UNITED STATES – MEASURES RELATING TO ZEROING AND SUNSET REVIEWS
Document: Request for Consultations by Japan
Date: 29 November 2004
Document codes: WT/DS322/1; G/L/720; G/ADP/D58/1
Complainant: Japan
Respondent: U.S.
Third parties: Argentina, China, EU, Hong Kong, India, South Korea, Mexico, New Zealand, Norway, Taiwan, Thailand
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2.1, 2.4, 2.4.2, 9.1, 9.2, 9.3, 5.8, 3, 9.5, 11.1, 11.2, 11.3, 1  Anti-dumpingArt. VI  GATT 1994Art. 18.4  Anti-dumpingArt. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES – MEASURES RELATING TO ZEROING
AND SUNSET REVIEWS

Request for Consultations by Japan

 The following communication, dated 24 Novemb er 2004, from the delegation of Japan to the
delegation of the United States and to the Chairperson of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.

 Upon instructions from my authorities, I hereby wish to convey the request of the
Government of Japan for consultations with the Government of the United States of America pursuant
to Article 4 of the Understanding on Rules and Pr ocedures Governing the Settlement of Disputes
(DSU), Article XXII:1 of the General Agreem ent on Tariffs and Trade 1994 (GATT 1994), and
Article 17.2 of the Agreement on Implementation of Article VI of GATT 1994 (the Anti-Dumping
Agreement), regarding certain me asures imposed by the United States including: (1) the "zeroing"
practice by which the United States Department of Commerce ("USDOC") treats transactions with
negative dumping margins as having margins equal to zero in determining weighted average dumping
margins in anti-dumping investigations, administrati ve reviews, and sunset reviews, and also in
assessing the final anti-dumping duty liability on entries upon liquidation; (2) in sunset reviews, the
USDOC's "irrefutable presumption" of the like lihood of continuation or recurrence of dumping in
certain specific factual situations; and (3) in sunset reviews, the waiver provisions of US law, which
oblige the USDOC, in certain situations, to find a likelihood of continuation or recurrence of dumping
without performing a substantive review. This requ est is, in particular but not exclusively, with
respect to:

(1) the Tariff Act of 1930 ("the Act"), in par ticular, sections 731, 751, 752, 771(7), 771(35)(A),
771(35)(B), and 777A(d);

(2) the Statement of Administrative Action th at accompanied the Uruguay Round Agreements
Act, H.R. Doc. No. 103-316, vol. I;

(3) the implementing regulations of the USDOC, 19 C.F.R. section 351, in particular, sections
351.218 and 351.414;

(4) the Import Administration Antidumping Manual (1997 edition), including the computer
program(s) to which it refers;

(5) the USDOC's Policy Bulletin 98.3, "Policies G overning the Conduct of Five-Year ("Sunset")
Reviews of Antidumping and Countervailing Duty Orders" (16 April 1998) ("Sunset Policy
Bulletin"), 63 Federal Register 18871 (16 April 1998);

(6) the methodology of the United States for determining dumping margins and material injury in
anti-dumping investigations;

(7) the methodology of the United States for determining dumping margins in administrative
reviews; and

(8) the methodology of the United States, in sun set reviews, for determining whether revocation
of anti-dumping orders would be likely to lead to continuation or recurrence of dumping, and
continuation or recurrence of material injury within a reasonably foreseeable time.

 Japan wishes to consult with the United Stat es not only on these measures "as such," but also
on the applications of the measures in specific instan ces. In this regard, Japan has attached a list of
specific cases of an anti-dumping investigation, ad ministrative reviews and sunset reviews covering
imports from Japan subject to the Anti-Dumping Ag reement in which the United States has applied
these measures.

 The matters that the Government of Japan woul d like to raise in the course of consultations
include, but are not limited to, the following:

(1) in anti-dumping investigations, the zeroing of negative dumping margins when comparing
export prices and normal values on a weighted-average to weighted-average basis;

(2) the impact of zeroing negative dumping marg ins in the determination of the "dumped
imports" in injury investigations by th e United States International Trade Commission
("USITC");

(3) in administrative reviews, the zeroing of negative dumping margins when comparing export
prices and normal values on a weighted-average to transaction basis;

(4) the determination of dumping margins above de minimis levels as a result of zeroing negative
dumping margins, and the consequent imposition, continuation, or collection of anti-dumping
duties;

(5) in sunset reviews, the use of margins cal culated in anti-dumping investigations and/or
administrative reviews, in which negative dumpi ng margins had been zeroed, resulting in the
determination that revocation of the anti-dum ping orders would be likely to lead to
continuation or recurrence of dumping;

(6) in sunset reviews, the consideration by the USITC of the magnitude of the margin of dumping
provided by the USDOC, in determining whet her the revocation of an anti-dumping order
would be likely to lead to continuation or recu rrence of material injury within a reasonably
foreseeable time;

(7) in sunset reviews, the "irrefutable pr esumption" whereby the USDOC perceives the
provisions of Section II.A.3. of the Sunset Po licy Bulletin as conclusive in determining that
revocation of an anti-dumping order would be likel y to lead to continuation or recurrence of
dumping;

(8) in sunset reviews, the waiver provisions of US law, which oblige the USDOC to find the
likelihood of continuation or recurrence of du mping without performing a substantive review

with regard to interested parties that either affirmatively waived, or are deemed to have
waived, their right to participate in the sunset reviews conducted by the USDOC; and

(9) the level of dumping margins in the absence of zeroing in the cases identified in the attached
list.

 The Government of Japan is concerned that these measures, as well as their application in the
specific anti-dumping investigation, administrative reviews, and sunset reviews identified in the
attached list, are inconsistent with the obligati ons of the United States under the WTO Agreements.
The provisions of the Agreements with which these measures appear to be in consistent include, but
are not limited to, the following:

(1) Article VI:1 and VI:2 of GATT 1994;

(2) Articles 1, 2.1, 2.4, 2.4.2, 3, and 5.8 of the Anti-Dumping Agreement (with respect to the
calculation of the dumping margins and the determination of injury);

(3) Articles 6.1 and 6.2 of the Anti-Dumping Agreem ent (with respect to the right of interested
parties to submit information and defend their interests in sunset reviews);

(4) Article 9 of the Anti-Dumping Agreement (w ith respect to administrative reviews and the
assessment of dumping duties);

(5) Article 11 of the Anti-Dumping Agreement (with respect to the continued imposition of
anti-dumping duties);

(6) Articles 18.3 and 18.4 of the Anti-Dumping Agreement; and

(7) Article XVI:4 of the Agreement Estab lishing the WTO (the Marrakesh Agreement).

 The Government of Japan reserves its right to raise further factual claims and legal issues
during the course of consultations.

 We look forward to receiving your reply to this request and to fixing a mutually acceptable
date for consultations.

United States – Anti-Dumping Duties on Imports of Certain Cut-To-Length
Carbon-Quality Steel Plate Products from Japan

Specific Case No. 1

The measure

 This case concerns the imposition of anti -dumping duties on Certain Cut-To-Length Carbon-
Quality Steel Plate Products ("CTL Plate") from Japan (USDOC case number A-588-847, 64 FR
73215, 13 December 1999). The rate of the ad valorem anti-dumping duty was 10.78% for Kawasaki
Steel Corporation and all others.

Use of zeroing

 In the United States Department of Commerc e's ("USDOC's") investigation of CTL Plate
from Japan, the USDOC utilized a methodology commonly referred to as "zeroing" in calculating
dumping margins.

 This methodology is functionally identical to the methodology that was held to be
inconsistent with the WTO Anti-Dumping Agreement in European Communities – Anti-Dumping
Duties on Imports of Cotton-Ty pe Bed Linen from India (Panel Report, WT/DS141/R, and Appellate
Body Report, WT/DS141/AB/R, adopted 12 March 2001), and also in United States – Final Dumping
Determination on Softwood Lumber from Canada (Panel Report, WT/DS264/R, and Appellate Body
Report, WT/DS264/AB/R, adopted 31 August 2004).

 In addition, in the United States Internati onal Trade Commission's ("USITC's") affirmative
determination in Cut-to-Length Carbon Steel Plat e from Japan, Investigation No. 731-TA-820, the
USITC, pursuant to Section 771(7) of the Act, may have considered the margins of dumping provided
by the USDOC, which were calculated using the zeroing practice.

Dumping margin without zeroing

 By using the above methodology, the USDOC calculated a dumping margin of 10.58% for
Kawasaki Steel Corporation, while without the zeroing methodology (i.e. with the negative unit
margins included), the dumping margin would have been [9.46%].

United States – Anti-dumping Administrative Review on Imports of Tapered Roller Bearings,
Four Inches or Less in Outside Diameter, and Components Thereof, From Japan

Specific Case No. 2

The measure

 This case concerns the imposition of anti-dum ping duties on Tapered Roller Bearings, Four
Inches or Less in Outside Diameter, and Compone nts Thereof, From Japan (USDOC case number
A-588-054, 66 Fed. Reg. 15078, 15 March 2001). Th e period of review is 1 October 1998 through
30 September 1999, and the rate of the ad valorem anti-dumping duty was 14.86% for Koyo Seiko
Co., Ltd.

Use of zeroing

 In this administrative review of Tapered Ro ller Bearings, Four Inches or Less in Outside
Diameter, and Components Thereof, From Japan, the USDOC utilized the zeroing methodology in a
manner closely similar, but not identical, to that used in the investigation iden tified in Specific Case
No. 1.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 14.86% for Koyo
Seiko Co., Ltd., while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-1.27%], and no anti-dumping duty would have been collected.

United States – Anti-dumping Administrative Review on Imports of Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, From Japan

Specific Case No. 3

The measure

 This case concerns the imposition of anti-dum ping duties on Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, From Jap an (USDOC case number A-588-604, 65 Fed. Reg.
11767, 6 March 2000). The period of review is 1 October 1997 through 30 September 1998, and the
rate of the ad valorem anti-dumping duty was 17.58% for NTN Corporation.

Use of zeroing

 In this administrative review of Tapered Ro ller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, the USDOC utilized the same "zeroing" methodology as that used in
Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 17.58% for NTN
Corporation, while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-6.01%], and no anti-dumping duty would have been collected.

United States – Anti-dumping Administrative Review on Imports of Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, From Japan

Specific Case No. 4

The measure

 This case concerns the imposition of anti-dum ping duties on Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, From Jap an (USDOC case number A-588-604, 66 Fed. Reg.
15078, 15 March 2001). The period of review is 1 October 1998 through 30 September 1999, and the
rate of the ad valorem anti-dumping duty was 17.94% for Koyo Seiko Co., Ltd.

Use of zeroing

 In this administrative review of Tapered Ro ller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, the USDOC utilized the same "zeroing" methodology as that used in
Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 17.94% for Koyo
Seiko Co., Ltd., while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [13.32%].

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 5

The measure

 This case concerns the imposition of anti- dumping duties on Ball Bearings and Parts Thereof
From Japan (USDOC case number A-588-804, 62 Fed. Reg. 2081, 15 January 1997). The period of
review is 1 May 1994 through 30 April 1995, and the rate of the ad valorem anti-dumping duty was
45.83% for Nippon Pillow Block Co., Ltd.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 45.83% for Nippon
Pillow Block Co., Ltd., while without the zeroing methodology (i.e. with the negative unit margins
included), the dumping margin would have been sign ificantly lower. The exact figure cannot yet be
determined, because the case is currently on remand to the USDOC from the US Court of
International Trade, and the remand proceedings have not yet been completed.

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 6

The measure

 This case concerns the imposition of anti- dumping duties on Ball Bearings and Parts Thereof
From Japan (USDOC case number A-588-804, 65 Fed. Reg. 49219, 11 August 2000). The period of
review is 1 May 1998 through 30 April 1999, and the rate of the ad valorem anti-dumping duty was
6.14% for NTN Corporation.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 6.14% for NTN
Corporation, while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-25.15%], and no anti-dumping duty would have been
collected.

United States – Anti-dumping Administrative Review on Imports of Cylindrical
Roller Bearings and Parts Thereof From Japan

Specific Case No. 7

The measure

 This case concerns the imposition of anti-dum ping duties on Cylindrical Roller Bearings and
Parts Thereof From Japan (USDOC case number A-588-804, 65 Fed. Reg. 49219, 11 August 2000).
The period of review is 1 May 1998 through 30 April 1999, and the rate of the ad valorem
anti-dumping duty was 3.49% for NTN Corporation.

Use of zeroing

 In this administrative review of Cylindrical Roller Bearings and Parts Thereof From Japan,
the USDOC utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 3.49% for NTN
Corporation, while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-25.24%], and no anti-dumping duty would have been
collected.

United States – Anti-dumping Administrative Review on Imports of Spherical Plain
Bearings and Parts Thereof From Japan

Specific Case No. 8

The measure

 This case concerns the imposition of anti-dumping duties on Spherical Plain Bearings and
Parts Thereof From Japan (USDOC case number A-588-804, 65 Fed. Reg. 49219, 11 August 2000).
The period of review is 1 May 1998 through 30 April 1999, and the rate of the ad valorem
anti-dumping duty was 2.78% for NTN Corporation.

Use of zeroing

 In this administrative review of Spherical Pl ain Bearings and Parts Thereof From Japan, the
USDOC utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 2.78% for NTN
Corporation, while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-26.06%], and no anti-dumping duty would have been
collected.

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 9

The measure

 This case concerns the imposition of anti- dumping duties on Ball Bearings and Parts Thereof
From Japan (USDOC case number A-588-804, 66 Fed. Reg. 36551, 12 July 2001). The period of
review is 1 May 1999 through 30 April 2000, and the rates of the ad valorem anti-dumping duty were
10.10% for Koyo Seiko Co., Ltd., 9.16% for NTN Corporation, and 4.22% for NSK Ltd.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated dumping margins of 10.10% for Koyo
Seiko Co., Ltd., 9.16% for NTN Corporation, and 4.22% for NSK Ltd., while without the zeroing
methodology (i.e. with the negative unit margins included), the dumping margins would have been
[-5.51%] for Koyo Seiko Co., Ltd., [-15.21%] for NTN Corporation, and [-20.76%] for NSK Ltd., and
no anti-dumping duties would have been collected.

United States – Anti-dumping Administrative Review on Imports of Cylindrical
Roller Bearings and Parts Thereof From Japan

Specific Case No. 10

The measure

 This case concerns the imposition of anti-dum ping duties on Cylindrical Roller Bearings and
Parts Thereof From Japan (USDOC case number A-588-804, 66 Fed. Reg. 36551, 12 July 2001). The
period of review is 1 May 1999 through 31 December 1999, and the rates of the ad valorem
anti-dumping duty were 5.28% for Koyo Seiko Co., Ltd. and 16.26% for NTN Corporation.

Use of zeroing

 In this administrative review of Cylindrical Roller Bearings and Parts Thereof From Japan,
the USDOC utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated dumping margins of 5.28% for Koyo
Seiko Co., Ltd. and 16.26% for NTN Corporation, while without the zeroing methodology (i.e. with
the negative unit margins included), the dumping margins would have been [-11.70%] for Koyo Seiko
Co., Ltd. and [-8.08%] for NTN Corporation, and no anti-dumping duties would have been collected.

United States – Anti-dumping Administrative Review on Imports of Spherical
Plain Bearings and Parts Thereof From Japan

Specific Case No. 11

The measure

 This case concerns the imposition of anti-dumping duties on Spherical Plain Bearings and
Parts Thereof From Japan (USDOC case number A-588-804, 66 Fed. Reg. 36551, 12 July 2001). The
period of review is 1 May 1999 through 31 December 1999, and the rate of the ad valorem
anti-dumping duty was 3.60% for NTN Corporation.

Use of zeroing

 In this administrative review of Spherical Pl ain Bearings and Parts Thereof From Japan, the
USDOC utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated a dumping margin of 3.60% for NTN
Corporation, while without the zeroing methodology (i.e. with the negative unit margins included),
the dumping margin would have been [-10.31%], and no anti-dumping duty would have been
collected.

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 12

The measure

 This case concerns the imposition of anti-dumping duties on Ball Bearings and Parts Thereof,
From Japan (USDOC case number A-588-804, 67 Fed. Reg. 55780, 30 August 2002, as amended by
67 Fed. Reg. 63608, 15 October 2002). The period of review is 1 May 2000 through 30 April 2001,
and the rates of the ad valorem anti-dumping duty were 6.07% for NSK Ltd., 2.51% for Asahi Seiko
Co., Ltd., and 9.34% for NTN Corporation.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated dumping margins of 6.07% for NSK Ltd.,
2.51% for Asahi Seiko Co., Ltd., and 9.34% for NTN Corporation, while without the zeroing
methodology (i.e. with the negative unit margins included), the dumping margins would have been
[-18.78%] for NSK Ltd., [-26.83%] for Asahi Seiko Co., Ltd., and [-12.17%] for NTN Corporation,
and no anti-dumping duties would have been collected.

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 13

The measure

 This case concerns the imposition of anti- dumping duties on Ball Bearings and Parts Thereof
From Japan (USDOC case number A-588-804, 68 Fe d. Reg. 35623, 16 June 2003). The period of
review is 1 May 2001 through 30 April 2002, and the rates of the ad valorem anti-dumping duty were
4.51% for NTN Corporation and 2.68% for NSK Ltd.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated dumping margins of 4.51% for NTN
Corporation and 2.68% for NSK Ltd., while withou t the zeroing methodology (i.e. with the negative

unit margins included), the dumping margins would have been [-25.99%] for NTN Corporation and
[-29.90%] for NSK Ltd., and no anti-dumping duties would have been collected.

United States – Anti-dumping Administrative Review on Imports of Ball Bearings
and Parts Thereof From Japan

Specific Case No. 14

The measure

 This case concerns the imposition of anti- dumping duties on Ball Bearings and Parts Thereof
From Japan (USDOC case number A-588-804, 69 Fed. Reg. 55574, 15 September 2004). The period
of review is 1 May 2002 through 30 April 2003, and the rates of the ad valorem anti-dumping duty
were 5.56% for Koyo Seiko Co., Ltd., 2.74% for NTN Corporation, and 2.46% for NSK Ltd.

Use of zeroing

 In this administrative review of Ball Bearings and Parts Thereof From Japan, the USDOC
utilized the same "zeroing" methodology as that used in Specific Case No. 2.

Dumping margin without zeroing

 By using this methodology, the USDOC calculated dumping margins of 5.56% for Koyo
Seiko Co., Ltd., 2.74% for NTN Corporation, and 2.46% for NSK Ltd., while without the zeroing
methodology (i.e. with the negative unit margins included), the dumping margins would have been
[-10.83%] for Koyo Seiko Co., Ltd., [-25.86%] for NTN Corporation, and [-29.61%] for NSK Ltd.,
and no anti-dumping duties would have been collected.

United States – Sunset Review of Antifriction Bearings From Japan

Specific Case No. 15

The measure

 This case concerns the Final Results of th e USDOC in the Expedited Sunset Review of
Antifriction Bearings from Japan, in which the USDOC found that revocation of the anti-dumping
order on Ball Bearings from Japan would be likely to lead to continuation or recurrence of dumping
(USDOC case number A-588-804, 64 Fed. Reg. 60275, 4 November 1999); and the Determination of
the USITC in Certain Bearings from China, Fran ce, Germany, Hungary, Italy, Japan, Romania,
Singapore, Sweden, and the United Kingdom, Inv estigations Nos. AA-1921-143, 731-TA-341,
731-TA-343-345, 731-TA-391-397, and 731-TA-399 (R eview), that revocation of the anti-dumping
order on Ball Bearings from Japan would be likely to lead to continuation or recurrence of material
injury within a reasonably foreseeable time.

Use of zeroing

In making this determination, the USDOC specifi cally relied on the "margins determined in the
investigation and subsequent administrative re views," and concluded that because "dumping has
continued over the life of the orde rs, the [USDOC] determines that dumping is likely to continue if
the orders were revoked." (64 Fed. Reg. at 60278.) Japan submits th at because the USDOC's
likelihood determination was based on margins in both the investigation and subsequent
administrative reviews that were calculated using th e zeroing practice, which is inconsistent with the
Anti-Dumping Agreement, the USDOC's decision not to revoke the anti-dumping order on Ball
Bearings from Japan is equally inconsistent with the Anti-Dumping Agreement.

In addition, Japan submits that because the US ITC may have considered the margins of dumping
provided by the USDOC, which were calculated using the zeroing practice, the USITC's likelihood
determination and the decision not to revoke the anti-dumping order on Ball Bearings from Japan are
also inconsistent with the Anti-Dumping Agreement.

Recourse to irrefutable presumption

In making this determination, the USDOC relied on Section II.A.3 of the Sunset Policy Bulletin,
which provides that the DOC will normally determin e that revocation of an anti-dumping duty order
is likely to lead to continuation or recurrence of dumping in a case in which dumping continued at any
level above de minimis after the issuance of the order.

The provisions of Section II.A.3. of the Sunset Polic y Bulletin were held to be inconsistent with the
WTO Anti-Dumping Agreement in United States – Sunset Reviews of Anti-Dumping Measures on Oil
Country Tubular Goods from Argentina (Panel Report, WT/DS268/R, 16 July 2004).

Recourse to affirmative and deemed waiver

 In making this determination, the USDOC reso rted to the affirmative and deemed waiver
provisions of US law – including Section 751(c)(4) of the Act, Section 351.218(d)(2) of the
implementing regulations of the USDOC, and the Statement of Administrative Action ("SAA") that
accompanied the Uruguay Round Agreements Act, H. R. Doc. No. 103-316, vol. I – by which the
USDOC is obliged to make an affirmative finding of likelihood of continuation or recurrence of
dumping with regard to interested parties that waiv e their right to participate before the USDOC in a
sunset review.

 This practice under the provisions mentioned abov e is identical to that which was held to be
inconsistent with the WTO Anti-Dumping Agreement in United States – Sunset Reviews of
Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (Panel Report, WT/DS268/R,
16 July 2004).

United States – Sunset Review of Corrosion-Resistant
Carbon Steel Flat Products From Japan

Specific Case No. 16

The measure

 This case concerns the Final Results of the USDOC in the Full Sunset Review of Corrosion-
Resistant Carbon Steel Flat Products From Japan, in which the USDOC concluded that revocation of
the anti-dumping order on Corrosion-Resistant Carbon Steel Flat Products from Japan would be likely
to lead to continuation or recurrence of dumping (USDOC case number A-588-826, 65 Fed. Reg.
47380, 2 August 2000); and the Dete rmination of the USITC in Certain Carbon Steel Products from
Australia, Belgium, Brazil, Canada, Finland, Fran ce, Germany, Japan, Korea, Mexico, Netherlands,
Poland, Romania, Spain, Sweden, Taiwan, and United Kingdom, Investigations Nos. AA-1921-197,
701-TA-231, 319-320, 322, 325-328, 340, 342, and 348-350, and 731-TA-573-576, 578, 582-587,
604, 607-608, 612, and 614-618 (Review), that re vocation of the anti-dumping order on Corrosion-
Resistant Carbon Steel Flat Products from Japan would be likely to lead to continuation or recurrence
of material injury within a reasonably foreseeable time.

Use of zeroing

In making this determination, the USDOC specif ically relied on the margins determined in the
investigation, and concluded that because "dumping has continued to occur throughout the life of the
order," dumping was likely to continue if the order was revoked. USDOC, Issues and Decision Memo
for the Full Sunset Review of Corrosion-Resistant Carbon Steel Flat Products from Japan; Final
Results at Comment 1 (2 August 2000). Japan submits that because the USDOC's likelihood
determination was based on margins in the invest igation that were calculated using the zeroing
practice, which is inconsistent with the Anti- Dumping Agreement, the USDOC's decision not to
revoke the anti-dumping order on Corrosion-Resist ant Carbon Steel Flat Products From Japan is
equally inconsistent with the Anti-Dumping Agreement.

In addition, Japan submits that because the US ITC may have considered the margins of dumping
provided by the USDOC, which were calculated using the zeroing practice, the USITC's likelihood
determination and the decision not to revoke th e anti-dumping order on Corrosion-Resistant Carbon
Steel Flat Products from Japan are also inconsistent with the Anti-Dumping Agreement.

Recourse to irrefutable presumption

 In making this determination, the USDOC relied on Section II.A.3 of the Sunset Policy
Bulletin, which provides that the DOC will normally determine that revocation of an anti-dumping
duty order is likely to lead to continuation or recurrence of dumping in a case in which dumping
continued at any level above de minimis after the issuance of the order.

The provisions of Section II.A.3 of the Sunset Policy Bulletin were held to be inconsistent with the
WTO Anti-Dumping Agreement in United States – Sunset Reviews of Anti-Dumping Measures on Oil
Country Tubular Goods from Argentina (Panel Report, WT/DS268/R, 16 July 2004).