加拿大诉日本关于云杉松规格木材进口税案

26 April 1989 CANADA/JAPAN: TARIFF ON IMPORTS OF SPRUCE, PINE, FIR (SPF) DIMENSION LUMBER Report of the Panel adopted on 19 July 1989 (L/6470 - 36S/167) TABLE OF CONTENTS Page I. Introduction 2 II. Factual Aspects 3 A. - Definition of, and Information relating to, "Dimension Lumber", supplied by Canada 3 - Treatment of Dimension Lumber in Japan and JAS 600 4 B. - History of Japanese Tariff Evolution and Structure of Actual HS Headings 4407.10 and 4407.10-110 4 C. - Data on Coniferous Forest Resource Distribution, Lumber Production in North America and Imports, presented by Japan 4 III. Main Arguments of the Parties 11 A. - Canada's Case 11 - Precedents Relied upon by Canada 12 B. - Dimension Lumber and Japanese Tariff Classification 13 C. - Reasons for Specifications in Japan's Tariff 15 - Practice of Other Countries 17 D. - "Like Products" Issue 18 - Relationship between Articles I and III in regard to the "like product" concept 20 - Criteria for Assessing "Likeness" considered by the Parties 20 E. - Interpretation of MFN Principle in Article I:1; "Country/Product Discrimination" 24 IV. Submissions by Intervening Parties 25 A. - EEC 25 B. - New Zealand 27 V. Findings 28 VI. Conclusions 31 - 2 - I. INTRODUCTION 1.1 On 8-9 October 1987 and 4-5 March 1988, Canada and Japan held consultations pursuant to Article XXIII:1 on Japan's tariff treatment of SPF dimension lumber imported from Canada. In a communication, circulated on 11 March 1988,Canada requested the GATTCouncil to establish a Panel under GATT Article XXIII:2 to examine the conformity with Article I:1 of the application of a tariff of 8 per cent on imports of spruce-pine-fir (SPF) dimension lumber by the Government of Japan. The Council, on 22 March 1988, agreed to establish a panel (C/M/218). 1.2 The Panel's terms of reference and composition were announced on 16 June 1988 by the Chairman of the Council as follows: Terms of reference "To examine, in the light of the relevant GATT provisions, the matter referred to the CONTRACTING PARTIES by Canada in document L/6315 and to make such findings as will assist the CONTRACTING PARTIES in making the recommendations or rulings provided for in paragraph 2 of Article XXIII". Panel Composition Chairman: Mr. Pierre Pescatore, Members: Mr. Alejandro de la Peña, Prof. Richard Senti, 1.3 The Chairman of the Council also stated that the two parties were in agreement that the agreed terms of reference did not preclude the Panel from addressing either the question of the definition of "dimension lumber", referred to in the Canadian complaint, or the question of the relevance of the Japanese tariff classification to the issue (C/M/222). 1.4 The Panel met with the parties on 22 July and on 22 November 1988. The Panel also heard representatives of the EEC and of New Zealand, both of which had expressed, in Council, their interest in this case (C/M/218). Finland, which had likewise spoken in Council on this issue, has informed the Panel of its continuing interest. 1.5 For the conduct of its work, the Panel was supplied by Canada, Japan, the EEC and New Zealand with written submissions, replying inter alia to written questions by the Panel. At the Panel's request, Canada and Japan arranged for their delegations to the second meeting to be accompanied by technical experts. 1.6 The Panel submitted the Panel Report to the parties to the dispute on 5 April 1989. - 3 - II. FACTUAL ASPECTS A. Definition of, and Information relating to, "Dimension Lumber" (supplied by Canada - paragraphs 2.1 through 2.12) 2.1 Canada explained that while lumber was generally thought of as a raw material, or a semi-finished product, that is further manufactured to produce a wide range of goods, dimension lumber is different. It is a highly standardized, finished product that leaves the manufacturing plant in its final form. It is not further manufactured before being used in its intended end-use of platform-frame construction. Dimension lumber is a building product. As such, it is more akin to a steel girder used in construction than it is to other forms of lumber. 2.2 Dimension lumber is produced from a number of species of trees, the two most common groupings for this use being the SPF and Hemlock-Fir (Hem-Fir), although other species can be and are used. Trees of different species tend to grow in stands of mixed species, many of which have similar properties. It is usually not practical, nor necessary, to separate logs by individual species before manufacture, so species groups were developed to accommodate these mixed growths. All the species within a group are harvested, processed, graded and marketed together. An individual species cannot be classified in more than one species group. 2.3 The lumber industry in North America comprises thousands of sawmills. The most common product of virtually all of these mills is dimension lumber. In fact many of these mills are designed with the sole objective of producing the single product of dimension lumber which is completely interchangeable in construction and competes freely in the marketplace. The manufacturing and lumber grading systems are designed to ensure that the lumber is produced to the same sizes and grades, regardless of mill or species of lumber. It is not uncommon, nor is it a problem, to find dimension lumber of different species, from different mills, being used on the same job-site in North America and in Japan. 2.4 The definition of dimension lumber has been highly standardized in North America. The basic requirements are established by the Canadian Standards Association (Standard 0141-1970) and the US Department of Commerce National Bureau of Standards (Voluntary Product Standard PS 20-70). These standards are exactly the same in both countries in their application to dimension lumber. 2.5 There exist a number of rule-writing agencies for general lumber standards in North America. These sometimes overlap and establish slightly different rules for grading the same type of lumber. However, this is not true for dimension lumber. The National Grading Rule is mandatory, and applies without exception to all dimension lumber produced in North America. 2.6 The NLGA defines dimension lumber as follows: For purposes of the National Grading Rule for Dimension Lumber, "dimension" is limited to surfaced softwood lumber of nominal thickness from 2 through 4 inches; and which is designed for use as framing members such as joists, planks, rafters, studs and small timbers. 2.7 Following from this definition, according to Canada, dimension lumber can be identified, and distinguished from all other forms of lumber through a combination of three elements: size, surfacing and appearance, and lumber grade. The assignment of a "dimension lumber"-type grade automatically defines the product as dimension lumber and distinguishes it from all other types. Dimension lumber that enters Japan is normally regraded, regardless of the North American grade that has been applied, to ensure conformity with the standards established by the Japanese Agricultural Standard for Structural Lumber for Wood Frame Construction, hereafter referred to as the JAS 600. A JAS stamp must be - 4 - applied before the lumber can be used generally in Japan for platform-frame construction. The JAS 600 grades are unique to dimension lumber in Japan and distinguish it from all other types of imported and domestic lumber. 2.8 The dimension lumber used in construction is almost exclusively 2 inches nominally in thickness (1.5 inches or 38mm actual) by five standard widths: 4, 6, 8, 10, 12 inches nominally (respectively 89, 140, 184, 235, 286mm actual). (The lumber is thus commonly referred to as a "2 by 4" (2 x 4) or a "2 by 6" etc.; in the Japanese regulations these correspond to the size codes of 204, 206, etc.) These North American standards were adopted without change in the JAS 600 lumber grading rules in Japan. Treatment of Dimension Lumber in Japan and "JAS 600" 2.9 Canada explained in this respect that the laws and regulations established by the Government of Japan to regulate the grading of dimension lumber and its use in platform-frame construction treat dimension lumber as a single, manufactured product with no limitations on the use of any particular species. 2.10 The Building Standard Law is the national building code of Japan and is complemented by technical elaborations in the Enforcement Order of the Law. These set the overall framework of laws and regulations for construction in Japan, but with respect to wooden buildings they deal only with the traditional post-and-beam method of construction. When the 2 x 4 building system was introduced to Japan, new and separate regulations had to be established. These are the Technical Standards for Ensuring Safety of Wood Frame Construction. 2.11 The JAS 600 establishes the standards for grading of dimension lumber in Japan. The grades are based on natural characteristics such as the size of the knots, holes, discoloration, wane, fissures, growth rings, etc... The grading system is based entirely on the physical properties of an individual piece of lumber, with no discrimination whatsoever on a species basis. Lumber of any species can be graded to any particular level. The lumber-grading decision is made solely on the physical characteristics of the piece at hand, totally independent of species. This reflected perfectly the system used in North America, where the National Grading Rule applies equally to all species. The principle, in fact, was not new to Japan as the grading of the various forms of lumber used in the traditional post-and-beam method of construction is also based on physical properties, not species. 2.12 The fact that the grading of dimension lumber in Japan, as in North America, was neutral with respect to species is the basis for the interchangeability of species of dimension lumber in construction. Since the rules on lumber grading form an integral part of the building code of Japan, the clear, practical effect of this species-neutrality was that a 2 x 4 house in Japan could be made entirely from the SPF species, or entirely from Hemlock-Fir, or any combination of these and other species groups. This, in fact, is the case in Japan where, for instance, virtually all 2 x 4 houses in Hokkaido are being built exclusively with SPF dimension lumber. B. History of Japanese Tariff Evolution and Structure of actual HS Heading 4407.10 2.13 Japan explained that up until June 1961 the relevant tariff position for processed, planed lumber in its tariff schedule had been 1709-2-C, providing for a duty of 15 per cent. In June 1961 Japan started to apply the (Brussels/CCCN) Customs Cooperation Council Nomenclature. The CCCN description for "planed and other processed lumber (processed wood)" was 4413, or 4413-2 in the Japanese tariff, the "-2" standing for coniferous lumber, dutiable at 15 per cent. - 5 - 2.14 Effective 1 April 1962, Japan'sCCCN based tariff for processed coniferous wood under position 4413 was redefined on a species basis and divided into two sub-headings, one of which, "4413-3", devoted to specifically listed, and dimension-wise defined, coniferous woods, namely those of: genus Pinus, genus Abies (other than California red fir, grand fir, noble fir and Pacific silver fir), genus Picea (other than Sitka spruce) and genus Larix, not more than 160mm in thickness. Another sub-heading covered "other" woods, namely those of other coniferous species. 2.15 During the Kennedy Round (1964-67) and the Tokyo Round (1973-79) Japan did not grant tariff concessions on any of these tariff positions and Japan, consequently, had no obligation under Article II with regard to the absolute level of these tariffs. As a signatory of the Harmonized Commodity Description and Coding System (HS) Convention, Japan applied, as of 1 January 1988, a HS-based tariff schedule. The HS tariff heading of relevance in the context of the case brought by Canada was 4407, defined under the HS as "Wood sawn or chipped lengthwise, sliced or peeled, whether or not planed, sanded or finger-jointed, of a thickness exceeding 6 mm." In accordance with the HS rules and prescriptions, heading 4407 was divided into seven six-digit sub-headings; one of the seven sub-headings, 4407.10, being specifically dedicated to coniferous woods. 2.16 Position 4407.10 in the Japanese Tariff comprised, in addition to the main sub-heading position, seven separate tariff lines (nineteen statistical codes) distinguishing tariff treatment by (i) degree of processing, as follows: (a) planed or sanded; (b) not planed or sanded; by (ii) lumber size, as follows: (a) more than 6mm, up to and including 160mm in thickness, and (b) thickness more than 160mm (considered to be mainly a raw material, for resplitting), and (iii) by genera and/or species. 2.17 "Dimension Lumber", as defined by Canada, in terms of (i) size, (ii) surface treatment (e.g. "planed") and (iii) genera and species (e.g. coniferous) would, generally, be subject to an unbound zero rate unless it fell into one of the tariff numbers and descriptions that follow: HS 4407.10-110 Pine (Pinus), Spruce (Picea)1, or Fir (Abies)1 HS 4407.10-210 Larch (Larix) Planed or sanded lumber of these genera were subject to the general rate of 10 per cent, reduced to a temporary rate of 8 per cent. 2.18 Genera and species of planed or sanded lumber, 160 mm or less in thickness, covered by sub-positions HS 4407.10-310 (incense cedar, a position bound at "0" for this species, mainly used for pencil making) and 4407.10-320 of "other coniferous trees" would be duty free. Among the "other coniferous trees" category were: hemlock and other genus Tsuga, Douglas-fir and other genus Pseudotsuga, white cedar, yellow cedar, and other genus chamaecyparis, western red cedar, redwood and agathis and, out of the Picea genus; Sitka spruce, and, out of the genus Abies, California red fir, grand fir, noble fir, Pacific silver/Amabilis fir. 1with the exceptions noted in 2.18 below. - 6 - C. Data on Coniferous Forest Resource Distribution, Lumber Production in North America and Imports, presented by Japan 2.19 Japan explained that pine was distributed naturally throughout much of the Northern Hemisphere and was also artificially cultivated in a number of countries in the Southern Hemisphere. Fir was likewise widely distributed in the Northern Hemisphere, north of Central America and North Africa, which constituted the southern distribution boundary. The spruce genus existed most plentifully in East Asia, north of the Southern Himalayas, and was also distributed in Central Asia, Europe and North America. Other kinds of softwoods imported in large quantities into Japan were those of the genus Tsuga (such as hemlock), genus Pseudotsuga (such as Douglas fir), and genus Chamaecyparis (such as yellow cedar), which were distributed in both North America and East Asia. 2.20 Japan provided in this respect some geographic charts, showing that genera and species referred to in the Japanese Tariff are grown in the whole of the Northwestern part of the American Continent. However, two species, i.e. California Red fir and noble fir, appear to have their natural stand almost exclusively on the territory of the United States. Grand firs appear to have their natural stand mainly in the United States and some in Canada. On the other hand, Pacific silver fir and Sitka spruce appear to have their natural stand mainly in Canada. Hemlocks appears to have its natural stand both in Canada and in the United States. Japan also provided statistical trade data, it being understood that the trade figures shown on pages 10 and 11 relate to planed lumber generally and not specifically to dimension lumber. Coniferous Species, Standing-Volume Inventory Data Volume, in million cubic metres, and percentage share in total Genera/Species Canada1 (1981) Volume % share United States2 (1977) Volume % share Pin/Fir/Spruce Douglas-fir Hemlock Cedar Other "softwood" 11,872 614 1,224 784 1,076 76.0 3.9 7.9 5.0 6.9 7,541 2,648 1,641 323 753 58.5 20.5 12.7 2.5 5.8 Total3 15,570 100.0 12,906 100.0 1Gross merchantable volume of stocked, productive, non-reserved forest 2Net volume of growing stock on commercial timberland 3e.g., fifteen thousand five hundred and seventy million cubic metres and twelve thousand nine hundred and six million cubic metres respectively Sources cited by Japan: Bonnor, G.M., Canada's Forest Inventory, 1981; Canadian Forestry Service, 1982; and US Forest Service; Forest Statistics of the United States, 1982 - 7 - Softwood Lumber Production/Shipments1 by Species - in million cubic meters and percentage share in total - Canada (1982) Volume percentage share United States (1985) Volume percentage share Pine/Fir/Spruce Douglas-fir/Larch Hem-fir Cedar Other "softwood" 25.23 2.24 4.40 2.47 0.20 73.3 6.5 12.7 7.2 0.6 42.49 16.55 7.46 2.11 8.76 54.9 21.4 9.7 2.7 11.3 "Softwood' Total 34.54 100.0 77.36 100,0 1For Canada: mill shipments; for US: production; data presented by Japan; all figures rounded. Sources cited: Canadian Forestry Service Statistics, published in 1985; United States - International Trade Commission, 1986 - 8 - Imports of Planed Lumber into Japan1 (Main suppliers, in order of importance) -in cubic metres- of SPF (+ larch) Other coniferous 1963 666 339 1964 499 360 1965 1 (UK) 640 (CAN, US, PTW, DEU) 1966 3 (UK, DEU) 155 (KRR, PTW, THA, US) 1967 156 (US, USSR) 1458 (CAN, IND, US, CHN) 1968 0 (US, ALA) 1398 (CAN, CHN, US, CGO) 1969 74 (US, CHN, DEU) 1783 (US, CAN, CHN) 1970 361 (HKG, CAN, US, DEU) 1024 (CAN, CHN, US) 1971 4 (DEU, UK) 5816 (US, CAN, CHN) 1972 0 14882 (US, CAN, PTW) 1973 767 (CAN, PTW, US, FIN) 79180 (US, CAN, PTW, KRR) 1974 1468 (CAN, KRR, PTW, US) 247648 (US, CAN, PTW, KRR) 1975 9072 (CAN, PTW, US, SWD) 335890 (US, CAN, PTW, PNG) 1976 17345 (CAN, SWD, KRR, PTW) 360484 (US, CAN, PNG, KRR) 1977 23003 (CAN, US, SWD, FIN) 374454 (US, CAN, PNG, KRR) 1978 35580 (CAN, US, NZL, SWD) 347325 (US, CAN, PNG, PTW) 1979 50446 (CAN, US, NZL, SAF) 707666 (US, CAN, PNG, NZL) 1980 76584 (CAN, US, NZL, SWD) 747451 (US, CAN, PNG, NZL) 1981 65282 (CAN, US, NZL, SWD) 611523 (US, CAN, PNG, KRR) 1982 84645 (CAN, US, NZL, DK) 874346 (US, CAN, PHL, PNG) 1983 164545 (CAN, US, CHL, DK) 938887 (US, CAN, KRR, IND) 1984 158815 (CAN, US, CHL, NZL) 939022 (US, CAN, KRR, IND) 1985 192677 (CAN, US, CHL, NZL) 1123737 (US, CAN, KRR, PHL) 1986 233512 (CAN, CHL, US, NZL) 1477030 (US, CAN, KRR, PHL) 1987 424116 (CAN, CHL, US, KRR) 2190456 (US, CAN, KRR, IND) Country Name abbreviations:: DEU = FR Germany; ALA = Australia; CAN = Canada; CHN = China; CGO = Congo; FIN = Finland; HKG = Hong Kong; KRR = Korea, Rep. ; PTW = Taiwan; SWD = Sweden; NZL = New Zealand; DK = Denmark; CHL = Chile; IND = India; IDN = Indonesia; PNG = Papua New Guinea; PHL = Philippines; SAF = South Africa _______________ 1Data presented by Japan. Source: Japan Ministry of Finance. - 9 - Japan's Imports of Planed Softwood Lumber from Canada by Duty-Category1 Year Subject Percentage to duty Duty-free Total share of dutiable imports in cubic meters 1965 - 329 29 0 1966 - - - 1967 - 1.090 1.090 0 1968 - 1.178 1.178 0 1969 - 346 346 0 1970 52 523 575 9 1971 - 125 125 0 1972 - 1.127 1.127 0 1973 560 29.673 30.233 2 1974 1.336 37.604 38.940 3 1975 8.889 45.930 54.819 16 1976 16.981 88.528 105.509 16 1977 21.892 128.305 150.197 15 1978 33.231 147.527 180.758 18 1979 45.066 318.355 363.421 12 1980 71.130 337.904 409.034 17 1981 55.034 257.159 312.193 18 1982 76.177 327.696 403.873 19 1983 146.326 360.066 506.392 29 1984 150.720 413.509 564.229 27 1985 181.157 462.921 644.078 28 1986 187.966 482.305 670.271 28 1987 348.438 793.624 1.142.062 31 1Data presented by Japan. Source: Japan Ministry of Finance - 10 - 2.21 On the basis of indications prov