UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS REQUEST FOR THE ESTABLISHMENT OF A PANEL BY CANADA
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 19 October 2018
Document codes: WT/DS550/11
Complainant: Canada
Respondent: U.S.
Third parties: Bahrain, Brazil, China, Colombia, Egypt, EU, Guatemala, Hong Kong, Iceland, India, Indonesia, Japan, Kazakhstan, Malaysia, Mexico, New Zealand, Norway, Qatar, Russia, Saudi Arabia, Singapore, South Africa, Switzerland, Taiwan, Thailand, Turkey, Ukraine, Venezuela
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. I:1, II:1(a), II:1(b), X:3(a), XIX:1, XIX:2  GATT 1994Art. 2.1, 2.2, 3.1, 4.1, 4.2, 5.1, 7, 8.1, 11.1(a), 11.1(b), 12.1, 12.2, 12.3, 12.5  Safeguards

UNITED STATES – CERTAIN MEASURES ON STEEL AND ALUMINIUM PRODUCTS
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY CANADA
The following communication, dated 18 October 2018 , from the delegation of Canada to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

Disputes (DSU), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994)
and Article 14 of the Agreement on Safeguards with respect to certain measures by the United States
to adjust impo rts of steel and aluminum into the United States, including imposing additional ad
valorem rates of duty on imports of certain steel and aluminum products and exempting certain
selected WTO Members from the measures.

2. Canada held consultations with the United States on 20 July 2018, with a view to reaching a
satisfactory resolution of the matter. Unfortunately, these consultations failed to settle the dispute.
Canada therefore requests that the Dispute Settlement Body establish a panel pursuant to
Articles 4.7 and 6 of the DSU, Article XXIII of the GATT 1994 and Article 14 of the Agreement on
Safeguards to examine this matter with standard terms of reference as set out in Article 7.1 of the
DSU.

3. The measures at issue in this request include:

a. Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. §1862);

b. Section 705 of the Code of Federal Regulations, Effect of Imported Articles on the
National Security (15 CFR 705)1;

c. Adjusting Imports of Steel Into the United Stat es, including the Annex, To Modify
Chapter 99 of the Harmonized Tariff Schedule of the United States (Presidential
Proclamation 9705, issued on March 8, 2018)2;

1 47 FR 14693, April 6, 1982.
2 83 FR 11625-11630, March 15, 2018.

d. Adjusting Imports of Aluminum Into the United States, including the Annex, To Modify
Chapter 9 9 of the Harmonized Tariff Schedule of the United States (Presidential
Proclamation 9704, issued on March 8, 2018)3;

e. Adjusting Imports of Steel into the United States, including the Annex, To Modify
Chapter 99 of the Harmonized Tariff Schedule of the United States (Presidential
Proclamation 9711, issued on March 22, 2018)4;

f. Adjusting Imports of Aluminum into the United States, including the Annex, To Modify
Chapter 99 of the Harmonized Tariff Schedule of the United States (Presidential
Proclamation 9710, issued on March 22, 2018)5;

g. Requirements for Submissions Requesting Exclusions From the Remedies Instituted in
Presidential Proclamations Adjusting Imports of Steel Into the United States and
Adjusting Imports of Aluminum Into the United States; and t he Filing of Objections to
Submitted Exclusion Requests for Steel and Aluminum (US Department of Commerce)6;

h. Submissions of Exclusion Requests and Objections to Submitted Requests for Steel and
Aluminum (US Department of Commerce)7;

i. The Effect of Imports of Steel on the National Security, an Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, As Amended ( US Department
of Commerce, January 11, 2018)8;

j. The Effect of Imports of Aluminum on the National Security, an Investigation Conducted
Under Section 232 of the Trade Expansion Act of 1962, As Amended ( US Department
of Commerce, January 17, 2018)9;

k. Adjusting Imports of Steel into the United States, including the Annex, To Modify Certain
Provisions of Chapter 99 of the Harmonized T ariff Schedule of the United States
(Presidential Proclamation 9740, issued on April 30, 2018)10;

l. Adjusting Imports of Aluminum into the United States, including the Annex, To Modify
Certain Provisions of Chapter 99 of the Harmonized Tariff Schedule of the United States
(Presidential Proclamation 9739, issued on April 30, 2018)11;

3 83 FR 11619-11624, March 15, 2018.
4 83 FR 13361-13365, March 28, 2018.
5 83 FR 13355-13359, March 28, 2018.
6 83 FR 12106-12112, March 19, 2018.
7 83 FR 46026-46065, September 11, 2018.
8
https://www.commerce.gov/sites/commerce.gov/files/the_effect_of_imports_of_steel_on_the_national_securit
y_-_with_redactions_-_20180111.pdf.
9
https://www.commerce.gov/sites/commerce.gov/files/the_effect_of_imports_of_aluminum_on_the_national_s
ecurity_-_with_redactions_-_20180117.pdf
10 83 FR 20683-20705, May 7, 2018.
11 83 FR 20677-20682, May 7, 2018.

m. Adjusting Imports of Steel into the United States, including the Annex (Presidential
Proclamation 9759, issued on May 31, 2018)12;

n. Adjusting Imports of Aluminum into the United St ates, including the Annex, To Modify
Certain Provisions of Chapter 99 of the Harmonized Tariff Schedule of the United States
(Presidential Proclamation 9758, issued on May 31, 2018)13;

o. Adjusting Imports of Steel into the United States, including the Annex, To Modify Certain
Provisions of Chapter 99 of the Harmonized Tariff Schedule of the United States
(Presidential Proclamation 9772, issued on August 10, 2018)14;

p. Adjusting Imports of Aluminum into the United States, including the Annex, To Modify
Certain Provisions of Chapter 99 of the Harmonized Tariff Schedule of the United States
(Presidential Proclamation 9776, issued on August 29, 2018)15;

q. Adjusting Imports of Steel into the United States, including the Annex, To Modify Certain
Provisions of Chapter 99 of the Harmonized Tariff Schedule of the United States
(Presidential Proclamation 9777, issued on August 29, 2018)16;

r. The US policy, practice, composite measure, rule or norm, or ongoing conduct as
described in paragraph 7 below;
and any amendments, succ essor, replacement or implementing measures and any exemptions
applied or other related measures.

4. On 8 March 2018, the United States imposed a 25 percent additional import duty on certain
steel products and a 10 percent additional import duty on certain a luminum products from all
countries exempting Canada, Mexico, Australia, Argentina, South Korea, Brazil and the European
Union, which took effect on 23 March 2018. On 30 April 2018, a proclamation was issued by the
President of the United States exempting imports from South Korea, Argentina, Australia and Brazil
from the additional import duties. The United States also extended the exemption from the
additional import duties for Canada, Mexico and the European Union until 31 May 2018. The
exemption expired on 31 May 2018, resulting in the imposition of the additional import duties on
these three Members including Canada. The measures also indicated possible further adjustments
to the measure, in the form of additional import duties or implementation of a quota.

5. Canada considers the measures at issue, operating separately or together, to be inconsistent
with the United States' obligations under:

a. Article I:1 of the GATT 1994, because the United States has selectively applied
additional import duties on ce rtain steel and aluminum products originating in the
territory of different Members, including providing exemptions to certain countries or
applying alternative means, and has failed to extend immediately and unconditionally
to Canada any advantage, favour , privilege or immunity granted by the United States
with respect to customs duties and charges of any kind imposed on or in connection

12 83 FR 25857-25877, June 5, 2018.
13 83 FR 25849-25855, June 5, 2018.
14 83 FR 40429-40432, August 15, 2018.
15 83 FR 45019-45023, September 4, 2018.
16 83 FR 45025-45030, September 4, 2018.

with the importation of products originating in the territory of other Members, as well
as with respect to the method of levying such duties and charges and the rules and
formalities in connection with importation;

b. Article II:1(a) and (b) of the GATT 1994, because the United States has imposed duties
on imports of certain steel and aluminum products in excess of the duties set forth and
provided in the United States' Schedule of Concessions and Commitments annexed to
the GATT 1994, and has failed to exempt products of Canada subject to the measures
at issue from ordinary customs duties in excess of those set forth and prov ided in the
United States' Schedule of Concessions and Commitments annexed to the GATT 1994
and from all other duties or charges in excess of those imposed on the date of the GATT
1994 or those directly and mandatorily required to be imposed thereafter by legislation
in force in the United States on that date;

c. Article X:3(a) of the GATT 1994, because the United States has failed to administer its
laws, regulations, decisions and rulings in relation to the measures at issue in a uniform,
impartial and reasonable manner with respect to their application on certain steel and
aluminum products;

d. Article XI:1 of the GATT 1994, because the measures operate as a quantitative
restriction on imports of certain steel and aluminum products into the United States by
exempting certain Members from the additional import duties on the basis of alternative
measures, such as quotas, that restrict the quantity of imports of certain steel and
aluminum products into the United States;

e. Article XIX:1(a) of the GATT 1994, because the United States took emergency actions
on imports of certain steel and aluminum products that suspended tariff concessions
where such imports were not, as a result of unforeseen developments and of the effect
of the obligations incurred under the GATT 1994, being imported into the United States
in such increased quantities and under such conditions as to cause or threaten serious
injury to domestic producers in the United States of like or directly competitive
products;

f. Article XIX:2 of the GATT 1994, because the United States took emergency actions on
imports of certain steel and aluminum products that suspended tariff concessions
without giving notice as far in advance as may be practicable and without giving
Members ha ving a substantial interest as exporters of the products concerned an
opportunity to consult with it prior to taking its actions;

g. Article 2.1 of the Agreement on Safeguards, because the United States has applied
safeguard measures on imports of certain steel and aluminum products without having
properly determined, pursuant to the provisions of the Agreement on Safeguards, that
certain steel and aluminum products are being imported into its territory in such
increased quantities, absolute or relative to do mestic production, and under such
conditions as to cause or threaten to cause serious injury to its domestic industry that
produces like or directly competitive products;

h. Article 2.2 of the Agreement on Safeguards, because the United States has not applied
its safeguard measures on imports of certain steel and aluminum products irrespective
of their source;

i. Article 3.1 of the Agreement on Safeguards, because the United States has applied
safeguard measures on imports of certain steel and aluminum products without properly
conducting an investigation and without publishing a report properly setting forth its
findings and reasoned conclusions reached on all pertinent issues of fact and law;

j. Article 4.1 of the Agreement on Safeguards, because the United States did not properly
determine the existence of serious injury or threat of serious injury to its domestic steel
and aluminum industries;

k. Article 4.2 of the Agreement on Safeguards, because the United States did not properly
evaluate all relevant factors of an objective and quantifiable nature having a bearing on
the situation of the steel and aluminum industries, did not properly determine the
existence of the causal link between increased imports of the product concerned and
serious injury or threat thereof on the basis of objective evidence, and did not publish
promptly a detailed analysis of the case under investigation as well as a demonstration
of the relevance of the factors examined;

l. Article 5.1 of the Agreement on Safeguards, because the United States did not apply its
safeguard measures on imports of certain steel and aluminum products only to the
extent necessary to prevent or remedy serious injury and to facilitate adjustment;

m. Article 7 of the Agreement on Safeguards, because the United State s did not apply its
safeguard measures on imports of certain steel and aluminum products only for such
period of time as may be necessary to prevent or remedy serious injury and to facilitate
adjustment;

n. Article 8.1 of the Agreement on Safeguards, because the United States failed to
maintain a substantially equivalent level of concessions and other obligations to that
existing under GATT 1994 between it and the exporting Members affected by its
measures on imports of certain steel and aluminum products;

o. Article 11.1(a) of the Agreement on Safeguards, because the United States has taken
emergency actions on imports of certain steel and aluminum products in a manner that
does not conform with the provisions of Article XIX applied in accordance with the
Agreement on Safeguards;

p. Article 11.1(b) of the Agreement on Safeguards because the United States has sought,
taken or maintained voluntary export restraints, orderly marketing arrangements or
any other similar measures on the import side with respect to certain WTO Members;

q. Articles 12.1, 12.2, and 12.5 of the Agreement on Safeguards, because the United
States failed to provide the notifications to the Committee on Safeguards and the
Council for Trade in Goods required by these provisions; and

r. Article 12.3 of the Agreement on Safeguards, because the United States failed to
provide opportunity for consultations prior to applying its measures.

6. In addition, Section 232 of the Trade Expansion Act of 1962 and its associated regulations 17
are "as such" inconsistent with the obligations of the United States under the provisions of the
covered agreements set out in paragraph 5 and with Article XXI:(b) of the GATT 1994 because they
require the United States to account for an industry's econom ic interests, welfare or protection, or
other factors that are not necessary for the protection of its essential security interests. Thus, the
United States has failed to ensure the conformity of its laws, regulations and administrative
procedures with it s obligations under the WTO Agreement, in a manner that is inconsistent with
Article XVI:4 of the WTO Agreement.

7. In addition, the United States has applied and continues to apply Section 232 of the Trade
Expansion Act of 1962 and its associated regulations by imposing restrictions on imports for reasons
related to an industry's economic interests, welfare or protection, or other factors that are not
necessary for the protection of its essential security interests. The measure at issue is the policy or
practice of the United States of interpreting and applying Section 232 on the basis of such reasons,
resulting in the imposition of additional import duties, quotas, or similar restrictions. This measure
is attributable to the United States as it concerns the determinations and practices of the United
States Department of Commerce, the President of the United States, and other government
decisions, determinations and practices. The precise content of the measure consists of the items
listed in paragraph 3 abo ve, as well as other Section 232 investigations, and declarations,
statements and decisions made by the United States government and its officers in their official
capacity related to Section 232. This measure has been applied by the United States and it is likely
that it will continue to be applied in the future. In the alternative, the measure is a composite
measure consisting of Section 232 and its associated regulations along with the policy or practice of
the United States of applying these for econo mic reasons as described above in this paragraph. In
the further alternative, the measure constitutes ongoing conduct or a rule or norm of general and
prospective application. Canada submits that the measure is inconsistent with the provisions of the
covered agreements set out in paragraph 5 and with Article XXI:(b) of the GATT 1994.

8. The United States' measures described above nullify or impair benefits accruing to Canada
directly or indirectly under the cited agreements.

9. Canada also asks that this request be placed on the agenda of the next meeting of the
Dispute Settlement Body scheduled to be held on 29 October 2018.

Security (15 CFR 705) 47 FR 14693.