1 A customs union may apply a safeguard measure as a single unit or on behalf of a member State. When a customs union applies a safeguard measure as a single unit, all the requirements for the determination of serious injury or threat thereof under this Agreement shall be based on the conditions existing in the customs union as a whole. When a safeguard measure is applied on behalf of a member State, all the requirements for the determination of serious injury or threat thereof shall be based on the conditions existing in that member State and the measure shall be limited to that member State. Nothing in this Agreement prejudges the interpretation of the relationship between Article XIX and paragraph 8 of Article XXIV of GATT 1994.

1 WT/DS248/R, WT/DS249/R, WT/DS251/R, WT/DS252/R, WT/DS253/R, WT/DS254/R, WT/DS258/R, WT/DS259/R and Corr. 1, 11 July 2003. China, the European Communities, New Zealand, Norway, Switzerland, as well as Brazil, Japan and Korea acting jointly, submit conditional appeals on certain issues not addressed by the Panel.

2 Safeguard measures were applied on imports of CCFRS; tin mill products; hot-rolled bar; cold-finished bar; rebar; welded pipe; FFTJ; stainless steel bar; stainless steel rod; and stainless steel wire.

3 Panel Reports, paras. 3.1 — 3.8.

4 Ibid., para. 11.2.

5 Panel Reports, para. 11.2.

6 Ibid.

7 Ibid.

8 Ibid.

9 Panel Reports, para. 11.3.

10 Ibid., para. 11.4.

11 WT/DS248/17, WT/DS249/11, WT/DS251/12, WT/DS252/10, WT/DS/253/10, WT/DS254/10, WT/DS258/14, WT/DS259/13,

14 August 2003, attached as Annex 1 to this Report.

12 Pursuant to Rule 21(1) of the Working Procedures.

13 Pursuant to Rule 23( 1) of the Working Procedures.

14 Ibid.

15 Pursuant to Rules 22(1) and 23(3) of the Working Procedures.

16 Pursuant to Rule 24( 1) of the Working Procedures.

17 Pursuant to Rule 24(2) of the Working Procedures.

18 Letter dated 24 September 2003, from the Director of the Appellate Body Secretariat to the Ambassadors of the Permanent Mission of Brazil and the Permanent Delegation of the European Communities.

19 Pursuant to Rule 27 of the Working Procedures.

20 USITC, Investigation No. TA-201-73, Institution and Scheduling of an Investigation under Section 202 of the Trade Act of 1974, United States Federal Register, 3 July 2001 (Volume 66, Number 128), pp. 35267-35268. (Exhibit CC-2 submitted by the Complaining Parties to the Panel)

21 USITC Report, Vol. I, p. 1 and footnote 1 thereto.

22 Ibid.

23 Ibid., pp. 2 and 3.

24 USITC supplementary information on the economic analysis of remedy options, 9 January 2002. (Exhibit CC-10 submitted by the Complaining Parties to the Panel)

25 USITC Second Supplementary Report.

26 Proclamation, paras. 7 and 9. For a more detailed listing of the specific measures imposed, see Panel Reports, para. 1.34.

27 Ibid., para. 4.

28 Ibid., para. 11. Imports from developing Members of the WTO, whose shares of total imports were found not to exceed three percent individually, and nine percent collectively, were also exempted from the application of the measures. Ibid., para. 12. In addition, the USTR was authorized to exclude particular products pursuant to the procedure set out in the Proclamation. Ibid., clauses (5) and (6). For information on the product specific exclusions granted until 22 August 2002, see Panel Reports, paras. 1.40 — 1.47.

29 Ibid., para. 9(b).

30 Ibid., clause (8).

161 China's other appellant's submission, para. 3; European Communities’ other appellant's submission, para. 6; New Zealand's other appellant's submission, para. 1.1; Norway's other appellant's submission, para. 3; Switzerland's other appellant's submission, para. 3.

162 Panel Reports, para. 10.705.

163 Supra, paras. 9-10.

164 Brazil's statement at the oral hearing.

165 Mexico's statement at the oral hearing.

166 Cuba's and Thailand's statements at the oral hearing.

167 We use the term “unforeseen developments” as shorthand to describe the prerequisites set forth in the first clause of Article XIX: l(a) of the GATT 1994, that is, “[i]f, as a result of unforeseen developments and of the effect of the obligations incurred by a Member under this Agreement, including tariff concessions”.

168 Panel Reports, para. 10.72.

169 Ibid.

170 At the oral hearing, the European Communities requested, however, that, should we reverse the Panel's finding that the USITC failed to demonstrate, through a reasoned and adequate explanation, that “unforeseen developments” resulted in increased imports of each of the relevant products on which the United States imposed safeguard measures, we address other arguments that were raised by the Complaining Parties before the Panel concerning “unforeseen developments”. The European Communities refers, for instance, to its argument that “unforeseen developments” that occurred several years ago and may have caused increased imports then but the effects of which have now ceased, cannot be considered as “unforeseen developments” justifying the imposition of safeguard measures. (European Communities’ appellee's submission, para. 84)

171 Panel Reports, paras. 10.38-10.39.

172 United States’ appellant's submission, para 15. We note that the United States’ challenge is to the Panel's application of the relevant standard of review. The United States is not, therefore, alleging that the standard of review, as articulated by the Panel, was, in itself, incorrect. The United States confirmed this understanding in response to questioning at the oral hearing. In addition, the United States stated — for instance, in paragraph 54 of its appellant's submission — that the “Panel correctly noted in its standard of review section that the Appellate Body has found ‘that a panel must assess whether a reasoned and adequate explanation has been provided as to how the facts support the determination.'” In paragraph 55 of its appellant's submission, the United States further stated that “the Panel also emphasized correctly that with regard to Articles 2, 3, and 4 and Article XIX, ‘the role of the Panel is to ‘review' determinations and demonstrations made and reported by an investigating authority,’ and not to be the initial fact finder.” (footnote omitted)

173 United States’ appellant's submission, para. 77.

174 Ibid., para. 78.

175 Ibid., paras. 78 - 79.

176 Ibid., para. 78.

177 United States’ response to questioning at the oral hearing.

178 Appellate Body Report, Argentina —Footwear (EC), para. 81.

179 Ibid, (original emphasis)

180 Appellate Body Report, US —Lamb, para. 103. (original emphasis)

181 Appellate Body Report, US —Line Pipe, para. 217. (emphasis added)

182 Appellate Body Report, US —Lamb, para. 76.

183 Panel Reports, para. 10.37. (original emphasis; footnote omitted)

184 Appellate Body Report, Argentina — Footwear (EC), para. 118.

185 The United States refers in its arguments also to the requirement contained in Article 4.2(c) of the Agreement on Safeguards for competent authorities to provide a “detailed analysis of the case” and “a demonstration of the relevance of the factors examined.“ The United States notes, however, that the Panel found that “Article 4.2(c) was not extensively addressed by the parties as a discrete basis for violation and, accordingly, the Panel “d[id] not consider that an additional reference to Article 4.2(c) in relation to the Panel's findings on increased imports and causation would enhance the complainants’ rights.” (United States’ appellant's submission, footnote 15 to para. 54, referring to Panel Reports, paras. 9.31-9.32).

186 In addition to addressing findings that the Panel made in the context of its analysis of “unforeseen developments” (United States' appellant's submission, paras. 58 — 63), the United States also suggests that the Panel's conclusions on “increased imports” are inconsistent with Article 3.1 in that the Panel required the competent authority to do more than to “present a logical basis for [its] conclusions.” (United States’ appellant's submission, paras. 59 — 60)

187 Panel Reports, paras. 10.150 and 11.2.

188 Ibid., paras. 10.200, 10.262, 10.419, 10.422, 10.445, 10.469, 10.487, 10.503, 10.536, 10.569, 10.573, and 11.2.

189 United States’ appellant's submission, para. 60.

190 Ibid., para. 59.

191 Ibid., para. 60.

192 United States’ appellant's submission, para. 60. The United States refers to the definition of “reason” in the New Shorter Oxford English Dictionary, L. Brown (ed.) (Clarendon Press, 1993), Vol.11, pp. 2495-2496.

193 United States’ response to questioning at the oral hearing.

194 Ibid.

195 Article 3.2 of the DSU; Article 31 of the Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.

196 Shorter Oxford English Dictionary, 5th ed. W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2002), Vol. I, p. 477.

197 Shorter Oxford English Dictionary, 5th ed. W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2002), Vol. II, p. 2482.

198 Ibid.

199 Ibid., p. 2773.

200 European Communities’ appellee's submission, para. 48; Norway's appellee's submission, para 75.

201 United States’ response to questioning at the oral hearing.

202 United States’ appellant's submission, para. 60.

203 Panel Reports, para. 10.115.

204 United States’ appellant's submission, para. 58.

205 Ibid., paras. 60 — 61.

206 United States’ appellant's submission, para. 65.

207 Ibid., para. 66.

208 Ibid., para. 67.

209 Appellate Body Report, US —Line Pipe, para. 217, in the context of a claim under Article 4.2(b) of the Agreement on Safeguards; Appellate Body Report, US —Lamb, para. 103, in the context of a claim under Article 4.2(a) of the Agreement on Safeguards.

210 Appellate Body Report, US — Line Pipe, para. 217.

211 Appellate Body Report, Argentina —Footwear (EC), para. 121.

212 United States’ appellant's submission, paras. 59 and 64, and footnote 29 to para. 62, referring to the obligations set out in Articles 3.1 and 4.2(c) of the Agreement on Safeguards, (original emphasis)

213 United States’ appellant's submission, para. 73.

214 Ibid., para. 74.

215 Appellate Body Report, US — Lamb, para. 107.

216 United States’ appellant's submission, para. 73. (original emphasis)

217 Panel Reports, para. 10.44 (original emphasis; underlining added).

218 Panel Reports, para. 10.116.

219 Ibid., para. 10.121. (original emphasis)

220 Panel Reports, para. 10.122.

221 Ibid., para. 10.123.

222 Ibid., para. 10.125. (original emphasis; underlining added)

223 Panel Reports, para. 10.126. (original emphasis)

224 Panel Reports, para. 10.133.

225 Ibid, (emphasis added)

226 Panel Reports, para. 10.133.

227 Ibid., para. 10.135.

228 Ibid., paras. 10.148, 10.150 and 11.2.

229 United States’ appellant's submission, para. 81.

230 Ibid.

231 Ibid.

232 Shorter Oxford English Dictionary, 5th ed. W.R. Trumble, A. Stevenson (eds.) (Oxford University Press, 2002), Vol. II, p. 2555.

233 Panel Reports, para. 10.44. (underlining added) In the same vein, we further note that, as China argues in paragraph 49 of its appellee's submission, the USTR had, in fact, asked the USITC in its letter dated 3 January 2002, to identify “for each affirmative determination … any unforeseen developments that led to the relevant steel products being imported into the United States in such increased quantities as to be a substantial cause of serious injury.” (Letter of the USTR to the USITC dated 3 January 2002, question 1). (underlining added)

234 Appellate Body Report, Argentina —Footwear (EC), para. 92; Appellate Body Report, Korea —Dairy, para. 85.

235 We note that the United States also alleges that the Panel “mistakenly indicated that a competent authority had to ‘differentiate the impact’ of various unforeseen developments on the individual industries and even economies of other countries.” (United States' appellant's submission, para. 85, referring to Panel Reports, paras. 10.127 — 10.128). Based on our review of the Panel Reports, we do not understand the Panel to have imposed such a requirement. Instead, as we see it, the Panel merely observed, in paragraph 10.127, that the Asian and Russian crises affected some countries more than others, to support its view that the USITC was required to “explain how the increased imports of the specific steel products subject to the investigation were linked to and resulted from the confluence of unforeseen developments.” (emphasis added) Previously, in paragraph 10.123 of the Panel Reports, the Panel had stated that “even if ‘large volumes of foreign steel production were displaced from foreign consumption', this [did] not, in itself, imply that imports to the United States increased as a result of unforeseen developments.” (emphasis added)

236 United States’ appellant's submission, para. 83.

237 It will be recalled that the issue of whether the relevant “unforeseen developments” resulted in increased imports of the products on which the safeguard measures were applied was not addressed in the initial USITC report.

238 Panel Reports, para. 10.122.

239 Ibid., 10.123, 10.127 and 10.131.

240 Ibid., paras. 10.124-10.125, 10.130-10.131 and 10.145.

241 Panel Reports, paras. 10.126 and 10.128.

242 Ibid., para. 10.145.

243 European Communities’ appellee's submission, para. 97.

244 Panel Reports, para. 10.132. (footnote omitted)

245 According to footnote 5009 under paragraph 10.133 of the Panel Reports, the sections of the USITC Report which the United States brought to the attention of the Panel were “pp. 65-66 (CCFRS), 99-100 (hot-rolled bar), 107-108 (cold-finished bar), 115-116 (rebar), 168-170 (certain welded pipe), 178-180 (FFTJ), 213-214 (stainless steel bar), 222-223 (stainless steel rod), 259-260 (stainless steel wire, Commissioner Koplan), 303-305 (carbon flat products and stainless steel wire and wire rope, Commissioner Bragg), 309-310 (tin mill products, Commissioner Miller), 347 (stainless steel wire and wire rope, Commissioner Devaney).“

246 Panel Reports, para. 10.133. (emphasis added)

247 Panel Reports, para. 10.133.

248 United States’ appellant's submission, para. 92. (original emphasis)

249 Ibid., para. 55. (original emphasis)

250 United States’ appellant's submission, para. 93.

251 Ibid., referring to Appellate Body Report, EC — Tube or Pipe Fittings, paras. 161 — 163.

252 United States’ appellant's submission, para. 93.

253 Appellate Body Report, EC—Tube or Pipe Fittings, para. 161.

254 Ibid.

255 Panel Reports, para. 10.133.

256 Panel Reports, paras. 10.150 and 11.2.

257 We use the term “increased imports” as shorthand to describe the prerequisite set forth in Article XIX: l(a) of the GATT 1994 and in Article 2.1 of the Agreement on Safeguards, i.e., a product is being imported “in such increased quantities, absolute or relative to domestic production.” (emphasis added)

258 United States’ appellant's submission, para. 97. The Panel found that the USITC report contained an adequate and reasoned explanation of how the facts support the determination made with respect to “increased imports” of cold-finished bar, rebar, welded pipe, FFTJ, and stainless steel bar.

259 United States’ appellant's submission, para. 98.

260 See Panel Reports, paras. 10.200 and 10.262.

261 Panel Reports, para. 10.159.

262 Ibid., para. 10.166.

263 Panel Reports, para. 10.166.

264 Ibid., para. 10.162. (underlining added)

265 Panel Reports, para. 10.162. (original emphasis) This aspect of the Panel Reports was not appealed.

266 Panel Reports, para. 10.163.

267 Ibid.

268 Ibid., para. 10.165, referring to Appellate Body Report, Argentina —Footwear (EC), para. 129. (original emphasis)

269 Panel Reports, para. 10.167, referring to Appellate Body Report, Argentina —Footwear (EC), para. 131.

270 Panel Reports, para. 10.167.

271 Panel Reports, para. 10.168. (original emphasis)

272 Panel Reports, para. 10.168.

273 United States’ appellant's submission, para. 100, referring to paragraph 10.167 of the Panel Reports. The United States does not quote the Panel's finding accurately. The Panel, in fact, concluded in paragraph 10.167 of the Panel Reports “that a finding that imports have increased pursuant to Article 2.1 can be made when an increase evidences a certain degree of recentness, suddenness, sharpness and significance.” The word “only” does not appear in the Panel's conclusion.

274 Appellate Body Report, Argentina —Footwear (EC), para. 131.

275 United States’ appellant's submission, para. 107.

276 Ibid.

277 Ibid., para. 102.

278 China's appellee's submission, para. 102; European Communities’ appellee's submission, para. 135; Korea's appellee's submission, paras. 6 and 69; New Zealand's appellee's submission, paras. 1.14 and 5.11; Norway's appellee's submission, paras. 19 and 162.

279 European Communities’ appellee's submission, para. 135, referring to USITC Report, Vol. I, p. 278.

280 Brazil's appellee's submission, paras. 38 and 41; China's appellee's submission, para. 96; European Communities’ appellee's submission, paras. 128 and 130; Japan's appellee's submission, paras. 42 and 46; Korea's appellee's submission, para. 73; New Zealand's appellee's submission, para. 5.5; Norway's appellee's submission, para. 145; Switzerland's appellee's submission, paras. 93 and 97.

281 European Communities’ appellee's submission, para. 140; Norway's appellee's submission, para. 158.

282 United States’ appellant's submission, para. 102.

283 Appellate Body Report, Argentina —Footwear (EC), para. 131.

284 Appellate Body Report, Argentina —Footwear (EC), para. 131.

285 Ibid.

286 United States’ appellant's submission, para. 107.

287 Ibid.

288 Appellate Body Report, Argentina —Footwear (EC), para. 93.

289 Ibid.

290 Ibid., para. 94.

291 European Communities’ appellee's submission, para. 140; Norway's appellee's submission, para. 158.

292 Appellate Body Report, Argentina — Footwear (EC), para. 131.

293 United States'appellant's submission, para. 101.

294 Ibid., para. 102.

295 Appellate Body Report, US —Line Pipe, para. 181, quoting US — Wheat Gluten, para. 98.

296 Appellate Body Report, Argentina —Footwear (EC), para. 129. (original emphasis; underlining added)

297 Appellate Body Report, Argentina —Footwear (EC), para. 129.

298 United States’ appellant's submission, para. 102.

299 United States’ response to questioning at the oral hearing.

300 See supra, para. 341.

301 United States’ appellant's submission, para. 98, referring to Panel Reports, para. 10.167. (emphasis added)

302 United States’ response to questioning at the oral hearing.

303 See supra, footnote 273 to paragraph 341.

304 Panel Reports, para. 10.168. (original emphasis)

305 Ibid.

306 Ibid.

307 Ibid.

308 Panel Reports, para. 10.168.

309 Ibid., para. 10.171.

310 Panel Reports, para. 10.167.

311 United States’ appellant's submission, para. 98.

312 Ibid.

313 Ibid., para. 109.

314 Panel Reports, para. 10.181.

315 United States’ appellant's submission para. Ill, referring to Panel Reports, paras. 10.181 and 10.183.

316 United States’ appellant's submission, para. 111.

317 Ibid., para. 112, referring to Panel Reports, para. 10.162. (original emphasis)

318 We note that a decrease at the end of a period of investigation may, for instance, result from the seasonality of the relevant product, the timing of shipments, or importer concerns about the investigation. As we have said, the text of Article 2.1 does not necessarily prevent, in our view, a finding of “increased imports” in the face of such a decline.

319 Panel Reports, para. 10.181. (footnotes omitted)

320 Appellate Body Report, Argentina —Footwear (EC), para. 129.

321 Appellate Body Report, US —Lamb, footnote 88 to para. 138.

322 Panel Reports, para. 10.182.

323 United States’ appellant's submission, para. 113, referring to Panel Reports, paras. 10.182 and 10.185.

324 United States’ appellant's submission, para. 113, referring to Panel Reports, para. 10.168. (original emphasis)

325 Panel Reports, para. 10.168. (original emphasis)

326 Ibid.

327 Panel Reports, para. 10.182. (emphasis added)

328 United States’ appellant's submission, para. 114. The “analysis” that the United States refers to was undertaken by the USITC as part of its causation analysis and determination of serious injury, and not as part of its determination of “increased imports”.

329 Panel Reports, paras. 10.267 — 10.269.

330 United States’ appellant's submission, para. 136, referring to Panel Reports, para. 10.267.

331 United States’ appellant's submission, para. 136.

332 Ibid.

333 Panel Reports, para. 10.267.

334 Ibid.

335 United States’ appellant's submission, para. 137.

336 Ibid.

337 Panel Reports, para. 10.268.

338 United States’ appellant's submission, para. 137.

338 This is, of course, because not all domestic production is necessarily traded in the domestic market.

340 Panel Reports, paras. 10.204—10.206.

341 United States’ appellant's submission, heading III.C.3.C

342 Ibid., para. 127.

343 Panel Reports, para. 10.204.

344 Appellate Body Report, Argentina —Footwear (EC), para. 129.

345 Appellate Body Report, US —Lamb, para. 138.

346 Panel Reports, para. 10.208.

347 Ibid., paras. 10.208-10.209.

348 United States’ appellant's submission, para. 130.

349 Ibid., para. 129.

350 Panel Reports, para. 10.204.

351 Ibid., para. 10.209.

352 Panel Reports, para. 10.208.

353 Ibid., para. 10.209.

354 Ibid.

355 We note that the ratio of imports to domestic production was 19.2 per cent at the start of the period of investigation in 1996.

356 Appellate Body Report, US —Lamb, para. 138.

357 United States’ appellant's submission, para. 128. That increase was from 24.9 per cent in 1999 to 27.5 per cent in 2000. (Panel Reports, para. 10.208)

358 Panel Reports, para. 10.168. (original emphasis)

359 The USITC report, in relevant part, states: As a ratio to U.S. production, imports declined from 19.2 percent in 1996 to 18.4 percent in 1997, but then rose to 23.8 percent in 1998, 24.9 percent in 1999, and 27.5 percent in 2000. The ratio was lower in interim 2001, at 24.6 percent, than in interim 2000, when it was 27.0 percent. Imports were higher, both in absolute terms and relative to U.S. production, in 2000 than in any prior year of the period examined and showed a rapid and dramatic increase from the previous year. While imports declined in the interim period comparison, the ratio of imports to U.S. production in interim 2001 was higher than that for the first three years of the period examined, and was only three-tenths of a percentage point below the 1999 level. USITC Report, Vol. I, p. 92. (footnote omitted)

360 Panel Reports, para. 10.192.

361 Ibid., para. 10.195. (emphasis added)

362 Panel Reports, paras. 10.198 - 10.199.

363 Panel Reports, para. 10.196.

364 United States’ appellant's submission, para. 370.

365 Ibid., para. 372.

366 Ibid., para. 375.

367 United States’ appellant's submission, para. 359.

368 Ibid., footnote 469 to para. 359.

369 At the oral hearing, the United States clarified that it viewed the term “determination” as the legal conclusion that increased imports are a cause of serious injury or threat thereof, and differentiated this term from the findings and reasoned conclusions of the individual decision-makers, which the United States prefers to call the “views” of those particular decision makers.

370 USITC Report, Vol. I, pp. 7 Iff and 307ff.

371 This product category encompasses CCFRS, tin mill, and GOES.

372 See USITC Report, Vol. I, pp. 272 — 273 (Commissioner Bragg); USITC Report, Vol. I, footnote 65 on p. 36 (Commissioner Devaney).

373 See USITC Report, Vol. I, pp. 71 - 78.

374 See ibid., pp. 307 - 309.

375 See ibid., pp. 279, 282 — 283, and 294 — 295 (Commissioner Bragg); and footnote 368 on p. 71 (Commissioner Devaney).

376 See also ibid., p. 25, and the United States’ appellant's submission, para. 394.

377 See also United States’ appellant's submission, para. 394.

378 As we explained earlier, because the USITC found that it was “equally divided” with respect to tin mill products, the decision whether the affirmative or rather the negative determination represented the institutional determination of the USITC rested with the President of the United States.

379 Appellate Body Report, US —Line Pipe, para. 158.

380 We note that this issue was raised before the Panel; the Panel, however, decided to exercise judicial economy with respect to this claim. (Panel Reports, para. 10.700)

381 Panel Reports, para. 10.199. (emphasis added)

382 Appellate Body Report, US —Line Pipe, para. 158.

383 Panel Reports, para. 10.195.

384 We note, however, that the Panel also relied on the divergence in product definitions in the context of its causation analysis. (Panel Reports, paras. 10.422 and 10.572)

385 Panel Reports, para. 10.615.

386 We are aware that, in the context of parallelism, the Panel did not review the findings of Commissioner Devaney; the Panel explained that “the United States does not rely on findings made by Commissioner Devaney in defence against the claim of violation of parallelism, possibly because this Commissioner appears not to have reached any conclusions about imports other than excluded imports.” (Panel Reports, footnote 5677 to para. 10.613)

387 Appellate Body Report, US —Lamb, para. 106. (original emphasis)

388 In this regard, we note that the fact that, pursuant to the domestic law of a WTO Member, a finding made on the basis of a broad product grouping is deemed to support a competent authority's determination which relates to a narrower product, does not, in and of itself, imply that this conclusion holds true also for the purposes of the Agreement on Safeguards.

389 Indeed, we note that in the context of parallelism, the Panel addressed separately the finding of Commissioner Bragg and found that “findings on a product category other than tin mill products are [not] able to support a measure relating to tin mill products as a separate product category, unless there is a reasoned and adequate explanation relating the two product categories.” (Panel Reports, para. 10.615)

390 We also emphasize that our finding does not address the question whether the USITC and/or individual Commissioners correctly defined the “like product”, the “imported product”, or the “domestic industry”.

391 Panel Reports, para. 10.200.

392 United States’ appellant's submission, paras. 359 — 395.

393 USITC Report, Vol. I, pp. 190 and 234-238.

394 Ibid., pp. 277, 280, 288 — 289, and 301 — 302 (Commissioner Bragg); and pp. 335 — 336 and 342 — 347 (Commissioner Devaney).

395 Ibid., pp. 234-238.

396 USITC Report, Separate Views of Chairman Koplan on injury, pp. 256 — 259.

397 USITC Report, Vol. I, pp. 280, 288 — 289, and 301 — 302 (Commissioner Bragg); and pp. 342 — 347 (Commissioner Devaney).

398 See also ibid., p. 27; United States’ appellant's submission, para. 394.

399 See also United States’ appellant's submission, para. 394.

400 As we said earlier, because the USITC found that it was “equally divided” with respect to stainless steel wire, the decision whether the affirmative or rather the negative determination represented the institutional determination of the USITC rested with the President of the United States.

401 Panel Reports, para. 10.261.

402 Ibid., para. 10.262.

403 Ibid.

404 United States’ appellant's submission, para. 370.

405 Ibid., para. 372.

406 Ibid., para. 375.

407 USITC Report, Separate Views of Chairman Koplan on injury, pp. 256 — 259.

408 USITC Report, Vol. I, pp. 280, 288 — 289, 301 — 302 (Commissioner Bragg); USITC Report, Vol. I, pp. 342 — 347 (Commissioner Devaney).

409 See supra, paras. 413-418

410 Panel Reports, para. 10.262.

411 See, for instance, Appellate Body Report, US — Gasoline, at 18 ff; Appellate Body Report, Canada — Periodicals, at 469 ff; Appellate Body Report, EC —Hormones, paras. 222 ff; Appellate Body Report, EC —Poultry, paras. 156 ff; Appellate Body Report. Australia —Salmon, paras. 117 ff, 193 ff and 227 ff; Appellate Body Report, US —Shrimp, paras. 123 ff; Appellate Body Report, Japan —Agricultural Products II, paras. 112 ff; Appellate Body Report, US — FSC, paras. 133 ff; Appellate Body Report, Canada —Aircraft (Article 21.5 —Brazil), paras. 43 ff; and Appellate Body Report, US — Wheat Gluten, paras. 80 ff and 127 ff.

412 See infra, paras. 433-474.

413 Panel Reports, para. 10.705.

414 Proclamation, para. 8.

415 Ibid., para. 11.

416 United States’ appellant's submission, paras. 315 — 358.

417 Appellate Body Report, US —Line Pipe, paras. 178 — 181.

418 Panel Reports, para. 10.598.

419 The Panel used the language “to account for the fact that excluded … imports contributed to the serious injury” or “the injury caused by excluded imports must be accounted for” with respect to the product categories CCFRS (Panel Reports, paras. 10.604 — 10.606), hot-rolled bar (Panel Reports, paras. 10.628 — 10.630), cold-finished bar (Panel Reports, paras. 10.638 — 10.640), rebar (Pane! Reports, para. 10.650), FFTJ (Panel Reports, paras. 10.664 — 10.667), and stainless steel bar (Panel Reports, paras. 10.674 — 10.677). With respect to Commissioner Miller's analysis of the causal link between non-Canadian imports of tin mill products and serious injury, the Panel stated that “[the] findings do not account for the fact that imports other than those from an excluded source are less than those from all sources and that the effects on the domestic producers are, therefore, not the same.” (Panel Reports, paras. 10.620 — 10.621) With respect to welded pipe, the Panel stated that the USITC's finding “does not account for the fact that the threat of serious injury caused by non-NAFTA imports is but a part of the threat of serious injury caused by all imports and does not establish that there is a genuine and substantial relationship of cause and effect.” (Panel Reports, para. 10.657) With respect to stainless steel wire, the Panel stated that “the findings [ ] do not take account of the portion of the threat of serious injury caused by NAFTA imports.” (Panel Reports, para. 10.688)

420 With respect to stainless steel rod, the Panel, in reviewing the USITC's finding on non-NAFTA imports, did not refer to the causation or non-attribution requirements. We address the Panel's findings with respect to stainless steel rod in paras. 457-473, below.

421 The Panel did not include the first paragraph with respect to its findings on tin mill products and stainless steel rod.

422 For tin mill products, the Panel referred to imports from Mexico, Israel and Jordan.

423 Panel Reports, paras. 10.607-10.608; see also Panel Reports, paras. 10.622, 10.631-10.632, 10.641-10.642, 10.651-10.652, 10.658-10.659, 10.668-10.669, 10.678-10.679, 10.689-10.690, and 10.698.

424 United States’ appellant's submission, para. 316.

425 Ibid.

426 Ibid., paras. 318 and 321 -333.

427 Ibid., paras. 334 - 344.

428 United States’ appellant's submission, para. 358. (emphasis added)

429 United States’ appellant's submission, para. 358.

430 Appellate Body Report, US — Wheat Gluten, para. 96.

431 Appellate Body Report, US — Line Pipe, para. 181.

432 Ibid., quoting US — Wheat Gluten, para. 98.

433 Appellate Body Report, US —Line Pipe, para. 181, quoting US —Lamb, para. 103.

434 Appellate Body Report, US —Line Pipe, para. 194.

435 USITC Report, Vol. I, p. 32.

436 United States’ appellant's submission, paras. 318 and 321 — 333.

437 United States’ appellant's submission, para. 324.

438 Ibid., para. 327.

439 We note that Canada, in its third participant's submission, also argues that the Panel erred in reading US —Line Pipe to mean that parallelism necessarily requires the competent authority to account for the fact that excluded imports may have some injurious impact on the domestic industry. (Canada's third participant's submission, para. 35)

440 United States’ appellant's submission, para. 358.

441 Ibid., para. 326.

442 Ibid., paras. 326 and 329.

443 Ibid., para. 327. (emphasis added)

444 United States’ appellant's submission, para. 324. The United States also states, in its appellant's submission, that to the extent the Panel's findings on this issue “indicate[] that parallelism requires authorities to focus separately on imports from sources that are not excluded from the measure, [they] accurately reflect[ ] what the Appellate Body said in [US — ] Line Pipe.” (United States' appellant's submission, para. 324)

445 Appellate Body Report, US —Line Pipe, para. 181; Appellate Body Report, US — Wheat Gluten, para. 98.

446 Appellate Body Report, US —Lamb, para. 179.

447 Panel Reports, para. 10.598.

448 United States’ appellant's submission, para. 326.

449 We recall that in US —Lamb, we stated, in this respect:As part of th[e] determination [of the existence of a causal link], Article 4.2(b) states expressly that injury caused to the domestic industry by factors other than increased imports “shall not be attributed to increased imports.” In a situation where several factors are causing injury “at the same time”, a final determination about the injurious effects caused by increased imports can only be made if the injurious effects caused by all the different causal factors are distinguished and separated. Otherwise, any conclusion based exclusively on an assessment of only one of the causal factors — increased imports — rests on an uncertain foundation, because it assumes that the other causal factors are not causing the injury which has been ascribed to increased imports. The non-attribution language in Article 4.2(b) precludes such an assumption and, instead, requires that the competent authorities assess appropriately the injurious effects of the other factors, so that those effects may be disentangled from the injurious effects of the increased imports. In this way, the final determination rests, properly, on the genuine and substantial relationship of cause and effect between increased imports and serious injury.(Appellate Body Report, US —Lamb, para. 179) (original emphasis; underlining added)

450 Appellate Body Report, US —Line Pipe, para. 217.

451 Ibid., para. 107.

452 See supra, paras. 278 and 302.

453 We note that, in its causation analysis, the USITC found for every product a causal link between all imports and serious injury; this implies that the subsequently-excluded imports were contributing to the total injurious effects attributed to all imports. Moreover, the USITC or individual Commissioners stated, for certain products (CCFRS, hot-rolled bar, cold-finished bar, welded pipe, FFTJ, stainless steel bar, and tin mill products), that imports from some sources excluded from the measures contributed “importantly” to serious injury. (USITC Report, Vol. I, pp. 66, 100, 108, 166-167, 178-180, 213, 309-310)

454 United States’ appellant's submission, para. 358. The only product category not covered by this admission is stainless steel rod, a product category which we consider separately, below.

455 They are: CCFRS, tin mill products, hot-rolled bar, cold-finished bar, rebar, FFTJ, welded pipe, stainless steel bar, and stainless steel wire.

456 Panel Reports, paras. 10.608, 10.622, 10.632, 10.642, 10.652, 10.659, 10.669, 10.679, and 10.690.

457 Panel Reports, para. 10.697.

458 Panel Reports, para. 10.698.

459 United States’ appellant's submission, heading Ui.e.3.

460 Ibid., para. 340.

461 Appellate Body Report, US — Wheat Gluten, para. 98; Appellate Body Report, US —Line Pipe, para. 181. We recall that Article 2.1 of the Agreement on Safeguards requires a determination that: (1) a product is being imported “in such quantities and under such conditions“; (2) “as to cause“; (3) serious injury or the threat of serious injury to domestic producers. (Appellate Body Report, Argentina —Footwear (EC), para. 92)

462 Appellate Body Report, US —Line Pipe, para. 181, referring to Appellate Body Report, US —Lamb, para. 103. (original emphasis)

463 Appellate Body Report, US —Line Pipe, para. 194.

464 USITC Report, Vol. I, p. 223 and footnote 1437 thereto.

465 Ibid., p. 405 and footnote 268 thereto.

466 Ibid., p. 405.

467 USITC Second Supplementary Report, p. 4. (footnote omitted) In footnote 26 to this statement, the USITC makes reference to its own and the individual Commissioners’ “Views on Remedy” on all product categories at issue.

468 With respect to Israel and Jordan, the United States relies, for all product categories, on product-specific findings made by the USITC in the views expressed on remedy in its original report. (United States’ appellant's submission, para. 335) The United States also relies on the general statement of the USITC, contained in the Second Supplementary Report, that “exclusion of imports from Israel and Jordan would not change the conclusion of the Commission or of individual Commissioners.” (United States’ appellant's submission, para. 338) With respect to non-NAFTA imports, the United States references its arguments before the Panel on product- specific statements by the USITC (United States’ appellant's submission, para. 351 and footnote 460 thereto; para. 354 and footnote 463 thereto; para. 355 and footnote 464 thereto); in the case of stainless steel rod, the United States relied, before the Panel, on footnote 1437 of the USITC's report. (Panel Reports, para. 7.1846) We note that, on appeal, the United States does not argue that the Panel failed to examine the relevant USITC's findings; rather, the United States disagrees with the conclusions that the Panel derived from its review of these findings.

469 USITC Report, Vol. I, p. 223, footnote 1437.

470 We note that the USITC provided these two separate findings with respect to almost all product categories at issue. For one product category — tin mill products — three separate findings were provided — one finding for imports from sources other than Canada, one finding for imports from sources other than Mexico, and one finding that the “exclusion of imports from Israel and Jordan would not change the conclusions of the USITC or individual Commissioners.” (USITC Report, Vol. I, p. 310, footnotes 28 and 29; USITC Second Supplementary Report, p. 4)

471 Clearly, where a Member examines imports from sources other than A, it will be including, in its analysis, imports from B; conversely, when examining imports from sources other than B, the Member will be including in its analysis imports from A. Thus, at each step of the investigation, the Member will be including the effects of some of the excluded imports in its analysis.

472 Panel Reports, para. 10.622.

473 We note that we are not addressing the question of the appropriate interpretation, in this respect, of the parallelism requirement in circumstances where imports from Israel and Jordan were zero in every year of the period of investigation. We note that, for the product category at issue, stainless steel rod, contrary to the United States’ assertion in paragraphs 337 and 342 of its appellant's submission, according to the data tables contained in the USITC report and referenced in paragraph 336 of the United States' appellant's submission, imports from Israel during the period of investigation were not zero in every year. (USITC Report, Appendix E, Table E-3, p. E-5)

474 Panel Reports, para. 10.698.

475 United States’ appellant's submission, para. 339. The United States appears to be suggesting that the statement of the USITC that the “exclusion of imports from Israel and Jordan would not change the conclusions of the Commission or of individual Commissioners” refers to the conclusions concerning non-NAFTA imports (rather than to the conclusions concerning all imports). However, the USITC did not explicitly make this point and this reading of the USITC's finding is not evident to us. Moreover, the United States bases this suggested reading of the USITC's statement on the fact that “this statement immediately preceded the ITC's parallelism analysis for imports from sources other than Canada and Mexico.” (United States’ appellant's submission, para. 339) However, we note that, for stainless steel rod, the USITC's findings on non-NAFTA imports are contained in the original report, whereas the statement with respect to the exclusion of imports from Israel and Jordan is contained in the Second Supplementary Report. Consequently, the statement concerning the exclusion of imports from Israel and Jordan did not “immediately prece[de]“ the USITC's analysis of non-NAFTA imports of stainless steel rod. Therefore, we read the statement that the “exclusion of imports from Israel and Jordan would not change the conclusions of the Commission or of individual Commissioners”, as far as stainless steel rod is concerned, as referring not to the USITC's conclusions concerning non-NAFTA imports, but rather to the USITC's conclusions concerning all imports.

476 United States’ appellant's submission, para. 343.

477 Ibid., para. 343. At the oral hearing, the United States stated that the combination of particular findings of the USITC provides the finding that is required concerning imports from all excluded sources.

478 United States’ appellant's submission, para. 341. (emphasis added)

479 We note, moreover, that in its statement, contained in the Second Supplementary Report, that “the exclusion of imports from Israel and Jordan would not change the conclusions of the Commission or individual Commissioners the USITC explicitly refers to its findings under the section of the original report entitled “Views on Remedy of the Commission“; in that section, for stainless steel rod, under the heading “Country Exclusion”, the USITC mentions Canada and Mexico, as well as Israel and Jordan, separately, and, in our view, does not discuss any connection between imports from these four sources and does not refer to these four sources together. (USITC Report, Vol. I, p. 405 and footnote 268 thereto)

480 Panel Reports, para. 10.697. (footnote omitted)

481 Ibid.

482 Some of the Complaining Parties suggested that the United States was, in effect, seeking to invoke a de minimis exception. (European Communities’ appellee's submission, para. 347; Norway's appellee's submission, para. 219) At the oral hearing, the United States argued that it was not invoking a de minimis principle, but rather a “principle of explanation”.

483 Appellate Body Report, India —Quantitative Restrictions, para. 94; Appellate Body Report, India —Patents (US), para. 45.

484 United States’ appellant's submission, heading IIi.e.3.

485 CCFRS (see Panel Reports, para. 10.419); tin mill products (see Panel Reports, para. 10.422); hot-rolled bar (see Panel Reports, para. 10.445); cold-finished bar (see Panel Reports, para. 10.469); rebar (see Panel Reports, para. 10.487); welded pipe (see Panel Reports, para. 10.503); FFTJ (see Panel Reports, para. 10.536); stainless steel bar (see Panel Reports, para. 10.569); stainless steel wire (see Panel Reports, para. 10.573).

486 Panel Reports, paras, quoted in footnote 485.

487 Ibid.

488 United States’ appellant's submission, section F, paras. 359 — 396; see also literal C in para. 397.

489 United States’ appellant's submission, section D, paras. 139 — 314; see also literal D in para. 397.

490 Appellate Body Report, US — Wheat Gluten, para. 96.

491 Panel Reports, para. 10.700.

492 Article 4.1 (a) of the Agreement on Safeguards.

493 Panel Reports, para. 10.700.

494 In paragraph 10.278 of the Panel Reports, the Panel stated that it “assumed for the purposes of its consideration of the issue of causation that the relevant domestic producers had been correctly defined and that serious injury or threat thereof existed. We note that the Panel found no “increased imports” for five product categories — CCFRS, hot-rolled bar, stainless steel rod, tin mill, and stainless steel wire. However, the Panel must also have assumed, tacitly, that, for the purposes of its causation analysis, imports had increased for those five products. We do not see anything improper per se in panels making such assumptions, especially when doing so enables panels to make findings they otherwise would not have made, thereby facilitating appellate review. We are mindful that the volume and complexity of this case may have prompted the Panel to exercise judicial economy on several issues and to rely on the corresponding inter-dependent assumptions. We note, however, that the cumulation of several inter-related assumptions could have affected our ability to complete the Panel's legal analysis had we pursued a ruling on causation.

495 Article 4.2 (b) of the Agreement on Safeguards. We note that “serious injury” is the purported effect that should be causally linked by the competent authority to “increased imports”. When the determination of “serious injury” is challenged, a panel may only conclude definitively that “the existence of the causal link” has been adequately demonstrated after having established that “increased imports” and “serious injury” were adequately determined in the investigation.

496 See supra, para. 330.

497 See supra, para.456.

498 United States’ response to questioning at the oral hearing.

499 Appellate Body Report, US —Line Pipe, para. 208.

500 Appellate Body Report, US —Lamb, para. 130.

501 Appellate Body Report, US —Line Pipe, para. 236.

502 We first made this assertion in US — Wheat Gluten, in the context of a discussion on parallelism. (Appellate Body Report, US — Wheat Gluten, para. 98) In US — Line Pipe, we explained that the same reasoning would apply to Article 4.2(b), last sentence. (Appellate Body Report, US —Line Pipe, para. 216)

503 We made this assertion originally in US —Lamb in the context of a discussion of a claim under Article 4.2(a) of the Agreement on Safeguards. (Appellate Body Report, US —Lamb, para. 103) In US —Line Pipe, we explained that the same reasoning would apply to Article 4.2(b), last sentence. (Appellate Body Report, US —Line Pipe, para. 216)

504 Appellate Body Report, US — Wheat Gluten, para. 67.

505 Ibid.

506 Ibid., para. 69.

507 Appellate Body Report, EC — Tube or Pipe Fittings, para. 190.

508 Ibid., para. 191. (emphasis added)

509 Appellate Body Report, EC — Tube or Pipe Fittings, para. 192.

508 Ibid, (emphasis added)

511 Appellate Body Report, EC — Tube or Pipe Fittings, para. 178.

512 Ibid., para. 177.

513 Ibid., paras. 178. (original emphasis)

514 Panel Reports, paras. 10.422 and 10.572 - 10.573.

515 See supra, paras. 419 and 429.

516 Notice of Appeal, WT/DS248/17, WT/DS249/11, WT/DS251/12, WT/DS252/10, WT/DS253/10, WT/DS254/10, WT/DS258/14, WT/ DS259/13, 14 August 2003, p. 4, para. 6.

517 United States’ appellant's submission, paras. 77 — 79.

518 Ibid., paras. 160 — 161. The United States clarified during the oral hearing that it was not pursuing its claim, set out in paragraph 6 of its Notice of Appeal, that the Panel had failed to meet its obligations under Article 11 because it had made self-contradictory findings.

519 United States’ response to questioning at the oral hearing.

520 Ibid.

521 Ibid.

522 Appellate Body Report, Japan —Agricultural Products II, para. 141.

523 The United States further clarified during the oral hearing that if we were to conclude that the Panel erred in its findings on Article 4.2(b) of the Agreement on Safeguards, it would not be necessary for us to reach its claim under Article 11.

524 In its Notice of Appeal, the United States made a general claim that the Panel acted inconsistently with Article 12.7 of the DSU. Although in its appellant's submission the United States made reference to Article 12.7 in the context of its claims regarding “unforeseen developments”, “causation”, as well as “parallelism”, in response to questioning at the oral hearing, the United States clarified that its claim under Article 12.7 related exclusively to the Panel's findings on “unforeseen developments”.

525 United States’ appellant's submission, para. 95.

526 Ibid.

527 Ibid.

528 The Panel's reasoning is explained, in particular, in Panel Reports, paras. 10.121-10.150.

529 Panel Reports, para. 10.122 (emphasis added)

530 Panel Reports, para. 10.123. (original emphasis; footnote omitted)

531 United States’ appellant's submission, para. 82.

532 Ibid., para. 55 (original emphasis).

533 Brazil, Japan, and Korea formulated their conditional appeal in different terms, which will be described and addressed in the paragraphs below.

534 Supra, para. 330.

535 See supra, paras. 456 and 474.

536 We note that Brazil, Japan, and Korea, in their conditional appeal on whether the USITC acted inconsistently with Articles 2.1 and 4. l(c) of the Agreement on Safeguards by “grouping [ ] CCFRS products into a single like product” (see Brazil's, Japan's, and Korea's other appellants’ submission, para. 4), request that we address this claim in the event that we (i) disagree with the Panel's finding that the safeguards measures are “deprived of a legal basis“; (ii) reverse an aspect of any of the Panel's findings against the United States with respect to CCFRS; or (iii) conclude that the Panel should have issued a like product ruling to support its CCFRS causation finding. We note that, in the light of our rulings, none of the conditions listed by Brazil, Japan, and Korea arises.

537 Brazil's, Japan's, and Korea's other appellants’ submission, para. 2.

538 Ibid., para. 3.

539 See supra, para. 483.

540 See supra, para. 493.

541 In upholding claims on “unforeseen developments”, the Panel refers to claims made by China, the European Communities, New Zealand, Norway, and Switzerland.