UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS AND THE USE OF FACTS AVAILABLE REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC OF KOREA
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 17 April 2018
Document codes: WT/DS539/6
Complainant: South Korea
Respondent: U.S.
Third parties: Brazil, Canada, China, Egypt, EU, India, Japan, Kazakhstan, Mexico, Norway, Russia
Dispute stage: Panel
Agreements cited: Art. 6.8, Annex II  Anti-dumpingArt. 12.7  Subsidies and Countervailing Measures (SCM)Art. 6.1  Anti-dumpingArt. 12.1  Subsidies and Countervailing Measures (SCM)Art. 6.2  Anti-dumpingArt. 12.2  Subsidies and Countervailing Measures (SCM)Art. 6.6  Anti-dumpingArt. 12.5  Subsidies and Countervailing Measures (SCM)Art. 6.7, Annex I  Anti-dumpingArt. 12.6, Annex VI  Subsidies and Countervailing Measures (SCM)Art. 6.9  Anti-dumpingArt. 12.8, 11.2, 11.3, 11.6  Subsidies and Countervailing Measures (SCM)Art. 11.4  Anti-dumpingArt. 21.4  Subsidies and Countervailing Measures (SCM)Art. 1, 2.1, 2.2, 2.3, 2.4, 3.1, 3.2, 3.4, 3.5, 5.8, 9.2, 9.3, 9.4, 9.5, 11.1, 11.3, 11.4, 18.1  Anti-dumpingArt. 1, 10, 11.9, 14, 15.1, 15.2, 15.4, 15.5, 19.1, 19.3, 19.4, 21.1, 21.3, 32.1  Subsidies and Countervailing Measures (SCM)Art. VI:1, VI:2, VI:3  GATT 1994Art. 3  Anti-dumpingArt. 15  Subsidies and Countervailing Measures (SCM)Art. 9.1  Anti-dumpingArt. 19.2  Subsidies and Countervailing Measures (SCM)Art. 18.4  Anti-dumpingArt. 32.5  Subsidies and Countervailing Measures (SCM)Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN
PRODUCTS AND THE USE OF FACTS AVAILABLE
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE REPUBLIC OF KOREA
The following communication, dated 16 April 2018, from the delegation of the Republic of Korea to
the Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement"), and Article 30 of the
Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), regarding (a) certain
anti-dumping and countervailing duty measures imposed on products from Korea; (b) certain
provisions of United States' legislation regarding the use of facts available; and (c) the United
States' ongoing conduct as well as its practice of using adverse fa cts available as a rule or norm of
general and prospective application in anti -dumping and countervailing duty investigations and
reviews. These measures appear to be inconsistent with the United States' obligations under
certain provisions of the GATT 19 94, the Anti -Dumping Agreement, the SCM Agreement, and the
Marrakesh Agreement establishing the WTO.
2. Consultations were held on 22 March 2018 with a view to reaching a mutually satisfactory
solution. However, these consultations failed to resolve the dispute.
3. Therefore, Korea respectfully requests, pursuant to Article 6 of the DSU, Article XXIII of the
GATT 1994, Article 17.4 of the Anti -Dumping Agreement, and Article 30 of th e SCM Agreement,
that the Dispute Settlement Body establish a panel to examine this matter, with the standard
terms of reference as set out in Article 7.1 of the DSU.
4. Pursuant to Article 6.2 of the DSU, Korea proceeds below to identify the specific measures at
issue and to provide a brief summary of the legal basis of the complaint.
I. IDENTIFICATION OF THE MEASURES
A. Certain Definitive Anti-Dumping and Countervailing Duty Measures
5. This request concerns the definitive anti -dumping and countervailing duty meas ures
imposed by the United States pursuant to the preliminary and final anti -dumping and
countervailing duty determinations and orders issued by the U.S. Department of Commerce
("USDOC") in the investigations and administrative reviews listed below.
6. The measures include the conduct of those investigations and administrative reviews, any
preliminary or final anti -dumping and countervailing duty determinations issued in those
investigations and administrative reviews, any definitive anti -dumping and counterva iling duties
imposed as a result of those investigations and administrative reviews, as well as any notices,

annexes, decision memoranda, orders, amendments, or other instruments issued by the United
States in connection with these anti-dumping and countervailing duty measures:
 Anti-Dumping Duties on Certain Corrosion -Resistant Steel Products From the
Republic of Korea (USDOC investigation number A -580-878) ("Corrosion -
Resistant Steel AD Measure") as set forth, among others, in:
o Final Determination of Sales at Less Than Fair Value and Final Affirmative
Determination of Critical Circumstances, 81 Fed. Reg. 35303 (2 June 2016);
o Issues and Decision Memorandum for the Final Affirmative Determination in the
Antidumping Duty Investigation of Certain Corrosion -Resistant Steel Products from
the Republic of Korea (24 May 2016);
o Antidumping Duty Order, 81 Fed. Reg. 48390 (25 July 2016).
 Anti-Dumping Duties on Certain Cold -Rolled Steel Flat Products From the
Republic of Korea (USDOC investigation number A -580-881) ("Cold-Rolled Steel
AD Measure") as set forth, among others, in:
o Final Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 49953 (29 July
2016);
o Issues and Decision Memorandum for the Final Affirmative Determination in the
Antidumping Duty Investigatio n of Certain Cold -Rolled Steel Products from the
Republic of Korea (20 July 2016);
o Antidumping Duty Order, 81 Fed. Reg. 64432 (20 September 2016).
 Countervailing Duties on Certain Cold -Rolled Steel Flat Products From the
Republic of Korea (USDOC investigation number C -580-882) ("Cold-Rolled Steel
CVD Measure") as set forth, among others, in:
o Final Affirmative Determination, 81 Fed. Reg. 49943 (29 July 2016);
o Issues and Decision Memorandum for the Final Determination in the Countervailing
Duty Investigation of Certain Cold -Rolled Steel Flat Products from the Republic of
Korea (20 July 2016);
o Countervailing Duty Order, 81 Fed. Reg. 64436 (20 September 2016).
 Anti-Dumping Duties on Certain Hot -Rolled Steel Flat Products From the Republic
of Korea (USDOC investi gation number A -580-883) ("Hot -Rolled Steel AD
Measure") as set forth, among others, in:
o Final Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 53419 (12
August 2016);
o Issues and Decision Memorandum for the Final Affirmative Determination in th e
Antidumping Duty Investigation of Certain Hot -Rolled Steel Flat Products from the
Republic of Korea (4 August 2016);
o Antidumping Duty Order, 81 Fed. Reg. 67962 (3 October 2016).
 Countervailing Duties on Certain Hot-Rolled Steel Flat Products From the Republic
of Korea (USDOC investigation number C -580-884) ("Hot -Rolled Steel CVD
Measure") as set forth, among others, in:
o Final Affirmative Determination, 81 Fed. Reg. 53439 (12 August 2016);
o Issues and Decision Memorandum for the Final Determination in the Countervailing
Duty Investigation of Certain Hot -Rolled Steel Flat Products from the Republic of
Korea (4 August 2016);
o Countervailing Duty Order, 81 Fed. Reg. 67960 (3 October 2016).

 Anti-Dumping Duties on Large Power Transformers From the Republic of Kore a
(USDOC investigation number A -580-867) ("Large Power Transformers AD
Measure") as set forth, among others, in:
o Final Determination of Sales at Less Than Fair Value, 77 Fed. Reg. 40857 (11 July
2012);
o Antidumping Duty Order, 77 Fed. Reg. 53177 (31 August 2012);
o Review determinations and related measures, including:
 Final Results of Redetermination Pursuant to Court Remand, ABB INC. v.
United States, Consol. Court No. 16 -00054, Slip Op. 17 -138 (7 February
2018, remand of second administrative review).
 Final Results of Antidumping Duty Administrative Review; 2014 -2015 (82
Fed. Reg. 13432, 13 March 2017, third administrative review)
 the Issues and Decision Memorandum for the Final Results of the
Administrative Review of the Antidumping Duty Order on Large
Power Transformers from the Republic of Korea; 2014 -2015 (6
March 2017)
 Final Results of Antidumping Duty Administrative Review; 2015 -2016 (83
Fed. Reg. 11679, 16 March 2018, fourth administrative review)
 the Issues and Decision Memorandum for the Final Result s of the
Administrative Review of the Antidumping Duty Order on Large
Power Transformers from the Republic of Korea; 2015 -2016 (9
March 2018)
 Final Results of the Expedited First Sunset Review of the Antidumping Duty
Order, 82 Fed. Reg. 51604 (7 November 2017):
 Issues and Decision Memorandum for the Expedited First Sunset
Review of the Antidumping Duty Order on Large Power
Transformers from the Republic of Korea (31 October 2017).
7. This request also concerns any modification, review, replacement or amendment to the
definitive anti-dumping and countervailing duty measures listed above and any closely connected,
subsequent measures to determine a dumping margin or subsidy amount, or related anti -dumping
duty or countervailing duty rates.
B. Section 776 of the Tari ff Act of 1930 (19 U.S.C. § 1677e) as amended by Section
502 of the Trade Preferences Extension Act of 2015, and its implementing
regulations
8. This request also concerns a number of provisions of U.S. law relating to the use of facts
available and the drawing of adverse inferences in certain situations by the USDOC under national
legislation including:
 Section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114-27;
 Section 776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e;
 The implementing regulations of the USDOC in 19 C.F.R. § 351, including in particular
section 351.308; and
 Any other related, subsequent measures that enable or implement the use of facts
available in anti-dumping and countervailing duty investigations, administrative reviews
and other parts of such proceedings.
C. Use of Adverse Facts Available As Ongoing Conduct, or a Rule or Norm of General
and Prospective Application
9. This request also concerns the ongoing conduct or the practice of the USDOC of using
"adverse facts available" as a rule or norm of general and prospective application when a producer

or exporter is found to have failed to cooperate by not acting to the best of its ability. Under this
ongoing conduct or norm, whenever the USDOC makes a findi ng that a producer or exporter has
failed to cooperate by not acting to the best of its ability, it adopts adverse inferences and, in
determining the duty rate for this producer or exporter, selects facts from the record that are
adverse to the interests o f this producer or exporter without establishing (i) that such inferences
can reasonably be drawn in light of the degree of cooperation received, and (ii) that such facts are
the "best information available" in the particular circumstances.1
II. LEGAL BASIS
10. Korea is concerned that the measures identified above are inconsistent with the WTO
obligations of the United States, including, among others, under Article 6.8 and Annex II of the
Anti-Dumping Agreement and Article 12.7 of the SCM Agreement.
11. The failure of the United States to comply with its obligations relating to the use of facts
available when making preliminary and/or final determinations of dumping and/or subsidization
has a direct consequential effect on other aspects of the investigation or revie w that relate to the
determination of dumping or subsidization, the determination of injury by dumped or subsidized
imports, the imposition and maintenance of anti-dumping or countervailing duties, and the level of
such duties.
12. In addition, Korea is concer ned that when resorting to the use of adverse facts available in
the specific investigations and reviews leading to the adoption and maintenance of the above -
listed anti-dumping and countervailing duty measures, the United States failed to comply with a
number of related procedural and substantive obligations under the Anti -Dumping Agreement and
the SCM Agreement, as identified below.
A. As Applied Challenge to Certain Definitive Anti -Dumping and Countervailing Duty
Measures
13. With respect to the anti -dumping and countervailing duty measures listed in Section I.A of
this request, Korea considers that the USDOC resorted to the use of facts available and drew
adverse inferences in disregard of the obligations set forth in Article 6.8 and Annex II of the Anti -
Dumping Agreement and Article 12.7 of the SCM Agreement.
14. In the anti-dumping and countervailing duty measures identified above, the USDOC did not
assess the facts properly and objectively in finding that the affected Korean pro ducers and
exporters failed to cooperate by not acting to the best of their abilities when allegedly failing to
provide information necessary to determine a margin of dumping or an amount of subsidization.
In addition, the USDOC failed to respect the specific steps to be followed when resorting to the use
of facts available and selected from the facts available those facts that were sufficiently adverse to
the interests of the Korean producers/exporters. In so doing, the USDOC failed to use the best
information available in order to arrive at an accurate determination where necessary information
was allegedly missing and rather applied facts available in a punitive manner, in violation of Article
6.8 and Annex II of the Anti-Dumping Agreement and Article 12.7 of the SCM Agreement.
15. The above -described violations affect all of the anti -dumping and countervailing duty
measures that are referred to in Section I.A of this request.2

1 The use of adverse facts available has been consistently applied by the USDOC and is undertaken
pursuant to: (i) Section 502 of the Trade Preferences Extension Act of 2015, Pub. L. No. 114-27; (ii) Section
776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e; and (iii) the implementing regulations of the
USDOC in 19 C.F.R. § 351, including in particular section 308.
It is also evidenced, for example, by the manner in which facts available was used in the measures
identified in Section I.A of this Request. A preliminary and non-exhaustive list of measures confirming the
existence of this ongoing conduct or rule or norm of applying adverse facts available whenever a finding is
made that a producer or exporter has failed to act to the best of its ability is attached as Annex I to illustrate
the practice.
2 The relevant findings for the use of partial or total AFA made by the USDOC can be found in the Issues
and Decision Memorandum of each measure, as follows: Corrosion-Resistant Steel AD Measure – Issues
and Decision Memorandum for the Final Affirmative Determination in the Antidumping Duty Investigation of
Certain Corrosion-Resistant Steel Products from the Republic of Korea (24 May 2016), including section VII,

16. In particular, first, the USDOC failed to make a reasoned and adequate finding th at the
affected Korean producers and exporters "refused access to" or otherwise did not provide
"necessary" information or "significantly impeded" the investigation. Given that Article 6.8 of the
Anti-Dumping Agreement and Article 12.7 of the SCM Agreemen t limit the possibility of making
preliminary or final determinations on the basis of facts available to such circumstances only, there
appears not to have been a valid basis for resorting to the use of facts available in the way the
USDOC did in any of th e identified investigations and reviews leading to the imposition of anti -
dumping or countervailing duty measures.
17. In addition, when resorting to the use of facts available, the USDOC in each case (i) failed to
specify in detail the information required fr om the producers/exporters; (ii) failed to take into
account all verifiable information submitted by the producers/exporters; (iii) disregarded
information simply because it was not ideal in all respects; (iv) failed to provide the
producers/exporters opportunity to provide further explanations when information was rejected;
and (v) failed to respect the steps to be followed with respect to the use of information from
secondary sources, such as the need to use such information with special circumspection an d the
need to check the information from other independent sources at their disposal. In so doing, the
USDOC failed to respect the express obligations set forth in paragraphs 1, 3, 5, 6 and 7 of
Annex II of the Anti -Dumping Agreement as well as the obliga tion set forth in Article 12.7 of the
SCM Agreement.
18. Finally, when selecting from the facts otherwise available, the USDOC resorted to the
drawing of "adverse" inferences and failed to take into account all substantiated facts on the
record and all evidenc e that was verifiable and appropriately submitted in a timely manner. In
each of these measures, the USDOC based the determination of dumping or subsidization for the
relevant producers or exporters on certain information, including secondary source infor mation
from the petitioners, as well as assumptions or speculation with a view to arriving at a result that
was sufficiently adverse to the interests of these producers or exporters. The USDOC did not seek
to replace the allegedly missing information with the best information available and did not seek to
corroborate the information in order to arrive at an accurate determination of dumping or
subsidization. It unduly disregarded verifiable information that was submitted by the Korean
producers or exporte rs to the best of their ability. The USDOC's determinations in the
investigations and reviews that led to the adoption or continuation of these measures did not
reflect a valid process of reasoning and evaluation that would support the selection of the fa cts in
the circumstances of each case. In sum, Korea is concerned that when determining dumping and
subsidization on the basis of facts available in the context of the above -listed measures, the
USDOC used facts available in a punitive manner rather than to seek to arrive at an accurate
determination, in violation of Article 6.8 and paragraph 7 of Annex II of the Anti -Dumping
Agreement and Article 12.7 of the SCM Agreement.

and comments 4 and 5; Cold-Rolled Steel AD Measure – Issues and Decision Memorandum for the Final
Affirmative Determination in the Antidumping Duty Investigation of Certain Cold-Rolled Steel Products from the
Republic of Korea (20 July 2016), including comments 12, 15, and 19; Cold-Rolled Steel CVD Measure –
Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of
Certain Cold-Rolled Steel Flat Products from the Republic of Korea (20 July 2016), including section VI, and
comments 5, 6, 7; Hot-Rolled Steel AD Measure - Issues and Decision Memorandum for the Final
Affirmative Determination in the Antidumping Duty Investigation of Certain Hot-Rolled Steel Flat Products from
the Republic of Korea (4 August 2016), including comment 8; Hot-Rolled Steel CVD Measure – Issues and
Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Hot-
Rolled Steel Flat Products from the Republic of Korea (4 August 2016), including section VI, and comments 5,
6, 7; Large Power Transformers AD Measure: for the third administrative review – Issues and Decision
Memorandum for the Final Results of the Administrative Review of the Antidumping Duty Order on Large Power
Transformers from the Republic of Korea; 2014-2015 (6 March 2017), including sections VI and VII, and
comments 1, 4 and 5; for the fourth administrative review – Issues and Decision Memorandum for the Final
Results of the Administrative Review of the Antidumping Duty Order on Large Power Transformers from the
Republic of Korea; 2015-2016 (9 March 2018), including section V, and comments 1, 2, 3, 4, and 5; and for
the sunset review – Issues and Decision Memorandum for the Expedited First Sunset Review of the
Antidumping Duty Order on Large Power Transformers from the Republic of Korea (31 October 2017), including
sections IV, VI, VII, and VIII; for the remand of the second administrative review – Final Results of
Redetermination Pursuant to Court Remand, ABB INC. v. United States, Consol. Court No. 16-00054, Slip Op.
17-138 (7 February 2018), including sections B, C, and D.
For the sake of clarity, in Annex II Korea briefly summarizes in a non-exhaustive manner some of the
most relevant findings of each of these measures before linking them to the obligations contained in the
relevant legal provisions of the Anti-Dumping Agreement and the SCM Agreement.

19. In sum, the USDOC appears to have acted in violation of the United States' obligations
under Article 6.8 and Annex II of the Anti -Dumping Agreement, in particular paragraphs 1, 3, 5, 6
and 7 of Annex II and Article 12.7 of the SCM Agreement relating to the use of facts ava ilable and
drawing adverse inferences in selecting from the facts otherwise available in each of the anti -
dumping and countervailing duty measures identified in Section I.A.
20. Furthermore, Korea is concerned that when resorting to the use of facts available in the
context of the above -identified anti-dumping and countervailing duty measures, the United States
failed to comply with the following provisions:
a. Article 6.1 of the Anti-Dumping Agreement and Article 12.1 of the SCM Agreement because
the USDOC failed to give notice of the information which it required and to give ample
opportunity for interested parties to present in writing all evidence which they considered
relevant in the investigation;
b. Article 6.2 of the Anti-Dumping Agreement and Article 12.2 of the SCM Agreement because
the USDOC failed to provide interested parties with the full opportunity to defend their
interests;
c. Article 6.6 of the Anti-Dumping Agreement and Article 12.5 of the SCM Agreement because
the USDOC failed to satisfy itself as to t he accuracy of the information supplied by
interested parties upon which its findings were based;
d. Article 6.7 and Annex I of the Anti -Dumping Agreement and Article 12.6 and Annex VI of
the SCM Agreement when the USDOC failed to carry out investigations, in cluding on the
premises of a firm in the territory of other Members, "as required" to verify information
provided or to obtain further details and because it failed to make available the results of
verifications to the firms to which they pertain or provide disclosure thereof;
e. Article 6.9 of the Anti-Dumping Agreement and Article 12.8 of the SCM Agreement because
the USDOC failed to inform all interested parties of the essential facts under consideration
which formed the basis for the decision to apply def initive measures such as, among
others, the "necessary" nature of the information that was allegedly not provided, the
factual basis for the finding of failure to act to the best of one's ability, and the s election of
the facts available;
f. Article 9.4 of t he Anti -Dumping Agreement because in situations where sampling was
used3 the USDOC determined an all others rate that did not disregard margins established
under the circumstances of Article 6.8;
g. Articles 11.2, 11.3 and 11.6 of the SCM Agreement because the USDOC requested
information to be provided on "any other forms of assistance" that was not included in the
application on which the investigation was based, and applied facts available whenever it
discovered information that was not provided in response to this request, without
examining whether the information obtained or discovered sufficed to initiate the
investigation; and
h. Article 11.4 of the Anti -Dumping Agreement and Article 21.4 of the SCM Agreement
because the USDOC failed to act in accordance with the provisions on evidence and
procedure as outlined above in the relevant reviews.
21. Moreover, as a consequence of the undue use of adverse facts available when determining
dumping and/or subsidization, these measures appear to be in consistent with several provisions of
the Anti-Dumping Agreement and the SCM Agreement relating to the determination of dumping or
subsidization, the determination of injury and causation, the determination of the amount of the
duty to be imposed, and the maintenance of the duty, such as Articles 1, 2.1, 2.2, 2.3, 2.4, 3.1,
3.2, 3.4, 3.5, 5.8, 9.2, 9.3, 9.4, 9.5, 11.1, 11.3, 11.4, and 18.1 of the Anti -Dumping Agreement
as well as Articles 1, 10, 11.2, 11.3, 11.9, 14, 15.1, 15.2, 15.4, 15.5, 19.1, 19.3, 19.4, 21.1, 21.3,

3 This was the case, for example, in the fourth administrative review in the Large Power Transformers
AD Measure.

and 32.1 of the SCM Agreement, and Articles VI:1, VI:2 and VI:3 of the GATT 1994. These
consequential violations are further summarized below.
22. In particular, Korea considers that the undue use of adverse facts available in each of these
measures automatically vitiates the determination of dumping or subsidization under Articles 2.1,
2.2, 2.3 and 2.4 of the Anti -Dumping Agreement and Article 1 and 10 of the SCM Agreement.
Where normal value, export price and the comparison between the two are affected by the undue
use of adverse facts available, the dumping determination is necessarily also flawed. Similarly,
where subsidy programs are presumed to be benefiting certain producers based on the undue use
of adverse facts available, the subsidy d etermination is necessarily inconsistent with Article 1 and
any countervailing duty measure is thus inconsistent with Article 10 of the SCM Agreement.
23. In addition, any injury and causation analysis under Article 3 of the Anti -Dumping
Agreement and Article 15 of the SCM Agreement that seeks to identify the effects of such unduly
determined "dumped" or "subsidized" imports, is necessarily also flawed since there is no certainty
that imports would have been found to be dumped or subsidized if the relevant WTO obligations
were abided by. In addition, the magnitude of the margin of dumping is a specific injury factor
that must be examined under Article 3.4 of the Anti-Dumping Agreement. Given that the improper
use of adverse facts available inflates the margin of dumping, this automatically vitiates the injury
analysis under Article 3.4 of the Anti -Dumping Agreement. Similarly, Article 14 of the SCM
Agreement sets forth obligations on the calculation of the amount of the subsidy which are
necessarily violated i f, as was the case in the two countervailing duty measure identified above,
subsidies are assumed to be provided to exporters or producers based on the undue use of
adverse facts available.
24. Furthermore, the amount of the duties is limited by the margin of dumping or subsidization
under Articles 9.1 and 9.3 of the Anti -Dumping Agreement and Articles 19.2 and 19.4 of the SCM
Agreement. In all of the investigations and reviews in question, USDOC determined the amount of
the duties to be equal to the margin of dumping or subsidization. Duties that have been calculated
based on margins of dumping or subsidization that were inflated as a result of the undue use of
adverse facts available will necessarily violate these obligations.
25. In addition, any anti -dumping a nd countervailing duty investigation should have been
terminated promptly under Article 5.8 of the Anti-Dumping Agreement and Article 11.9 of the SCM
Agreement where, absent the undue use of adverse facts available, no dumping or subsidization
above de minimis was found. In particular, in the context of the above-identified Cold-Rolled Steel
CVD Measure and Hot -Rolled Steel CVD Measure, the investigations should have been terminated
promptly since the preliminary determinations concluded that the amount of subsidization were de
minimis. Only as a result of the undue use of adverse facts available did the USDOC make
findings of subsidization above de minimis in both investigations. In addition, the sunset review
determination in Large Power Transformers AD Measure is based on an examination of the
likelihood of recurrence or continuation of dumping that relies on dumping margins established
through the improper use of adverse facts available. Such a sunset review examination is
automatically flawed as it i s not supported by a sufficient factual basis and is not based on a
determination of dumping that is consistent with Article 2 of the Anti -Dumping Agreement, thus
violating Articles 11.1 and 11.3 of the Anti-Dumping Agreement.
26. Finally, the undue applicatio n of adverse facts available vitiates key aspects of the
challenged anti-dumping and countervailing duty measures, which thus constitute specific actions
against dumping or against a subsidy that are inconsistent with the provisions of the GATT 1994,
as interpreted by the Anti-Dumping Agreement and the SCM Agreement respectively. As a result,
the listed anti -dumping measures in Section I.A. violate Article 18.1 of the Anti -Dumping
Agreement and the listed countervailing duty measures in the same section vi olate Article 32.1 of
the SCM Agreement.
B. As Such Challenge to Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e) as
amended by Section 502 of the Trade Preferences Extension Act of 2015, and its
implementing regulations
27. With regard to Section 776 of the Tariff Act of 1930, codified at 19 U.S.C. § 1677e, as
amended by Section 502 of the Trade Preferences Extension Act of 2015, and the above -listed
related legal provisions of the United States' national legislation governing the use of facts

available, Korea is concerned that these provisions are inconsistent with the United States'
obligations under Article 6.8 and Annex II of the Anti -Dumping Agreement, and Article 12.7 of the
SCM Agreement.
28. Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e), as amended by Section 502 of the
Trade Preferences Extension Act of 2015, provides that if the authorities find that an interested
party has failed to cooperate by not acting to the best of its ability to comply with a request for
information, the authoriti es may use an inference that is adverse to the interests of that party in
selecting from among the facts otherwise available. 4 In particular, it provides that the authorities
are not required to determine, or make any adjustments to, a countervailable subsidy rate or
weighted average dumping margin based on any assumptions about information the interested
party would have provided if the interested party had complied with the request for information. 5
It gives full discretion to the authorities to app ly the highest rate or margin available from among
the available dumping margins or countervailable subsidy rates, without the need to corroborate
such margins. 6 It further clarifies that the authorities are not required to estimate what the
countervailable subsidy rate or dumping margin would have been if the interested party found to
have failed to cooperate had cooperated or to demonstrate that the countervailable subsidy rate or
dumping margin used by the administering authority reflects an alleged com mercial reality of the
interested party.7
29. Korea considers that these legal provisions unduly permit the United States' investigating
authorities, and in particular the USDOC, not only to replace the missing necessary information but
to disregard verifiable and relevant information that was appropriately submitted by the producers
or exporters. They expressly relieve the authorities from the requirement to use "best"
information available as they permit the USDOC to select from the facts otherwise available those
that are adverse to the interest of the party concerned. They relieve the authorities from the
requirement to use secondary source information with special circumspection in certain
circumstances and give full discretion to the authorities to delib erately apply the highest rate or
margin, without the need to even consider whether this rate has a basis in the commercial reality
of the producer or exporter in question, or is supported by available other information that relates
to the producer or exporter in question.
30. These provisions thus provide that there is no obligation on the authorities to abide by the
obligations on the use of facts available imposed by Article 6.8 and, among others, paragraphs 1,
3, 5, 6 and 7 of Annex II of the Anti -Dumping Agreement and Article 12.7 of the SCM Agreement.
These provisions unduly relieve the obligation on the investigating authorities to use facts available
to reasonably replace missing "necessary information" with a view to arriving at an accurate
determination and permit the use of facts available in a punitive manner. 8 Section 776 of the
Tariff Act of 1930 (19 U.S.C. § 1677e), as amended by Section 502 of the Trade Preferences
Extension Act of 2015, permits the use of facts available in a manner that is n ot permitted by
Articles 6.8 and Annex II of the Anti -Dumping Agreement and Article 12.7 of the SCM Agreement
and thus violate these provisions. The Anti -Dumping Agreement and the SCM Agreement do not
permit resorting to facts available in a punitive mann er but require that the authorities take into
account all substantiated facts on the record and all evidence that was verifiable and appropriately
submitted in a timely manner and that facts available be used only to replace the "necessary"
information tha t is allegedly missing with the best information otherwise available in order to
arrive at an accurate determination of dumping or subsidization.
31. In addition, Korea considers that the unfettered discretion granted to the authorities to act
in this manner i s inconsistent with the United States' obligation under Article 18.4 of the Anti -
Dumping Agreement and Article 32.5 of the SCM Agreement, as well as Article XVI:4 of the
Marrakesh Agreement establishing the WTO to ensure conformity of its laws regulations and
administrative procedures with the provisions of, in particular, Article 6.8 and Annex II of the Anti -
Dumping Agreement and Article 12.7 of the SCM Agreement.

4 19 U.S.C. § 1677e(b)(1)(A).
5 19 U.S.C. § 1677e(b)(1)(B).
6 19 U.S.C. § 1677e(c)(2), § 1677e(d)(1),(2).
7 19 U.S.C. § 1677e(d)(3).
8 As confirmed by the practice of the USDOC referred to in Section I.C, the selection of facts that are
sufficiently adverse to the interests of the party in question rather than seeking to arrive at an accurate
determination, is in fact the rule under these legal provisions.

C. As Such Challenge to the USDOC's Use of Adverse Facts Available As an Ongoing
Conduct, or Rule or Norm of General and Prospective Application
32. Finally, with regard to the USDOC's use of adverse facts available, Korea is concerned that,
under this ongoing conduct, or rule or norm, whenever the USDOC determines that a producer or
exporter has failed to cooperate by not acting to the best of its ability, the USDOC selects facts
from the record that are adverse to the interests of the foreign producers or exporters without (i)
establishing tha t the adverse inferences can reasonably be drawn in light of the degree of
cooperation received, and (ii) ensuring that such facts are the "best information available" in the
particular circumstances.
33. Korea considers that the USDOC's ongoing conduct, or r ule or norm of general and
prospective application appears to be inconsistent with the United States' obligations relating to
the use of facts available, because, among other things, the United States disregards verifiable
and relevant information that was appropriately submitted by the producers or exporters acting to
the best of their abilities and fails to act with special circumspection when basing its findings on
information from secondary sources, thus failing to use the "best information available". The
USDOC draws conclusions on whether an interested party fails to act to the best of its ability
without evidence that "necessary" information is actively being withheld or that the investigation is
being impeded in a significant and deliberate manner. Furthermore, and in line with the
permission granted by Section 776 of the Tariff Act of 1930 (19 U.S.C. § 1677e), as amended by
Section 502 of the Trade Preferences Extension Act of 2015, the USDOC practice is not to
determine, or make any adjustments to , a countervailable subsidy rate or weighted average
dumping margin based on any assumptions about information the interested party would have
provided if the interested party had complied with the request for information. It does not
estimate what the co untervailable subsidy rate or dumping margin would have been if the
interested party found to have failed to cooperate had cooperated or seek to determine that the
countervailable subsidy rate or dumping margin used by the administering authority reflects an
alleged commercial reality of the interested party. Whenever it relies on a rate reflected in the
petition or a margin of dumping or subsidization established in a previous segment of the
proceeding, it does not seek to corroborate or check such inform ation based on the available
information in the record. The USDOC's ongoing conduct, or rule or norm is to select a rate that is
sufficiently adverse to ensure that the allegedly uncooperative party does not obtain a more
favorable result by failing to co operate than if it had fully cooperated, and thus effectively applies
facts available in a punitive manner rather than with a view to arriving at an accurate
determination.
34. Korea considers that the USDOC's ongoing conduct, or rule or norm of using adverse facts
available whenever it makes a finding of a failure to cooperate by not acting to the best of its
ability is inconsistent with the obligation that investigating authorities undertake a process of
reasoning and evaluation when selecting the facts avail able that reasonably replace the missing
"necessary information" to arrive at an accurate determination and thus appears to violate Article
6.8 and Annex II of the Anti -Dumping Agreement, in particular paragraphs 1, 3, 5, 6 and 7 of
Annex II, and Article 12.7 of the SCM Agreement.
III. CONCLUSION
35. The US anti -dumping and countervailing measures identified in Section I.A, the relevant
legal provisions under US law identified in Section I.B, and the U.S. ongoing conduct, or rule or
norm of general and prospective application of applying adverse facts available as identified in
Section I.C of this request, nullifies or impairs benefits accruing to Korea, directly or indirectly,
under the cited agreements.
36. Therefore, Korea respectfully requests, pursuant to Article 6 of the DSU, Article XXIII of the
GATT 1994, Article 17.4 of the Anti -Dumping Agreement, and Article 30 of the SCM Agreement,
that the Dispute Settlement Body establish a panel to examine this matter, with the st andard
terms of reference as set out in Article 7.1 of the DSU.
37. Korea further asks that this request for the establishment of a panel be placed on the
agenda of the next meeting of the Dispute Settlement Body to be held on 27 April 2018.

ANNEX I

1. Certain Uncoated Paper From Portugal: Preliminary Determination of Sales at Less Than Fair
Value and Postponement of Final Determination, 80 Fed. Reg. 51777 (26 August 2015)
2. Low-Enriched Uranium From France: Final Results of Antidumping Duty Administrative
Review; 2013-2014, 80 Fed. Reg. 55089 (14 September 2015)
3. Certain Hot -Rolled Steel Flat Products From the Netherlands: Affirmative Preliminary
Determination of Sales at Less Than Fair Value, Postponement of Final Determination and
Extension of Provisional Measures, 81 Fed. Reg. 15225 (22 March 2016)
4. Circular Welded Carbon -Quality Steel Pipe From Pakistan: Affirmative Preliminary
Determination of Sales at Less Than Fair Value and Postponement of Final Determination and
Extension of Provisional Measures, 81 Fed .Reg. 36867 (8 June 2016)
5. Certain Stilbenic Optical Brightening Agents From Taiwan: Final Results of Antidumping Duty
Administrative Review; 2014-2015, 81 Fed. Reg. 43991 (6 July 2016)
6. Certain Cold -Rolled Steel Flat Products From the United Kingdom: Fi nal Determination of
Sales at Less Than Fair Value, 81 Fed. Reg. 49929 (29 July 2016)
7. Certain Carbon and Alloy Steel Cut -to-Length Plate From the Federal Republic of Germany:
Final Determination of Sales at Less Than Fair Value, 82 Fed. Reg. 16360 (4 April 2017)
8. Certain Carbon and Alloy Steel Cut -to-Length Plate From France: Final Determination of
Sales at Less Than Fair Value, 82 Fed. Reg. 16363 (4 April 2017)
9. Certain Carbon and Alloy Steel Cut -To-Length Plate From Belgium: Final Determination of
Sales at Less Than Fair Value and Final Determination of Critical Circumstances, in Part , 82 Fed.
Reg. 16378 (4 April 2017)
10. Carbon and Certain Alloy Steel Wire Rod From Mexico: Final Results of Antidumping Duty
Administrative Review and Final Determination of No Sh ipments; 2014-2015, 82 Fed. Reg. 23190
(22 May 2017)
11. Certain Uncoated Groundwood Paper From Canada: Preliminary Affirmative Countervailing
Duty Determination, and Alignment of Final Determination With Final Antidumping Duty
Determination, 83 Fed. Reg. 2133 (16 January 2018)
12. Certain Steel Nails From Taiwan: Final Results of Antidumping Duty Administrative Review
and Partial Rescission of Administrative Review; 2015 -2016, 83 Fed. Reg. 6163 (13 February
2018)
13. Biodiesel From Argentina: Final Determination of Sa les at Less Than Fair Value and Final
Affirmative Determination of Critical Circumstances, in Part, 83 Fed. Reg. 8837 (1 March 2018)
14. Silicon Metal From Brazil: Final Affirmative Countervailing Duty Determination , 83 Fed. Reg.
9838 (8 March 2018)
15. Polytetrafluoroethylene Resin From India: Preliminary Affirmative Countervailing Duty
Determination, 83 Fed. Reg. 9842 (8 March 2018)
16. Large Power Transformers From the Republic of Korea: Final Results of Antidumping Duty
Administrative Review; 2015-2016, 83 Fed. Reg. 11679 (16 March 2018)
17. Carbon and Alloy Steel Wire Rod From the Republic of Turkey: Final Affirmative
Countervailing Duty Determination and Final Affirmative Critical Circumstances Determination, in
Part, 83 Fed. Reg. 13239 (28 March 2018)
18. Stainless Steel Flanges From India: Preliminary Affirmative Determination of Sales at Less
Than Fair Value, Preliminary Affirmative Determination of Critical Circumstances, Postponement of
Final Determination, and Extension of Provisional Measures, 83 Fed. Reg. 132436 (28 March 2018)

ANNEX II

19. In the Corrosion-Resistant Steel AD Measure , the USDOC used partial Adverse Facts
Available ("AFA") for Hyundai's further manufactured sales of sheet, skelp, blanks, TWBs, and auto
parts allegedly because Hyundai failed to submit information by the established deadlines and
significantly impeded the proceeding. Moreover, the USDOC considered that an adverse inference
was warranted under section 776(b) of the Tariff Act of 1930 because Hyundai alle gedly did not
cooperate to the best of its ability in providing information on these further manufactured sales.
As a result, the USDOC selected from the facts otherwise available with respect to Hyundai the
highest rate as calculated in the petition (i.e. a rate of 86.34%).
20. Korea considers that, among others, the USDOC failed to specify in sufficient detail the
information that was required to be submitted, failed to provide an adequate and reasoned
explanation that the information was "necessary" or that the failure to provide this information
"significantly impeded" the investigation. The USDOC failed to substantiate its finding that Hyundai
failed to act to the best of its abilities. In addition, the USDOC disregarded verifiable information,
did not pr ovide a meaningful opportunity to Hyundai to provide further explanations and did not
use special circumspection when resorting to the use of secondary information. The USDOC did
not check such information from other independent sources at its disposal. More in general, the
USDOC selected the highest rate as calculated in the petition as the basis for the facts available
because such rate was sufficiently adverse to the interests of Hyundai, and not because it was the
best information available to arrive at an accurate determination. In so doing, it appears to have
acted in violation of Article 6.8 and Annex II of the Anti -Dumping Agreement, as well as Articles
6.1, 6.2, 6.6, 6.7 and Annex I, and 6.9 of the Anti-Dumping Agreement.
21. In the Cold-Rolled Steel AD Measure , the USDOC used partial AFA for Hyundai (i) with
respect to the reported sales and cost data, including the control numbers that were reported by
Hyundai; (ii) with respect to the reporting of freight and warehousing services provided by an
affiliated company; and (iii) with respect to the alleged failure to report warehousing expenses.
The USDOC found that Hyundai did not cooperate to the best of its ability with regard to these
three sets of information, and thus drew adverse inferences sele cting from among the facts
available those that were sufficiently adverse to the interests of the Korean exporter. In
particular, it selected as AFA the highest calculated margin for any other reported U.S. sale of
Hyundai and assigned the highest reporte d total cost of manufacturing for the CONNUMs in
question as AFA. Similarly, with respect to the use of AFA for affiliated company services, the
USDOC applied Hyundai's lowest reported value for its home inland freight and warehousing fields,
the highest reported values by destination for Hyundai's international freight and U.S. inland
freight and, for home market inland freight for U.S. sales, the USDOC selected the second -highest
transaction-specific value as AFA. Similarly, with respect to the alleged failure to report
warehousing information, the USDOC appears to have applied as AFA for Hyundai's home -market
warehousing expenses, its lowest reported value for its warehousing fields for the final
determination.
22. Korea considers that, among others, the US DOC failed to specify in sufficient detail the
information that was required to be submitted, failed to provide an adequate and reasoned
explanation that the information was "necessary" or that the failure to provide this information
"significantly impeded " the investigation. The USDOC failed to substantiate its finding that
Hyundai failed to act to the best of its abilities. In addition, the USDOC disregarded verifiable
information, did not provide a meaningful opportunity to Hyundai to provide further e xplanations
and did not use special circumspection when resorting to the use of secondary information. The
USDOC did not check such information from other independent sources at its disposal. More in
general, the USDOC selected the information to be used as the basis for the facts available
because it was sufficiently adverse to the interests of Hyundai, and not because it was the best
information available to arrive at an accurate determination. In so doing, it appears to have acted
in violation of Article 6.8 and Annex II of the Anti-Dumping Agreement, as well as Articles 6.1, 6.2,
6.6, 6.7 and Annex I, and 6.9 of the Anti-Dumping Agreement.
23. In the Cold-Rolled Steel CVD Measure, the USDOC used partial AFA in relation to Korean
producer, POSCO. In parti cular USDOC applied AFA to POSCO for (1) its failure to report certain
cross-owned input suppliers; (2) the discovery at verification of facilities allegedly located in a
foreign economic zone ( "FEZ"); and (3) for the failure of its affiliated trading comp any, Daewoo
International Corporation, to report certain loans. As AFA, the USDOC determined that POSCO

benefitted from the majority of the programs in the investigation and instead of a de minimis rate
of 0.18% as determined preliminarily, determined tha t the AFA subsidy rate for POSCO was
58.36%. T he USDOC requested information to be provided on "any other forms of assistance"
that was not included in the application on which the investigation was based, and applied facts
available whenever it discovere d information that was not provided in response to this request,
without examining whether the information obtained or discovered sufficed to initiate the
investigation.
24. Korea considers that, among others, the USDOC failed to specify in sufficient detail t he
information that was required to be submitted, failed to provide an adequate and reasoned
explanation that the information was "necessary" or that the failure to provide this information
"significantly impeded" the investigation. In particular, a reasonable explanation was provided by
POSCO of why certain information was not provided. The USDOC failed to substantiate its finding
that POSCO failed to act to the best of its abilities. In addition, the USDOC dis regarded verifiable
information, did not provide a meaningful opportunity to POSCO and Daewoo International
Corporation to provide further explanations and did not use special circumspection when resorting
to the use of secondary information. The USDOC di d not check such information from other
independent sources at its disposal. More in general, the USDOC used as facts available certain
assumptions that were sufficiently adverse to the interests of POSCO and Daewoo International
Corporation, and did not seek to apply the best information available to arrive at an accurate
determination. In so doing, it appears to have acted in violation of Article 12.7 of the SCM
Agreement, as well as Articles 12.1, 12.2, 12.5, 12.6 and Annex VI, and 12.8 of the SCM
Agreement. In addition, USDOC's failure to examine whether there was sufficient information to
initiate the investigation with respect to "other forms of assistance" not included in the application
appears to violate Articles 11.2, 11.3, and 11.6 of the SCM Agreement.
25. In the Hot-Rolled Steel AD Measure , the USDOC applied partial AFA to Hyundai's home
market inland freight, home market warehousing expenses, international freight, marine
insurance, and domestic inland freight for U.S. sales because of the alleg ed failure to report such
information that was in the possession of affiliated companies. In particular, the USDOC applied
AFA to Hyundai because it was unable to supply information regarding its affiliates' transactions
with unaffiliated parties, request ed for the first time at verification, that the agency claimed was
necessary to benchmark its affiliates' services provided to Hyundai. For home market inland
freight and warehousing, the USDOC applied Hyundai's lowest reported values for home inland
freight and warehousing fields for the final determination. For marine insurance and international
freight (including wharfage), it applied the highest reported values for the final determination. For
domestic inland freight for U.S. sales, it selected the highest value as AFA.
26. Korea considers that, among others, the USDOC failed to specify in sufficient detail the
information that was required to be submitted, failed to provide an adequate and reasoned
explanation that the information was "necessary" or that the failure to provide this information
"significantly impeded " the investigation. The USDOC failed to substantiate its finding that
Hyundai failed to act to the best of its abilities. In addition, the USDOC disregarded verifiable
information, did not p rovide a meaningful opportunity to Hyundai to provide further explanations
and did not use special circumspection when resorting to the use of secondary information. The
USDOC did not check such information from other independent sources at its disposal. More in
general, the USDOC selected the information to be used as the basis for the facts available
because it was sufficiently adverse to the interests of Hyundai, and not because it was the best
information available to arrive at an accurate determinati on. In so doing, USDOC appears to have
acted in violation of Article 6.8 and Annex II of the Anti -Dumping Agreement, as well as Articles
6.1, 6.2, 6.6, 6.7 and Annex I, and 6.9 of the Anti-Dumping Agreement.
27. In the Hot-Rolled Steel CVD Measure , the USDOC used partial AFA with respect to (1)
POSCO's alleged failure to report certain cross -owned input suppliers; (2) the discovery at
verification of facilities allegedly located in a foreign economic zone ( "FEZ"); and (3) for the failure
of its affiliated tra ding company, Daewoo International Corporation, to report certain loans. As
adverse facts available, the USDOC determined that POSCO benefitted from the majority of the
programs in the investigation and instead of a de minimis rate of 0.17% as determined
preliminarily, it determined that the AFA subsidy rate for POSCO was 57.04%. T he USDOC
requested information to be provided on "any other forms of assistance" that was not included in
the application on which the investigation was based, and applied facts available whenever it

discovered information that was not provided in response to this request, without examining
whether the information obtained or discovered sufficed to initiate the investigation.
28. Korea considers that, among others, the USDOC failed t o specify in sufficient detail the
information that was required to be submitted, failed to provide an adequate and reasoned
explanation that the information was "necessary" or that the failure to provide this information
"significantly impeded" the investigation. In particular, a reasonable explanation was provided by
POSCO of why certain information was not provided and was not necessary. The USDOC failed to
substantiate its finding that POSCO failed to act to the best of its abilities. In addition, the USDOC
disregarded verifiable information, did not provide a meaningful opportunity to POSCO and
Daewoo International Corporation to provide further explanations and did not use special
circumspection when resorting to the use of secondary information. T he USDOC did not check
such information from other independent sources at its disposal. More in general, the USDOC
used as facts available certain assumptions that were sufficiently adverse to the interests of
POSCO and Daewoo International Corporation, a nd did not seek to apply the best information
available to arrive at an accurate determination. In so doing, it appears to have acted in violation
of Article 12.7 of the SCM Agreement, as well as Articles 12.1, 12.2, 12.5, 12.6 and Annex VI, and
12.8 of the SCM Agreement. In addition, USDOC's failure to examine whether there was sufficient
information to initiate the investigation with respect to "other forms of assistance" not included in
the application appears to violate Articles 11.2, 11.3, and 11.6 of the SCM Agreement.
29. In the Large Power Transformers AD Measure , in the third administrative review, the
USDOC used total AFA with regard to Hyundai. The USDOC considered that Hyundai failed to
provide complete and accurate information in particular conce rning service-related revenues, the
exclusion of certain parts, the failure to report the price and costs for accessories separately, a
number of other concerns relating to the alleged "selective reporting" by Hyundai. The USDOC
found that an adverse infe rence was warranted, as the company significantly impeded the review
and failed to cooperate to the best of its ability and as a result, the USDOC used the highest
petition margin to determine the 60.81% anti-dumping duty.
30. A similar set of findings was ma de in the fourth administrative review. For the fourth
administrative review, the USDOC continued to find that Hyundai withheld requested information
and impeded the review by failing to provide the prices and costs for "accessories", thus allegedly
preventing the USDOC from analyzing and determining whether: (1) product matches were based
on accurate physical characteristics; (2) the difference in costs between similar products could be
attributed to factors other than the physical c haracteristics; and (3) there was potential for
manipulation of the dumping margin by inconsistent treatment of accessories between home
market and U.S. sales. In addition, Hyundai was found to have inconsistently reported an identical
component in different sales as foreign like and non-foreign like product which allegedly called into
question the reliability of its reporting of home market sales.
31. As AFA, the USDOC assigned Hyundai a dumping margin of 60.81%, the petition rate as
used also in the third a dministrative review. USDOC relied on the same arguments for
corroboration as in the third administrative review. Similar findings were made with respect to
Hyosung. For the fourth administrative review, the USDOC found that Hyosung failed to report
information essential to the calculation of the average U.S. price, in particular that Hyosung: (1)
failed to report service -related revenues accurately and completely; (2) failed to explain how a
single invoice could cover multiple sales that entered into th e United States over multiple periods
of review; and (3) failed to report all relevant discounts and price adjustments. Furthermore, the
USDOC calculated an all others rate based on the margins determined by using AFA. The USDOC
explained that it averaged the two AFA margins in order to determine the margin for non -selected
respondents, and that, in its view, this was a reasonable method to determine the all others rate.
32. In the redetermination of the second administrative review, the USDOC also resorted t o the
use of AFA with respect to Hyundai. Specifically, it found that Hyundai failed to report service -
related revenue, despite its agreement with Hyundai's reporting in the final results of the second
administrative review. The USDOC did not notify Hyun dai of any deficiency in its reporting during
the remand proceeding, nor did it offer Hyundai an opportunity to remedy any deficiency.
33. In the sunset review, the USDOC found that revocation of the antidumping duty order on
Large Power Transformers from Ko rea would likely lead to continuation or recurrence of dumping,
and that the magnitude of the dumping margins likely to prevail would be weighted -average

dumping margins up to 29.04% for Hyosung and 14.95% for Hyundai. The decision that dumping
was likely to continue or recur was based on dumping margins calculated by USDOC using AFA in
subsequent reviews (e.g., the final results of the third administrative review and the preliminary
results of the fourth administrative review). The USDOC considered that the dumping margins
calculated on the basis of AFA provided the best evidence of dumping behavior of these Korean
companies and there was no evidence that indicated that dumping had ceased.
34. In respective of the above reviews, Korea considers that, among others, the USDOC failed to
specify in sufficient detail the information that was required to be submitted, failed to provide an
adequate and reasoned explanation that the information was "necessary" or that the failure to
provide this information "significantly impeded " the investigation. The USDOC failed to
substantiate its finding that Hyundai and Hyosung failed to act to the best of their abilities. In
addition, the USDOC disregarded verifiable information, did not provide a meaningful opportunity
to Hyundai to provide further explanations and did not use special circumspection when resorting
to the use of secondary information from the petition. The USDOC did not check such information
from other independent sources at its disposal. More in general, th e USDOC selected the
information to be used as the basis for the facts available because it was sufficiently adverse to
the interests of Hyundai and Hyosung, and not because it was the best information available to
arrive at an accurate determination. In so doing, USDOC appears to have acted in violation of
Article 6.8 and Annex II of the Anti -Dumping Agreement, as well as Articles 6.1, 6.2, 6.6, 6.7 and
Annex I, and 6.9 of the Anti -Dumping Agreement. The USDOC determination of an all others rate
that included margins determined on the basis of the facts available appears to be inconsistent
with Article 9.4 of the Anti-Dumping Agreement.
35. In addition, in the sunset review, the USDOC relied on dumping margins that were not
determined in accordance with Article 2 of the Anti-Dumping Agreement as a result of their undue
reliance on AFA. The USDOC did not identify the necessary information that was missing that
would have allowed it to effectively apply AFA also in the context of this sunset review and appli ed
AFA in a manner that does not only violate Article 6.8 and Annex II of the Anti -Dumping
Agreement but also Articles 11.1, 11.3, and 11.4 of the Anti -Dumping Agreement, as the USDOC
did not comply with the provisions of Article 6, did not base its determ ination of a likelihood of
recurrence or continuation of dumping and injury on a sufficient factual basis, and thus maintained
the measure beyond what was necessary to counteract dumping causing injury.