b) Response by the United States

1.482 The United States responds to Korea's claim with the following arguments:

1.483 Korea complains that the "not likely" criterion included in section 353.25(a)(2) does not advise governments and traders of the "meaning of 'not likely' or how it will be applied." This argument implies that a Member cannot satisfy its obligations under Article X:1 unless interpretive notes and definitions accompany every provision of a Member's trade legislation. Suggesting that the DOC's regulations could be consistent with Article X:1 if section 353.25(a)(2) included "the meaning of 'not likely' or how it will be applied," is merely a further attempt by Korea to address the content of the DOC's regulations. The drafters could not have contemplated that Article X:1 would be considered a remedy for such an argument.³⁸⁰

1.484 Moreover, Korea suggests that the measure of discretion allowed for in section 751(d)(1) of the Act is inconsistent with Article X:1. For the same reasons discussed above, this argument relates to the content of the statute. While the DOC's discretion may be relevant to the interpretation of the AD Agreement and the issue of whether the United States is in compliance with the agreement, it is irrelevant to the issue of whether the United States published its laws, regulations, and administrative decisions in a manner consistent with Article X:1.

1.485 Korea also suggests that the DOC adds a "vague and undefined requirement for revocation whenever it believes that it should do so." In this regard, Korea states that "the DOC agrees that normally three years of no dumping margins plus certification of agreement to reinstatement of the anti-dumping order are all that is required for a decision to revoke." Thus, Korea apparently argues that the DOC's failure to publish when the "not likely" criterion will be applied violates Article X:1.

1.486 Korea predicates this argument upon the false premise that the DOC normally will not examine the "not likely" requirement in a revocation inquiry. In the Final Results Third Review, the DOC stated:

1.487 To intimate that the above passage reflects a practice of "normally" not considering the "not likely" criterion published in the DOC's regulations belies the unambiguous language contained in the Final Results Third Review. The DOC stated that while satisfaction of two of the three criteria contained in the regulation may be "indicative of expected future behavior," it would consider any additional available evidence in conducting its inquiry. Contrary to Korea's contention, section 353.25(a)(2) of the DOC's regulations does not contain a "vague and undefined requirement" that may be applied "whenever [the DOC] believes that it should do so." On the contrary, the level and depth of the DOC's analysis of the "not likely" criterion in any given case is almost entirely dependent on the amount and type of information placed on the record by the parties, including Respondents. Thus, the DOC's published regulations allow governments and traders to become acquainted with all of the criteria which the DOC will apply when determining whether revocation of an anti-dumping order is appropriate.

1.488 While the DOC will apply the criteria contained in section 353.25(a)(2) in each revocation inquiry, the DOC must also evaluate the facts on the administrative record in order to determine whether these criteria have been satisfied. Interestingly, Korea offers the fact that the DOC will examine "information on the record in a particular case" and that a determination to revoke will be "depending upon the facts of a case" as evidence of an Article X violation. However, the United States does not violate its obligation to publish laws, regulations, and administrative rulings by examining evidence on a case-by-case basis. The absence of more detailed or specific requirements as they relate to the "not likely" criterion merely reflects the fact-specific, case-by-case analysis in which the DOC engages in order to determine whether revocation is justified.³⁸²

1.489 Article 11 of the AD Agreement does not provide specific guidance to Members with regard to determining "whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both." This determination is factual in nature. Certainly, Article X does not require Members to promulgate published rules and regulations in more detail than that which is required under the terms of the AD Agreement.³⁸³ Because the United States published the laws, regulations, and administrative decisions relevant to the application of the "not likely" criterion and the DOC's revocation decisions, the United States complied with its obligations under Article X:1.

3. Failure to Publish Objective and Specific Factors Regarding the Time-Period Used in Analysing the "No Likelihood/Not Likely" Criterion

a) Claim Raised by Korea

1.490 Korea claims that the failure by the United States to publish objective and specific factors regarding the time-period selected for analyzing the "no likelihood/not likely" criterion violates the transparency obligations of Article X:1 of the General Agreement. The following are Korea's arguments in support of this claim:

1.491 In the determination itself the DOC states:

1.492 Thus, there are no objective criteria published in such a manner as to enable governments and traders to become acquainted with them, in breach of the United States' obligations under Article X:1 of the General Agreement.

1.493 The United States breached its obligations under Article X of the General Agreement in regard to the period selected by the Department for purposes of analyzing whether it believed that the "no likelihood/not likely" criterion is permissible, its purpose must be to try to predict whether the respondent companies would sell at less than normal value in the future. Thus, one would expect that: (i) the Department would select the period to examine in each case based on objective criteria; and (ii) the period chosen would reasonably seek to be predictive and relevant. The period chosen by the Department in DRAMS from Korea fails in both respects

1.494 Korea in response to a question by the Panel,³⁸⁵ further argued as follows:

1.495 Korea has established that the failure of the DOC to publish objective and specific factors regarding both the "no likelihood/not likely" criterion and the time period used by the DOC in analyzing whether this criterion was met violates the transparency obligation of Article X:1 of GATT 1994. More specifically, the DOC did not publish regulations or administrative rulings of general application "promptly and in such a manner as to enable governments and traders to become acquainted with them."

b) Response by the United States

1.496 The United States responds to Korea's claim with the following arguments:

1.497 Korea argues that the United States breached its obligations under Article X:1 of GATT 1994 with regard to the period selected by the DOC for purposes of analyzing whether it believed that the "not likely" criterion was satisfied. Korea claims that the DOC failed to publish "objective criteria" that helps define the relevant time period in considering the likelihood issue. Article X:1 does not concern the content of a Member's laws, regulations, decisions, and rulings. Korea's argument that the DOC's regulations do not contain additional elements is wholly irrelevant to the issue of whether the United States published its laws and regulations of general application in accordance with Article X:1.

1.498 Neither the AD Agreement nor Article X:1 requires Members to prescribe in their legislation the time frame that will be applicable in all cases for purposes of determining whether dumping or injury would occur in the future. That is because the time period most relevant to this issue will always depend upon the nature of the evidence on the record in each case. With respect to determining the appropriate time period in applying the "not likely" criterion in the instant case, the DOC stated in its Final Results Third Review: "[c]ommon sense . . . dictates that the DOC should, as always, base its determination on all record evidence."³⁸⁶ Thus, the DOC "considered all publicly available data and information placed on the record by all parties (including data regarding the January 1997 through April 1997 time period, which Respondents characterize as a market upturn)."³⁸⁷ A determination that is based upon the record evidence does not reflect a lack of transparency and certainly does not constitute a violation under Article X:1. Therefore, the lack of published "objective criteria" or more specific factors relating to the time period examined when considering the likelihood issue does not violate the United States' obligations under Article X:1.

1.499 There is no basis for Korea's assertion that the DOC "revived the 'gap period' review" without such a requirement being published.³⁸⁸

1.500 First, the 1989 amendments to the DOC's anti-dumping regulations did not affect a substantive change in the likelihood standard. Under this provision, the DOC's long-standing practice has been to examine all economic factors and other information on the record which bear on the issue of future dumping. Korea's attempts to keep the DOC from looking at the period immediately after the third administrative review are contrary to this practice and without support.³⁸⁹

1.501 Secondly, in evaluating whether future dumping is not likely, the DOC may find that market conditions and trends during a certain period or periods are probative. Often times, the agency's analysis will focus on the period immediately following the close of the three-year period of no dumping because it contains the most recent data available on market conditions and prices.³⁹⁰ In the instant case, the DOC found the January through December 1996 time frame to be particularly probative because it contained recent data that corresponded with a significant downturn in the DRAM market. As the DOC explained in the final results of its review, the fact that this period coincided with the end of the third review was coincidental:

1.502 In sum, the fact that the DOC considered the likelihood issue by examining a period of time which extended beyond the end of the third administrative review does not constitute a non-published revival of the "gap period" reviews. The DOC's regulations, which do not contain a predetermined time frame in which to examine the likelihood issue, are consistent with the United States' obligations under Article X:1. Moreover, the DOC's decision to examine a period of time which extended beyond the end of the third administrative review was based solely on record evidence. Contrary to Korea's argument, the DOC did not effectively resurrect the "gap period review" without publication. Therefore, the United States complied with its Article X:1 obligations by publishing all relevant statutory and regulatory provisions which applied to its revocation decision

c) Rebuttal Arguments Made by Korea to Both Claims under Article X:1 of GATT 1994

1.503 Korea makes the following arguments in rebuttal to the United States responses on both Article X:1 claims regarding the failure to publish objective and specific factors regarding the "no likelihood/not likely" criterion and failure to publish objective and specific factors regarding the time-period used in analysing the "no likelihood/not likely" criterion:

1.504 Article X:1 of the General Agreement articulates the fundamental principle of transparency. The procedural protectionism of unknown, unknowable government requirements is every bit as pernicious as the substantive protectionism of discriminatory government measures. This procedural protectionism was condemned by the Appellate Body in United States -- Cotton Underwear in the context of Article X:2. The logic of this condemnation applies with equal force to the transparency requirement of Article X:1. If governments and traders are not aware of the substantive requirements that they are required to meet (or, as in this case, that they are required to prove), they will not be able either to protect and adjust their activities or to seek modification of the hidden measures. The United States violated the transparency obligation of Article X:1 by failing to publish objective and specific factors regarding both the "no likelihood/not likely" criterion and the time period used by the DOC in analyzing it. There was no US law, regulation or administrative ruling to which the Korean Respondents could turn to become acquainted with the factors or the time period the DOC would use in assessing whether to revoke the anti-dumping duties.

1.505 This is not, as the United States alleges, an argument addressing the substance of the US revocation scheme. Rather it is an indictment of the uncertainty and confusion flowing from the DOC's failure to publish the substantive factors and criteria the DOC would apply.

1.506 The United States seeks to excuse its lack of required transparency by claiming that it published the US revocation regulation (Section 353.25(a)(2)) and that the absence of more detailed requirements relating to the "no likelihood/not likely" criterion and the time period to be analyzed "merely reflects the fact-specific, case-by-case analysis in which the DOC engages."

1.507 The fact that revocation decisions are fact-intensive (as are all decisions in anti-dumping proceedings) does not excuse the United States from its GATT Article X:1 obligations. The US revocation regulation does not set out the basis (or bases) on which the United States decides how it will apply the "no likelihood/not likely" criterion or the time period it will examine in assessing whether the criterion is satisfied. Publication in Section 353.25(a)(2) of the regulations of a criterion denominated "not likely" is not enough. Without an articulation of objective and specific factors, the criterion is meaningless, because it does not provide accurate information that enables those seeking revocation to know the substantive requirements the Department will apply. Also, the lack of articulation reinforces the Secretary's discretion and insulates a decision not to revoke from challenge.

1.508 Equally unavailing is the subsidiary US argument that Article X:1 cannot require publication of regulations "in more detail than that which is required under the terms of the AD Agreement." The United States has not supported and cannot support this assertion. Within national systems, laws provide the basic, general authority. They are implemented and specified by regulations, which, in turn, are further specified by administrative rulings of general application.

1.509 As the United States itself has argued, the AD Agreement (and the other WTO Agreements) set out the parameters within which national governments can legislate and regulate in conformity with their WTO obligations. Just as regulations and rulings are often necessary to flesh out national laws, they are essential in situations such as anti-dumping revocation determinations--they enable governments and traders to become acquainted with how national authorities will apply and administer the requirements mandated by the WTO Agreements.

1.510 To meet the transparency obligation of Article X:1, each national regime must amplify and specify the basic, general authority set out in the AD Agreement. The United States has not satisfied this obligation.

d) Rebuttal Response by the United States to Both Claims under Article X:1 of GATT 1994

1.511 The United States also responds to both Article X:1 claims (i.e. failure to publish objective and specific factors regarding the "no likelihood/not likely" criterion and failure to publish objective and specific factors regarding the time-period used in analysing the "no likelihood/not likely" criterion) by Korea in its rebuttal briefs putting forward the following arguments:

1.512 Korea alleges that the United States violated Article X:1 by not further defining the "not likely" criterion with objective criteria. As demonstrated in the first US submission, an interpretation based upon the plain language of Article X:1 does not require that each and every statutory or regulatory provision be further defined by the inclusion of "objective criteria." Suggesting that the DOC's regulations could be consistent with Article X:1 if section 353.25(a)(2) included "the meaning of 'not likely' or how it will be applied" is merely a further attempt by Korea to address the content of the DOC's regulations. Nonetheless, the DOC, through its various decisions in which the "not likely" criterion has been applied, has published factors which have been considered consistently in determining whether the criterion has been satisfied.³⁹² Therefore, even under an impermissibly broad interpretation of Article X:1, the United States would be found in compliance because all such determinations applying and describing the "not likely" criterion have been published. Significantly, Korea has not alleged that the United States has failed to publish relevant decisions or rulings.³⁹³

1.513 In addition, Korea alleges that the discretionary nature of section 353.25(a)(2), as well as the failure to publish when the "not likely" criterion will be applied, are violations of Article X:1. These allegations effectively concern the consistency of section 353.25(a)(2) with Article 11 of the AD Agreement. Contrary to Korea's suggestion, an interpretation based on the ordinary meaning of the language contained in Article X:1 does not require the DOC to eliminate the discretionary element of its regulation. Moreover, the DOC need not publish when the "not likely" criterion will be applied because, pursuant to section 353.25(a)(2), it is applied in every case in which the Secretary conducts a review under this regulation.

1.514 In sum, the United States, consistent with its obligations under Article X:1, published all laws, regulations, judicial decisions and administrative rulings of general application in a manner which enabled the Respondents and Korea to become acquainted with them. For these reasons, the Panel should reject Korea's claim that the DOC's regulatory regime governing the revocation of anti-dumping duties violates Article X:1.

To ccontinue with Imposition of a New Unpublished Requirement

³⁸⁰ Of course, parties may "become acquainted" with how the DOC has applied the "not likely" criterion by examining past revocation decisions, all of which have been published in the Federal Register in accordance with 19 C.F.R. � 353.25(c)(2)(vi) (1997) (Ex. USA-24) and its predecessor provisions.

³⁸¹ Final Results Third Review, 62 Fed. Reg. at 39810 (citations omitted)(emphasis added by the United States) (Ex. USA 1).

³⁸² Article 17.6 of the AD Agreement, which contains the Panel's standard of review for this case, recognizes that each anti-dumping determination requires a case-by-case evaluation of the facts.

³⁸³ Otherwise, Members who treat international agreements as self-executing under their legal and constitutional systems would presumably be in violation of Article X.

³⁸⁴ 62 Fed. Reg. 39809, 39814 (24 July 1997) (Ex. ROK-3).

³⁸⁵ The Panel recalls that the question was: "Could Korea please explain the essence of its claim under Article X of GATT 1994. Is Korea concerned principally with the alleged failure to publish under Article X:1, or is the focus of Korea's complaint directed at the alleged failure to administer laws and regulations etc. in the 'uniform, impartial and reasonable manner' required by Article X:3(a)?"

³⁸⁶ Final Results Third Review, 62 Fed. Reg. at 39814 (Ex. USA-1).

³⁸⁷ Id.

³⁸⁸ Prior to the promulgation in 1989 of the regulations which governed this proceeding, the DOC required a finding of no dumping for a period of two years. In addition, it was the DOC's practice to consider whether dumping took place in the period between the end of the two-year period and the date of its tentative determination to revoke (the "gap period"). The 1989 amendments to the regulations eliminated the need for "gap period" reviews by adopting the current system which is based, inter alia, upon three consecutive years of no dumping.

³⁸⁹ See, e.g., Steel Rope from Korea, 62 Fed. Reg. at 17173-74 (Ex. USA-52); Brass Sheet from Germany, 61 Fed. Reg. at 49730-31 (Ex. USA-46); FCOJ from Brazil, 56 Fed. Reg. at 52511 (Ex. USA-31).

³⁹⁰ See, e.g., Steel Rope from Korea, 62 Fed. Reg. at 17173 (Ex. USA-52); Silicon Metal From Brazil; Final Results of Anti-dumping Duty Administrative Review and Determination Not To Revoke in Part, 62 Fed. Reg. 1970, 1973 (1997) (Ex. USA-79); Brass Sheet from Germany, 61 Fed. Reg. at 49730-31 (Ex. USA-46); Televisions from Japan, 54 Fed. Reg. at 35519 (Ex. USA-47).

³⁹¹ Final Results Third Review, 62 Fed. Reg. at 39814 (Ex. USA-1).

³⁹² In every proceeding under section 353.25(a) of the DOC's regulations, the agency tends to examine the same factors to determine whether a resumption of dumping is "not likely." These factors are: the nature of the product(s) at issue; trends in the domestic and home market industries; currency movements; supply and demand conditions; price trends; and, the importance of the US market to the Respondent(s). See, e.g., Steel Wire Rope From the Republic of Korea; Final Results of Anti-dumping Duty Administrative Review and Revocation in Part of Anti-dumping Duty Order, 62 Fed. Reg. 17171, 17173-74 (1997) (Ex. USA-52); Brass Sheet and Strip From Germany; Final Results of Anti-dumping Duty Administrative Review and Determination Not To Revoke in Part, 61 Fed. Reg. 49727, 49732 (1996) (Ex. USA-46); Television Receivers, Monochrome and Color, From Japan; Final Results of Anti-dumping Duty Administrative Review and Determination Not To Revoke in Part, 54 Fed. Reg. 35517, 35519 (1989) (Ex. USA-47); Frozen Concentrated Orange Juice From Brazil; Final Results and Termination In Part Of Anti-dumping Duty Administrative Review; Revocation In Part of Anti-dumping Duty Order, 56 Fed. Reg. 52510, 52511 (1991) (Ex. USA-31).

³⁹³ In addition, Korea has not alleged that the United States has violated the publication and explanation requirements of Article 12 of the AD Agreement.