UNITED STATES — ANTI-DUMPING DUTY ON DYNAMIC RANDOM ACCESS MEMORY SEMICONDUCTORS (DRAMS) OF ONE MEGABIT OR ABOVE FROM KOREA
Document: Recourse by Korea to Article 21.5 of the DSU
Date: 10 March 2000
Document codes: WT/DS99/7; WT/DS99/R
Complainant: South Korea
Respondent: U.S.
Third parties: EU
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2, 3, 5.8, 6, 11, 17, 17.6(i)  Anti-dumpingArt. I, VI, X  GATT 1994

UNITED STATES — ANTI-DUMPING DUTY ON
DYNAMIC RANDOM ACCESS MEMORY SEMICONDUCTORS (DRAMS)
OF ONE MEGABIT OR ABOVE FROM KOREA

Recourse by Korea to Article 21.5 of the DSU

The following communication, dated 9 March 2000, from the Permanent Mission of Korea to
the Chairman of the Dispute Settlement Body, is circulated in accordance with Article 21.5 of the
DSU.

On 19 March 1999 the Dispute Settlement Body adopted the report of the Panel on "United
States - Anti-Dumping Duty on DRAMS From Korea " (). The Panel found that both the
US regulation regarding revocation of anti-dumping orders and the US application of that regulation
in the anti-dumping proceeding on DRAMS from Korea were inconsistent with Article 11 of the Anti-
Dumping Agreement.

On 19 May 1999, pursuant to Article 21.3(b) of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU), Korea and the United States mutually agreed that the
reasonable period of time for the United States to implement the recommendations and rulings of the
DSB and to bring its measures into conformity with the Anti-Dumping Agreement should end on
19 November 1999.

The United States did not comply with the recommendations and rulings of the DSB by that
date. Instead, in 2 September 1999 amendment of its regulation (section 351.222(b) of 19 C.F.R.;
published at 64 FR 51236; Attachment A’), the United States did not adopt a revocation standard
conforming to the Panel’s findings and rulings. In addition, the United States also failed to implement
the Panel’s findings in applying the altered, yet still flawed, standard in the DRAMS proceeding. In
its “Final Results of Redetermination in.the Third Administrative Review,” issued on 4 November
1999, but never published in the Federal Register (Attachment B'), the United States continued to
apply the anti-dumping order on DRAMS from Korea without the necessary demonstration by
substantial, positive evidence that the order needs to be maintained in order to offset dumping.

More specifically, Korea submits that the measures taken by the United are not consistent
with the Anti-Dumping Agreement for the following reasons:

First, instead of adopting a standard conforming to the Panel’s findings and rulings, the
United States adopted a very general standard that could be, and in fact was, misapplied. The
amended regulation does not impose on the United States the burden to establish that continued
imposition of the anti-dumping duty is necessary. While not using the words “burden of proof,” the

' Attachments A and B in English only.

Panel Report, in requiring a “demonstrable basis on which to reliably conclude that the continued
imposition of the duty is necessary” (Panel Report at para. 6.50), clearly imposes the burden on the
US administering authority. Rather than limiting the administering authority’s discretion so as to
conform US law to Article 11 of the Anti-Dumping Agreement, the amended regulation increases its
discretion, in disregard of the Panel decision. In doing so, the United States perpetuated the WTO
inconsistency of the original standard that the Panel had declared inconsistent with Article 11 of the
Anti-Dumping Agreement. Also, the “standard” of the amended regulation that replaces the not likely
criteria — “otherwise necessary to offset dumping” (/d.) — effectively is not a standard at all. This is
inconsistent with the Panel Report, which requires the regulation to provide “a demonstrable basis for
consistently and reliably determining” that maintaining the anti-dumping duty remains necessary to
offset injurious dumping (Panel Report at paras. 6.47 and 6.50). Moreover, the amended regulation
ignores the Panel’s direction that the standard adopted ensure that the conclusions reached are based
on “a foundation of positive evidence” and that circumstances demand maintaining the duty.

Second, in applying the altered, yet-still-flawed, standard for revocation, the United States
continues to apply the antidumping order to Korean DRAMS without demonstrating by substantial,
positive evidence that the anti-dumping duty order needs to be maintained in order to offset dumping,
as required by the Panel. The US Department of Commerce failed to conduct any new analysis in its
redetermination. The unpublished Final Results simply restate the analysis in the Department’s
earlier determination not to revoke the anti-dumping duty order. Indeed, the Results repeat verbatim
much of the text of the original determination. Moreover, the Results are not based on “substantial,
positive evidence” that the order is necessary to offset dumping (see Attachment B at page 13). Like
the original results of the third administrative review, they are based merely on conjecture and
supposition.

Third, by failing to publish the Final Results of Redetermination in the Federal Register,
Korea believes the United States has failed to fulfill its obligations under Article X:1 of the GATT
1994 and Article 12.3 of the Anti-Dumping Agreement. |

As a result of the standard contained in amended regulation section 351.222(b) and the
actions taken by the United States in the “Final Results of Redetermination in the Third
Administrative Review,” there is a disagreement between the United States and Korea as to whether
the United States has taken measures to comply with the 19 March 1999 recommendations and rulings
of the DSB and whether the measures taken are consistent with the Anti-Dumping Agreement.

In view of the above, Korea hereby requests that this matter be referred to the original Panel
pursuant to Article 21.5 of the DSU. Korea further requests that the Panel find that the United States
has not taken measures to comply with the 19 March 1999 recommendations and rulings of the DSB.
Korea requests that the Panel have the standard terms of reference as set out in Article 7 of the DSU.

1 Attachments A and B in English only.