) In respect of the dumping margins used in sunset reviews:
(i) Japan has failed to show that the Sunset Policy Bulletin as such is
inconsistent with Articles 2.2.1, 2.2.2, 2.4, 11.3 and 18.3 of the Anti-dumping
Agreement ,
(ii) the DOC did not rely upon the original dumping margins as a basis for its
determination of likelihood of continuation or recurrence of dumping in the
instant sunset review, and it was therefore not necessary for us to address the
alleged inconsistences of such margins with Articles 2, 11.3 and 18.3 of theAnti-dumping Agreement ,
(iii) the DOC did not act inconsistently with Article 2.4, or, in the alternative,
Article 11.3, of the Anti-dumping Agreement  regarding the administrative
review dumping margins which it relied upon as a basis for its likelihood of
continuation or recurrence of dumping determinations in this sunset review,WT/DS244/R
Page 77
(iv) the allegation of Japan concerning DOC's reporting of the original dumping
margins to the ITC for use by the latter in its likelihood of continuation or
recurrence of injury determinations is not properly before us and we therefore
declined to examine it.
(e) In respect of determination of likelihood of continuation or recurrence of dumping on
an order-wide basis in sunset reviews:
(i) Japan has failed to show that the Sunset Policy Bulletin as such is
inconsistent with Articles 6.10 and 11.3 of the Anti-dumping Agreement
regarding the basis of the likelihood of continuation or recurrence of dumping
determinations in sunset reviews,
(ii) the DOC did not act inconsistently with Articles 6.10 and 11.3 of the Anti-
dumping Agreement  by making its likelihood determination in this sunset
review on an order-wide basis,
(f) In respect of the investigating authorities' obligation to determine likelihood of
continuation or recurrence of dumping in sunset reviews:
(i) Japan has failed to show that the Sunset Policy Bulletin as such is
inconsistent with Article 11.3 regarding the investigating authorities'
obligation to determine likelihood of continuation or recurrence of dumpingin sunset reviews,
(ii) the DOC did not act inconsistently with Article 11.3 of the Anti-dumping
Agreement  in this sunset review in making its determination regarding the
likelihood of continuation or recurrence of dumping,
(iii) the DOC did not act inconsistently with Article 6.1, 6.2 or 6.6 of the Anti-
dumping Agreement  in this sunset review in declining to consider certain
additional information submitted by NSC in its submission dated
11 May 2000,
(g) In respect of the administration of the US sunset review laws and regulations:
(i) the US sunset review law is not inconsistent with Article X:3(a) of GATT
1994,
(ii) the application of US law in this sunset review was not inconsistent with
Article X:3(a) of GATT 1994,
(h) The US did not act inconsistently with Article 18.4 of the Anti-dumping Agreement
and Article XVI:4 of the WTO Agreement.
8.2 In the light of our conclusions, we make no recommendations under Article 19.1 of the DSU .WT/DS244/R
Page 78
IX. JAPAN'S REQUEST FOR ESTABLISHM ENT OF THE PANEL (WT/DS244/4)
WORLD TRADE
ORGANIZATIONWT/DS244/4
5 April 2002
(02-1902)
Original:  English
UNITED STATES – SUNSET REVIEW OF ANTI-DUMPING DUTIES
ON CORROSION-RESISTANT CARBON STEEL FLAT PRODUCTS
FROM JAPAN
Request for the Establishment of a Panel by Japan
The following communication, dated 4 April 2002, from the Permanent Mission of Japan to
the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.
_______________
On 9 July 1993, the United States Department of Commerce ("DOC") concluded its
antidumping investigation on imports of Certai n Corrosion-Resistant Ca rbon Steel Flat Products
("Corrosion-Resistant Steel") from Japan and found that Japanese products were being sold in the
United States at less than their fair value (i.e., dumped).238  The United States International Trade
Commission ("ITC") on 9 August 1993, then, determ ined that imports of Corrosion-Resistant Steel
from Japan were causing material injury to the United States domestic industry.239  Following the ITC
injury determination, on 19 August 1993, DOC published its final antidumping duty order onCorrosion-Resistant Steel from Japan establishing an initial dumping margin of 36.41 per cent
ad valorem
240 for all exporters of the subject product.
On 1 September 1999, the DOC automatically initiated a "sunset" review of the definitive
antidumping duties on the Corrosion-Resistant Steel from Japan.241  The DOC preliminary results,
issued on 27 March 2000, found that revocation of th e order would result in continued dumping at the
original rate of 36.41 per cent.242  The DOC's final determination, published on 2 August 2000,
affirmed its preliminary determination.243  Finally, on 2 November 2000, the ITC determined that
                                                     
238 See Final Determinations of Sales at Less Than Fair Valve:  Certain Hot-Rolled Carbon Steel Flat
Products, Certain Cold-Rolled Carbon Steel Flat Product s, and Certain Corrosion-Resistant Carbon Steel Flat
Products from Japan, 58 Fed. Reg. 37154 (9 July 1993).
239 See Certain Flat-Rolled Carbon Steel Products from Japan , USITC Pub. No. 2664, Inv. No.
731-TA-617, at 4 (Final) (August 1993).
240 See Antidumping Duty Orders:  Certain Corrosion-Resistant Carbon Steel Flat Products from Japan,
58 Fed. Reg. 44163 (19 Aug. 1993).
241 See Initiation of Five-Year ("Sunset") Reviews of Antidumping and Countervailing Duty Orders or
Investigations of Carbon Steel Plates and Flat Products, 64 Fed. Reg. 47767 (1 Sep. 1999).
242 See Corrosion-Resistant Carbon Steel Flat Produ cts From Japan; Preliminary Results of Sunset
Review of Antidumping Duty Order, 65 Fed. Reg. 16169 (27 March 2000).
243 See Corrosion-Resistant Carbon Steel Flat Products From Japan; Final Results of Full Sunset
Review of Antidumping Duty Order, 65 Fed. Reg. 47380 (2 August 2000).WT/DS244/R
Page 79
revocation of the antidumping order would result in continued injury to the United States' domestic
industry.244
Following these events, on 30 January 2002, Japan requested consultations with the United
States pursuant to Article 4 of the DSU, Article XXII:1 of the General Agreement on Tariffs and
Trade 1994 ("GATT 1994"), and Article 17.2 of the Agreement on Implementation of Article VI of
GATT 1994 ( the "AD Agreement"), regarding the final determinations of both the DOC and the ITC
and the relevant provisions and procedures of the United States.245  The consultations, which were
held in Geneva on 14 March 2002, enabled the parties to gain a better understanding of each other's
position, but unfortunately did not give rise to a mutually satisfactory solution.
The Government of Japan considers both (i) the United States' decision not to terminate the
imposition of the antidumping duties on the imports of Corrosion-Resistant Steel from Japan, and (ii)the provisions, procedures and practices pertaining to the United States Tariff Act of 1930 ("the Act")
on which the decision was based, to be inconsistent with the United States' obligations under
Articles VI and X of the GATT 1994, Articles 2, 3, 5, 6, 11, 12 and 18 of the AD Agreement, and
Article XVI:4 of the Marrakesh Agreement establishing the World Trade Organization (the "WTO
Agreement").  The Government of Japan would like a panel, which will be established in accordancewith Article 4.7 and Article 6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), to address the following specific claims:
1. Article 11.1 of the AD Agreement sets forth the overriding principle that antidumping duties
shall remain in force "only as long as and to the extent necessary" to counteract injuriousdumping.  Article 11.3 provides that antidumping duties must be terminated after five years,
unless the authorities determine that their expiry would be likely to lead to the continuation or
recurrence of dumping and injury.   In this context, Article 12 calls on the authorities to
satisfy themselves that sufficient evidence (as defined by Article 5) exists to justify an
initiation of the review before notifying the public of such initiation.  Notwithstanding theseprovisions of the AD Agreement, Section 751(c)(1) and (2) of the Act and the DOC
regulation 19 C.F.R. § 351.218(a) and (c)(1) mandate the DOC to automatically self-initiate
sunset reviews without sufficient evidence.  This initiation standard does not require sufficient
positive evidence that the above-mentioned provisions of the AD Agreement require to be
shown.  In this particular case, as in all others, the DOC automatically initiated the sunset
review without presenting a scintilla of evidence of the likelihood of continued or recurrent
dumping or injury.  Therefore, Section 751(c)(1) and (2) of the Act and the DOC regulation19 C.F.R. § 351.218(a) and (c)(1), on the face and as applied in this case, are inconsistent
with Articles 5.6, 11.1, 11.3, 12.1, and 12.3 of the AD Agreement and Article X:3(a) of the
GATT 1994.
2. The US laws, regulations, procedures, practices and determinations regarding the "likelihood
of continuation or recurrence of dumping" are inconsistent, on the face, as a general practice
and as applied in this case, with the WTO obligations as follows:
(a) The DOC regulation 19 C.F.R. §351.222(i)(1)(ii) sets forth the "not likely" standard
to revoke an antidumping duty order.  In  addition, Sections II.A.3 and II.A.4 of the
DOC Sunset Policy Bulletin
246 provide irrefutable conditions where the DOC may
find no likelihood of continued or recurrent dumping.  In fact, to our knowledge, no
single case has ever met the "not likely" conditions set by Sunset Policy Bulletin to
date.  The DOC regulation 19 C.F.R. § 351.222(i)(1)(ii) and Sections II.A.3 and
                                                     
244 See Certain Carbon Steel Products From Japan , USITC Pub. No. 3364, Inv. No. 731-TA-617
(Review) (2 Nov. 2000).
245 That request was circulated in document WT/DS244/1, GL/508, G/ADP/D39/1.
246 Policies Regarding the Conduct of Five-year ("Sunset") Review of Antidumping and Countervailing
Duty Orders; Policy Bulletin, 63 Fed. Reg. 18871 (16 April 1998) (hereinafter "Sunset Policy Bulletin").WT/DS244/R
Page 80
II.A.4 of the DOC's Sunset Policy Bulletin , on the face, as a general practice and as
applied in this case, are inconsistent with the requirements of Article 11.3 of the AD
Agreement and Article X:3 of the GATT 1994.
(b) Both the Statement of Administrative Action at 890 and the Sunset Policy Bulletin at
Section II.A.3 set an irrefutable presumption that dumping is likely to continue wherethe import volume has declined or where dumping margins remain after issuance of
the order.  The "good cause" requirement in the DOC regulation 19 C.F.R. §
351.218(d) does not mitigate this defect because it impermissibly narrows the
administering authorities' ability to exam ine other evidences.  As such, no attempt
whatsoever is made to "determine" whether dumping is likely to continue or recur.
The United States' procedures and practice in this regard, both as a general practice
and as applied in this case, are inconsistent with the obligations of Article 11.3 of theAD Agreement and Article X:3 of the GATT 1994.
(c) The dumping margins that the DOC used in its sunset reviews,  including its
interpretation of the proper de minimis  standard in conducting its likelihood
analysis,
247 are inconsistent with the WTO obligations as follows:
(i) The DOC used the dumping margins cal culated in the original investigation
in 1993 to determine the likelihood of continuation or recurrence of dumping
in this sunset review.  These dumping margins were not calculated pursuant
to Article 2 of the AD Agreement.  The US policy and practice, both as ageneral practice and as applied in this case, are thus inconsistent with the
United States' obligations under Articles 2, 11.3 and 18.3 of the
AD Agreement and Article X:3 of the GATT 1994.
(ii) The DOC has a traditional practice of zeroing negative margins when
calculating dumping margins.  The DOC applied this practice in its
calculation of dumping margins in the original investigations and the
administrative reviews in this case.  The Appellate Body found this practice
of zeroing to be inconsistent with Article 2.4 of the AD Agreement in the EC
– Bed-Linen  case (WT/DS141).  The United States' general practice and its
application of the practice in this case are therefore inconsistent with
Article 2.4 (particularly 2.4.2) of the AD Agreement and Article X:3 of theGATT 1994.
(iii) Notwithstanding the 2.0 per cent de minimis standard set forth in Article 5.8
of the AD Agreement, the DOC regulation 19 C.F.R. § 351.106(c)(1) and
Section II.A.5 of the Sunset Policy Bulletin  provide for a 0.5 per cent de
minimis  standard for sunset reviews.  In this case, had the DOC properly
applied the 2.0 per cent de minimis  standard provided in Article 5.8 of the
AD Agreement, the Japanese producers might have been exempt from the
continuation of antidumping duties.  Japan contends that the US de minimis
standard, on the face and as applied in this case, is inconsistent with theUnited States' obligations under Articles 5.8 and 11.3 of the AD Agreement
and Article X:3 of the GATT 1994.
(d) Both the Statement of Administrative Action  and Sunset Policy Bulletin  provide that
the DOC "will make its determination of likelihood on an order-wide basis."
248  The
US policy and practice, as a general practice and as applied in this case, are
inconsistent with Articles 6.10 (which provides the obligation to determine dumping
                                                     
247 Id. at section II.A.5.
248 Id. at section II.A.2.WT/DS244/R
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margins on an individual company basis) and 11.3 of the AD Agreement and
Article X:3 of the GATT 1994.
(e) The DOC requires Japanese respondents to  file all relevant evidence in their
"substantive response" within 30 days from the date of initiation.  The DOC refused
to accept and consider any other information submitted by a Japanese respondent inthis case.
249  The DOC's refusal to accept and consider such information in this case
was inconsistent with Articles 6.1, 6.2 a nd 6.6 of the AD Agreement and Article X:3
of the GATT 1994.
(f) The DOC's approach to Article 11.3 determinations contradicts its approach to
Article 11.2 determinations pursuant to Sections 751(a) and (d) of the Act and the
DOC regulation 19 C.F.R. § 351.222(b) and (d).  Given that the language with regardto determining the "likelihood of continuation or recurrence of dumping" is the same
in Article 11.2 as in Article 11.3, the US difference in approach, on the face, as a
general practice and as applied in this case, is inconsistent with Article X:3 of the
GATT 1994.
3. The US procedures and determinations rega rding the "magnitude of the margin likely to
prevail", i.e., determinations of dumping margins to be reported to the ITC for the purpose of  its
injury analysis, are inconsistent  with the WTO obligations as follows:
(a) Both Section 752(c)(3) of the Act and Section II.B.1 of the Sunset Policy Bulletin
state that the DOC shall normally provide the ITC with dumping margins from the
original investigation.  The DOC applied this policy in this case without considering
any other factors.  The US policy and practice, as a general practice and as applied in
this case, are therefore inconsistent with the United States' obligations under Article
11.3 of AD Agreement and Article X:3 of the GATT 1994.
(b) The DOC's reporting of the pre-WTO-Agreement dumping margins to the ITC is, as a
general practice and as applied in this case, inconsistent with the United States'
obligations under Articles 2, 11.3 and 18.3 of AD Agreement and Article X:3 of the
GATT 1994 for the same reasons as discussed in Paragraph 2(c)(i) above.
(c) The DOC's application of its WTO-inconsistent practice of zeroing negative dumping
margins for the magnitude of dumping margins in the sunset review, as a general
practice and as applied in this case, is inconsistent with Article 2.4 (particularly 2.4.2)
of the AD Agreement and Article X:3(a) of the GATT 1994 for the same reasons as
discussed in Paragraph 2(c)(i) above.
4. The ITC does not consider whether imports were negligible as defined in Article 5.8 of the
AD Agreement when determining whether to cumulate imports in a five-year "sunset" review.
In addition, the ITC, in this case, never examined whether imports were negligible and
therefore whether they should, or should not, be cumulated.   In light of footnote 9 of the AD
Agreement, the United States has acted inconsistently with Articles 3.3, 5.8, 11.3, 12.2 and12.3 of the AD Agreement and Article X:3 of the GATT 1994.
5. As mentioned above, the US erroneously maintains the antidumping duty on the imports of
Corrosion-Resistant Steel from Japan.  In this regard, the US acts inconsistently with
Articles 11.1 and 11.3 of the AD Agreement.
                                                     
249 Nippon Steel Corporation ("NSC") provided information on that its 50 per cent-owned galvanizing
plant in Indiana achieved full production and that NSC has maintained a steady base of customers.WT/DS244/R
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6. As mentioned above, the US has not conducted the sunset review in a uniform, impartial and
reasonable manner.  In this regard, the US acts inconsistently with Article X:3(a) of the
GATT 1994.
7. Finally, by maintaining these inconsistent laws, regulations and administrative procedures
with its obligations under the AD Agreement and Article VI of GATT 1994, the United Statesis in violation of Article XVI:4 of the WTO Agreement as well as Article 18.4 of the AD
Agreement.
Accordingly, pursuant to Article XXIII of the GATT 1994, Articles 4.7 and 6 of the DSU, as
well as Article 17 of the AD Agreement, the Government of Japan respectfully requests the
establishment of a panel.  To that end, I would be grateful if this request could be included in the
agenda for the next meeting of the Dispute Settlement Body on 17 April 2002.
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