South Korea seeks WTO consultations over U.S. use of ‘facts available’

South Korea claimed the United States is in violation of four World Trade Organization related agreements through its use of “facts available.”    South Korea on Feb. 14 requested World Trade Organization (WTO) consultations with the United States over the use of a statute that authorizes the Commerce Department to make adverse inferences against uncooperative foreign respondents in antidumping (AD) and countervailing (CV) duty cases, the WTO announced Tuesday.
   In the request, which was also circulated to WTO members on Tuesday, South Korea challenged this application of adverse inferences – otherwise known as “facts available” – against South Korean producers and exporters deemed to be not cooperative during Commerce AD and CV duty investigations.
   The U.S. relied on adverse facts available in six AD and CV duty determinations on certain products from South Korea, the consultation request alleges.
   South Korea claimed the U.S. is in violation of four WTO-related agreements through its use of “facts available.”

   The complaint includes the following instances as the basis for South Korea’s complaint:
     • A July 2016 AD duty order on certain corrosion-resistant steel products that resulted in cash deposits ranging from 8.75 percent to 47.79 percent for South Korean entities;
     • A September 2016 AD duty order on certain cold-rolled steel flat products that resulted in cash deposits ranging from zero to 34.33 percent for South Korean entities;
     • A September 2016 CV duty order on certain cold-rolled steel flat products that resulted in cash deposits ranging from 3.89 percent to 59.72 percent for South Korean entities;
     • An October 2016 AD duty order on certain hot-rolled steel flat products that resulted in cash deposits ranging from zero to 9.49 percent for South Korean entities;
     • An October 2016 CV duty order on certain hot-rolled steel flat products that resulted in cash deposits ranging from 3.89 percent to 58.68 percent for South Korean entities;
     • And a March 2017-completed AD duty administrative review – of an August 2012 duty order on large power transformers from South Korea – that found dumping margins for entities ranging from 2.99 percent to 60.81 percent. The complaint also lists several other actions tied to this case.

   “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,” the complaint reads.
   South Korea also challenged the statute authorizing the use of “facts available,” the Trade Preferences Extension Act of 2015, as well as Commerce regulations implementing that law.
   If consultations don’t resolve the matter within 60 days of the complaint’s filing, either the requester or respondent can request formation of a WTO dispute panel to adjudicate the matter, per WTO rules.