UNITED STATES INTERNATIONAL TRADE COMMISSION

 TOP-OF-THE-STOVE STAINLESS STEEL COOKING WARE FROM KOREA

Investigations Nos. 701-TA-267 and 731-TA-304 (Review) (Remand)

DETERMINATION AND VIEWS OF THE COMMISSION

(USITC Publication No. 3485, February 2002)
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1Chefline Corporation, et. al. v. United States, Court No. 00-05-00212, Slip Op. 01-118

(September 26, 2001) (“Slip Op.”).

2Vice Chairman Deanna Tanner Okun and Commissioner Lynn M. Bragg determine that

revocation of the countervailing duty and antidumping duty orders on top-of-the-stove stainless steel

cooking ware from Korea would not be likely to lead to continuation or recurrence of material injury to an

industry in the United States within a reasonably foreseeable time. Vice Chairman Okun joins the

cumulation and data issues discussion in the Opinion.

3See Porcelain-on-Steel Cooking Ware from China, Mexico, and Taiwan, and Top-of-the-stove

Stainless Steel Cooking Ware from Korea and Taiwan, Invs. Nos. 701-TA-267 and 268 (Review) and

731-TA-297-299, 304 and 305 (Review), USITC Pub. No. 3286 (Mar. 2000) (“Review Determinations”). 

Notice of the Commission's final determinations was published in the Federal Register at 65 Fed. Reg.

17,902 (April 5, 2000). Vice Chairman Okun and Commissioners Askey and Bragg determined that

revocation of the countervailing duty and antidumping duty orders on top-of-the-stove stainless steel

cooking ware from Korea and Taiwan would not be likely to lead to continuation or recurrence of

material injury to an industry in the United States within a reasonably foreseeable time. 

4See Summons filed in United States Court of International Trade by Korean producers and

exporters on May 4, 2001.

VIEWS OF THE COMMISSION ON REMAND

By opinion and order dated September 26, 2001,1 Judge Donald C. Pogue of the U.S. Court of

International Trade remanded the Commission’s determinations in Top-of-the-stove Stainless Steel

Cooking Ware from Korea. Upon consideration of the remand order, the Commission determines that the

revocation of the antidumping and countervailing duty orders on top-of-the-stove stainless steel cooking

ware from Korea would likely lead to continuation or recurrence of material injury to an industry in the

United States within a reasonably foreseeable time.2

I. BACKGROUND

In March 2000, the Commission determined that revocation of the antidumping and countervailing

duty orders on top-of-the-stove stainless steel cooking ware from Korea and Taiwan would be likely to

lead to continuation or recurrence of material injury to an industry in the United States within a reasonably

foreseeable time.3 Korean producers and exporters of the subject merchandise appealed the

Commission’s determination on Korea to the U.S. Court of International Trade (“Court”).4 On
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5Slip Op. at 26 - 27.

6

INV-Y-249, December 31, 2001, at 1.

2

September 26, 2001, the Court remanded the determination to the Commission, ordering the Commission

to reconsider its finding that the subject imports from Korea and from Taiwan would be likely to have a

discernible adverse impact, and to reconsider whether there is a reasonable overlap of competition

between Korean and Taiwan cooking ware and domestic and Taiwan cooking ware sufficient to warrant

cumulation of subject imports.5

On December 10, 2001, the Commission informed the parties to the review investigations that it

had decided to reopen the record in these reviews for the limited purpose of seeking information regarding

two issues identified by the Court: the nature of subject imports from Taiwan, and the possible inclusion

of non-subject imports in official import data. After an extensive search for the identities of Taiwan

manufacturers of subject merchandise, the Commission sent questionnaires to over 40 companies in

Taiwan. No surveyed producer of top-of-the-stove stainless steel cooking ware from Taiwan provided

data in response to the questionnaire. The Commission also telephoned several companies in Taiwan but

received only limited information from one of them.6 

In addition, the Commission sought information from the parties about the ratio of non-subject

imports covered under HTSUS statistical reporting number 7323.93.00.30. The domestic interested party

provided the Commission with U.S. market data maintained by the Cookware Manufacturers Association. 

The Committee argued that, based on this data, the Commission should conclude that at least 97 percent

of imports covered by HTSUS 7323.93.00.30 during the period of review were of subject top-of-the-stove

stainless steel cooking ware. Korean respondents did not provide the Commission with any information

regarding the actual ratio of subject to non-subject imports covered by HTSUS 7323.93.00.30, but urged
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7USITC Pub. 3286 at 5-11, 26-28.

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 The only Commission determinations that were appealed were the affirmative determinations

with respect to the antidumping and countervailing duty orders on Korea. The Commission determinations

with respect to Taiwan were not appealed and therefore are not modified in the context of this remand

proceeding. The determinations with respect to Taiwan are relevant only with respect to the issue of

whether it was appropriate to cumulate subject imports from Korea and Taiwan. See, e.g., Gerald

Metals, Inc. v. United States, 132 F.3d 716 (Fed. Cir. 1997). In Gerald Metals the Commission cumulated

imports of magnesium from Russia, Ukraine, and China. Only Ukraine appealed the affirmative

determination. Even though the appeal hinged on an issue relating to Russian magnesium, and even

though the Commission cumulated imports from China, Russia, and Ukraine, the Commission remand

resulted in a negative determination for the Ukraine investigation only. The orders on Russian and

Chinese magnesium remained in place because they were not appealed. 

9Commissioner Bragg affirms her negative determination based on the record developed by the

Commission during the remand investigation. The additional information does not alter the basis for her

conclusion in the sunset review investigations that imports from Korea would have no discernible adverse

impact if the antidumping order were removed. She notes that the remand addressed concerns regarding

the Commission’s original conclusion that there was a reasonable overlap of competition between imports

from Korea and imports from Taiwan. Although she joined this conclusion, she did not cumulate subject

imports from Korea and Taiwan in the sunset review investigations. The conclusion that there is a

reasonable overlap of competition was not necessary to her original determination; her finding of no

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the Commission not to rely on the HTSUS data.

We have considered the record as a whole in light of the instructions in the Court’s opinion. 

Because the Court did not remand the issues of the domestic like product and industry, or the conditions

of competition, we determine to adopt our prior views regarding these issues.7 Below, we present our

findings regarding cumulation of subject imports from Korea and Taiwan. Because we determine not to

cumulate subject imports from Taiwan and Korea, we also make findings regarding the likely volume,

price effects, and impact of the subject imports from Korea alone on the domestic industry if the

antidumping and countervailing duty orders on top-of-the-stove stainless steel cooking ware from Korea

are revoked.8

II. CUMULATION

A. Framework9
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discernible adverse impact would have been the same even if there were no reasonable overlap of

competition. Her footnote 172 in the sunset review determinations makes clear, however, that had she

reached the question of cumulation, she would have taken an adverse inference against exporters from

Taiwan and other interested parties as appropriate; this likely would have addressed the Count’s concerns

regarding the Commission’s original conclusion that there was an overlap of competition. In other review

investigations, Commissioner Bragg has taken adverse inferences regarding non-participating interested

parties.

1019 U.S.C. § 1675a(a)(7).

1119 U.S.C. § 1675a(a)(7).

12The four factors generally considered by the Commission in assessing whether imports compete

with each other and with the domestic like product are: 1) the degree of fungibility between the imports

from different countries and between imports and the domestic like product, including consideration of

specific customer requirements and other quality-related questions; 2) the presence of sales or offers to

sell in the same geographical markets of imports from different countries and the domestic like product; 3)

the existence of common or similar channels of distribution for imports from different countries and the

domestic like product; and 4) whether the imports are simultaneously present in the market. See, e.g.,

Wieland Werke, AG v. United States, 718 F. Supp. 50 (CIT 1989).

4

Section 752(a) of the Act provides that:

the Commission may cumulatively assess the volume and effect of imports of the subject

merchandise from all countries with respect to which reviews under section 1675(b) or

(c) of this title were initiated on the same day, if such imports would be likely to compete

with each other and with domestic like products in the United States market. The

Commission shall not cumulatively assess the volume and effects of imports of the

subject merchandise in a case in which it determines that such imports are likely to have

no discernible adverse impact on the domestic industry.10

Thus, cumulation is discretionary in five-year reviews. However, the Commission may exercise its

discretion to cumulate only if the reviews are initiated on the same day and the Commission determines

that the subject imports are likely to compete with each other and the domestic like product in the U.S.

market. The statute precludes cumulation if the Commission finds that subject imports from a country are

likely to have no discernible adverse impact on the domestic industry.11

The Commission has generally considered four factors intended to provide a framework for

determining whether the imports compete with each other and with the domestic like product.12 Only a
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13See Mukand Ltd. v. United States, 937 F. Supp. 910, 916 (CIT 1996); Wieland Werke, AG,

718 F. Supp. at 52 (“Completely overlapping markets are not required.”); United States Steel Group v. 

United States, 873 F. Supp. 673, 685 (CIT 1994), aff’d, 96 F.3d 1352 (Fed. Cir. 1996).

14Moreover, because of the prospective and discretionary nature of five-year reviews, even

where we find a reasonable overlap of competition, we also examine other significant conditions of

competition that are likely to prevail if the orders under review are revoked.

15Slip Op. at 20-21.

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“reasonable overlap” of competition is required.13 In five-year reviews, the relevant inquiry is whether

there likely would be competition even if none currently exists.14

In its opinion, the Court instructed the Commission to reconsider the issues of whether subject

imports from Korea and Taiwan would have a discernible adverse impact, and whether there would likely

be a reasonable overlap of competition between imports from each country and between such imports and

the domestic like product. Under the statute, either a finding of no discernible adverse impact for either

country, or a finding of no reasonable overlap of competition, is sufficient to preclude cumulation. On

remand, as described below, we determine that there will likely be no reasonable overlap of competition

between imports from Korea and Taiwan, and between imports from Taiwan and the domestic like

product. Because this conclusion is dispositive of the cumulation issue, we do not address the issue of no

discernible adverse impact.

B. Reasonable Overlap of Competition

In its Opinion, the Court notes that the domestic industry produces only high-end cooking ware

and that the Commission provided insufficient support for finding that imports from Taiwan are likely to

increase significantly in the high-end of the market.15 Because Taiwan respondents did not cooperate

with Commission requests for information during the review investigations and during the remand

proceedings, the Commission had very little information on the quality of imports from Taiwan. The Court
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16Slip Op. at 27.

17INV-Y-249, December 13, 2001, at 1.

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found the evidence on the nature of subject imports from Taiwan to be insufficient for a finding of overlap

of competition between subject imports from Taiwan and Korea and between subject imports from

Taiwan and the domestic like product stating: “on remand the Commission must . . . reconsider its finding

that there is a reasonable overlap of competition between Korean and Taiwan cooking ware and domestic

and Taiwan cooking ware, given the lack of substantial evidence that Taiwan producers sell high-end

products, and scant evidence that Taiwan producers sell through the direct sales channel of

distribution.”16 

Recognizing the need to supplement record evidence on the nature of subject imports from

Taiwan in order to comply with the Court’s order, the Commission attempted to locate as many

companies as possible in Taiwan that produced subject merchandise during the period of review. The

Commission sent questionnaires to over 40 companies in Taiwan it believed might have produced stainless

steel cooking ware, and made follow-up phone calls to several of them. No Taiwan producers of top-ofthe-stove stainless steel cooking ware provided data in response to the Commission questionnaires, but the

Commission did gather limited new information from telephone conversations. For instance, a

representative of ***, a Taiwan producer, stated that her company produced low-, medium-, and high-end

top-of-the-stove stainless steel cooking ware and that *** exported all three grades of stainless steel

cooking ware to the United States market during the period of review.17 However, the Commission was

unable to ascertain whether what *** considered to be high-end merchandise was equivalent to the highend merchandise sold on the U.S. market. Moreover, statements made by a representative of ***, the

*** known importer of subject merchandise from Korea by volume, and one of the *** known importers
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18INV-Y-253, December 28, 2001, at 1.

19For example, importer questionnaire responses indicate that in 1997 and 1998 Korean average

unit values were *** and *** respectively while Taiwan average unit values were *** and ***. Average

unit values for Taiwan imports declined over the period reviewed. INV-Z-008, January 9, 2002, Table 1.

We note that in the review investigation most importers indicated that Taiwan product was

generally used interchangeably with Korean and U.S. product, and that there were no differences in

product characteristics and sales conditions between Taiwan product and Korean and U.S. product. We

have considered this information but do not find it determinative given that importers did not address the

issue of whether Taiwan imports included high-end merchandise, and given statements by several

importers that Taiwan product was of lower-quality than Korean product. See INV-Y-237 (November

26, 2001) at 3-4.

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of subject merchandise from Taiwan, indicate that Taiwan product was of lower quality than Korean

product, and that although Taiwan had the capability of producing higher-end stainless steel cooking ware,

Taiwan producers were not as good at producing it.18 

Although average unit values are of somewhat limited probative value for purposes of price

comparisons in an industry with a disparate product mix, the considerable difference between the very

low average unit values of cooking ware from Taiwan compared with the high unit values of Korean and

domestic merchandise, appear to indicate that recent imports from Taiwan likely did not consist of a

significant quantity of high-end cooking ware during the period of review.19

With respect to likely imports from Taiwan following revocation of the order, the additional

information we have collected, described above, indicates that future imports from Taiwan could include

some high-end product. However, we do not find that this information indicates that a significant share of

imports of Taiwan would be of high-end merchandise such that there would be a reasonable overlap of

competition with imports from Korea and domestic product. Moreover, there is no further information to

indicate that Taiwan product would likely be sold in the direct sales channel of distribution.

Therefore, in light of the Court’s determination that the Commission’s finding of overlap of

competition was not supported by substantial evidence, and given the Court’s explicit direction that the
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20Vice Chairman Okun finds that revocation of the antidumping and countervailing duty orders on

Korea will not be likely to lead to continuation or recurrence of material injury to an industry in the United

States within a reasonably foreseeable time. See Dissenting Views of Vice Chairman Deanna Tanner

Okun. She joins the following discussion of data issues on remand.

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Commission should not make a finding of overlap of competition unless it can point to more conclusive

evidence than was present on the record during the review proceedings, we find that there is insufficient

evidence to support a finding that imports from Taiwan are likely to compete with subject imports from

Korea and with the domestic like product if the orders are revoked. 

Because we do not find there is a likelihood of a reasonable overlap of competition between

subject imports from Taiwan and subject imports from Korea and with the domestic like product, we do

not cumulate subject imports from Korea and Taiwan, and therefore, do not need to reach the issue of

whether subject imports from Korea or Taiwan are likely to have no discernible adverse impact on the

domestic industry.

III. REVOCATION OF THE ANTIDUMPING AND COUNTERVAILING DUTY

ORDERS ON TOP-OF-THE-STOVE STAINLESS STEEL COOKING WARE FROM

KOREA WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE

OF MATERIAL INJURY WITHIN A REASONABLY FORESEEABLE TIME

Because we are not cumulating subject imports from Korea and Taiwan, we are required to

reexamine our determination that revocation of the antidumping and countervailing duty orders on top-ofthe-stove stainless steel cooking ware from Korea would be likely to lead to continuation or recurrence of

material injury within a reasonably foreseeable time. We have reconsidered our original findings in light

of the non-cumulation of top-of-the-stove stainless steel cooking ware from Taiwan and our

reexamination of import data pursuant to the Court’s order. As described below, we find that subject

imports from Korea alone would be sufficient to cause material injury to the domestic industry in the event

of revocation.20 Much of the analysis contained in our original views, which focused mainly on imports
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21Slip Op. at 26.

22Porcelain-on-Steel Cooking Ware from China, Mexico, and Taiwan, and Top-of-the-stove

Stainless Steel Cooking Ware from Korea and Taiwan, Invs. Nos. 701-TA-267 and 268 (Final) and 731-

TA-297-299, 304 and 305 (Final), USITC Pub. No. 1936 (January 1987), (“Original Determinations”) at

A-33, Table 16, fn. 2.

23Original Determinations at A-33, Table 16, fn. 2.

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from Korea rather than imports from Taiwan, is still applicable. We have reconsidered and revised those

original views as appropriate.

A. Likely Volume of Subject Imports

1. Data Issues

On remand, the Court directed the Commission to reexamine the data used in its analysis of the

likely volume of imports from Korean and to explain its methodology in relation to the methodology it used

in the original investigation of top-of-the-stove stainless steel cooking ware from Korea. Specifically, the

Court stated that “[w]hile it was reasonable for the Commission to rely on official import statistics given

the lack of other data, it was not reasonable for the Commission to change its methodology without

explanation.”21

Official Import Statistics: During the original investigation, the Commission relied on official

import statistics and adjusted the data downward in order to account for non-subject imports covered by

the Tariff Schedule of the United States (“TSUS”) item 653.94.22 That item was a residual or “basket”

tariff category that included not only subject imports of stainless steel top-of-the-stove cooking ware, but

also imports of stainless steel kitchenware, kettles, and ovenware that were not subject to the scope of the

investigations.23 Petitioners stated that 60 percent of the quantity and 80 percent of the value of imports

listed under TSUS item 653.94 were imports of top-of-the-stove stainless steel cooking ware. These
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24INV-Y-237, November 26, 2001, at 2, fn. 2.

25Mr. Rushing indicates that the CMA is a voluntary trade association representing U.S. and

Canadian manufacturers and importers of cookware, stainless steel ovenware or bakeware. We note that

Mr. Rushing testified during the Commission’s review proceeding on behalf of the Stainless Steel

Cookware Committee, which represents domestic producers of top-of-the-stove stainless steel cooking

ware (Regal Ware, Inc., All-Clad Metalcrafters, Inc., and Vita Craft Corp).

26Committee Remand Comments, December 20, 2001 at attachment 1.

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figures were validated by one of two Customs Service import specialists contacted by the Commission.24

In its determination, the Commission relied on the percentages provided by petitioner to determine the

quantity and value of subject imports of top-of-the-stove stainless steel cooking ware.

Subsequently, in 1988, when the TSUS was replaced by the Harmonized Tariff Schedule of the

United States (“HTSUS”), TSUS item 653.94 was broken down into several subheadings. The new

statistical reporting number covering top-of-the-stove stainless steel cooking ware was HTSUS

7323.93.0030. This new category no longer covered non-subject kitchenware and kettles. However, it

still included some non-subject products such as stainless steel bakeware and ovenware. Given the

altered scope of the relevant tariff item, we find that the adjustments used by the Commission in its

original investigations are no longer appropriate for purposes of these sunset reviews.

On December 10, 2001, the Commission sought comments from the parties regarding, inter alia,

the ratio of non-subject merchandise from Korea covered under HTSUS statistical reporting number

732.93.00.30 during the period of review. The Stainless Steel Cookware Committee provided the

Commission with a sworn declaration made by the Executive Vice President of the Cookware

Manufacturers Association (“CMA”), Hugh Rushing.25 One of Mr. Rushing’s responsibilities at CMA is

to “compile statistics on the size of the U.S. market for various products.”26 With respect to stainless

steel cooking ware, CMA polls Association members and non-members and estimates the size of the top-
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27Committee Remand Comments, December 20, 2001 at attachment 1.

28Stainless Steel Cooking Ware Committee Remand Comments, December 20, 2001, 

Attachment 1.

29Committee Remand Comments, December 20, 2001 at attachment 1. We note that Korean

Respondents did not provide the Commission with any information responsive to its request for a ratio of

non-subject imports contained in HTSUS 7323.93.0030 and instead asserted that the Commission should

not rely on the official statistics. Korean Respondents attempted to submit new factual information about

the nature of non-subject imports covered by HTSUS 7323.93.0030 only after the record closing date. 

The information in question is contained in attachments 1 and 2 of Korean Respondents Remand Rebuttal

Comments. Because submitting new factual information after the record closing date violates the

governing statute, the Rules of the Commission, and the instructions set out in the Commission’s request

for comments, and robs other parties of a opportunity to comment on it, we disregard this new factual

information. See, 19 U.S.C. §1677m(g). Respondents did not assert that the information could not have

been submitted by the December 20 deadline for new factual information.

30 INV-Y-249, December 31, 2001, at 1.

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of-the-stove market and the size of the bakeware market (which includes ovenware).27 Mr. Rushing

asserts that the U.S. market for top-of-the-stove stainless steel cooking ware is many time larger than the

U.S. market for stainless steel ovenware and bakeware. Specifically, he asserts that CMA data show

that, from 1997-1999, stainless steel ovenware and bakeware accounted for only 2.4 to 2.9 percent of a

combined category of top-of-the stove stainless steel cooking ware, ovenware and bakeware sold in the

United States. He explains that stainless steel is not a popular material for bakeware due to its poor

conductivity and high price: “A brief tour of the bakeware section of any mass merchant such as K-Mart

or Wal-Mart would demonstrate clearly that aluminum and other non-stainless steel materials are the

dominant materials for bakeware. This has not changed since 1997-1999.”28 Based on the percentage of

the U.S. market accounted for by stainless steel bakeware, which is less than 3 percent, Rushing

estimates that “during 1997-1999, over 97 percent of imports from Korea and Taiwan under HTSUS item

number 7323.93.00.30 were top-of-the-stove stainless steel cooking ware.”29

A Customs Service import specialist could not confirm or deny CMA’s estimate.30 However,
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31Korean Respondents’ Response to Notice of Institution of Sunset Reviews at 25.

32In terms of quantity, the figures provided by respondents represented between 85.2 and 91.0

percent of the quantity reported in HTSUS 7323.93.0030 for 1997 and 1998. Korean Respondents’

Response to Notice of Institution of Sunset Reviews at 25. As described below, we have given greater

weight to value data than quantity data in this determination.

33We recognize that the CMA data measures the entire U.S. market and not specifically imports

from Korea. However, we believe this information is the most probative information available on the

record, particularly given that the information provided by the Korean producers themselves corroborates

it.

34See INV-Z-008, Jan. 9, 2002, Table 1 (revised), and CR and PR at Table IV-6.

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other record information does confirm CMA’s estimate. Data of the Korean Metal Ware Association

provided by responding Korean producers during the review investigations indicate that in 1997 and 1998

the total values of subject imports from Korea were *** and *** respectively.31 HTSUS statistical

reporting number 7323.93.0030 indicates that in the same years total imports from Korea were *** and

***, respectively. Therefore, comparing Korean respondents’ own data to official import statistics would

show that between 94.4 and 98.8 percent of imports reported under HTSUS statistical reporting number

7323.93.0030 are subject imports.32

Accordingly, we have used the HTSUS data as our primary measure of subject imports in this 

review, but have adjusted this data by subtracting out the estimated 3 percent accounted for by nonsubject products.33

U.S. Importer and Foreign Exporter Questionnaire Responses: Although official import

statistics offer far more comprehensive and accurate coverage of subject import volume, we also

examined U.S. importer and Korean exporter data for purposes of these remand proceedings.34 We note,

however, that importer and exporter questionnaire responses appear to be fairly incomplete as compared

to official statistics. Moreover, in accordance with Commission practice, Commission questionnaires

requested Korean exporters to report data only in terms of quantity, not value.
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35Slip Op. at 27.

36Original Determinations at 11, n. 27.

37INV-Y-249, December 31, 2001, at 1.

38HTSUS data would appear to accurately measure the trend in import quantity, given that

quantity was consistently reported.

3919 U.S.C. §1675a(a)(2).

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Quantity versus value. The Court’s opinion also requested that the Commission “consider

whether using a value-based statistic instead of a quantity-based statistic would, as Chefline suggests, give

a more accurate picture of imports of Korean subject merchandise.”35 In the original investigation, the

Commission noted that data on import values may be more reliable than data on import volumes.36 A

Customs Service import specialist explained that the HTSUS data expressed in units are consistently

reported and are usable.37 However, the HTSUS quantity data are reported on a different basis than the

data requested by the Commission in its questionnaires. Specifically, the HTSUS data include lids as

separate units whereas Commission questionnaire data do not. By contrast, value is believed to have

been reported on a comparable basis in both HTSUS data and questionnaire data. Accordingly, in this

remand we have placed primary reliance on value data for imports but have cited quantity data where

appropriate.38

2. Analysis

In evaluating the likely volume of imports of subject merchandise if the order under review is

revoked, the Commission is directed to consider whether the likely volume of subject imports would be

significant either in absolute terms or relative to the production or consumption in the United States.39 In

doing so, the Commission must consider “all relevant economic factors,” including four enumerated

factors: (1) any likely increase in production capacity or existing unused production capacity in the

exporting country; (2) existing inventories of the subject merchandise, or likely increases in inventories;
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4019 U.S.C. § 1675(a)(2)(A)-(D).

41These market shares reflected total shipments worth $56.1 million in 1983, $72.5 million in 1984,

$73.0 million in 1985, with $53.9 million in the first nine months of 1985 and $60.3 million in the same

period in 1986. Original Top-of-The-Stove Stainless Steel Cookware Staff Report, Table 16. The

Commission found that the value data were more reliable than volume data, which showed that the

cumulative volume of subject imports increased from 1983 to 1985, and increased again in the interim

period of 1986. Original Determinations at 11-12.

42On an annualized basis, imports from Korea in interim 1999 were nearly 50 percent above fullyear 1998 levels ($44.8 million versus $30.9 million). In terms of quantity, imports from Korea were 2.9

million units in 1997, 3.3 million units in 1998, 2.4 million units in interim 1998 and 4.2 million units in

interim 1999. CR & PR at Table C-2.

43As noted above, importer questionnaire data are less complete than official statistics because

not all importers responded to the Commission questionnaire. Importer questionnaire data show subject

imports from Korea decreased from *** million to *** million but increased from *** million in interim

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(3) the existence of barriers to the importation of the subject merchandise into countries other than the

United States; and (4) the potential for product-shifting if production facilities in the foreign country, which

can be used to produce the subject merchandise, are currently being used to produce other products.40

In the original investigation, the Commission found that the cumulative value of subject imports

increased by 28 percent from 1983 to 1985, and by 9.6 percent in the interim period of 1986, causing a

significant increase in subject producers’ U.S. market share.41 The volume of cumulated subject imports

was lower during the current review period than in the original investigation, which we find can be

attributed to the effect of the antidumping duty order. 

According to official import data and adjusting for the estimated 3 percent non-subject

merchandise contained in HTS subheading 7323.93.00.30, subjects imports rose from $26,885,000 in 1997

to $30,765,000 in 1998. The value of Korean subject imports increased 44 percent between interim 1998

and 1999, from $23,200,000 to $33,572,000.42 As a share of domestic consumption, subject imports

decreased from 8.5 percent in 1997 to 8.0 percent in 1998, and rose from 8.0 percent in interim 1998 to

11.4 percent in interim 1999. 43
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1998 to *** million in interim 1999. In terms of quantity, subject imports declined from *** units in 1997

to *** units in 1998 but increased between interim 1998 and interim 1999 from *** to *** units. INV-Z008 dated January 9, 2002, Table 1.

44CR & PR, Table IV-7, as revised in memorandum INV-X-053, March 7, 2000.

45We note that after a decrease in 1998, top-of-the-stove stainless steel cooking ware production

capacity reported by the Korean industry association increased in the first nine months of 1999.

46CR at IV-16 - IV-19, PR at IV-9 - IV-11. 

15

Thus, the volume of subject imports during the period of review was significantly below the levels

of the original investigation. However, a reduction in imports is to be expected following the imposition of

antidumping and countervailing duty orders. Our task is to determine the likely volume of imports in the

absence of the discipline of the orders. The figures described above show that subject imports from

Korea held a more-than-modest share of the U.S. market during the period of review despite the orders. 

Moreover, subject imports steadily increased over the period of review, particularly in interim 1999, and so

did subject imports’ share of the U.S. market for top-of-the-stove stainless steel cooking ware.

Capacity to produce subject cooking ware in Korea declined significantly since the original

investigation, under either respondents’ or petitioners’ estimates.44 Nevertheless, significant capacity

exists in Korea, and remains well above U.S. capacity. 45 U.S. capacity fell since the original

investigations, as did U.S. production, shipments, and market share, as non-subject imports increased

substantially. Thus, an increase in subject imports from Korea at the expense of the domestic industry

would not need to be as large in absolute terms as it was during the original period of investigation to be

significant under current conditions. This is especially so because, as noted below, the Korean industry is

seeking to increase its share of the high-end market, the very market segment in which all remaining U.S.

sales occur. Moreover, although there is some dispute about the correct levels of capacity utilization in

the Korean industry,46 the record indicates that Korean producers have the flexibility to increase their
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47For example, even though Korean respondents reported high capacity utilization rates during the

period of review, subject imports increased by 44 percent by value (74 percent by quantity) between

interim 1998 and 1999. CR & PR Table C-2. This suggests that despite reported high capacity utilization

rates, Korean producers are able to rapidly increase exports to the U.S. market.

48CR & PR, Table IV-6.

49CR & PR, Table IV-6.

50CR & PR, Table IV-4.

51With respect to barriers to exports from subject countries to third-country markets, we note that

South Africa also imposed antidumping duties on cooking ware from Korea. CR at IV-18, PR at IV-11.

16

shipments to the United States by a substantial amount regardless of the stated capacity utilization.47 On

balance, taking into account our original determination and changes that have occurred since that time, we

conclude that subject producers in Korea have the capability to increase substantially their shipments to

the United States.

The record also indicates that subject producers have substantial flexibility to shift exports to the

United States. Exports consistently represented between 63 and 68 percent of the volume shipped by the

eight Korean producers who participated in these reviews, with exports to the United States accounting

for less than one-third of total exports.48 The distribution of shipments among the home market, the

United States, and other export markets varied from year to year.49

The record also demonstrates that importers of the subject Korean merchandise maintained high

levels of inventory (as a percentage of importers’ shipments) throughout the review period.50 The

maintenance of such large inventories indicates a commitment to having a sizeable presence in the United

States.51

The record indicates that the subject producers will use their ability to increase exports to the

United States if the antidumping and countervailing duty orders are removed. As stated above, after

increasing from 1997 to 1998, the volume, value, and market share of subject imports increased at a more
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52Memorandum from ***, to U.S. producer Regal Ware Inc., Jan. 22, 1999 at 1 (seeking

assistance in removing the antidumping duty orders because they have been “insurmountable stumbling

blocks for exporting stainless steel cooking ware from Korea to the states.”), in Committee Prehearing

Brief, Exh. 18.

53Hrg. Tr. at 37-38 (J. Reigle). Although brand-name recognition can be important in the direct

sales sector, in most instances the brand is a private label that belongs to the direct sales company or

distributor, not the manufacturer. Id. Thus, brand-name recognition does not represent a barrier to entry

into the direct sales segment.

We note that the eight Korean producers who responded to our questionnaire indicated that at

most *** percent of their U.S. sales were made via the direct sales segment. Since most U.S. stainless

steel top-of-the-stove cooking ware is sold through the direct sales segment, a small share of subject

imports in that segment would tend to attenuate somewhat the degree of direct competition between

subject imports and the domestic product. Nevertheless, the retail store segment of the market, into

which the remaining U.S. sales of the responding Korean producers have gone, represents a growing

share of sales by U.S. producers. CR, PR at Table III-A-4. In any event, regardless of the Korean

producers’ current share of the direct sales business, we find that their sales into this segment are likely to

increase substantially in the reasonably foreseeable future.

54“The products have changed since 1985 . . . U.S. production of top-of-the-stove SS cookware

has also changed, as low- and mid-range top-of-the-stove SS cookware is no longer produced in the

United States.” CR & PR at II-4; “In the earlier years, the Korean product exported to the United States

tended to be 18-0 grade, light gauge product for sale to the low- to middle-price market. Since 1983,

imports of higher priced top-of-the stove stainless steel cooking ware have increased (for example,

International Cookware’s Korean imports of top-of-the-line cookware).” Original Top-of-The-Stove

Stainless Steel Cookware Staff Report at A-30.

17

rapid rate in the first nine months of 1999. Subject producers’ desire to increase exports to the United

States,52 and their efforts to continue expanding into the high-end market are likely to accelerate this

increase. Much high-end merchandise is sold via direct sales. Many direct sales companies and

distributors that sell to them are large and sophisticated purchasers, so we expect that, if the antidumping

and countervailing duty orders were revoked, Korean producers would face few barriers in making sales

to those customers.53 Moreover, the long-term trend of subject imports from Korea in the U.S. market

confirms these findings. During the original period of investigation, the domestic industry produced some

low-end cooking ware, but primarily sold mid-range and high-end merchandise, while Korean respondents

sold mainly low- and mid-range cooking ware in the U.S. market.54 By 1997, the domestic industry had
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55“U.S. producers currently produce only the high-end top-of-the-stove SS cookware, which is

made with layers of stainless steel around a more heat-conductive core of either copper, aluminum, or in

some cases carbon steel.” PR & CR at II-1.

56 PR & CR at II-3 - II-4; competition from lower priced low-end imports from other countries

and increased demand in the U.S. for high-end cookware forced the Korean producers to either go out of

business or to change to produce high-quality cookware. CR & PR at II-9 - II-10.

57Hrg. Tr. at 113.

58Subject imports from Korea were between 18.7 and 23.6 percent by value, and between 48.1

and 52.4 percent by quantity, of domestic consumption during the original period of investigation. Original

Determinations at A-38.

18

ceased producing low- and mid-range cooking ware and was entirely concentrated in the high end of the

market.55 By this time, Korean producers had decreased their presence in the low end of the market,

solidly held a large market share of the mid-range, and sold significant volumes of high-end cooking

ware.56 Moreover, evidence that Korean high-end cooking ware is now present in the direct sales

channel of distribution further reinforces evidence that the long term trend of Korean imports has been to

steadily push into market niches traditionally held by the U.S. industry.57

The large market share that the subject producers attained prior to the imposition of the

antidumping and countervailing duty orders on top-of-the-stove stainless steel cooking ware,58 their

continued maintenance of a significant market share despite the discipline imposed by the orders and their

ability to significantly increase exports to the U.S. market, among the other information described above,

suggest that subject Korean producers will continue to accelerate exports to the United States upon

revocation of the orders. Consequently, based on the record in these reviews, we conclude that the

volume and market share of subject imports from Korea would likely be significant if the orders are

revoked.

C. Likely Price Effects

In evaluating the likely price effects of subject imports if the order is revoked, the Commission is
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5919 U.S.C. § 1675a(a)(3). The SAA states that “[c]onsistent with its practice in investigations,

in considering the likely price effects of imports in the event of revocation and termination, the

Commission may rely on circumstantial, as well as direct, evidence of the adverse effects of unfairly

traded imports on domestic prices.” SAA at 886.

60Original Determinations at 13.

61CR at V-25, PR at V-9. However, in light of the differences among the products covered by

the pricing data and the small volume of the data, we do not place great weight on this information.

62CR at V-22, PR at V-8.

19

directed to consider whether there is likely to be significant underselling by the subject imports as

compared with domestic like products and whether the subject imports are likely to enter the United

States at prices that would have a significant depressing or suppressing effect on the price of domestic

like products.59

In the original investigation, the Commission found that the pricing data were “mixed” because of

the wide variety of configurations of stainless steel cooking ware. However, it found that pricing trends

revealed a causal link between subject imports and harm to the domestic industry in that the prices for

domestic products trended downward, while the prices for subject imports either stayed the same or

trended downward in spite of the subject producers’ shift toward higher quality products. Subject imports

were typically sold to retailers at prices far lower than comparable domestic products.60 During the

review period, domestic products were sold primarily to distributors and the subject imports were sold

primarily to retailers, which left the Commission with relatively few price comparisons of similar

merchandise at the same level of trade. The *** in the small number of price comparisons is some

indication that imports undersold the domestic like product.61 In general, the prices for domestic products

either increased or remained approximately unchanged, while prices for the subject merchandise generally

declined.62

We find that the domestic industry is currently sensitive to price-based competition. As noted
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20

above, high-end subject merchandise is sold in some of the same retail chains, such as Williams-Sonoma,

that sell high-end domestic top-of-the-stove stainless steel cooking ware. In the event of revocation,

subject producers will have the incentive and the capability to export merchandise competitive with all of

the products made in the United States. Moreover, the similarity in the features offered by domestic and

subject producers ensures that importers would have ready access to high-end subject merchandise that is

directly competitive with the domestic like product. The closing of the quality gap between the subject

merchandise and the domestic like product means that price is likely to play an even greater role in

competition in the foreseeable future, and that the prices charged for subject imports will influence the

prices received by the domestic industry.

The growth in the volume of subject imports that would likely follow the revocation of the

antidumping and countervailing duty orders is likely to lead to price suppression and depression. Since

subject merchandise would be equal or close to the quality to the domestic like product, importers are

likely to offer price concessions to regain market share lost during the pendency of the orders and to

continue to expand in the direct sales distribution channel where they are relative newcomers. These

developments are likely to result in price suppression and depression.

For the foregoing reasons, we find that revocation of the antidumping duty and countervailing

orders would be likely to lead to significant underselling by subject imports from Korea of the domestic

like product, as well as significant price depression and suppression, within a reasonably foreseeable time.

D. Likely Impact

In evaluating the likely impact of imports of subject merchandise if the order is revoked, the

Commission is directed to consider all relevant economic factors that are likely to have a bearing on the

state of the industry in the United States, including but not limited to: (1) likely declines in output, sales,
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6319 U.S.C. § 1675a(a)(4).

6419 U.S.C. § 1675a(a)(4). Section 752(a)(6) of the Act states that “the Commission may

consider the magnitude of the margin of dumping or the magnitude of the net countervailable subsidy” in

making its determination in a five-year review investigation. 19 U.S.C. § 1675a(a)(6). The statute

defines the “magnitude of the margin of dumping” to be used by the Commission in five-year review

investigations as “the dumping margin or margins determined by the administering authority under section

1675a(c)(3) of this title.” 19 U.S.C. § 1677(35)(C)(iv). See also SAA at 887. In its reviews, Commerce

found that revocation of the antidumping duty order would be likely to lead to continuation or recurrence

of dumping at the following margins: 0.75 to 31.23 percent for certain named companies in Korea, with

8.10 percent for all others. 64 Fed. Reg. at 40572. Although the statute does not expressly define the

“magnitude of the net countervailable subsidy” to be used by the Commission in five-year reviews, it

states that “[t]he administering authority shall provide to the Commission the net countervailable subsidy

that is likely to prevail if the order is revoked or the suspended investigation is terminated.” 19 U.S.C. §

1675a(b)(3). In its final five-year review determinations, Commerce determined that the magnitude of the

countervailable subsidy that is likely to prevail if the countervailing duty order is revoked is 0.77 percent

for subject merchandise from Korea. 64 Fed. Reg. at 48374, 64 Fed. Reg. at 48377.

In five-year reviews concerning countervailing duty orders, the Commission is required to

consider “information regarding the nature of the countervailable subsidy and whether the subsidy is a

subsidy described in Article 3 or 6.1 of the Subsidies Agreement.” 19 U.S.C. § 1675a(b)(6). In its final

five-year review determination, Commerce found that all of the four programs at issue in the review

regarding Taiwan, and four of the five programs at issue (short-term export financing, export tax

reserves, business loans to promising companies, and duty drawback) in the review regarding Korea, fall

within the definition of an export subsidy under Article 3.1(a) of the Subsidies Agreement. 64 Fed. Reg.

at 48374, 64 Fed. Reg. at 48378.

65The SAA states that in assessing whether the domestic industry is vulnerable to injury if the

order is revoked, the Commission “considers, in addition to imports, other factors that may be contributing

21

market share, profits, productivity, return on investments, and utilization of capacity; (2) likely negative

effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment; and

(3) likely negative effects on the existing development and production efforts of the industry, including

efforts to develop a derivative or more advanced version of the domestic like product.63 All relevant

economic factors are to be considered within the context of the business cycle and the conditions of

competition that are distinctive to the industry.64 As instructed by the statute, we have considered the

extent to which any improvement in the state of the domestic industry is related to the antidumping duty

order at issue and whether the industry is vulnerable to material injury if the order is revoked.65
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to overall injury. While these factors, in some cases, may account for the injury to the domestic industry,

they may also demonstrate that an industry is facing difficulties from a variety of sources and is

vulnerable to dumped or subsidized imports.” SAA at 885.

66Original Determinations at 7-8. Domestic producers’ shipments were worth $135.2 million in

1983, $134.5 million in 1984, and $122.6 million in 1985, and interim period sales of $89.5 million in 1985

and $87.1 million in 1986. Original Top-of-the-Stove Stainless Steel Cooking ware Staff Report, Table 3.

67CR & PR, Table I-11. These figures reflect shipments of 4.7 million units in 1997, 4.3 million

units in 1998, 3.1 million units in January-September 1998, and 3.0 million units in January-September

1999. These shipments had a value of $137.5 million in 1997, $128.7 million in 1998, $94.8 million in

January-September 1998, and $96.6 million in January-September 1999.

68Original Determinations at 7.

69Id. at 8.

22

In the original investigation, the Commission found that even though apparent domestic

consumption of stainless steel cooking ware increased over the investigation period, the domestic

producers’ market share declined steadily. In terms of volume, domestic producers’ market share

decreased from a high of 26.4 percent of the units sold in 1983 to 20.4 percent in the first nine months of

1986. In terms of value, domestic producers’ market share fell from 68.2 percent in 1983 to 54.3 percent

in the first nine months of 1986.66

By 1997, these figures had fallen further. In terms of volume, the domestic producers’ market

share was 13.4 percent in 1997, 10.0 percent in 1998, 9.9 percent in the first nine months of 1998, and 7.8

percent in the same period of 1999. In terms of value, market share had decreased to 42.5 percent in

1997, decreased again to 36.4 percent in 1998, with 36.6 percent in the first nine months of 1998 and 30.1

percent in the same period in 1999.67

The Commission observed in the original determination that the domestic industry’s production,

capacity, and capacity utilization decreased from the beginning to the end of the investigation period,

although some of these figures improved slightly in the interim period of 1986.68 Employment figures also

declined.69 Operating income margins decreased sharply, from 19.2 percent in 1983 to 9.7 percent in
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70Id. at 8, Original Top-of-the-Stove Stainless Steel Cooking ware Staff Report, Table 7.

71CR, Table III-A-2, PR, Table III-2.

72CR Table III-B-5, PR Table III-13.

73See Memorandum INV-X-067.

74See D. Fusaro, Cooking ware makers returning output to US plants, Metalworking News, Jan.

18, 1988 at 5 (“[s]purring these moves by domestic manufacturers is decreased low-cost competition from

overseas, weakened by both the devalued dollar and duties on products ruled by U.S. trade authorities to

have been dumped here.”).

75Hrg. Tr. at 99 (S. Jones); J. Messina, Farberware set to flee Bronx, Crains N.Y. Bus., Feb. 12,

1996, at 1.

76Original Top-of-the-Stove Stainless Steel Cooking Ware Staff Report at A-38.

23

1985, with 9.7 percent in the first nine months of 1985 and 6.8 percent in the same period of 1986.70

During the review period, production capacity increased steadily but modestly, while production

decreased, resulting in a steady drop in capacity utilization.71 By 1997, operating income margins had

increased to 11.1 percent. They increased again in 1998 to 13.1 percent, and then fell to 12.3 percent in

the first nine months of 1999, compared with 13.5 percent for the same period in 1998.72

The imposition of the antidumping and countervailing duty orders in early 1987 led to an

immediate and sharp reduction in the volume of subject imports.73 This reduction apparently gave the

domestic producers of low-end and mid-range cooking ware a respite from import competition, and may

have led to an increase in domestic production of those products.74 However, increased competition from

non-subject imports apparently eroded the benefits of the orders, and contributed to the decisions by

Farberware and Revere to cease production in the United States.75

Producers of high-end top-of-the-stove stainless steel cooking ware also felt the effects of the

order. During the original investigation period, sales in the door-to-door channel of distribution, which was

the precursor to the current direct sales channel of distribution, experienced a *** decline in profitability.76
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77Compare CR at III-B-6, PR at III-7 with Original Top-of-the-Stove Stainless Steel Cooking

ware Staff Report at A-36.

78CR Table III-B-6, PR Table III-14.

79CR, Table III-B-5, PR, Table III-B-13. Profits would actually have increased if SG&A

expenses had not risen dramatically. 

80CR & PR, Table I-11, CR, Tables III-A-2 & III-B-5, PR, Tables III-2 & III-13.

24

All-Clad, although ***, had total revenues of less than *** percent of their current value.77 However, by

1997, All-Clad had higher *** than in 1985, and had a *** volume of shipments.78 We are hesitant to

place great weight on these figures in the absence of data on domestic producers’ operations in the

intervening ten years. However, we also attribute the fact that the volume of subject imports from Korea

remained far lower in 1997 than it was in 1985 at least in part to the pendency of the orders. Given the

high degree of substitutability between the subject merchandise from Korea and the domestic like product,

this reduction in the volume of subject merchandise is likely to have helped the domestic industry to

maintain market share and profitability. In light of this information, we conclude that the antidumping and

countervailing duty orders had a positive effect on the domestic producers of high-end top-of-the-stove

stainless steel cooking ware by slowing the Korean producers’ shift to the high-end of the market,

although some of the benefit may have been eroded by increased quantities of non-subject imports.

In spite of the effect of the orders and the growing demand for high-end cooking ware, the

industry’s condition is a mixed picture. For the entire industry, the operating income margin has remained

high, although it decreased slightly in the first nine months of 1999.79 Shipment volume, net sales revenue,

market share, production volume, and capacity utilization all declined in 1998, and then again in the first

nine months of 1999.80 This lackluster performance masks a significant change in the relative fortunes of

the domestic producers. All-Clad’s sales, which were exclusively in the retail distribution channel,

increased in 1998 and then again in the first nine months of 1999, while the aggregate sales of the
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81CR & PR, Table I-9. We note that non-subject imports increased at the same time. Since the

record indicates that these consist primarily of low-end and mid-range merchandise (CR & PR at II-19 -

II- 20), we conclude that non-subject imports are not affecting the domestic cooking ware producers

during the review period. Nor, for the same reason, would increased subject imports simply replace nonsubject imports.

25

companies in the direct sales channel declined. The *** between All-Clad and the other three companies

also widened. In light of this information we find that the evidence is mixed as to whether the domestic

industry is vulnerable at this time.

We note that subject importers maintained a large share of the domestic top-of-the-stove stainless

steel cooking ware market during the original investigation period, and find that even a partial return

toward pre-order levels would result in material injury to the domestic industry. The factors discussed

above indicate that this would be likely to occur if the orders were revoked. The increase in subject

imports and slight decrease in domestic shipments at the end of the review period suggest that the even at

fairly traded prices, the subject imports are already causing the domestic industry’s condition to worsen to

a small degree.81 The significant increase in the volume of subject imports from Korea that is likely to

follow revocation of the antidumping and countervailing duty orders would likely be sold at prices that

would undersell the domestic like product and depress U.S. prices. These conditions would lead to a

further erosion in the domestic industry’s market share. The negative effects are likely to be particularly

severe because the revocation of the orders would aid Korean producers’ efforts to expand their

shipments of high-end cooking ware, which would likely occur to a substantial degree in the direct sales

sector of the market, where a large portion of U.S. sales of high-end cooking ware take place and where

the domestic industry’s financial performance is ***. As noted above, we are aware of no inherent

barriers to increased participation in the direct sales sector by subject imports in the event of revocation. 

On balance, we conclude that revocation of the antidumping and countervailing duty orders on subject
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82In this regard, it is significant that increased import penetration resulted in a rapid decrease in

the top-of-the-stove stainless steel cooking ware industry’s performance over the original investigation

period.

83Vice Chairman Okun and Commissioner Bragg dissenting.

26

imports from Korea would significantly accelerate the decline in the domestic industry’s financial

performance.82

The price and volume declines would likely have a significant adverse impact on the production,

shipment, sales, and revenue levels of the domestic industry. These conditions would then have a direct

adverse impact on the industry’s profitability as well as its ability to raise capital and make and maintain

necessary capital investments. In addition, we find it likely that revocation of the orders will result in

commensurate employment declines for domestic firms.

Accordingly, based on the record in these reviews, we conclude that, if the antidumping and

countervailing duty orders are revoked, subject imports from Korea would be likely to have a significant

adverse impact on the domestic industry within a reasonably foreseeable time.

CONCLUSION

For the foregoing reasons, we determine that revocation of the antidumping and countervailing

duty orders on imports of top-of-the-stove stainless steel cooking ware from Korea would be likely to lead

to continuation or recurrence of material injury to the U.S. top-of-the-stove stainless steel cooking ware

industry within a reasonably foreseeable time.83
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8419 U.S.C. §§ 1675(d)(2), 1675a(a)(1) (1994).

27

DISSENTING VIEWS OF VICE CHAIRMAN 

DEANNA TANNER OKUN

Section 751(d) of the Tariff Act of 1930, as amended, requires that the Department of Commerce

(“Commerce”) revoke a countervailing duty order or an antidumping duty order in a five-year (“sunset”)

review unless Commerce determines that dumping or a countervailable subsidy would be likely to

continue or recur and the Commission determines that material injury would be likely to continue or recur

within a reasonably foreseeable time.84 As noted above, I join the Majority’s discussions and findings on

remand with respect to cumulation and data issues. Because I am not cumulating subject imports from

Korea and Taiwan, I am required to reexamine my determination that revocation of the antidumping and

countervailing duty orders on top-of-the-stove stainless steel cooking ware from Korea would not be likely

to lead to continuation or recurrence of material injury within a reasonably foreseeable time. I have

reconsidered my original findings in light of the non-cumulation of top-of-the stove cooking ware from

Taiwan and reexamined the import data pursuant to the Court’s order. As described below, I again

determine that revocation of the antidumping duty and countervailing duty orders covering top-of-thestove stainless steel cooking ware (“top-of-the-stove SS cookware”) from Korea would not be likely to

lead to continuation or recurrence of material injury to an industry in the United States within a reasonably

foreseeable time. Much of the analysis is contained in my original views. I have reconsidered and

revised those original views as appropriate. 
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8519 U.S.C. § 1675a(a)(2).

8619 U.S.C. § 1675a(a)(2)(A)-(D). 

87Top-of-the-Stove Stainless Steel Cookware, USITC Pub. 1934 (Jan. 1987) at 13 (“Original

determination”).

28

I. REVOCATION OF THE ANTIDUMPING DUTY ORDERS ON TOP-OF-THE-STOVE

COOKING WARE FROM KOREA IS NOT LIKELY TO LEAD TO

CONTINUATION OR RECURRENCE OF MATERIAL INJURY WITHIN A

REASONABLY FORESEEABLE TIME

A. Likely Volume of Subject Imports

In evaluating the likely volume of imports of subject merchandise if an antidumping order is

revoked, the statute directs the Commission to consider whether the likely volume of imports would be

significant either in absolute terms or relative to production or consumption in the United States.85 In

doing so, the Commission must consider “all relevant economic factors,” including four enumerated

factors: (1) any likely increase in production capacity or existing unused production capacity in the

exporting country; (2) existing inventories of the subject merchandise, or likely increases in inventories;

(3) the existence of barriers to the importation of the subject merchandise into countries other than the

United States; and (4) the potential for product shifting if production facilities in the foreign country, which

can be used to produce the subject merchandise, are currently being used to produce other products.86

In the original determination, the Commission found that the domestic industry was materially

injured by reason of imports of top-of-the-stove SS cookware from Korea and Taiwan that were

subsidized and sold at less than fair value.87 The Commission found that cumulated subject imports from

Taiwan and Korea held a combined market share of 50.0-50.2 percent by quantity in 1983-85; Korea held
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88CR at I-6, PR at I-5.

89Original determination at 12.

90Id.

91CR & PR, Table I-4. 

92 Importer questionnaire data show subject imports from Korea declined from *** million in 1998

to *** million in 1998, and was *** million in interim 1999 compared with *** million in 1998. In terms of

quantity, subject imports from Korea declined from *** units in 1997 to *** units in 1998, and was ***

units in interim 1999 compared with *** units in interim 1998. INV-Z-008 dated January 9, 2002, Table

1-Revised. I note that the interim 1999 data includes *** which may contain some inaccuracies.

93CR & PR, Table IV-7.

94CR and PR, Table IV-6. U.S. producers dispute the capacity and capacity utilization figures

submitted by KMWIA and the individual Korean producers. See CR at Table IV-7. However, the

29

shares of 49.0-49.5 percent while Taiwan held shares of 0.7-1.0 percent.88 The Commission noted that

while the market share of imports by quantity remained stable during the period examined, the market

share by value increased, by 5.5 percentage points, and that the value of imports was a more reliable

indicator of impact on the domestic industry.89 

Korean imports were high prior to the order but remained relatively stable throughout the period

examined.90 According to official import data and accounting for the estimated 3 percent nonsubject

merchandise contained in HTS subheading 7323.93.00.30, subject imports’ market share by quantity 

declined from 8.5 to 8.0 percent between 1997 and 1998, and was 11.4 percent in interim (January -

September) 1999 compared with 8.0 percent in interim 1998.91 By value, subject imports’ market share

increased slightly from 8.4 percent in 1997 to 8.9 percent in 1998, and was 10.9 percent in interim 1999

compared with 9.1 percent in interim 1998.92 While the parties dispute the current Korean production

capacity levels, using either number, the evidence demonstrates that Korean capacity has declined

significantly since the time of the original investigation, by between *** and *** percent.93 Available

foreign producer data for the period examined in these reviews shows little unused Korean producer

capacity.94 In addition, current data indicates that Korean producer inventories are relatively low and
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reported data by individual firms indicate relatively high capacity utilization. 

95CR & PR, Table IV-6. Korean end-of-period inventories declined from 236,000 units in 1997

to 197,000 units in 1998, and were 176,000 units in interim 1999 compared with 245,000 units in interim

1998. As a percentage of production, Korean inventories declined from 3.1 percent in 1997 to 2.9

percent in 1998, and were 2.4 percent in interim 1999 compared with 3.7 percent in interim 1998. Id. 

96CR at IV-18, PR at IV-11.

97CR at I-22, PR at I-16.

98CR & PR, Table I-4.

99 The more widespread use of non-stick surfaces on top-of-the-stove stainless steel cookware

may account for some increased competition between aluminum and stainless steel cookware. See CR at

I-28, II-6 and II-19-20, PR at I-20, II-4, and II-12.

100CR & PR, Table I-4.

101Id.

30

declined during the period of review.95 Korean producers may face a barrier to importation in South

Africa, which imposed antidumping duties on imports of stainless steel cookware (“holloware”) from

Korea in 1998.96 The record suggests that product-shifting is not likely because it is not possible for topof-the-stove stainless steel cookware producers to use the same production lines and workers to produce

other cookware.97

The record indicates that the market has changed considerably since the time of the original

investigation. Particularly relevant are the substantial increase in the market share held by nonsubject

imports, whose share has risen from one-quarter to three-quarters of the market,98 and the increase in

competition from other types of cookware, most notably from aluminum cookware.99 Between 1997 and

1998 alone, nonsubject imports increased their market share by 9.7 percentage points.100 At the same

time, Korean market share declined by 0.4 percent and domestic market share declined by 3.4 percentage

points.101 While Korean market share increased during the interim period, nonsubject market share also

increased. Generally, nonsubject market share has been increasing as both subject import and domestic

producer market shares have declined. Given that nonsubject imports hold more than three-quarters of
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102CR at I-12, I-14, PR at I-10, I-11.

10319 U.S.C. § 1675a(a)(3). The SAA states that “[c]onsistent with its practice in investigations,

in considering the likely price effects of imports in the event of revocation and termination, the

Commission may rely on circumstantial, as well as direct, evidence of the adverse effects of unfairly

traded imports on domestic prices.” SAA at 886.

104Original determination at 12-13.

105Price data for top-of-the-stove stainless steel cookware reported by U.S. producers accounted

for only *** percent of U.S. producers’ shipments in 1998, while price data for imports from Korea

accounted for *** percent of shipments of imports from Korea in 1998. CR at V-7, PR at V-5.

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the market, and given the declining capacity and high reported capacity utilization of Korean imports, it is

likely that any increases in subject market share would come largely at the expense of nonsubject imports.

Given the relatively stable import volume of Korean imports, decreased Korean producer

capacity, high reported capacity utilization, and low current and projected dumping and CVD margins for

most producers,102 it is unlikely that Korean imports would rise appreciably should the orders be revoked. 

Therefore, I do not find that the past and current volume levels indicate that there will be a

significant adverse volume effect on the industry if the orders covering Korea are revoked. 

B. Likely Price Effects

In evaluating the likely price effects of subject imports if an antidumping duty order is revoked,

the Commission is directed to consider whether there is likely to be significant underselling by the subject

imports as compared with the domestic like product, and whether the subject imports are likely to enter

the United States at prices that would have a significant depressing or suppressing effect on the prices of

the domestic like product.103

In the original determination, the Commission found that the pricing data was mixed but that

pricing trends established a causal link between material injury and the subject imports in light of the

import trends.104 Current pricing data is extremely minimal and, therefore, is of limited probative value.105
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106CR at II-3, PR at II-2.

107Information on the record indicates that *** Korean producers had any sales in the direct sales

channel of distribution. See Posthearing brief of Korean Respondents at 36. I further note that these

sales accounted for a small portion (***) of total sales of subject Korean imports. Based on this small

presence, the record does not indicate that Korean top-of-the-stove stainless steel cookware producers

are likely to increase their presence in the direct sales channel in the reasonably foreseeable future.

108CR at II-35, PR at II-22.

109 CR and PR at Table II-2.

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The record evidence indicates that there is limited competition between subject imports and the

domestic product due to differences in channels of distribution.106 Therefore, subject imports, at any

volume, do and would continue to have limited, if any, price effects on the domestic product. While both

Korean and domestic producers serve the high end market, the record shows that their respective sales

are predominantly in different channels of distribution; Korean product is mostly marketed in retail outlets

while domestic product is primarily marketed through direct sales.107 Accordingly, there is only limited

competition between Korean imports and the domestic like product.

Moreover, there is limited price sensitivity in the high end of the top-of-the-stove SS cookware

market108 and limited side-by-side competition, particularly in the direct sales channel that is dominated by

the domestic industry. Additionally, purchasers generally identified quality as the most important factor in

making their purchasing decisions, with price predominantly appearing as the third among a variety of

factors,109 further limiting the likelihood that subject import pricing affects domestic prices.

Therefore, based on these factors, I find that the subject imports from Korea would not be likely

to have a significant negative effect on domestic prices within a reasonably foreseeable time if the orders

are revoked.

C. Likely Impact
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11019 U.S.C. § 1675a(a)(4).

111 Id. Section 752(a)(6) of the Act states that “the Commission may consider the magnitude of

the margin of dumping or the magnitude of the net countervailable subsidy” in making its determination in

a five-year review investigation. 19 U.S.C. § 1675a(a)(6). In my analysis, I have taken note of the

margins and countervailable subsidies that Commerce found to be likely in the event that the orders are

revoked. See 64 Fed. Reg 40572 (July 27, 1999); 64 Fed. Reg. at 48374 (Sept. 3, 1999); 64 Fed. Reg. at

48377 (Sept. 3, 1999); Top-of-the-Stove Stainless Steel Cookware from Korea, 64 Fed. Reg. at 48378.

In five-year reviews concerning countervailing duty orders, the Commission is required to

consider “information regarding the nature of the countervailable subsidy and whether the subsidy is a

subsidy described in Article 3 or 6.1 of the Subsidies Agreement.” 19 U.S.C. § 1675a(b)(6). In its final

five-year review determination. Commerce found that four of the five programs at issue (short-term

export financing, export tax reserves, business loans to promising companies, and duty drawback) in the

review regarding Korea, fall within the definition of an export subsidy under Article 3.1(a) of the

Subsidies Agreement. See Top-of-the-Stove Stainless Steel Cookware from Korea, 64 Fed. Reg. at

48378.

112The SAA states that in assessing whether the domestic industry is vulnerable to injury if the

order is revoked, the Commission “considers, in addition to imports, other factors that may be contributing

to overall injury. While these factors, in some cases, may account for the injury to the domestic industry,

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In evaluating the likely impact of imports of subject merchandise if an antidumping duty order is

revoked, the Commission is directed to consider all relevant economic factors that are likely to have a

bearing on the state of the industry in the United States, including but not limited to: (1) likely declines in

output, sales, market share, profits, productivity, return on investments, and utilization of capacity; (2)

likely negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and

investment; and (3) likely negative effects on the existing development and production efforts of the

industry, including efforts to develop a derivative or more advanced version of the domestic like

product.110 All relevant economic factors are to be considered within the context of the business cycle

and the conditions of competition that are distinctive to the industry.111 

As instructed by the statute, I have considered the extent to which any improvement in the state

of the domestic industry is related to the antidumping duty orders at issue and whether the industry is

vulnerable to material injury if those orders are revoked.112 In these reviews, the record shows that the
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they may also demonstrate that an industry is facing difficulties from a variety of sources and is

vulnerable to dumped or subsidized imports.” SAA at 885.

113CR & PR, Table C-2. Some indicators are not positive. I note that domestic shipments have

been down slightly and export shipments more substantially, and that operating income and unit operating

income declined slightly in the interim period. I also note that capital expenditures have fluctuated and are

down somewhat between 1997 and interim 1998. Id. However, I do not view these indicators, when

compared with the other strong positive indicators, as depicting an industry that is anything but in sound

financial condition. 

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domestic industry is in extremely sound condition financially. Industry gross profits are healthy and have

been increasing since 1997, rising from $57.5 million in 1997 to $58.8 million in 1998 and increasing a

further 8.2 percent comparing interim periods. Operating income as a ratio to net sales increased from 

11.1 percent in 1997 to 13.1 percent in 1998, and was 12.3 percent in interim 1999 compared with 13.5

percent in interim 1998. Productivity has increased and unit COGS have declined. These positive

indicators are consistent with an industry that is focusing on the high end of a market that has been

booming in recent years, with consumption increasing by 21.1 percent between 1997 and 1998 and a

further 22.7 percent between interim periods.113 I note that the industry is enjoying this extremely positive

performance 14 years after the orders were put in place, and despite substantially increased nonsubject

imports, declining market share and the continued presence of subject imports in the market.

Moreover, as discussed above, there is only limited competition between the Korean imports and

the domestic like product. Accordingly, given my finding that increases in subject imports, if any, are not

likely to have any significant volume or price impacts on the domestic industry, I also find that subject

imports would not be likely to have a significant impact on the domestic industry’s cash flow, inventories,

employment, wages, growth, ability to raise capital, or investment within a reasonably foreseeable time in

the event the order is revoked. Further, I find that revocation of the order is not likely to lead to a

significant reduction in U.S. producers’ output, sales, market share, profits, productivity, ability to raise
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35

capital, or return on investments within a reasonably foreseeable time. 

Accordingly, I find that there is not likely to be a significant impact on the domestic industry if the

orders covering the subject imports from Korea are revoked.

II. CONCLUSION

For the reasons stated above, I determine that revocation of the antidumping duty orders on topof-the-stove SS cookware from Korea would not be likely to lead to continuation or recurrence of

material injury within a reasonably foreseeable time.