WT/DS539/1, G/L/1211  
G/ADP/D124/1, G/SCM/D118/1  
 
20 February 2018  
(18-1086) Page: 1/7 
  Original: English  
 
UNITED STATES – ANTI -DUMPING AND COUNTERV AILING DUTIES ON CER TAIN 
PRODUCTS AND THE USE  OF FACTS AVAILABLE  
REQUEST FOR CONSULTA TIONS BY THE REPUBLIC OF KORE A 
The following communication, dated 14 February 2018 , from the delegation of the Republic of 
Korea  to the delegation of the United States  and to the Chairperson of the Dispute Settlement 
Body, is circulated in accordance with Article  4.4 of the DSU.  
 
_______________  
 
 
1. Upon instructions from my authorities, and on behalf of the Government of the Republi c of 
Korea ( "Korea "), I hereby request consultations with the Government of the United States of 
America ( "United States ") pursuant to Articles 1 and 4 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes ("DSU"), Article XXII: 1 of the General 
Agreement on Tariffs  and Trade 1994 ("GATT 1994 "), Articles 17.2 and 17.3 of the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs  and Trade 1994 ("Anti-Dumping 
Agreement "), and Article 30 of the Agreement on Subsidies and  Countervailing Measures ("SCM 
Agreement "), regarding (a) certain anti -dumping and countervailing duty measures imposed on 
products from Korea; (b) certain provisions of United States ' legislation regarding the use of facts 
available; and (c) the United States ' ongoing conduct as well as its practice of using adverse facts 
available as a rule or norm of general and prospective application in anti -dumping and 
countervailing duty investigations and reviews.  
2. These measures appear to be inconsisten t with the United States ' obligations under certain 
provisions of the GATT 1994, the Anti -Dumping Agreement, the SCM Agreement, and the 
Marrakesh Agreement establishing the WTO.  
3. In the following sections, Korea identifies the specific measures at issue and  indicates the 
legal basis for its complaint.  
I. IDENTIFICATION OF TH E MEASURES  
 
4. For purposes of this request for consultations, the measures at issue include, but are not 
limited to, the following three sets of measures.  
A. Certain Definitive Anti -Dumping an d Countervailing Duty Measures  
5. This request concerns the definitive anti -dumping and countervailing duty measures 
imposed by the United States pursuant to the preliminary and final anti -dumping and 
countervailing duty determinations and orders issued by th e U.S. Department of Commerce 
("USDOC ") in the investigations and administrative reviews listed below .  The measures include 
the conduct of those investigations, any preliminary or final anti -dumping and countervailing duty 
determinations issued in those investigations, any definitive anti -dumping and countervailing 
duties imposed as a result of those investigations, as well as any notices, annexes, decision 
memoranda, orders, amendments, or other instruments issued by the United States in connection 
with these anti -dumping and countervailing duty measures:  WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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   Anti-Dumping Duties on Certain Corrosion -Resistant Steel Products From the 
Republic of Korea (USDOC investigation number A -580-878) ( "Corrosion -
Resistant Steel AD Measure ") as set forth, among others, in :  
o Final Determination of Sales at Less Than Fair Value and Final Affirmative 
Determination of Critical Circumstances, 81 Fed. Reg. 35303 (2 June 2016);  
o Issues and Decision Memorandum for the Final Affirmative Determination in the 
Antidumping Duty Investigation of Certain Corrosion -Resistant Steel Products from 
the Republic of Korea (24 May 2016);  
o Antidumping Duty Order, 81 Fed. Reg. 48390 (25 July 2016).  
 Anti-Dumping Duties on Certain Cold -Rolled Steel Flat Products From the 
Republic of Korea (USDO C investigation number A -580-881) ( "Cold-Rolled Steel 
AD Measure ") as set forth, among others, in:  
o Final Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 49953 (29 July 
2016);  
o Issues and Decision Memorandum for the Final Affirmative Determinati on in the 
Antidumping Duty Investigation of Certain Cold -Rolled Steel Products from the 
Republic of Korea (20 July 2016);  
o Antidumping Duty Order, 81 Fed. Reg. 64432 (20 September 2016).  
 Countervailing Duties on Certain Cold -Rolled Steel Flat Products From the 
Republic of Korea  (USDOC investigation number C -580-882) ( "Cold-Rolled Steel 
CVD Measure ") as set forth, among others, in:  
o Final Affirmative Determination, 81 Fed. Reg. 49943  (29 July 2016);  
o Issues and Decision Memorandum for the Final Determination in  the Countervailing 
Duty Investigation of Certain Cold -Rolled Steel Flat Products from the Republic of 
Korea (20 July 2016);  
o Countervailing Duty Order, 81 Fed. Reg. 64436 (20 September 2016).  
 Anti-Dumping Duties on Certain Hot -Rolled Steel Flat Products Fr om the Republic 
of Korea  (USDOC investigation number A -580-883) ( "Hot-Rolled Steel AD 
Measure ") as set forth, among others, in:  
o Final Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 53419 (12 
August 2016);  
o Issues and Decision Memorandum for th e Final Affirmative Determination in the 
Antidumping Duty Investigation of Certain Hot -Rolled Steel Flat Products from the 
Republic of Korea (4 August 2016);  
o Antidumping Duty Order, 81 Fed. Reg. 67962 (3 October 2016).  
 Countervailing Duties on Certain Hot -Rolled Steel Flat Products From the Republic 
of Korea (USDOC investigation number C -580-884) ( "Hot-Rolled Steel CVD 
Measure ") as set forth, among others, in  
o Final Affirmative Determination, 81 Fed. Reg. 53439 (12 August 2016);  
o Issues and Decision Memorandu m for the Final Determination in the Countervailing 
Duty Investigation of Certain Hot -Rolled Steel Flat Products from the Republic of 
Korea (4 August 2016);  
o Countervailing Duty Order, 81 Fed. Reg. 67960 (3 October 2016).  
 Anti-Dumping Duties on Large Power Transformers From the Republic of Korea 
(USDOC investigation number A -580-867) ( "Large Power Transformers AD 
Measure ") as set forth, among others, in:    
o Final Determination of Sales at Less Than Fair Value, 77 Fed. Reg. 40857 (11 July 
2012);  WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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  o Antidumping Duty Order, 77 Fed. Reg. 53177 (31 August 2012);  
o Review determinations and related measures, including:  
  Final Results of Redetermination Pursuant to Court Remand, ABB INC. v. 
United States, Consol. Court No. 16 -00054, Slip Op. 17 -138 (7 February 
2018).  
 Final Results of Antidumping Duty Administrative Review; 2014 -2015 (82 
Fed. Reg. 13432, 13 March 2017,  third administrative review)  
 the Issues and Decision Memorandum for the Final Results of the 
Administrative Review of the Antidumping Duty Order on Large  
Power Transformers from the Republic of Korea; 2014 -2015 (6 
March 2017)  
 Preliminary Results of Antidumping Duty Administrative Review: 2015 -
2016 (82 Fed. Reg. 42289, 7 September 2017,  fourth administrative 
review)  
 the Decision Memorandum for Preliminary R esults of Antidumping 
Duty Administrative Review: Large Power Transformers from the 
Republic of Korea; 2015 -2016 (31 August 2017)  
 Final Results of the Expedited First Sunset Review of the Antidumping Duty 
Order, 82 Fed. Reg. 51604 (7 November 2017):  
 Issues  and Decision Memorandum for the Expedited First Sunset 
Review of the Antidumping Duty Order on Large Power 
Transformers from the Republic of Korea (31 October 2017).  
6. This request also concerns  any modification, review, replacement or amendment to the 
definitive anti -dumping and countervailing duty measures listed above and any closely connected, 
subsequent measures to determine a dumping margin or subsidy amount, or related anti -dumping 
duty or countervailing duty rates.  
B. Section 776 of the Tariff Act of 19 30 (19 U.S.C. § 1677e) as amended by Section 
502 of the Trade Preferences Extension Act of 2015, and its implementing 
regulations  
7. This request also concerns a number of provisions of U.S. law relating to the use of facts 
available and the drawing of adver se inferences in certain situations by the USDOC under national 
legislation including:  
 Section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114 -27;  
 Section 776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e;  
 The implementing regulations of the USDOC in 19 C.F.R. § 351, including in particular 
section 308; and  
 Any other related, subsequent measures that enable or implement the use of facts 
available in anti -dumping and countervailing duty investigations, admini strative reviews 
and other parts of such proceedings.  
C. Use of Adverse Facts Available As Ongoing Conduct or a Rule or Norm of General 
Application  
8. This request also concerns the ongoing conduct or the practice of the USDOC of using 
"adverse facts available " as a rule or norm of general and prospective application when a producer 
or exporter is found to have failed to cooperate by not acting to the best of its ability.  Under this 
ongoing conduct or norm, whenever the USDOC makes a finding that a producer or exporter has 
failed to cooperate to the best of its ability, it adopts adverse inferences and, in determining the 
duty rate for this producer or exporter, selects facts from the record that are adverse to the WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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  interests of this producer or exporter without establishing that such inferences can reasonably be 
drawn and that such facts are the "best information available " in the particular circumstances1. 
II. LEGAL BASIS  
 
9. Korea is concerned that the measures identified above are inconsistent with the WTO 
obliga tions of the United States, including, among others, under Article 6.8 and Annex II of the 
Anti-Dumping Agreement and Article 12.7 of the SCM Agreement.  
10. The failure of the United States to comply with its obligations relating to the use of facts 
available when making preliminary and/or final determinations of dumping and/or subsidization 
has a direct consequential effect on other aspects of the investigation or review that relate to the 
determination of dumping or subsidization, the determination of injury by dumped or subsidized 
imports, the imposition and maintenance of anti -dumping or countervailing duties, and the level of 
such duties.  
11. In addition, Korea is concerned that in the specific investigations and reviews leading to the 
adoption and maintenance of the above listed anti -dumping and countervailing duty measures, the 
United States failed to comply with a number of procedural and substantive obligations under the 
Anti-Dumping Agreement and the SCM Agreement, as identified below.   
A. As Applied Challeng e to Certain Definitive Anti -Dumping and Countervailing Duty 
Measures  
12. With respect to the anti -dumping and countervailing duty measures listed in section I.A of 
this request, it appears that the USDOC did not assess the facts properly and objectively in fi nding 
that the affected Korean producers and exporters failed to act to the best of their abilities and to 
cooperate in providing information necessary to determine a margin of dumping or an amount of 
subsidization.    Therefore there appears not to have b een a valid basis for resorting to the use of 
facts available in the way the USDOC did.   
13. Furthermore, when resorting to the use of facts available, the USDOC resorted to the 
drawing of "adverse " inferences and failed to take into account all substantiated  facts on the 
record and all evidence that was verifiable and appropriately submitted in a timely manner.  In 
each of these measures, the USDOC based the determination of dumping for the relevant 
producers or exporters on assumptions or speculation with a view to arriving at a result that was 
adverse to the interests of these producers or exporters rather than seeking to replace missing 
information with the best information available, disregarding among others information that was 
submitted by the Korean pr oducers or exporters to the best of their ability.  The USDOC 's 
determinations in the investigations and reviews that led to the adoption or continuation of these 
measures did not reflect a valid process of reasoning and evaluation.  Korea is concerned tha t 
when determining dumping and subsidization on the basis of facts available in the context of the 
above -listed measures, the USDOC used facts available in a punitive manner.  
14. Korea therefore considers that the USDOC  appears to have acted in violation of the United 
States ' obligations under Article 6.8 and Annex II of the Anti -Dumping Agreement, in particular 
paragraphs 1, 3, 5, 6 and 7 of Annex II and Article 12.7 of the SCM Agreement relating to the use 
of facts ava ilable.   
15. Moreover, as a result of the undue use of facts available when determining dumping and/or 
subsidization, these measures appear to be inconsistent with several provisions of the Anti -
Dumping Agreement and the SCM Agreement relating to the determin ation of dumping or 
subsidization, the determination of injury and causation, the determination of the amount of the 
                                                
1 The use of adverse facts available has been consistently applied by the USDOC and is undertaken 
pursuant to:  
• Section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114 -27;  
• Section 776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e;  
• The implementing regulations of the USDOC in 19 C.F.R. § 351, including in particular section 
308. 
It is also evidenced, for example, by the manner in which facts available was used in the measures 
identified in Section I.A of this Request.  WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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  duty to be imposed, and the maintenance of the duty, such as Articles 1, 2.1, 2.2, 2.3, 2.4, 3.1, 
3.2, 3.4, 3.5, 5.8, 9.2, 9.3, 9.4, 9.5, 1 1.1, 11.3, 11.4, and 18.1 of the Anti -Dumping Agreement 
as well as Articles 1, 10, 11.2, 11.3, 11.9, 14, 15.1, 15.2, 15.4, 15.5, 19.1, 19.3, 19.4, 21.1, 21.3, 
and 32.1 of the SCM Agreement, and Articles VI:1, VI:2 and VI:3 of the GATT 1994.   
16. Furthermore, Korea is concerned that when resorting to the use of facts available in the 
context of these anti -dumping and countervailing duty measures, the United States failed to 
comply with at least the following provisions, among others:  
a. Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement because 
the USDOC failed to give notice of the information which it required and to give ample 
opportunity for interested parties to present in writing all evidence which they considered 
relevant in the investigation;  
b. Article 6.2 of the Anti -Dumping Agreement and Article 12.2 of the SCM Agreement because 
the USDOC failed to provide interested parties with the full opportunity to defend their 
interests;  
c. Article 6.6 of the Anti -Dumping Agreement and Article  12.5 of the SCM Agreement because 
the USDOC failed to satisfy itself as to the accuracy of the information supplied by 
interested parties upon which its findings were based;  
d. Article 6.7 and Annex I of the Anti -Dumping Agreement and Article 12.6 and Annex VI of 
the SCM Agreement because the USDOC failed to verify information provided or to obtain 
further details and failed to make available the results of verifications to the firms to which 
they pertain or provide disclosure thereof;  
e. Article 6.9 of the Ant i-Dumping Agreement and Article 12.8 of the SCM Agreement because 
the USDOC failed to inform all interested parties of the essential facts under consideration 
which formed the basis for the decision to apply definitive measures;  
f. Article 6.10 of the Anti -Dumping Agreement because the USDOC failed to properly 
determine an individual margin of dumping for each known producer or exporter;  
g. Article 9.4 of the Anti -Dumping Agreement because in situations where sampling was 
used2 the USDOC determined an all other s rate that did not disregard margins established 
under the circumstances of Article 6.8;  
h. Articles 11.2, 11.3 and 11.6 of the SCM Agreement because the USDOC requests 
information to be provided on "any other forms of assistance " that is not included in th e 
application on which the investigation is based, and applies facts available whenever it 
discovers information that was not provided in response to this request, without examining 
whether the information obtained or discovered suffices to initiate the in vestigation; and  
i. Article 11.4 of the Anti -Dumping Agreement and 21.4 of the SCM Agreement because the 
USDOC failed to act in accordance with the provisions on evidence and procedure as 
outlined above in the relevant reviews.  
17. The above -listed violations af fect all of the specific anti -dumping and countervailing duty 
measures that were referred to in section I.A of this request.  
B. As Such Challenge to Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e) as 
amended by Section 502 of the Trade Preferences Extension Act of 2015, and its 
implementing regulations  
18. With regard to Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e) as amended by 
Section 502 of the Trade Preferences Extension Act of 2015, and the above -listed related legal 
provisions of the United States ' national legislation governing the use of facts available, Korea is 
                                                
2 This was the case for example in the fourth administrative review in Large Power Transformers AD 
Measure . WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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  concerned that these provisions are inconsistent with the United States ' obligations under 
Article  6.8 and Annex II of the Anti -Dumping Agreement, and Article 12.7 of the SC M Agreement.   
19. Section 502 of the Trade Preferences Extension Act of 2015 amending Section 776 of the 
Tariff Act of 1930 (19 U.S.C. § 1677e) provides that if the authorities find that an interested party 
has failed to cooperate by not acting to the best of  its ability to comply with a request for 
information, the authorities may use an inference that is adverse to the interests of that party in 
selecting from among the facts otherwise available.  In particular, it provides that the authorities 
are not requi red to determine, or make any adjustments to, a countervailable subsidy rate or 
weighted average dumping margin based on any assumptions about information the interested 
party would have provided if the interested party had complied with the request for in formation.  
Section 502 gives full discretion to the authorities to apply the highest rate or margin available 
from among the available dumping margins or countervailable subsidy rates, without the need to 
corroborate such margins and provides that the aut horities are not required to estimate what the 
countervailable subsidy rate or dumping margin would have been if the interested party found to 
have failed to cooperate had cooperated or to demonstrate  that the countervailable subsidy rate or 
dumping margin  used by the administering authority reflects an alleged commercial reality of the 
interested party.  
20. Korea considers that these legal provisions unduly permit the United States ' investigating 
authorities, and in particular the USDOC, not only to replace th e missing necessary information but 
to disregard verifiable and relevant information that was appropriately submitted by the producers 
or exporters.  They expressly relieve the authorities from the requirement to use best available 
information with special  circumspection in certain circumstances and give full discretion to the 
authorities to deliberately apply the highest rate, without the need to even consider whether this 
rate has a basis in the commercial reality of the producer or exporter in question, or is supported 
by available other information that relates to the producer or exporter in question.  These 
provisions thus provide that there is no obligation on the authorities to abide by the obligations on 
the use of facts available imposed by Article 6.8 and, among others, paragraphs 1, 3, 5, 6 and 7 of 
Annex II of the Anti -Dumping Agreement and Article 12.7 of the SCM Agreement.  These 
provisions unduly relieve the obligation on the investigating authorities to use facts available that 
reasonably repl ace missing "necessary information " with a view to arriving at an accurate 
determination.  
21. In addition, Korea considers that the unfettered discretion granted to the authorities to act 
in this manner is inconsistent with the United States ' obligation under Article 18.4 of the Anti -
Dumping Agreement and Article 32.5 of the SCM Agreement, as well as Article XVI:4 of the 
Marrakesh Agreement establishing the WTO to ensure conformity of its laws regulations and 
administrative procedures with the  provisions of, in particular, Article 6.8 and Annex II of the Anti -
Dumping Agreement and Article 12.7 of the SCM Agreement.  
C. As Such Challenge to the USDOC 's Use of Adverse Facts Available As an Ongoing 
Conduct or Rule or Norm of General Application  
22. Finally, with regard to the USDOC 's use of adverse facts available Korea is concerned that, 
under this ongoing conduct or norm, the USDOC selects facts from the record that are adverse to 
the interests of foreign producers or exporters without establishing  that the adverse inferences can 
reasonably be drawn and that such facts are the "best information available " in the particular 
circumstances.  Korea considers that this USDOC ongoing conduct or norm appears to be 
inconsistent with the United States ' obligations relating to the use of facts available, because, 
among other things, the United States disregards verifiable and relevant information that was 
appropriately submitted by the producers or exporters and fails to act with special circumspection 
when ba sing its findings on information from secondary sources, thus failing to use the "best 
information available ".   
23. Korea considers that the USDOC 's ongoing conduct or norm of using adverse facts available 
whenever it makes a finding of a failure to cooperate  is inconsistent with the obligation that 
investigating authorities undertake a process of reasoning and evaluation when  selecting the facts 
available that reasonably replace the missing "necessary information " to arrive at an accurate 
determination and th us appears to violate Article 6.8 and Annex II of the Anti -Dumping 
Agreement, in particular paragraphs 1, 3, 5, 6 and 7 of Annex II  and Article 12.7 of the SCM 
Agreement.  WT/DS539/1 • G/L/1211 • G/ADP/D124/1 • G/SCM/D118/1  
 
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  III. CONCLUSION  
 
24. In sum, Korea is concerned  that the above -listed anti -dumping and countervailing duty 
measures, as well as the legal provisions and the ongoing conduct or rule of general and 
prospective application identified above, appear to be inconsistent with the relevant obligations of 
the Un ited States under the GATT 1994, the Anti -Dumping Agreement, the SCM Agreement as well 
as the Marrakesh Agreement establishing the WTO.  
25. The United States ' measures appear to nullify or impair the benefits accruing to Korea 
directly or indirectly under the  cited agreements.  
26. Korea reserves the right to raise additional factual and legal issues, and to address 
additional measures and claims regarding the above matters, in the course of the consultations 
and in any request for the establishment of a panel.  
27. Korea looks forward to receiving the United States ' reply to this request and to fixing a 
mutually acceptable date for consultations.  
 
 
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