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WORLD TRADE
ORGANIZATION

WT/DS179/R
22 December 2000

(00-5484)

  Original: English

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

Report of the Panel


The report of the Panel on United States - Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 22 December 2000 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel. There shall be no ex parte communications with the Panel or Appellate Body concerning matters under consideration by the Panel or Appellate Body.

Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.

 


TABLE OF CONTENTS

 

  1. INTRODUCTION
  2. FACTUAL ASPECTS
    1. PLATE
    2. SHEET

  3. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
    1. KOREA
    2. UNITED STATES

  4. ARGUMENTS OF THE PARTIES AND THIRD PARTIES
  5. INTERIM REVIEW
  6.  FINDINGS
    1. GENERAL REMARKS
    2. ALLEGED "DOUBLE CONVERSION" OF CERTAIN HOME MARKET SALES PRICES

      1. Factual background
      2. Claims under Article 2.4.1 of the AD Agreement

(a) Arguments of the parties
 

(b) Evaluation by the Panel

(i) Does Article 2.4.1 prohibit unnecessary currency conversions?

(ii) Did the United States properly determine that the local sales were made in won?

(iii) Did the United States perform unnecessary currency conversions in violation of Article 2.4.1 of the AD Agreement?

  1. Claims under Article 2.4 of the AD Agreement ("fair comparison")
(a) Arguments of the parties 

(b) Evaluation by the Panel 

  1. Claims under Article X:3(a) of GATT 1994 and Article 12 of the AD Agreement 

(a) Arguments of the parties 

(b) Evaluation by the Panel 

(i) The Plate investigation 

(ii) The Sheet investigation 

  1. TREATMENT OF UNPAID SALES 

  1. Factual background 

  2.  
  3. Claims under Article 2.4 ("allowances") 
  4.  (a) Arguments of the parties 

     (b) Evaluation by the Panel 

(i) Was the DOC's treatment of unpaid sales in respect of POSAM part of the construction of the export price?

(ii) Was the DOC's adjustment for unpaid sales in respect of sales through unaffiliated importers a permissible allowance for a difference affecting price comparability?

(iii) Is Korea's claim regarding the DOC's adjustment for unpaid sales in respect of sales through POSAM to construct an export price within the Panel's terms of reference?

(iv) Is the DOC's adjustment for unpaid sales in respect of sales through POSAM to construct an export price consistent with Article 2.4, fourth sentence, of the AD Agreement?

  1. Claims under Article 2.4 ("fair comparison")

(a) Arguments of the parties

(b) Evaluation by the Panel

  1. MULTIPLE AVERAGING 
  1. Factual background
     
  2. Claim under Article 2.4.2 of the AD Agreement

(a) Arguments of the parties

(b) Evaluation by the Panel

(i) Does Article 2.4.2 prohibit multiple averaging?

(ii) Was the use of multiple averaging permissible in these investigations?

  1. Claim under Article 2.4.1

(a) Arguments of the parties

(b) Evaluation by the Panel

  1. Claim under Article 2.4 ("fair comparison")

(a) Arguments of the parties

(b) Evaluation by the Panel

  1. OTHER CLAIMS BY KOREA
  1. Claims under Article X of GATT 1994 and Articles 6 and 12 of the AD Agreement
     
  2. Claims under Article VI of GATT 1994 and Article 1 of the AD Agreement
  1. CONCLUSIONS AND RECOMMENDATION
  1. CONCLUSIONS
     
  2. RECOMMENDATION AND SUGGESTION
     
ANNEX  1 SUBMISSIONS OF KOREA
 
Annex 1-1 First Submission of Korea
Annex 1-2 Oral Statement of Korea at the First Meeting of the Panel
Annex 1-3 Written Questions from Korea to the United Statesat the First Meeting of the Panel
Annex 1-4 Responses of Korea to Questions Posed by the Panel and by the United States at the First Meeting of the Panel
Annex 1-5 Second Submission of Korea
Annex 1-6 Oral Statement of Korea at the Second Meeting of the Panel
Annex 1-7 Responses of Korea to Questions Posed by the Panel at the Second Meeting of the Panel
 
ANNEX 2 SUBMISSIONS OF THE UNITED STATES

Annex 2-1

First Submission of the United States
Annex 2-2 Oral Statement of the United States at the First Meeting of the Panel
Annex 2-3 Written Questions from the United States to Koreaat the First Meeting of the Panel
Annex 2-4 Responses of the United States to Questions Posed by the Panel and by Korea at the First Meeting of the Panel
Annex 2-5 Second Submission of the United States  Annex 2-6 Oral Statement of the United States at the Second Meeting of the Panel
Annex 2-6 Oral Statement of Korea at the Second Meeting of the Panel
Annex 2-7 Responses of the United States to Questions Posed by the Panel at the Second Meeting of the Panel
 
ANNEX 3 SUBMISSIONS OF THE THIRD PARTIES
Annex 3-1 First Submission of the European Communities
Annex 3-2 First Submission of Japan
Annex 3-3 Oral Statement of the European Communities at the First Meeting of the Panel

Annex 3-4

Oral Statement of Japan at the First Meeting of the Panel

       


I. INTRODUCTION

1.1 On 30 July 1999, Korea requested consultations with the United States regarding the preliminary and final determinations of the United States Department of Commerce ("DOC") on imports of stainless steel plate in coils ("Plate") from Korea, dated 4 November 1998 and 31 March 1999, respectively, and the preliminary and final determinations of the DOC on imports of stainless steel sheet and strip in coils ("Sheet") from Korea, dated 4 January 1999 as amended 26 January 1999 and 8 June 1999, respectively. Korea made its request pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "Dispute Settlement Understanding" or "DSU"), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and Article 17.3 of the Agreement on Implementation of Article VI of GATT 1994 (the "Anti-Dumping Agreement" or "AD Agreement"1). The United States and Korea held consultations on 17 September 1999, but failed to reach a mutually satisfactory solution.

1.2 On 14 October 1999, Korea requested the establishment of a panel with the standard terms of reference set out in Article 7 of the DSU. Korea made its request pursuant to Article 6 of the DSU, Article XXIII:2 of GATT 1994 and Article 17.5 of the AD Agreement2. In that request, Korea identified the United States measures at issue as the anti-dumping duty order on imports of Plate from Korea, dated 21 May 1999, including actions by the DOC preceding this measure, such as the preliminary and final determinations of the DOC dated 4 November 1998 and 31 March 1999, respectively, and the anti-dumping duty order on imports of Sheet from Korea, dated 27 July 1999, including actions by the DOC preceding this measure, such as the preliminary and final determinations of the DOC dated 4 January 1999 as amended 26 January 1999 and 8 June 1999, respectively.

1.3 At its meeting on 19 November 1999, the Dispute Settlement Body ("DSB") established a panel pursuant to the above request3. At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference were:

"To examine, in light of the relevant provisions of the covered agreements cited by Korea in document WT/DS179/2, the matter referred to the DSB by Korea in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".

1.4 The European Communities and Japan reserved their rights as third parties to the dispute.

1.5 On 24 March 2000, the Panel was constituted as follows:

Chairman: Mr. José Antonio S. Buencamino
Members: Mr. G. Bruce Cullen
Ms. Enie Neri de Ross

1.6 The Panel met with the parties on 13-14 June 2000 and 12-13 July 2000. It met with the third parties on 14 June 2000.

1.7 The Panel submitted its interim report to the parties on 9 November 2000. The Panel submitted its final report to the parties on 14 December 2000.

II. FACTUAL ASPECTS

2.1 This dispute concerns the imposition of definitive anti-dumping duties by the DOC on imports of Plate and Sheet from Korea. The DOC imposed definitive duties on Plate and Sheet through separate proceedings.

A. PLATE

2.2 On 31 March 1998, a number of U.S. steel companies and U.S. steel workers' associations filed an anti-dumping application with the DOC alleging that imports of Plate from Korea and five other countries were being exported to the United States at less than their fair value and that such imports were materially injuring an industry in the United States. The DOC received supplemental information from the petitioners in April 1998. On 27 April 1998, the DOC published a notice announcing the initiation of an anti-dumping investigation on imports of Plate from Korea and the five other countries concerned4. The period of investigation selected by the DOC for the purpose of determining whether dumping had occurred went from 1 January 1997 through 31 December 19975.

2.3 On May 27 1998, the DOC issued investigation questionnaires to two Korean companies, including Pohang Iron and Steel Company ("POSCO"6). POSCO replied to Section A of the investigation questionnaire on 1 July 1998 and to Sections B through D of that same questionnaire on 20 July 1998. Additionally, in July, August, September and October 1998, POSCO submitted replies to supplemental questionnaires. In turn, the petitioners filed comments with respect to POSCO's submissions in July, August and September 19987. On 4 November 1998, the DOC published a preliminary affirmative dumping determination, and instructed the U.S. Customs Service to require a cash deposit or the posting of a bond on imports of Plate from Korea, equal to the calculated dumping margins (2.77% for both POSCO and all the other Korean exporters8).

2.4 In November-December 1998, the DOC verified the sales data and the cost data submitted by POSCO. POSCO submitted revised sales data on 30 November 1998. Additionally, both POSCO and the petitioners filed case briefs on 26 January 1999, commenting on the preliminary determination, and rebuttal briefs, commenting on the case briefs, on 2 February 19999. On 31 March 1999, the DOC published a final affirmative dumping determination, and instructed the U.S. Customs Service to continue requiring a cash deposit or the posting of a bond on imports of Plate from Korea, equal to the calculated dumping margins (16.26% for both POSCO and all the other Korean exporters10).

2.5 On 4 May 1999, the United States International Trade Commission informed the DOC of its final affirmative injury determination concerning imports of Plate from the six investigated countries, including Korea11. Following this notification, on 21 May 1999 the DOC published an anti-dumping duty order with respect to imports of Plate from these countries, setting a cash deposit rate for imports of Plate from Korea equal to the dumping margins arrived at by the DOC in its final determination (16.26% for both POSCO and all the other Korean exporters12).

B. SHEET

2.6 On 10 June 1998, a number of U.S. steel companies and U.S. steel workers' associations filed an anti-dumping application with the DOC alleging that imports of Sheet from Korea and seven other countries were being exported to the United States at less than their fair value and that such imports were materially injuring an industry in the United States. The DOC received supplemental information from the petitioners in June 1998. On 13 July 1998, the DOC published a notice announcing the initiation of an anti-dumping investigation on imports of Sheet from Korea and the seven other countries concerned13. The period of investigation selected by the DOC for the purpose of determining whether dumping had occurred went from 1 April 1997 through 31 March 199814.

2.7 On 3 August 1998, the DOC issued investigation questionnaires to five Korean companies: POSCO, Inchon Iron and Steel Co., Ltd ("Inchon"), Taihan Electric Wire Co., Ltd. ("Taihan"), Sammi Steel Co., Ltd., and Dai Yang Metal Co., Ltd15. On 21 September 1998, the DOC selected three mandatory respondents for the investigation, including POSCO. POSCO replied to Section A of the investigation questionnaire on 8 September 1998 and Sections B through D of that same questionnaire on 23 September 1998. Additionally, POSCO submitted replies to supplemental questionnaires in November 1998. In turn, the petitioners filed comments with respect to POSCO's submissions in October 199816. On 4 January 1999, the DOC published a preliminary affirmative dumping determination, and instructed the U.S. Customs Service to require a cash deposit or the posting of a bond on imports of Sheet from Korea, equal to the calculated dumping margins (12.35% for POSCO, 0% for Inchon, 58.79% for Taihan, and 12.35% for all the other Korean exporters17).

2.8 On 28 December 1998, POSCO filed a brief before the DOC alleging that the Department had made "significant ministerial errors" in the calculation of POSCO's dumping margin for the purpose of the preliminary determination (signed on 17 December 1998 and made available to parties thereafter). On 26 January 1999, after reviewing these allegations, the DOC published an amendment to its preliminary determination, which revised the cash deposit rate for POSCO to 3.92%18.

2.9 In December 1998 and February-March 1999, the DOC verified the cost data and the sales data submitted by POSCO. POSCO submitted revised sales data on 8 March 1999. Additionally, both POSCO and the petitioners filed case briefs on 15 April 1999, commenting on the preliminary determination, and rebuttal briefs, commenting on the case briefs, on 21 April 1999. A public hearing was held on 26 April 199919. On 8 June 1999, the DOC published a final affirmative dumping determination, and instructed the U.S. Customs Service to continue requiring a cash deposit or the posting of a bond on imports of Sheet from Korea, equal to the calculated dumping margins (12.12% for POSCO, 0% for Inchon, 58.79% for Taihan, and 12.12% for all the other Korean exporters20).

2.10 On 19 July 1999, the United States International Trade Commission informed the DOC of its final affirmative injury determination concerning imports of Sheet from three of the eight investigated countries, including Korea21. Following this notification, on 27 July 1999 the DOC published an anti-dumping duty order with respect to imports of Sheet from these three countries, setting a cash deposit rate for imports of Sheet from Korea equal to the dumping margins arrived at by the DOC in its final determination (12.12% for POSCO, 0% for Inchon, 58.79% for Taihan, and 12.12% for all the other Korean exporters22).



1. WT/DS179/1.

2. WT/DS179/2.

3.WT/DS179/3.

4. nitiation of Antidumping Duty Investigations: Stainless Steel Plate in Coils from Belgium, Canada, Italy, Republic of South Africa, South Korea, and Taiwan, Federal Register Vol. 63, No. 80, at pages 20580-20585. Korea Exhibit 3.

5.Notice of Preliminary Determination of Sales at Less than Fair Value: Stainless Steel Plate in Coils from the Republic of Korea ("Preliminary Determination on Plate"), Federal Register Vol. 63, No. 213, at page 59536. Korea Exhibit 4.

6. In what follows, we only make reference to POSCO's participation in the investigation since Korea is not challenging the actions taken by the DOC with respect to the other Korean company.

7. Preliminary Determination on Plate, at page 59536. Korea Exhibit 4.

8. Preliminary Determination on Plate, at page 59539. Korea Exhibit 4.

9. Notice of Final Determination of Sales at Less than Fair Value: Stainless Steel Plate in Coils from the Republic of Korea ("Final Determination on Plate"), Federal Register Vol. 64, No. 61, at page 15444. Korea Exhibit 11.

10. Final Determination on Plate, at page 15456. Korea Exhibit 11

11. Antidumping Duty Orders: Certain Stainless Steel Plate in Coils from Belgium, Canada, Italy, the Republic of Korea, South Africa and Taiwan ("Anti-Dumping Duty Order on Plate"), Federal Register Vol. 64, No. 98, at page 27756. Korea Exhibit 13.

12. Anti-Dumping Duty Order on Plate, at page 27757. Korea Exhibit 13.

13. Initiation of Antidumping Duty Investigations: Stainless Steel Sheet and Strip in Coils from France, Germany, Italy, Japan, Mexico, South Korea, Taiwan, and the United Kingdom, Federal Register Vol. 63, No. 133, at pages 37521-37528. Korea Exhibit 15.

14. Notice of Preliminary Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from South Korea ("Preliminary Determination on Sheet"), Federal Register Vol. 64, No. 1, at page 139. Korea Exhibit 16.

15. In what follows, we only make reference to POSCO's participation in the investigation since Korea is not challenging the actions taken by the DOC with respect to the other Korean companies.

16. Preliminary Determination on Sheet, at page 137, Korea Exhibit 16.

17. Preliminary Determination on Sheet, at page 147, Korea Exhibit 16.

18. Notice of Amended Preliminary Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from Korea, Federal Register, Vol. 64, No. 16, at page. 3930. Korea Exhibit 18.

19. Notice of Final Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from the Republic of Korea ("Final Determination on Sheet"), Federal Register Vol. 64, No. 109, at page 30665. Korea Exhibit 24.

20. Final Determination on Sheet, at page 30688. Korea Exhibit 24.

21. Notice of Antidumping Duty Order: Stainless Steel Sheet and Strip in Coils from the United Kingdom, Taiwan and South Korea ("Anti-Dumping Duty Order on Sheet"), Federal Register Vol. 64, No. 143, at page 40556. Korea Exhibit 26.

22. Anti-Dumping Duty Order on Sheet, at pages 40556-40557. Korea Exhibit 26.


To continue with  III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS