D. Claims under Article 11 of the AD Agreement and Article VI of GATT 1994

1. Limitations Imposed by Article VI of GATT 1994 and Article 11 of the AD Agreement

a) Claim Raised by Korea

1.85 Korea claims that by virtue of Article VI of GATT 94 and Article 11 of the AD Agreement, a Member may impose a duty only to offset dumping that is causing injury and may maintain a duty only as long and as to the extent necessary to offset dumping that is causing injury. The following are Korea's arguments in support of this claim:

1.86 Article VI of the General Agreement sets forth the general restrictions and procedures regarding the ability of a Member to impose and maintain anti-dumping duties. Paragraph 1 of Article VI defines and condemns dumping that is causing or threatening material injury to a domestic industry. Paragraph 2 allows a Member to offset or prevent dumping that is causing or threatening injury by imposing a duty in the amount of the margin of dumping. And Paragraph 6(a) establishes the following limitation on a Member's ability to impose or maintain a duty, stressing that the prohibition of dumping is limited to dumping that is causing or threatening injury:

1.87 Article 11 of the AD Agreement further specifies requirements to achieve the goal of limiting the duration of anti-dumping duties.

1.88 According to Paragraph 1:

1.89 To maintain an anti-dumping duty, a Member must establish three elements: that the responding company (i) is dumping and (ii) thereby causing (iii) injury to a domestic industry. A GATT panel reached a similar conclusion regarding Article 9 of the Tokyo Round Anti-Dumping Code, the predecessor of Article 11 of the AD Agreement. In Swedish Stainless Steel Plate, the panel found that "anti-dumping duties were temporary and remedial in nature," and rejected the US argument to the contrary.⁴⁴ Specifically, the panel concluded: "Article 9.1 obliged Parties to the Agreement not to maintain anti-dumping duties when such duties were no longer necessary to counteract [i] dumping which was [ii] causing [iii] injury."⁴⁵ The United States refused to allow the adoption of this decision; however, the panel's interpretation is unassailable.

1.90 The panel's conclusion is the clearest statement imaginable of the limits of a Member's authority to impose anti-dumping duties. It demonstrates, in clear, certain terms, that anti-dumping duties are a derogation from the main thrust of the WTO regime--which is to promote free trade--by clearly defining the temporal limits of anti-dumping duties.⁴⁶ In other words, when injurious dumping ends, so must the duty.

1.91 Paragraph 2 of Article 11 of the AD Agreement further specifies the application of the general rule set forth at Paragraph 1. It provides:

1.92 The first sentence of Paragraph 2 requires authorities to conduct reviews both: (i) "where warranted" "on their own initiative"; or (ii) "upon request" supported by positive information. The second sentence requires authorities to provide parties the right to request examination of whether dumping is occurring, whether injury would continue if the duty were removed or varied or both. The third sentence requires authorities to terminate immediately any duty that is no longer warranted.

1.93 Each of the three sentences that compose Paragraph 2 is a directive commanding certain conduct by administering authorities⁴⁷ to effect the general rule set forth in Paragraph 1. Paragraph 1 is the basic or primary provision of Article 11. It states a general rule limiting the maintenance of anti-dumping duties. Paragraph 2 then sets forth specific administrative requirements to achieve the general directive of Paragraph 1. Thus, the provisions of Paragraph 2 must be interpreted as further establishing and specifying the requirements of Paragraph 1 and Paragraph 2 must be interpreted so as to give life to Paragraph 1.⁴⁸ Accordingly, in light of Paragraph 1, Paragraph 2 provides a set of procedures to be followed to ensure that a duty is not applied when it is no longer necessary to offset dumping that is causing injury, e.g., where, as in this case, a Respondent is found not to have been dumping.

1.94 Under Paragraph 1 of Article 11, to maintain the anti-dumping duties in this case, the US Government would have had to establish three elements: (i) that a product was still being dumped and (ii) that the dumping was causing (iii) injury to the domestic industry.

1.95 However, the United States, itself, determined for over three consecutive years that the product was not being dumped.⁴⁹ No dumping existed; and no dumping means no injury due to dumping and obviously, no causal relationship between the two non-existent conditions.

1.96 Nonetheless, the DOC followed its regulations in this case and maintained the anti-dumping duties after it found for three consecutive reviews that no dumping was occurring. Therefore, as applied in this case, the DOC's regulations and practices violated the obligations of the United States under Article VI of the General Agreement and Article 11.1 of the AD Agreement.

1.97 The United States also violated Paragraph 2 of Article 11. Paragraph 2 provides that an administering authority must conduct a review upon request by an interested party after a reasonable time elapses and must revoke the duty "immediately" if continued imposition of the duty is not necessary to offset dumping that is causing injury. For three consecutive years, the DOC found that Hyundai and LG Semicon were not dumping. No dumping having been found, the continued imposition of the duty was not "necessary to offset dumping." But, nonetheless, the DOC, following its regulations, failed to terminate the duties immediately. Thus, on their face and as applied, the DOC's regulations and practices violate Article 11.2 of the AD Agreement and Article VI of the General Agreement.

1.98 Paragraph 2 of Article 11 requires Members to find that "the continued imposition of the [anti-dumping] duty is necessary to offset dumping." However, the DOC maintained the duty without making this finding.

1.99 The DOC's regulations depart from the requirements of Article 11. Under its regulations the DOC may revoke only if a Respondent meets three requirements, one of which is the "no likelihood/not likely" requirement. In the Third Annual Review, the DOC found that Respondents had not met the "no likelihood/not likely" requirement, but this finding cannot serve as the basis for refusing to revoke under Article 11. The DOC failed to find that "the continued imposition of the duty is necessary to offset dumping," as Article 11 requires. Thus, the DOC violated the second sentence of Article 11 (and the third sentence, which requires termination where the Member does not find that continuation is necessary and, thus, finds that the duty is "no longer warranted").⁵⁰

b) Response by the United States

1.100 The following are the United States' arguments in response to Korea's claim:

1.101 Korean producers have a history of dumping DRAMs in the United States.⁵¹ The principal issue in this case is whether the DOC was required to revoke the anti-dumping order maintained by the United States on DRAMs from Korea when Respondents stopped dumping for three consecutive years.

1.102 Korea believes this obligation can be found in Article 11 of the AD Agreement and Article VI of GATT 1994. This belief is not grounded in an analysis of these agreements which relies upon customary international rules of treaty interpretation.

1.103 The United States agrees that WTO Members may not assess (or "levy") anti-dumping duties on imports if they are not dumped. This explains why the United States did not assess anti-dumping duties on merchandise produced by Respondents that entered during the period covered by the third administrative review (or during the period covered by the first two administrative reviews, for that matter). In fact, the so-called "retrospective" assessment system maintained by the United States, under which duties are not collected upon importation but only after a determination of dumping, seeks to guarantee this result. Hence, this is not the issue presented by Korea's submission. The fundamental point on which the United States and Korea differ is whether Article 11 and Article VI required the DOC to revoke the anti-dumping order on DRAMs from Korea as soon as Respondents went three consecutive years without dumping. The United States believes that Korea has failed to meet its burden of producing evidence of a violation because there is no evidence. Nothing in Article VI or the AD Agreement supports Korea's argument. Indeed, a proper analysis of Article 11 leads to exactly the opposite conclusion.

1.104 Dumping is a pernicious trade practice which is to be "condemned" if it causes or threatens material injury to an industry in the importing country.⁵² In 1955, a Working Party report adopted by the CONTRACTING PARTIES to GATT 1947 instructed signatories to "refrain from encouraging dumping ... by [their] private commercial enterprises."⁵³

1.105 The purpose of Article VI and the AD Agreement is to ensure that relief is made available to producers adversely affected by dumping. Under these provisions, a broad framework of rights and obligations has been created which regulates the determination of dumping and the application of remedial anti-dumping duties. Within this framework, WTO Members are free to adopt national standards governing the determination of dumping and the application of anti-dumping duties, as long as such measures rest upon a "permissible" interpretation of the AD Agreement.⁵⁴

1.106 Anti-dumping duties are not meant to be permanent measures. The 1959 Report of the Group of Experts on Anti-dumping and Countervailing Duties provided: "[i]t was generally agreed that anti-dumping duties should remain in place only so long as they were genuinely necessary to counteract dumping which was causing or threatening material injury to a domestic industry."⁵⁵

1.107 In the 1979 AD Agreement, Article 9 contained two paragraphs which described the obligation of signatories regarding the duration of anti-dumping duties. The first paragraph established the fundamental proposition that "anti-dumping duties shall remain in force only as long as, and to the extent necessary to counteract dumping which is causing injury."⁵⁶ The second paragraph provided a procedural mechanism by which signatories were to ensure the temporary and remedial character of anti-dumping duties as expressed in Article 9:1. Specifically, Article 9:2 provided:

1.108 The only case ever to turn on an interpretation of Article 9 was Plate from Sweden which involved a challenge by Sweden to a 1987 decision by the ITC not to review (pursuant to section 751(b) of the Act) a determination of material injury made in 1973.⁵⁸ In that case, the panel determined that Article 9:1, by itself, did not constitute an independent legal ground pursuant to which a signatory was obliged to review the continued need for anti-dumping duties.⁵⁹ This followed, the panel reasoned, from:

1.109 In the Uruguay Round of multilateral trade negotiations, the basic outline of Article 9 was preserved. Renumbered as Article 11 of the AD Agreement, the first paragraph of the new article is identical to Article 9:1 of the 1979 AD Agreement. Paragraph one continues to state a "general rule" regarding the duration of anti-dumping duties.

1.110 Paragraph 2 (in new Article 11) has been expanded. It still provides the "specific obligation" to examine whether the continued imposition of anti-dumping duties is "necessary" within the meaning of Article 11.1. However, now, paragraph 2 sets forth in greater detail the administrative procedures needed to fulfill this objective. In addition, the paragraph concludes with a new sentence which states that "[i]f, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately."⁶¹

1.111 Perhaps the biggest change occasioned by the Uruguay Round in this area is the addition of a third paragraph to Article 11. This is the so-called "sunset" provision which requires WTO Members to revoke all anti-dumping measures after five years 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 that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury."⁶²

1.112 Korea never explains how the language of Article 11, or for that matter any other aspect of the AD Agreement, supports its argument. Instead, it simply repeats that if there is no dumping there can be no injury, and if there is no injury, there can be no duty. This can not substitute for a reasoned analysis of Article 11 which is based upon the customary international rules of treaty interpretation prescribed by Article 17.6(ii) of the AD Agreement.

1.113 In the Reformulated Gasoline case, the Appellate Body concluded that the fundamental rule of treaty interpretation set out in Article 31(1) of the Vienna Convention has "attained the status of a rule of customary or general international law."⁶³ In the Japan Taxes case, the Appellate Body said the same thing about the supplementary means of treaty interpretation set forth in Article 32 of the Vienna Convention.⁶⁴

1.114 Article 31 of the Vienna Convention provides that the words of a treaty must form the starting point for the process of interpretation. In this regard, words must be interpreted according to their "ordinary meaning" taking into account their "context" (i.e., other provisions of the treaty) and the "object and purpose" of the agreement.⁶⁵ While recourse to a treaty's object and purpose is permissible, it may not override the clear meaning of the text. As the Appellate Body in the Japan Taxes case recognized, a "treaty's 'object and purpose' is to be referred to in determining the meaning of the 'terms of the treaty' and not as an independent basis for interpretation."⁶⁶

1.115 When the text of a treaty either leaves the meaning ambiguous or obscure, or leads to a manifestly absurd or unreasonable result, Article 32 of the Vienna Convention authorizes recourse to further means of interpretation, including a treaty's negotiating history. "Moreover, such recourse may be had to verify or confirm a meaning that emerges as a result of the textual approach."⁶⁷

1.116 As previously noted, nothing in the text of Articles 11.1 or 11.2 mandates revocation of an anti-dumping order as soon as a Respondent stops dumping. First, as the panel in Plate from Sweden found, the obligation to review the continued need for an anti-dumping order finds expression in the language of Article 11.2, not Article 11.1.⁶⁸ Secondly, footnote 22 to Article 11.3 expressly states that an anti-dumping duty order may be maintained beyond the initial five-year period even when a Respondent has not dumped during the "most recent assessment proceeding."⁶⁹ Thirdly, this interpretation of Article 11 is supported by the express requirement in Article 11.2, which did not appear in Article 9 of the 1979 AD Agreement, that interested parties wait "a reasonable period of time" before requesting a revocation review.⁷⁰ This change in language suggests that national investigating authorities may require, before initiating a revocation review, a "reasonable period of time" to elapse during which no dumping is taking place. Finally, this construction of Articles 11.1 and 11.2 comports with the object and purpose of the AD Agreement, which is to provide a framework within which Members may address injurious dumping through remedial duties.

1.117 Korea also cannot interpret the language of Article 11 to amount to a requirement that anti-dumping orders must be revoked whenever a Respondent goes three years without dumping. While the first two paragraphs do discuss the "need" for an order and whether an order is "necessary" or "warranted," these words are never defined, and dictionary definitions are not instructive.⁷¹ Article 11 simply does not provide that investigating authorities must revoke an order solely because there have been three years of no dumping. Inserting such a requirement into the text would be an impermissible interpretation of Article 11. Moreover, consulting the AD Agreement's negotiating history confirms this result. This history reveals that Korea and several other Members, including Japan and India, strongly supported a "sunset provision" in the AD Agreement which would have required the automatic revocation (or "termination") of all anti-dumping measures within as little as three years.⁷² These types of proposals were rejected in favor of the sunset provision now found in Article 11.3, which requires the sunset process to commence after five years, not three. Indeed, if, as argued by Korea, revocation were required as soon as an exporter ceased dumping, Article 11.3 would be superfluous insofar as a consideration of dumping (as opposed to injury) is concerned.

1.118 In short, Korea's interpretation of Article 11 is strained and without support. Rather than prescribe the specific circumstances that must lead to revocation, the drafters of Article 11 chose instead to impose upon Members an obligation to "review," under certain circumstances, the "need for the continued imposition" of the anti-dumping order. Once that review is completed, and only if the investigating authority "determine[s] that the anti-dumping duty is no longer warranted" based upon one or more of the reviews described in Article 11.2, must a Member revoke the anti-dumping order.⁷³

1.119 In the instant case, Respondents asked the DOC to revoke the anti-dumping order on DRAMs from Korea pursuant to section 353.25 of the agency's regulations. Under this regulation, the DOC does not examine "whether the injury would be likely to continue or recur if the duty were removed or varied."⁷⁴ Pursuant to section 353.25, the DOC examines whether the "continued imposition of the [anti-dumping] duty [order] is necessary to offset dumping." The DOC does this by examining all of the evidence before it, especially: (i) whether the Respondent has sold the subject merchandise in the United States at not less than normal value for at least three consecutive years; (ii) whether a resumption of less-than-normal-value sales is not likely; and (iii) whether the Respondent has agreed not to resume sales at less than normal value.⁷⁵

1.120 Once the Respondents in DRAMs from Korea provided "positive information" (in the form of three years without dumping) substantiating the need for a determination under section 353.25, the United States undertook a factual examination of whether "the continued imposition of the [anti-dumping] duty [order] is necessary to offset dumping." By any measure, the United States satisfied this obligation. The DOC engaged in a painstaking analysis of voluminous data on the administrative record and only then did it determine that the order on DRAMs from Korea was necessary to offset dumping.⁷⁶

1.121 The United States, in response to a question from the Panel,⁷⁷ subsequently further argued as follows:

1.122 Section 353.25 of the DOC's regulations sets forth three independent criteria that the agency applies with equal force in every case under the regulation.

1.123 While the DOC always applies the same criteria in every revocation case under section 353.25(a), the agency must conduct a case-by-case analysis of the evidence in the administrative record to determine if the three criteria have been satisfied. As the United States explained in its first written submission and during the first meeting of the Panel, the DOC has a long history of considering the satisfaction of the first and third criteria to be relevant to whether the second criterion (i.e., the "not likely" criterion) has been satisfied. Indeed, as the DOC explained in the Final Results Third Review:

1.124 Second, all three criteria relate to the concept of necessity because they all bear on whether a Respondent, for which no dumping margins have been found for a three-year period, is likely to resume dumping if the order is revoked. In this regard, it cannot be denied that the imposition of an anti-dumping order is intended to alter the behavior of companies exporting merchandise subject to the order. If the remedy works as intended, the imposition of an anti-dumping order should make dumping less likely to occur than in the absence of the order. However, once the disciplines of an anti-dumping order are terminated (i.e., revoked), a Respondent may resume dumping. Under section 353.25, the DOC seeks to determine, based upon evidence, whether the dumping which had occurred in the past, and which led to the imposition of the order, is likely to recur if the order is revoked. The DOC does this by looking at the Respondent's past and expected behavior. The Respondent's past behavior is relevant to the first and second criteria under section 353.25(a). Its expected behavior is relevant to the second and third criteria. If a resumption of dumping is likely should the order be terminated, then a plain reading of the terms of Article 11 indicate that the "continued imposition of the duty is necessary to offset dumping."

To continue with Rebuttal Arguments Made by Korea

⁴⁴ See United States-Anti-Dumping Duties on Imports of Stainless Steel Plate from Sweden (24 February 1994), ADP/117, para. 231 (see also para. 232) (unadopted).

⁴⁵ Id. at para. 223.

⁴⁶ See id. at para. 232.

⁴⁷ Korea notes that Footnote 22 to Article 11.3 does grant authorities the quite limited discretion in "sunset" reviews to maintain a duty if, based on the most recent retrospective assessment, no margin is found. The footnote is not relevant to this proceeding, because this is not a "sunset" review covered by Article 11.3 and, even if it were, the U.S. authorities found no margins for three consecutive years.

⁴⁸ See United States-Anti-Dumping Duties on Imports of Stainless Steel Plate from Sweden (24 February 1994), ADP/117, para. 224 (unadopted).

Korea notes that the WTO Appellate Body and GATT panels have found that Paragraph 1 of Article III of the General Agreement is the primary provision of Article III and, thus, guides the interpretation and application of the remaining paragraphs of Article III. For example, the Appellate Body in Japan-Taxes on Alcoholic Beverages stated: "Consequently, the Panel is correct in seeing a distinction between Article III:1, which 'contains general principles', and Article III:2, which 'provides for specific obligations regarding internal taxes and internal charges'. Article III:1 articulates a general principle that internal measures should not be applied so as to afford protection to domestic production. This general principle informs the rest of Article III." WT/DS8/AB/R, pp. 17-18 (4 October 1996) (citation omitted). Relevant GATT precedent includes the Report of the Panel in United States-Measures Affecting Alcoholic and Malt Beverages, which stated: "The basic purpose of Article III is to ensure, as emphasized in Article III:1, 'that internal taxes and other charges, and laws, regulations and requirements affecting the internal sale, purchase, transportation, distribution or use of products . . . should not be applied to imported or domestic products so as to afford protection to domestic production'." BISD 39S/206, 276, para. 5.25 (19 June 1992) (emphasis added). Because Article III:1 states the purpose of Article III, all other provisions of Article III must be interpreted according to Article III:1. The Panel in United States-Measures Affecting Alcoholic and Malt Beverages "considered that the . . . purpose of Article III has to be taken into account in interpreting the term 'like products'" in terms of Article III:2. Id. The Panel in United States-Section 337 of the Tariff Act of 1930 rejected an interpretation of Article III:4 that would "defeat the purpose of Article III, which is to ensure that internal measures 'not be applied to imported or domestic products so as to afford protection to domestic production' (Article III:1)." BISD 36S/345, 385, para. 5.10 (7 November 1989).

⁴⁹ See the three Final Results--61 Fed. Reg. 20216 (6 May 1996) (Ex. ROK-18) (amended by 61 Fed. Reg. 51410 (2 October 1996) and 62 Fed. Reg. 2654 (17 January 1997) (Ex. ROK-51)); 62 Fed. Reg. 965 (7 January 1997) (Ex. ROK-20) (amended by 62 Fed. Reg. 18742 (17 April 1997) (Ex. ROK-52)); 62 Fed. Reg. 39809 (24 July 1997) (Ex. ROK-3).

⁵⁰ The Panel notes that Korea does not claim any inconsistencies concerning Section 353.25(a)(2)(i) of the DOC regulations (the three years of no dumping requirement). At the first meeting of the Panel with the Parties the Panel asked: "Does Korea consider that a finding of no-dumping for a three-year period is significant for the purpose of its interpretation of Article 11.2 of the ADP Agreement, or would Korea adopt the same interpretation if no-dumping had been found for only e.g. one or two years?" Korea responded to this question as follows:

In Korea's view, 3.5 years is not a clear dividing line. Rather, 3.5 years of no dumping (no injury and no causation) is far beyond whatever line is established by Paragraphs 1 and 2 of Article 11. Thus, in the Government's view, it is not necessary for either Korea or the Panel to determine precisely where the line is, but merely to know and hold that maintaining a definitive duty after finding no dumping for 3.5 years is beyond the pale.

⁵¹ See Final Determination of Sales at Less Than Fair Value: Dynamic Random Access Memory Semiconductors of One Megabit and Above From the Republic of Korea, 58 Fed. Reg. 15467(1993) ("DRAM LTFV") (Ex. USA-4).

⁵² GATT 1994, Article VI:1.

⁵³ GATT, adopted on 3 March 1955, 3d Supp. BISD 223, para. 4.

⁵⁴ AD Agreement, art. 17.6(ii).

⁵⁵ Adopted 13 May 1959, BISD 8S/151-152, para. 23.

⁵⁶ 1979 AD Agreement, art. 9:1.

⁵⁷ Id. art. 9.2.

⁵⁸ United States - Anti-Dumping Duties on Imports of Stainless Steel Plate from Sweden, ADP/117,Report of the Panel issued 24 February 1994 (unadopted), ("Plate from Sweden").

⁵⁹ Id. para. 228.

⁶⁰ Id. para. 226.

⁶¹ Id. (emphasis added by the United States).

⁶² AD Agreement, art. 11.3.

⁶³ United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, Report of the Appellate Body adopted 20 May 1996, at 17.

⁶⁴ Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, Report of the Appellate Body adopted 1 November 1996, at 10.

⁶⁵ See, e.g., Competence of the General Assembly for the Admission of a State to the United Nations (Second Admissions Case), [1950], ICJ Rep., at 8 ("The Court considers it necessary to say that the first duty of a tribunal which is called upon to interpret and apply the provisions of a treaty, is to endeavour to give effect to them in their natural and ordinary meaning in the context in which they are occur.")

⁶⁶ WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, at 12 n. 20.

⁶⁷ I. Brownlie, Principles of Public International Law, 4th ed. (Clarendon Press, 1990), p. 630 ("Brownlie").

⁶⁸ Plate from Sweden, ADP/117, para. 224-26. (arguing that "The United States Violated Paragraph 1 of Article 11").

⁶⁹ Id., art. 11.3 n. 22. Moreover, if zero dumping margins do not require revocation under Article 11.3's sunset provisions (which require revocation unless national authorities find a likelihood of dumping and injury), then zero dumping margins should not require revocation under Article 11.2 (where there is no such requirement).

⁷⁰ AD Agreement, art. 11.2.

⁷¹ For example, "warranted" is defined in the dictionary as "to justify or call for." Webster's II New Riverside University Dictionary, 1302 (1984).

⁷² See, e.g., MTN.GNG/NG8/3, circulated 20 May 1987, at 5; MTN.GNG/NG8/W/10, circulated 30 September 1987, at 10 ; MTN.GNG/NG8/W/30, circulated 20 June 1988, at 13 (Ex. USA-77).

⁷³ AD Agreement, art. 11.2. Of course, to withstand scrutiny by a WTO panel, the national investigating authority must render a determination that satisfies the standard of review prescribed by Article 17.6 of the AD Agreement.

⁷⁴ Under US law, this task is performed by the ITC.

⁷⁵ 19 C.F.R. � 353.25(a) (1997) (Ex. USA-24).

⁷⁶ At one point in its submission, Korea suggests that the DOC's determination was contrary to Article 11.2 because instead of finding that the continued imposition of the order is "necessary to offset dumping," the DOC found an absence of future dumping "not likely." For the following reasons, this assertion is groundless. First, toward the end of its notice, the DOC expressly found "that there is a need for the order to remain in place." Final Results Third Review, 62 Fed. Reg. at 39819 (Ex. USA-1). Second, the AD Agreement establishes a broad framework which regulates the determination of dumping and the application of remedial anti-dumping duties. Within this framework, WTO Members are free to adopt national standards governing the determination of dumping and the application of anti-dumping duties. No panel has ever held that national anti-dumping standards must mirror verbatim the language of Article VI or the AD Agreement (or the predecessors to the AD Agreement).

⁷⁷ The Panel recalls that the question was as follows: "Article 11.2 of the ADP Agreement refers to an examination by the investigating authorities as to "whether the continued imposition of the duty is necessary to offset dumping". The United States suggests that the DOC conducts this examination by applying the three criteria contained in section 353.25(a)(2) of the DOC regulations ((i) three years without dumping; (ii) dumping "not likely" in the future; and (iii) acceptance of immediate reinstatement ). Could the United States clarify how it sees each of these criteria relate to the concept of necessity under this Article?"

⁷⁸ Final Results Third Review, 62 Fed. Reg. at 39810 (citations omitted) (Ex. USA-1).