WORLD TRADE  
ORGANIZATION  WT/DS379/2 
12 December 2008 
 
 (08-6132) 
 Original:   English 
  
 
UNITED STATES – DEFINITIVE ANTI-DUMPING AND COUNTERVAILING  
DUTIES ON CERTAIN PRODUCTS FROM CHINA 
 
Request for the Establishment of a Panel by China
 
 
 
 The following communication, dated 9 December  2008, from the delegation of China to the 
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.  
_______________ 
 
 
On 19 September 2008, the People's Republic of  China requested consultations with the 
United States of America pursuant to Article 4 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  ("DSU"), Article XXIII:1 of the General Agreement on Tariffs 
and Trade 1994  ("GATT 1994"), Article 30 of the Agreement on Subsidies and Countervailing 
Measures  ("SCM Agreement"), and Article 17 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994  ( "AD Agreement").  This  request for consultations 
concerned the anti-dumping and countervailing duti es imposed by the United States pursuant to 
certain final anti-dumping and countervailing duty determinations and orders issued by the US 
Department of Commerce, as described below.   
 Consultations were held on 14 November 2008 with a view to reaching a mutually 
satisfactory solution.  These consultations clarified ce rtain issues pertaining to this matter, but failed 
to resolve the dispute. 
 Therefore, China respectfully requests, pur suant to Articles 4.7 and 6 of the DSU, 
Article XXIII:2 of the GATT 1994, Article 30 of the SCM Agreement, and Article 17 of the AD 
Agreement, that the Dispute Settle ment Body ("DSB") establish a Panel to examine this matter.  
China asks that this request be  placed on the agenda of the DSB meeting to be held on 
22 December 2008.  China further requests that the Pa nel have the standard term s of reference, as set 
forth in Article 7.1 of the DSU.   
A. S
PECIFIC MEASURES AT ISSUE  
 This request for establishment of a Panel con cerns the following measures, which include the 
definitive anti-dumping and countervailing duties imposed pursuant to their authority, the conduct of 
the underlying anti-dumping and countervailing duty inv estigations, and the combined effect of the 
anti-dumping and countervailing du ty determinations and duties in each of the specified 
investigations: 
Investigations A-570-910 and C-570-911 ("CWP") 
• Notice of Final Determination of Sales at Less Than Fair Value and Affirmative 
Final Determination of Critical Circumstances: Circular Welded Carbon Quality WT/DS379/2 
Page 2  
 
  Steel Pipe from the People's Republic of China , 73 Federal Register 31970 
(5 June 2008). 
• Notice of Antidumping Duty Order: Circular Welded Carbon Quality Steel Pipe 
from the People's Republic of China , 73 Federal Register 42547 (22 July 2008). 
• Circular Welded Carbon Quality Steel Pi pe from the People's Republic of China: 
Final Affirmative Countervailing Duty Determination and Final Affirmative 
Determination of Critical Circumstances, 73 Federal Register 31966 
(5 June 2008). 
• Circular Welded Carbon Quality Steel Pipe  from the People's Republic of China : 
Notice of Amended Final Affirmative Countervailing Duty Determination and 
Notice of Countervailing Duty Order, 73 Federal Register 42545 (22 July 2008). 
Investigations A-570-912 and C-570-913 ("OTR") 
• Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: 
Final Affirmative Determination of Sales at Less than Fair Value and Partial 
Affirmative Determination of Critical Ci rcumstances, 73 Federal Register 40485  
(15 July  2008).  
• Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: 
Notice of Amended Final Affirmative Determination of Sales at Less Than Fair 
Value and Antidumping Duty Order, 73 Federal Register 51624 (4 Sept. 2008). 
• Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: 
Final Affirmative Countervailing Duty  Determination and Final Negative 
Determination of Critical Circumstances, 73 Federal Register 40480 
(15 July 2008). 
• Certain New Pneumatic Off-the-Road Tires from the People's Republic of China: 
Countervailing Duty Order, 73 Federa l Register 51627 (4 Sept. 2008). 
Investigations A-570-914 and C-570-915 ("LWRP") 
• Final Determination of Sales at Less Than Fair Value and Affirmative 
Determination of Critical Circumstances, in Part: Light–Walled Rectangular 
Pipe and Tube from the People's Republic of China,  73 Federal Register 35652 
(24 June 2008). 
• Light–Walled Rectangular Pipe and Tube  from Mexico, the People's Republic of 
China, and the Republic of Korea: Antidumping Duty Orders, 73 Federal Register 45403 (5 Aug. 2008). 
• Light-Walled Rectangular Pipe and Tube  From People's Republic of China : 
Final Affirmative Countervailing Duty I nvestigation Determination, 73 Federal 
Register 35642 (24 June 2008). 
• Light–Walled Rectangular Pipe and Tube from the People's Republic of China : 
Notice of Countervailing Duty Order, 73 Federal Register 45405 (5 Aug. 2008).  WT/DS379/2 
 Page 3 
 
 
  Investigations A-570-916  and C-570-917 ("LWS") 
• Laminated Woven Sacks from the People's Republic of China : Final 
Determination of Sales at Less Than  Fair Value and Partial Affirmative 
Determination of Critical Circumstances, 73 Federal Register 35646 (24 June 2008). 
• Notice of Antidumping Duty Order: Laminated Woven Sacks From the People's 
Republic of China , 73 Federal Register 45941 (7 Aug. 2008) 
• Laminated Woven Sacks from th e People's Republic of China : Final Affirmative 
Countervailing Determination and Final Affirmative Dete rmination, in Part, of 
Critical Circumstances, 73 Federal Register 35639 (24 June 2008). 
• Laminated Woven Sacks From the People's Republic of China : Countervailing 
Duty Order, 73 Federal Register 45955 (7 Aug. 2008). 
 In certain of the investigations specified a bove, the US Department of  Commerce stated that 
US law provides no basis to make any adjustment to either the anti-dumping or countervailing duty 
calculations to avoid the imposition of a double remedy for the same unfair trade practice, where such a double remedy arises from the use of the US non-market economy (NME) methodology to impose anti-dumping duties simultaneously with the imposition of countervailing duties on the same product.  
The measures therefore include, as an omission, th e failure of the United States to provide legal 
authority for the US Department of Commerce to  avoid the imposition of a double remedy when it 
imposes anti-dumping duties determined pursuant to the US NME methodology simultaneously with 
the imposition of countervailing duties on the same product. 
B. L
EGAL BASIS OF THE COMPLAINT  
 China considers that the measure s specified above are inconsistent with the obligations of the 
United States under, inter alia,  Articles I and VI of the GATT 1994, Articles 1, 2, 10, 12, 13, 14, 19, 
and 32 of the SCM Agreement, Articles 1, 2, 6, 9, 18, and Annex II(1) of the AD Agreement, and 
Article 15 of the Protocol on the Accession of the People's Republic of China (the Protocol of 
Accession). 
1. As Applied Claims 
 China considers that the CWP, OTR, LWRP , and LWS anti-dumping and countervailing duty 
investigations, determinations and orders, th e definitive anti-dumping and countervailing duties 
imposed pursuant thereto, as well as the combined effect of the anti-dumping and countervailing duty 
determinations, orders, and duties in each such investigation, are inconsistent, at a minimum, with the 
following obligations of the United States under the covered agreements:1 
                                                      
1 Unless otherwise noted, all inconsistencies relating to the GATT 1994, the SCM Agreement, and the 
Protocol of Accession arise in connection with each of the CVD measures in the four identified investigations, 
while all inconsistencies relating to the AD Agreem ent arise in connection with each of the anti-dumping 
measures in the four identified investigations. WT/DS379/2 
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  (a) in connection with the alleged provision of  goods for less than adequate remuneration 
– 
(i) the US authorities' determination that certain state-owned enterprises (SOEs) 
are "public bodies" within the meaning of Article 1.1(a)(1) of the SCM Agreement; 
(ii) in the absence of a valid determinati on that certain SOEs are public bodies, 
the US authorities' failure to make a determination that China "entrusts or 
directs" SOEs to provide goods to producers of subject merchandise, within the meaning of Article 1.1(a)(1)(iv) of the SCM Agreement; 
(iii) even assuming a valid determination that certain SOEs are public bodies, the 
US authorities' failure to make a determ ination that SOEs "entrust or direct" 
trading companies to provide goods to producers of subject merchandise, within the meaning of Article 1.1(a)(1)(iv) of the SCM Agreement;
2 
(iv) the US authorities' determination that the sale of goods by trading companies 
to producers of subject merchandise confers a countervailable subsidy within 
the meaning of Article 1 of the SC M Agreement and a benefit under the 
guidelines set forth in Article 14(d) of the SCM Agreement; 
(v) the US authorities' failure to determin e whether the alleged benefit received 
by trading companies was passed through to producers of subject merchandise, in violation of Article VI:3 of the GATT 1994 and Articles 10, 
14, 19.1, 19.4, and 32.1 of the SCM Agreement; 
(vi) the US authorities' inclusion  in subsidy benefit calculations of only those 
transactions that produced a positive be nefit, while excluding transactions 
that yielded no benefit, in violation of Article VI:3 of the GATT 1994 and Articles 10, 14, 19.1, 19.4, and 32.1 of the SCM Agreement; 
(b) in connection with the alleged provision of land and land use rights for less than 
adequate remuneration –  
(i) the failure of the US authorities to de monstrate specificity under Articles 2.1 
and 2.2 of the SCM Agreement, and to clearly substantiate these determinations of specificity on the basis of positive evidence, as required by Article 2.4 of the SCM Agreement;
3  
(c) in connection with the alleged provisio n of loans on preferential terms –  
(i) the US authorities' determination that certain state-owned commercial banks 
(SOCBs) are "public bodies" within the meaning of Article 1.1(a)(1) of the 
SCM Agreement;4 
(ii) in the absence of a valid determinati on that certain SOCBs are public bodies, 
the US authorities' failure to make a determination that China "entrusts or 
                                                      
2 The inconsistencies set forth in paras. a(iii) – a(v) do not arise in c onnection with the LWS CVD 
measures.   
3 The inconsistency set forth in para. b(i) does not arise in connection with the CWP CVD measures.   
4 The inconsistencies set forth in paras. c(i) – c( iii) do not arise in connection with the LWRP CVD 
measures.    WT/DS379/2 
 Page 5 
 
 
  directs" SOCBs to provide loans to producers of subject merchandise, within 
the meaning of Article 1.1(a)(1)(iv) of the SCM Agreement; 
(iii) the failure of the US authorities to de monstrate specificity under Articles 2.1 
and 2.2 of the SCM Agreement, and to clearly substantiate these determinations of specificity on the basis of positive evidence, as required by 
Article 2.4 of the SCM Agreement;  
(d) in connection with each instance in which th e US authorities resorted to a benchmark 
outside of China for the purpose of dete rmining the existence and amount of any 
alleged subsidy benefit –  
(i) the US authorities' rejection of preva iling terms and conditions in China as 
the basis for determining whether, and to what extent, subject producers 
received a subsidy benefit under the methodologies set forth in Article 14 of the SCM Agreement;  
(ii) the US authorities' rejection of preva iling terms and conditions in China as 
the basis for determining whether, and to what extent, producers of subject 
merchandise received a subsidy benefit, without making a finding of "special 
difficulties" as required under Article 15 of the Protocol of Accession;  
(iii) the US authorities' use of benefit methodologies that the United States did not 
notify to the Committee on Subsidies and Countervailing Measures, as 
required by Article 15(c) of the Protocol of Accession;  
(e) in connection with all countervailing duty i nvestigations, determin ations and orders 
specified above –   
(i) the failure of the US authorities to take all necessary steps to ensure that the 
imposition of countervailing duties was in accordance with Article VI of the GATT 1994 and the SCM Agreement, as re quired by Article 10 of the SCM 
Agreement;  
(ii) the use of a specific action against alle ged subsidies other than in accordance 
with the provisions of the GATT 1994, as interpreted by the SCM Agreement, in violation of Artic le 32.1 of the SCM Agreement;  
(iii) the imposition of countervailing duties in  a manner inconsistent with the 
requirements of Article VI:3 of the GATT 1994;  
(f) in connection with the US authorities' use of its NME methodology for the purpose of 
a determination of dumping and the impos ition of anti-dumping duties under Article 
VI of the GATT 1994 and the AD Agreement,  simultaneously with a determination 
of subsidization and imposition of count ervailing duties on the same product –   
(i) the US authorities' levying of countervailing duties in excess of the amount of 
the subsidy found to exist, in violation of Article 19.4 of the SCM 
Agreement;
5  
                                                      
5 The inconsistencies set forth in paras. f(i) – f(vii)  relate to each of the CVD and AD measures in the 
four identified investigations, as well as to the combined effect of the CVD and AD measures in each of the 
identified investigations. WT/DS379/2 
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  (ii) the use by the US authorities of a specifi c action against subsidization that is 
not in accordance with the GATT 1994, as interpreted by the SCM Agreement, in violation of Artic le 32.1 of the SCM Agreement;  
(iii) the US authorities' failure to take al l necessary steps to ensure that the 
imposition of countervailing duties was in accordance with Article VI of the 
GATT 1994 and the SCM Agreement, as re quired by Article 10 of the SCM 
Agreement;  
(iv) the US authorities' levying of anti -dumping and countervailing duties in 
excess of the "appropriate amounts," in vi olation of Article 9.2 of the AD 
Agreement and Article 19.3 of the SCM Agreement, respectively;  
(v) the US authorities' failure to make a fair comparison between the export price 
and normal value, in violation of Article 2.4 of the AD Agreement;  
(vi) the US authorities' imposition of anti-dumping duties in excess of the amount 
of dumping found to exist, in violation of Article 9.3 of the AD Agreement;  
(vii) in violation of Article I of the GATT 1994, the failure of the United States to 
accord to imports from China, immedi ately and unconditionally, the same 
unconditional entitlement to the avoidan ce of a double remedy for the same 
unfair trade practice that it accords to imports of like products from the territories of other WTO Members. This benefit is evidenced, inter alia,  by 
the presumption that the US Department of Commerce has consistently applied concerning the effects of domest ic subsidies on export prices, and by 
the consistent position of the US Departme nt of Commerce that it will adjust 
neither the costs of production nor the export prices in an anti-dumping duty investigation in a manner that would produce a double remedy for the same unfair trade practice.   
(g) in connection with the conduct of the underlying anti-dumping and countervailing 
duty investigations –   
(i) the US authorities' failure to invite China for consultations regarding new 
subsidy allegations, as required by Article 13.1 of the SCM Agreement;  
(ii) the US authorities' failure to allow 30 days for responses to questionnaires 
issued in connection with subsidy allega tions made after the initiation of the 
investigation, as required by Article 12.1.1 of the SCM Agreement;  
(iii) the US authorities' failure to take due account of any difficulties experienced 
by interested parties in supplying info rmation requested in questionnaires, as 
required by Article 12.11 of the SCM Agreement;   
(iv) the US authorities' failure to provide notice to interested parties of the 
information which the US authorities re quired to make a determination with 
respect to whether certain entities are "public bodies" within the meaning of 
Article 1.1(a)(1) of the SCM Agreement, as required by Article 12.1 of the SCM Agreement;  
(v) the US authorities' failure to inform in terested parties of the essential facts 
under consideration with respect to whether certain entities are "public  WT/DS379/2 
 Page 7 
 
 
  bodies" within the meaning of Article 1.1(a)(1) of the SCM Agreement, as 
required by Article 12.8 of the SCM Agreement;  
(vi) the US authorities' failure to provide notice to interested parties of the 
information which the US authorities required to determine whether the simultaneous application of anti-dumpi ng and countervailing duties results in 
a double remedy for the same unfai r trade practice, as required by 
Article 12.1 of the SCM Agreement a nd Articles 2.4 and 6.1 of the AD 
Agreement, as well as Annex II(1) of the AD Agreement;  
(vii) the US authorities' failure to inform in terested parties of the essential facts 
under consideration with respect to wh ether the simultaneous application of 
anti-dumping and countervailing duties results in a double remedy for the 
same unfair trade practice, as required by Article 12.8 of the SCM Agreement and Article 6.9 of the AD Agreement; and  
(viii) the US authorities' use of adverse infe rences and facts available in a manner 
inconsistent with Article 12.7 of the SCM Agreement, including, in 
particular, those instances in which the US authorities drew "adverse 
inferences" or relied upon "neutral" or "adverse" facts available, having failed 
to request information from interested parties concerning the factual issue in 
question.   
2. As Such Claims 
 Pursuant to Section 773(c) of the Tariff Act of 1930, 19 U.S.C. 1677b(c), the US Department 
of Commerce determines normal value in anti-dum ping investigations involving products from 
countries it has designated as non-market economies us ing the values of factors of production in 
countries it has designated as market economies (so-called "surrogate values").   
 In those circumstances in which the US Depa rtment of Commerce uses surrogate values for a 
producer's costs of production in an anti-dumping investigation conducted in accordance with its 
NME methodology, the resulting price comparison  under Article 2 of the AD Agreement will 
necessarily offset any subsidy received by the produ cer, at a minimum in those circumstances where 
the surrogate values are higher than a respondent produ cer's putatively subsidized costs of production.  
The United States has not provided the Department of  Commerce with any legal authority to adjust 
either the anti-dumping or countervailing duty cal culations to avoid the imposition of a double 
remedy when it imposes anti-dumping duties de termined pursuant to its NME methodology 
simultaneously with the imposition of countervailing duties on the same product.  The Department of 
Commerce has acknowledged the absence of any such legal authority. 
 China considers that the absence of any legal authority for the Department of Commerce to 
avoid the imposition of a double remedy is an omi ssion that, as such, is inconsistent with the 
following obligations under the covered agreements: 
• Article 19.4 of the SCM Agreement, inso far as the absence of legal authority to 
avoid a double remedy necessarily will lead the US authorities to levy countervailing duties in excess of the am ount of subsidy found to exist;  
• Article 32.1 of the SCM Agreement, inso far as the absence of legal authority to 
avoid a double remedy necessarily will lead the US authorities to make use of a specific action against subsidization that  is not in accordance with the GATT 
1994, as interpreted by the SCM Agreement; WT/DS379/2 
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  • Article 10 of the SCM Agreement, insofar as the absence of legal authority to 
avoid a double remedy necessarily will lead the US authorities to fail to take all 
necessary steps to ensure that the imposition of countervailing duties is in 
accordance with Article VI of GATT 1994 and the SCM Agreement; 
• Article 9.2 of the AD Agreement and Article 19.3 of the SCM Agreement, 
respectively, insofar as the absence of le gal authority to avoid a double remedy 
necessarily will lead the US authorities to levy anti-dumping and countervailing 
duties in excess of the "appropriate amounts"; 
• Article 2.4 of the AD Agreement, insofa r as the absence of legal authority to 
avoid a double remedy necessarily will lead the US authorities not to make a fair comparison between the export price and normal value; and 
• Article 9.3 of the AD Agreement, insofa r as the absence of legal authority to 
avoid a double remedy necessarily will lead the US authorities to impose anti-
dumping duties in excess of the amount of dumping found to exist. 
 In addition, the United States, in all cases, ensures that it avoids the imposition of a double 
remedy for the same unfair trade practice in para llel trade remedy investigations involving imports 
from WTO Members that the United Stat es has designated as market economies.
6  The United States 
extends this benefit automatica lly and unconditionally to imports  from WTO Members that it has 
designated as market economies.  To the extent th at US law does not permit the Department of 
Commerce to avoid the imposition of a double remedy for the same unfair trade practice in parallel 
anti-dumping and countervailing duty investigations involving imports from WTO Members that the 
United States has designated as non-market economi es, China considers that US law is, as such, 
inconsistent with Article I of the GATT 1994.  This  is because the United States fails to accord to 
imports from China, immediately and unconditionally,  an advantage, favour, privilege or immunity 
with respect to the method of levying import duti es or charges, and with respect to rules and 
formalities in connection with importation, that it acco rds to like products originating in the territories 
of other WTO Members. 
 For these reasons, China considers that the measures specified above nullify and impair 
benefits accruing to China under the GATT 1994, the SCM Agreement, the Protocol of Accession, 
and the AD Agreement.   
__________  
                                                      
6 See, e.g., Tool Steel from the Federal Republic of Germany; Correction to Early Determination of 
Anti-dumping Duty , 51 Fed. Reg. 10071 (24 March 1986); Notice of Final Results of Antidumping 
Administrative Review: Low En riched Uranium from France , 69 Fed. Reg. 46501 (3 August 2004); Certain 
Cut-to-Length Carbon Steel Plate From Germany: Final Results of Antidumping Duty Administrative Review,  
62 Fed. Reg. 18390 (15 April 1997);  U.S. Steel Group v. United States,  15 F.Supp. 2d 892 (Ct. Int' l Trade 
1998); Stainless Steel Wire Rod from the Republic of Korea: Final Results of Antidumping Duty Administrative 
Review, 69 Fed. Reg. 19153 (12 April 2004); Wheatland Tube Co v.United States,  495 F.3d 1355 (Fed. Cir. 
2007).