UNITED STATES � ANTI-DUMPING MEASURES ON
STAINLESS STEEL PLATE IN COILS AND STAINLESS
STEEL SHEET AND STRIP
FROM KOREA

Report of the Panel

(Continued)

D. PROCEDURAL ERRORS IN THE US DETERMINATIONS

1. The United States Failed to Administer Its Laws in a "Uniform" and "Reasonable" Manner, As Required by Article X:3(a) of GATT 1994

(a) Article X:3(a) Requires Investigating Authorities to Implement Domestic Law Consistently, in a Uniform and Reasonable Manner

171. As demonstrated in Korea's First Submission, numerous aspects of the DOC's actions in the SSPC and SSSS cases reflected a failure to administer the anti dumping laws and regulations "in a uniform, impartial and reasonable manner," as required by Article X:3(a) of GATT 1994. In particular, Korea demonstrated that the SSPC and SSSS decisions departed from previous decisions of the DOC and the US courts without a sound rationale - factors that clearly go to the "uniformity" and "reasonableness" of the DOC's administration of the anti dumping laws and regulations.

172. As a general matter, the United States (with support from the EC) has offered several arguments suggesting that Article X:3(a) does not require an investigating authority to follow its precedents. As discussed below, however, these arguments are without merit, and the failure of the United States to administer US law uniformly from case to case is a violation of Article X:3(a).

173 First, the United States argued that this claim belongs in a US court and not before a Panel, going so far as to imply that the claim is not based on a "covered agreement" under the Dispute Settlement Understanding ("DSU").⁸⁹ That argument is demonstrably false. It is undeniable that GATT 1994 (including Article X:3(a) thereof) is a "covered agreement."⁹⁰

174. Second, the United States, relying on the Bananas case, argued that "Article X:3 does not address the consistency of particular administrative rulings, but rather the administration of such rulings."⁹¹ That argument misses the point. Bananas addressed a claim about the administration of "rulings." Korea's claim is based on a different aspect of Article X:3(a). It is undeniable that, in conducting the SSPC and SSSS investigations, the DOC was engaged in the "administration" of US anti dumping "laws [and] regulations."

175. Third, the United States argues that "reasonable" administration of the anti dumping laws requires changes from past practice "where facts properly established and objectively assessed reveal flaws or gaps in prior practice."⁹² This argument actually supports Korea's position. Korea agrees that it is reasonable for an investigating authority to depart from its prior practice in a particular case when there is a sound rationale for doing so. However, when the reasons proffered in a final determination for the departure from precedent are nonsensical, irrelevant, and internally inconsistent, as happened here, then the departure plainly evidences "unreasonable" and "non-uniform" administration of the anti-dumping laws and regulations.

176. Finally, the United States argues, again based on Bananas, that "where a measure is found to be reasonable under the Antidumping Agreement, the panel should find it to be reasonable also for purposes of Article X:3."⁹³ This argument is a fiction. If the Anti Dumping Agreement had a provision, like Article X:3(a), which required reasonable administration of the anti dumping laws, then of course one would expect panels to construe such a provision consistently with Article X:3(a). But there is no such provision in the Anti Dumping Agreement.

177. Thus, the condition precedent for the US argument can never be met. Instead, the WTO regime leaves it to GATT Article X:3(a) to fill in this gap in the Anti Dumping Agreement. Contrary to the US argument, the Appellate Body's decision in Bananas supports this supplemental role for Article X:3(a). When confronted with the question whether the procedural requirements of a specific WTO Agreement should be considered before or instead of Article X:3(a), the Appellate Body held "before."⁹⁴ It is ironic that the United States, which prevailed on this point in Bananas, has now conveniently changed its view.

(b) The Unjustified US Departures from Established Practice Violated the Requirements of Article X:3(a)

(i) The Failure to Exclude Unpaid Sales from the Dumping Analysis Was Inconsistent with the DOC's Established Practice

178. As demonstrated in Korea's First Submission, the DOC's failure to exclude POSCO's "atypical" unpaid sales from the dumping analysis was inconsistent with its established practice. The DOC itself initially recognized the "atypical" nature of these unpaid sales. The reasons given for the departure are inherently inconsistent: In Plate, the DOC deemed it significant that the unpaid sales as a percentage of total US sales were too "large" to "be dismissed as abnormalities." But in Sheet the DOC found POSCO's arguments about the small percentage of unpaid sales to be "inapposite."⁹⁵

179. Confronted with this glaring lack of uniformity in the DOC's administration of the anti-dumping laws, the United States now seeks to divert the Panel's attention by arguing that other factors were more important to its analysis.⁹⁶ But that attempt should not be allowed to succeed. The DOC's own words clearly demonstrate its inconsistency.

(ii) The Multiple-Averaging Methodology Was Inconsistent with the DOC's Established Practice

180. The DOC has an established practice of using single-averaging, even in cases where the exporter's home currency depreciates against the dollar during the investigation period. The DOC initially adhered to that practice in the SSPC and SSSS cases, calling the petitioners' request for multiple-averaging "unwarranted" and rejecting as inapplicable "the one case cited by petitioners in support of averaging multiple periods." The DOC maintained that consistent policy in the Preserved Mushrooms from Indonesia case, saying "we have declined to alter our methodology in this case."⁹⁷

181. In the SSPC and SSSS cases, of course, the DOC did depart from its previous practice by adopting the multiple-averaging methodology. Moreover, the DOC failed to even articulate a reason for its departure from its then three-month-old precedent in Preserved Mushrooms, when the similarities between the depreciations of the won and the Indonesian rupiah clearly demanded the same treatment.⁹⁸ That departure from established practice, especially when combined with the failure to provide an explanation, clearly evidences "unreasonable" and "non-uniform" administration of the anti-dumping laws.

182. The United States now claims that the depreciation of the won was "unprecedented" and raised a "novel set of issues." It seeks to distinguish the depreciation of the won from the roughly contemporaneous depreciation of the rupiah on the grounds that the depreciation of the won was somewhat steeper and less deep than the depreciation of the rupiah. It also denies that the DOC has an established practice regarding the use of single-averaging methodology, claiming that Preserved Mushrooms is only one case, which in the US view is insufficient to create an established practice.⁹⁹ That argument must fail.

183. First, the argument is post hoc . As mentioned, the DOC final determinations made no attempt to articulate a difference between the facts of the SSPC and SSSS cases from the facts of Preserved Mushrooms. Indeed, far from having regarded the depreciation of the won and of the rupiah as being significantly different, the DOC previously referred to them as raising the same issue.¹⁰⁰ In any event, if the DOC considered it significant that the won's depreciation had somewhat different contours than the rupiah's depreciation, then it was required to have said so in its determinations. Not having articulated these supposed differences at the time, the United States is precluded from raising them now.

184. Second, there is no question that the DOC has confronted the issue of currency depreciations many times before. Such depreciations seem to have become a regular feature of the international economic landscape. In recent years, the rupiah, baht, peso, real, and other currencies have all experienced sharp declines against the dollar. (Indeed, even so-called "stable" currencies like the yen and the euro have at times declined markedly against the dollar.) When the DOC was faced with those other depreciations, it consistently used the single-average methodology. Yet, the DOC applied multiple-averaging for the first time in the SSPC and SSSS cases. In this context, the belated claim that the won's depreciation was "unprecedented" is unpersuasive. While the precise facts of the won's decline may have differed somewhat from the precise facts of previous depreciations, that does not make the won's depreciation "unprecedented" in any meaningful sense. Moreover, factual details aside, the United States has failed to provide (either in the final determinations or in its First Submission) any basis for believing that the won's depreciation raised a "novel set of issues." To the contrary, as mentioned, DOC itself regarded the SSPC and SSSS cases as raising the same issue as Preserved Mushrooms.

185. Third, there is no merit to the claim that Preserved Mushrooms is insufficient to establish a practice. Even leaving aside the value of "one case" as precedent under US law, there are actually many cases that establish the relevant practice. Indeed, single-averaging has been the standard US methodology since the US implementation of the Uruguay Round amendments. Any departure from single-averaging should be tested against that standard practice.

186. The United States also claims that Preserved Mushrooms is different from the SSPC and SSSS cases, because multiple-averaging would have had little effect on the calculation of the dumping margins in Mushrooms while it had a significant effect in SSPC and SSSS.¹⁰¹ This is not a justification for multiple-averaging; it is the precise reason why the DOC should not have used multiple-averaging in the cases at issue. Indeed, in the context of the Anti-Dumping Agreement, the role of Article X:3(a) is to prevent investigating authorities from administering their domestic laws inconsistently from case to case for the sole purpose of achieving the highest possible dumping margin.

187. Therefore, the DOC's departure from its established single-average methodology was "unreasonable" and the United States has even now failed to provide a justification for it.

(iii) The Double-Conversion of Local Sales Was Inconsistent with the DOC's Established Practice

188. As discussed in Korea's First Submission, the double-conversion of POSCO's local sales from dollars to won and back to dollars at a different exchange rate was an unprecedented departure from the established DOC policy of "accept[ing] charges in the currency in which the charges are made." Neither the petitioners in the SSPC and SSSS investigations nor the DOC final determinations cited a single case before these two at issue where the DOC treated a home-market sale priced in dollars as if it had been priced in the local currency. By contrast, there are several cases (most notably, Fresh Cut Roses from Colombia) where the United States has accepted home-market sales as being priced in dollars. The reasons given by the DOC to depart from that practice for SSPC and SSSS are unreasonable, and they effectively amount to a decision to hold POSCO responsible for differences between the exchange rates announced by the Korean Exchange Bank and the New York Federal Reserve.¹⁰² Therefore, the decision to depart from established policy without providing an adequate reason was inconsistent with the requirement that anti-dumping laws must be administered in a "reasonable" and "uniform" manner.

189. In response, the United States describes its view of the issue raised by double-conversion as follows:

the fundamental issue for the Panel in these cases is not a question of which source for exchange rates is more accurate. Rather, it is a question of whether the exchange rates used by the United States in these cases satisfy the requirements of Article 2.4.1.¹⁰³

That description is, however, inaccurate. Neither of the DOC's statements reflects the true problem with the DOC's double-conversion. As discussed above, the substantive issue is whether or not the double-conversion was "required." The procedural issue is whether the double-conversion, as an inadequately explained departure from established DOC practice, evidences "unreasonable" and "non-uniform" administration of the anti-dumping laws.

190. The United States also contends that Roses from Colombia is irrelevant because it "pre-dates the Uruguay Round Agreements Act of the United States in which the new Article 2.4.1 was first implemented" and so "none of the requirements of Article 2.4.1 were considered in the context of that case."¹⁰⁴ This argument is misleading. It implies that Korea is relying on Roses from Colombia to support Korea's substantive claim under Article 2.4.1. That, of course, is not the case.

191. Korea is properly relying on Roses from Colombia as representative of the established practice from which the DOC unreasonably deviated in the cases at issue. The relevant practice is not the DOC's exchange rate policy, which had to be and was changed in response to Article 2.4.1. Instead, the relevant practice is "accept[ing] charges in the currency in which the charges are made," which was not required to be and was not changed in response to Article 2.4.1. Moreover, nothing in the DOC final determinations cited Article 2.4.1 as the basis for the departure from Roses from Colombia. This is yet another post hoc and ultimately baseless argument by the United States.

192. The United States also makes the unsupported and unexplained assertion that "Roses represented an exception to the United States' practice, not the rule."¹⁰⁵ This statement could not possibly be correct. If Roses from Colombia were the "exception," then the "rule" would be that the DOC does not accept charges in the currency in which they are made. But, in fact, the DOC's questionnaire specifically instructs respondents to "report the sale price, discounts, rebates and all other revenues and expenses in the currency in which they were earned or incurred."¹⁰⁶

193. Korea's First Submission described in great detail the arguments made by the DOC to distinguish Roses from Colombia and the inadequacies of those arguments.¹⁰⁷ The US response is simply non-responsive. The United States does not attempt to reconcile its rulings in SSPC and SSSS with Roses from Colombia, but merely to demonstrate the technical accuracy of its statements in SSPC and SSSS.¹⁰⁸ In other words, the United States has still failed to show the relevance of the DOC's statements in SSPC and SSSS to the question whether it was reasonable to depart from Roses from Colombia in the cases at issue.

194. Since the United States has confused the picture by raising various irrelevant arguments, it may be clarifying to present here in full the relevant passage from Roses from Colombia:

During respondent's verification, we established that respondent invoiced its home market customers in US dollars and received the equivalent value in pesos at the date of payment. We were able to trace the payments to the company's records and establish that the payments made to the company in pesos reflected the prevailing exchange rates at the time of payment.

It is the Department's practice to accept charges in the currency in which the charges are made. In this instance, the home market prices were charged in dollars. Therefore, the Department found it appropriate that respondent's home market sales were reported in dollar value since the dollar value was the currency in which the sales transactions were made. Furthermore, since home market sales were transacted in dollars and the payments made, although in pesos, were based on constant dollar value, there is no distortion. Using respondent's dollar borrowing rate in the calculation of the home market imputed credit, is, therefore, appropriate.¹⁰⁹

From this passage, it is apparent that there were two - and only two - factors that were relevant to determining whether the home-market sales were "charged in dollars" or pesos. First, they were invoiced in dollars. Second, they were paid in pesos "at the prevailing exchange rates at the time of payment." These two factors alone showed that the home-market prices were at a "constant dollar value" and thus were "charged" in dollars and should be accepted in dollars.

195. The final determinations indicated three reasons why the DOC treated POSCO's local sales as won-denominated, notwithstanding that they were invoiced in dollars and that payment was made in won at the prevailing exchange rates at the time of payment: (1) POSCO was paid in won; (2) POSCO's accounting records are kept in won; and (3) the Korean Exchange Bank rate used to determine the amount of won due differed from the New York Federal Reserve rate.¹¹⁰ As discussed further above, it is apparent that none of these three reasons can serve to differentiate SSPC and SSSS from Roses from Colombia. In Roses, the respondent was also paid in the local currency. There is no mention of accounting records or exchange rate differences in Roses from Colombia, precisely because those factors were alien to the decision. Moreover, it is exceedingly likely that if one were to consider the unstated facts of Roses from Colombia, one would find that Colombian producers maintain their accounting ledgers in the local currency (which is in keeping with Generally Accepted Accounting Principles) and that there were differences between the peso-dollar exchange rates in Bogota and in New York (which is a fact of life, even without significant time differences).

196. Therefore, the double-conversion reflects unreasonable and non-uniform administration of the anti-dumping laws, in violation of GATT Article X:3(a).

2. The Incorrect and Incoherent Explanations Offered by the United States Were Inconsistent with the Requirements Set Forth in Article 12.2 of the Anti-Dumping Agreement

197. Article 12.2 of the Anti-Dumping Agreement requires, inter alia, that a final determination "shall set forth . . . in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities." It further specifies that a final affirmative determination:

shall contain . . . all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures . . . . In particular, the notice . . . shall contain ["a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value under Article 2"] as well as the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers. . . .¹¹¹

198. The final determinations regarding SSPC and SSSS fail to comply with this standard. On the unpaid sales issue, DOC failed to provide in the final determinations an internally consistent explanation regarding the relevance of the percentage of US sales that are unpaid to whether unpaid sales are "atypical."¹¹² On the multiple-averaging issue, the DOC failed to explain the departure from the three-month-old decision in Preserved Mushrooms in several key respects. Finally, on the double-conversion issue, the DOC failed to provide in the final determinations a reasonable justification for departing from the established practice (embodied in Roses from Colombia) of accepting charges in the currency in which they are made.

199. As a result of these failures, the final determinations do not "contain . . . all relevant information on the matters of fact and law," "all reasons which have led to the imposition of final measures," "a full explanation of the reasons for the methodology used" and "a full explanation of the . . . reasons for the acceptance or rejection of relevant arguments." Consequently, they are not consistent with the requirements of Article 12.2.

200. Perhaps as a result of the fact that these arguments are not concentrated in one place in Korea's First Submission, the United States seems to have largely avoided responding to them. While references to Article 12.2 are sprinkled generously around the US Submission, there does not appear to be much substance to the remarks. The only concrete argument that Korea can identify (other than general procedural arguments discussed with respect to Article X:3(a)) is a defense of the inconsistency on "atypical" sales between the determinations in SSPC and SSSS. The United States argues essentially that Article 12.2 allows the DOC to be as inconsistent as it would like to be without any need for coherent explanations of those inconsistencies.¹¹³ Korea submits that the US position cannot be a correct interpretation of the Anti-Dumping Agreement. For the requirement of providing explanations to have any meaning, the explanations provided must be coherent.

3. The Sharp and Unwarranted Reversals in US Methodology on These Issues Between the Preliminary and Final Determinations Effectively Deprived POSCO of the "Full" and "Ample" Opportunity to Defend Its Interests Required by Article 6 of the Anti-Dumping Agreement

201. Article 6 of the Anti-Dumping Agreement contains various rules that are intended to ensure that respondents in an anti-dumping investigation know all of the elements of the case against them and have a full and ample opportunity to respond thereto. Korea has argued that the United States violated Article 6 by not announcing several key aspects of the case against POSCO until the final determination, when it was too late for POSCO to defend itself.

202. In response, the United States agrees (as it must) that "under Articles 6.1, 6.2, and 6.9 parties should be afforded a full and ample opportunity to defend their interests." Nevertheless, the United States argues that POSCO was afforded that opportunity in the investigations at issue, because it was permitted to submit and receive information and to make written and oral arguments and because it received a preliminary determination.¹¹⁴

203. The United States proposes an overly mechanical view of Article 6. Contrary to the US claim, it is not enough simply to go through the motions of observing all of the procedural formalities. Rather, whether a respondent was afforded the full and ample opportunity that Article 6 requires must be judged by the Panel in light of all the facts and the totality of the circumstances.

204. As the history of the SSPC and SSSS cases reveals, this is a case where a respondent submitted information that showed it was not dumping under the prevailing law, where the petitioner made meritless legal arguments to attempt to distort the dumping calculation (and the respondent submitted a written response to those arguments), where the investigating authorities issued a preliminary determinations indicating agreement with the respondent on all key legal issues, where verification confirmed the accuracy of the information submitted by the respondent, where the petitioner failed to submit any significant new information or argument after the preliminary determination, and where the investigating authority then issued a final affirmative determination reversing the preliminary determination and departing from established practice in several key respects. In such a case, while the procedural formalities may have been respected, the respondent was nevertheless denied the full and fair opportunity to defend its interests in the proceeding required by Article 6.

205. In its First Submission, the United States has argued that Korea's reading of Article 6 would require investigating authorities to publish preliminary determination after preliminary determination over and over again until all the factual and legal issues in a case were resolved.¹¹⁵ That characterization of Korea's position is plainly not correct. Article 6 does not require investigating authorities to revise their preliminary determinations each time they change a factual or legal conclusion. But it does require them to ensure that the opportunities the parties are given to comment on the issues are meaningful. The arbitrary decisions made by the DOC in the SSPC and SSSS cases indicate that the DOC simply did not conform to that standard. As a practical matter, the DOC failed to provide POSCO a full and ample opportunity to defend its interests in the cases at issue, in violation of Articles 6.1, 6.2, and 6.9 of the Anti-Dumping Agreement.

III. REMEDY

206. Korea concluded its First Submission by asking the Panel (1) to "recommend that the United States bring its anti dumping measures against SSPC and SSSS from Korea into conformity with the WTO Anti Dumping Agreement and GATT 1994" and (2) to "suggest that the United States revoke the anti dumping duty orders concerning SSPC and SSSS from Korea."¹¹⁶

207. This request was consistent with the provisions of Article 19.1 of the DSU, which states that:

Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement. In addition to its recommendations, the panel or Appellate Body may suggest ways in which the Member concerned could implement the recommendations.

208. The United States appears to accept Korea's first request for a "recommendation." However, the United States objects to Korea's second request for a "suggestion." This objection is curious, because Korea's request for a "suggestion" by the Panel is clearly authorized by the plain text of the second sentence of Article 19.1.

209. In any event, there is no basis for the United States to oppose Korea's request for a suggestion. Although the heading of the US argument baldly asserts that "the panel suggestion sought by Korea is inconsistent with established panel practice and the DSU,"¹¹⁷ the United States has failed to provide any panel practice or DSU text to support that naked assertion. And, in fact, there are ample precedents in which panels have suggested revocation of an anti-dumping order.¹¹⁸

210. A suggestion that the anti dumping measures be revoked is particularly appropriate in light of Article 1 of the Anti Dumping Agreement. The first sentence of that Article provides, "An anti dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement." If the Panel finds that the anti dumping investigations on SSPC and SSSS were not "conducted in accordance with the provisions of [the Anti Dumping] Agreement," then the United States would lack the authority to maintain the measures and revocation would be the only appropriate means of bringing itself into conformity with Article 1.

211. In other words, if Article 1 did not exist and the United States violated a provision of the Anti Dumping Agreement, it might be possible to bring the anti dumping measures into conformity without revocation. But Article 1 precludes that possibility. An anti dumping measure applied pursuant to an investigation that was not "conducted in accordance with the provisions of [the Anti Dumping] Agreement" must be revoked. Thus, a suggestion of revocation is entirely appropriate here.

CONCLUSION

212. As discussed above, there actually are very few, if any, facts in dispute. To be precise,

• On unpaid sales, there is no dispute that there were unpaid sales, that the DOC included the unpaid sales in its analysis, and that the DOC also made an adjustment for the cost of non-payment in its analysis of all US sales (including the direct sales made by POSCO and the indirect sales through POSAM).

• On multiple-averaging, there is no dispute that the Korean won depreciated significantly against the US dollar late in 1997, that the DOC split the investigation periods into sub periods, that the DOC calculated separate averages for each sub period, and that for those sub periods with "negative margins" the DOC "zeroed" those "negative margins" when calculating the overall margin.

• On double-conversion, there is no dispute that the orders for the "local sales" were placed in US dollars (and not in won), that the invoices showed both the agreed-upon dollar price and an amount in won calculated by applying the Korean Exchange Bank's exchange rate in Seoul on the date of invoice, that the won amount on the invoice was recorded in POSCO's accounting records, that the customer paid in won by converting the dollar price using the Korean Exchange Bank's exchange rate in Seoul on the date of payment, that the won amount of the payment did not correspond to the won amount on the invoice, that the DOC chose to calculate normal value based on the won amounts recorded in POSCO's accounting records instead of the actual dollar prices of the sales and to convert that amount back into dollars at a different exchange rate announced by a different bank (the New York Federal Reserve) on a different date (the date of the US sale), and that the double conversion in fact caused distortions in calculation of the normal value.

For none of the substantive issues, therefore, are there any key facts in dispute. There are only legal questions concerning the propriety, fairness, and reasonableness of the US methodology.

213. Moreover, with respect to those legal questions, the proceedings before this Panel have narrowed the issues considerably. The United States has retreated significantly from the positions it had taken previously, and has conceded virtually all of the critical points of Korea's case. For example, on the "unpaid sales" issue, the United States has conceded that the adjustment for the costs of non-payment could only be justified if it was based on differences in the risk of non-payment in the two markets (when the adjustment the United States actually made undeniably did not measure differences in that risk). On the "multiple-averaging" issue, the United States has effectively conceded that there is no basis under the Anti-Dumping Agreement for treating pre- and post-devaluation sales as non-comparable transactions (under the provisions of Article 2.4.2 that require the calculation of a single average for all "comparable" transactions), since it has admitted that the exchange-rate provisions of the Anti-Dumping Agreement do not "establish a limit on which sales may be considered 'comparable' within the meaning of Article 2.4.2." And, finally, on the "double-conversion" issue, the United States has effectively conceded that the rationales offered by the DOC were irrelevant, since they manifestly had no bearing on the issue that the United States now admits was critical - that is, whether the sales prices were in fact fixed in US dollars. Given these concessions, the US determinations in the SSPC and SSSS cases cannot be sustained.

214. In any event, a review of the facts and the relevant legal principles confirms that the US anti-dumping measures are inconsistent with numerous provisions of the Anti-Dumping Agreement and GATT 1994. Korea therefore requests that the Panel find that: (i) the United States has nullified or impaired a benefit accruing to Korea, directly or indirectly, under the WTO Agreements; and (ii) the United States is impeding the achievement of the objectives of the WTO Agreements.

215. Korea therefore requests that the Panel recommend that the United States bring its anti-dumping measures against SSPC and SSSS from Korea into conformity with the Anti-Dumping Agreement and GATT 1994. Specifically, Korea requests that the Panel suggest that the United States revoke the anti-dumping orders concerning SSPC and SSSS from Korea.

89 See, e.g., US First Submission, paras. 42, 51; US Oral Statement, para. 48.

90 See DSU, art. 1, Appendix 1 (identifying among the "covered agreements" the "Multilateral Agreements on Trade in Goods" in Annex 1A to the Marrakesh Agreement Establishing the WTO, which in turn expressly includes GATT 1994).

91 US First Submission, para. 43.

92 US First Submission, para. 48.

93 US Oral Statement, para. 47.

94 European Communities - Regime for the Importation, Sale and Distribution of Bananas, Report of the Appellate Body, WT/DS27/AB/R, AB-1997-3, at paras. 203-04 ("We agree, therefore, with the Panel that both the Licensing Agreement and the relevant provisions of the GATT 1994, in particular, Article X:3(a), apply to the EC import licensing procedures. . . . [T]he Panel, in our view, should have applied the Licensing Agreement first, since this agreement deals specifically, and in detail, with the administration of import licensing procedures.") (emphasis in original). Having established this sequential approach to consideration of Article X:3(a), and in light of its separate finding that the language of Article X:3(a) is "interchangeable" with the language of the relevant provision of the Licensing Agreement, the Appellate Body also stated that in those particular circumstances "there would have been no need for [the Panel] to address the alleged inconsistency with Article X:3(a). . . ." Id. at para. 204.

95 See Korea�s First Submission, paras. 3.35 - 3.36, 4.38 - 3.42.

96 See US First Submission, para. 105.

97 See Korea�s First Submission, paras. 3.43 - 3.44.

98 See Korea�s First Submission, paras. 4.54 - 4.58.

99 See US First Submission, paras. 107, 113, 155, 164 & n. 150.

100 SSSS Preliminary Determination, at 145 (ROK Ex. 16).

101 See US First Submission, para. 163.

102 See Korea�s First Submission, paras. 4.72 - 4.82.

103 See US First Submission, para. 190.

104 See US First Submission, para. 191.

105 See US First Submission, para. 192.

106 Stainless Steel Sheet and Strip in Coils from Taiwan, 64 Fed. Reg. 30592, 30614 (June 8, 1999) (ROK Ex. 81).

107 See Korea�s First Submission, paras. 4.72 - 4.76.

108 See US First Submission, para. 192.

109 Roses from Colombia, at 7006 (ROK Ex. 52).

110 SSPC Final Determination, at 15456 (ROK Ex. 11); SSSS Final Determination, at 30678 (ROK Ex. 24). Of these, the United States refers to the differences in exchange rates as "the primary basis" for the DOC�s decision to double-convert. See US First Submission, para. 173.

111 Anti-Dumping Agreement, art. 12.2.2, incorporating 12.2.1(iii) by reference.

112 See Polyacetal Resins, paras. 222-24 (finding that the investigating authority did not provide an "adequate statement of reasons" under Article 8:5 of the Tokyo Round Anti-Dumping Code, which is the predecessor provision of Article 12.2, where its statement was "internally contradictory.").

113 See US First Submission, para. 100.

114 See US First Submission, para. 161.

115 US First Submission, para. 166.

116 Korea�s First Submission, para. 5.9.

117 US First Submission, heading III.G.

118 See New Zealand - Imports of Electrical Transformers from Finland, Report of the Panel, adopted on 18 July 1985, L/5814 - 32S/55, para. 4.11 ("The Panel proposes to the Council that it addresses to New Zealand a recommendation to revoke the anti-dumping determination and to reimburse the anti-dumping duty paid."); United States - Anti-Dumping Duties on Gray Portland Cement and Cement Clinker from Mexico, Report of the Panel, ADP/82, 7 Sept. 19992, unadopted, para. 6.2 ("The Panel recommends that the Committee request the United States to revoke the anti-dumping duty order on grey portland cement and cement clinker from Mexico and to reimburse any anti-dumping duties paid or deposited under this order.").Guatemala - Anti-Dumping Investigation regarding Portland Cement from Mexico, Report of the Panel, WT/DS60/R, adopted 25 Nov. 1998, as modified by the Appellate Body on other grounds, para. 8.6. ("Therefore, we suggest that Guatemala revoke the existing anti-dumping measure on imports of Mexican cement, because, in our view, this is the only appropriate means of implementing our recommendation.").

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