WORLD TRADE  
ORGANIZATION  WT/DS268/15 
30 January 2006 
 
 (06-0400) 
 Original:   English 
  
 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES 
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
 
Recourse to Article 21.5 of the DSU by Argentina
 
 
Request for Consultations  
 
 
 The following communication, dated 26 January 2006, from the delegation of Argentina to the delegation of the United States and to the Chairm an of the Dispute Settlement Body, is circulated 
pursuant to Article 21.5 of the DSU. 
 
_______________ 
 
  Argentina hereby requests the United States to enter into consultations under Article 21.5 of 
the Understanding on Rules and Procedures Governing the Settlement of Disputes  (DSU), and 
paragraph 1 of the Agreed Procedures under Articles 21 and 22 of the Dispute Settlement 
Understanding Applicable to the WTO Dispute  United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular G oods from Argentina (WT/DS268),
1 with respect to the purported 
implementation by the United States of the recomme ndations and rulings of the Dispute Settlement 
Body (DSB) in United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina  (WT/DS268). 
 
Background 
 
 On 17 December 2004, the DSB adopted the Appellate Body Report and the Panel Report, as 
modified by the Appellate Body, in this disput e.  The resulting DSB rulings encompassed both "as 
applied" violations related to the "likelihood of dumping" determination by the US Department of 
Commerce (USDOC) in the sunset review for oil country tubular goods (OCTG) from Argentina, and 
"as such" violations related to the "waiver" provisions of United States laws and regulations. 
 
 The Panel found that the USDOC 2000 "likeliho od of dumping" determination in the sunset 
review for OCTG from Argentina was inconsistent with Articles 11.3 and 6.2 of the Agreement on 
Implementation of Article VI of the General Ag reement on Tariffs and Trade 1994 (Anti-Dumping 
Agreement).2  These findings were not appealed by the United States. 
 
 With respect to the "waiver" provisions of US laws and regulations, the Appellate Body 
upheld the Panel findings that:  
                                                     
 
1 WT/DS268/14. 
2 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina , WT/DS268/R, para. 8.1(d)(i). WT/DS268/15 
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   (i) Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the 
USDOC Regulations are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement; and 
  (ii) Section 351.218(d)(2)(iii) of the USDOC Regulations is inconsistent, as such, with 
Articles 6.1 and 6.2 of the Anti-Dumping Agreement with respect to respondents that 
file incomplete  submissions in response to the USDOC's notice of initiation of a 
sunset review.
 3 
  The DSB recommended that the United States br ing its measures into conformity with its 
WTO obligations.
4 
  On 7 June 2005, an arbitrator appointed pursuant to Article 21.3(c) of the DSU determined that the "reasonable period of time" for the Un ited States to implement the recommendations and 
rulings of the DSB would be 12 months from th e date on which the DSB adopted the Panel and 
Appellate Body Reports, i.e., by 17 December 2005.
5 
  On 28 October 2005, the United States published in the Federal Register  a notice of 
amendment of section 351.218(d)(2) of the USDOC Regulations.
6  T h e  Federal Register  notice 
provides that the USDOC was "amending its regulati ons relating to sunset reviews to conform the 
existing regulation to the United States' obligations  under Articles 6.1, 6.2, and 11.3" of the Anti-
Dumping Agreement.7  The amendment was effective as of 31 October 2005.  The United States 
made no changes to Section 751(c)(4)(B) of the Tariff Act of 1930.   On 2 November 2005, the USDOC initiate d proceedings under Section 129 of the Uruguay 
Round Agreements Act  to address the Panel's findings concerning the Department's likelihood 
determination.  The USDOC did not issue any su pplemental questionnaires, or provide a briefing 
schedule as to the timing of rebuttal and reply comme nts.  There was also no public hearing.  On 
16 December 2005, the USDOC issued its Section 129 determination, finding again that "revocation 
of the order would be likely to lead to continuation or recurrence of dumping."
8 
  On 20 December 2005, the United States asserted to the DSB that it had "implemented the 
recommendations and rulings of the DSB in [this] dispute."
9  Argentina does not agree.  Accordingly, 
there is "disagreement as to the existence or cons istency with a covered agreement of measures taken 
to comply with the recommendations and rulings" of  the DSB within the meaning of Article 21.5 of 
the DSU. 
                                                      
3 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, para. 365(c)(i) and (ii). 
4 WT/DSB/M/180. 
5 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina.  Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes.  Award of the Arbitrator .  WT/DS268/12.  7 June 2005. 
6 US Department of Commerce, Procedures for Conducting Five-Year ("Sunset") Reviews for 
Antidumping and Countervailing Duty Orders:  Final Rule, 70 Federal Register  62061 (28 October 2005). 
7 70 Federal Register at 62061. 
8 US Department of Commerce, Issues and Decision Memorandum, Section 129 Determination:  Final 
Results of Sunset Review, Oil Co untry Tubular Goods from Argen tina, A-357-810, 16 December 2005. 
9 Statements by the United States at the Decembe r 20th Meeting of the WT O Dispute Settlement Body .  
http://www.us-mission.ch/Press2005/1221DSBmeeting.html .  WT/DS268/15 
 Page 3 
 
 
   On 5 January 2006, Argentina and the United States concluded an agreement on procedures 
under Articles 21 and 22 of the DSU that apply to this dispute.10  This agreement provides, inter alia , 
that Argentina may request consultations, which the Pa rties agree to hold within 15 days from the date 
of circulation of the request.  It also provides th at after this 15-day period has elapsed, Argentina may 
request the establishment of a panel. 
 
 In the view of Argentina, the measures taken to comply by the United States have failed to 
implement the DSB recommendations and rulings in this dispute, and have  resulted in additional 
violations by the United States of its WTO obligations for the reasons set out below: 
 
1. The Section 129 Determination is inconsistent with US WTO obligations  
 In 2001, the United States extended the anti-dum ping measure on Argentine OCTG based on 
its 2000 determination that dumping would be likely to c ontinue or recur.  The original Panel in this 
dispute ruled that the USDOC failed to devel op sufficient evidence to support an affirmative 
determination under Article 11.3 of the Anti-Du mping Agreement, and that the USDOC's 2000 
determination was inconsistent with Articles 6.2 and 11.3 of the Anti-Dumping Agreement. 
  In the 2005 Section 129 proceeding, the USDOC attempted to develop a new factual basis to 
support the WTO-inconsistent determ ination it made in 2000.  The USDOC acted inconsistently with 
Article 11.3 of the Anti-Dumping Agreement by seek ing to develop new factual information to 
support the likelihood of dumping determination it reached in 2000, where none of the evidence 
required to support such a determinati on was developed at that time.   
  Even if the USDOC were permitted to develop factual information in 2005 to support a 2000 
likelihood determination, quod non , the 2005 Section 129 Determination nevertheless failed to satisfy 
the requirements of Article 11.3 of the Anti-Dumping Agreement. The USDOC did not properly 
establish a factual basis of positive evidence necessary to support a likely dumping finding, it did not 
objectively assess the information, its conclusions ar e not reasoned, and the evidence developed does 
not support a WTO-consistent determin ation that dumping would be likely. 
  Thus, the United States failed to bring its meas ure into conformity with US obligations under 
Article 11.3 of the Anti-Dumping Agreement, a nd failed to implement the recommendations and 
rulings of the DSB.   In addition, for separate reasons, the conduct of the Section 129 proceeding, and the resulting likelihood determination, are also inconsistent with the obligations of the United States under the 
Anti-Dumping Agreement for the following additional reasons: 
 
• The USDOC failed to comply with the stri ct conditions for maintenance of an anti-
dumping order beyond five years, in violation of Articles 11.1 and 11.3. 
 
• The USDOC failed to rely on positive evid ence and did not objectively evaluate 
information regarding the Argentine exporters  Siderca and Acindar, in violation of 
US obligations under Article 11.3; 
 
• The USDOC concluded that dumping would be  likely to continue or recur based 
solely on the decline in Argentine OCTG import volume, in violation of US obligations under Article 11.3; 
                                                     
 
10 Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding Applicable to 
the WTO Dispute United States – Sunset Reviews of Antidumping Measures on Oil Country Tubular Goods 
from Argentina , 5 January 2006, WT/DS268/14. WT/DS268/15 
Page 4  
 
   
• The USDOC failed to provide to the interested parties ample opportunity to present in 
writing all evidence which they considered re levant, in violation of US obligations 
under Article 6.1; 
 
• The USDOC failed to provide to interested parties a full opportunity for the defense 
of their interests, in violation of US obligations under Article 6.2; 
 
• The USDOC failed to provide timely opportunities for interested parties to see all 
information that is relevant to the presentation of their cases, in violation of US obligations under Article 6.4; 
 
• The USDOC failed to require interested pa rties to submit non-confidential summaries 
of their written submissions in the Section 129 proceeding in a manner so as to permit 
a reasonable understanding of the substa nce of the confidential information 
submitted, in violation of US obligations under Article 6.5.1; 
 
• The USDOC characterized Siderca's submitted cost information as unreliable without 
a reasonable basis for doing so, in violation of US obligations under Article 6.6; 
 
• The USDOC failed to follow the requirements of Article 6.8 and Annex II by 
recurring to facts available to determine th at there was likelihood of continuation or 
recurrence of dumping had the antidumping duty order on OCTG from Argentina been revoked in 2000; 
 
• The USDOC failed to inform interest ed parties of the essential facts under 
consideration that formed the basis for th e decision, and failed to provide reasonable 
summaries of confidential information, in violation of US obligations under Article 
6.9; and 
 
• The USDOC failed to follow the public notice and explanation requirements of 
Article 12.2 with respect to USDOC's Section 129 Determination. 
 
2. The United States has failed to bring 751(c)(4)(B) of the Tariff Act of 1930 into 
conformity with its WTO obligations 
 
 Section 751(c)(4)(B) of the Tariff Act of 1930 has been neither repealed nor amended. It 
therefore remains WTO-inconsistent. Furthermore, the amendments to the USDOC Regulations have 
in no way eliminated the WTO-inconsistency of this statutory provision.  The United States has 
therefore failed to bring Section 751(c)(4)(B) into conformity with its obligations under Articles 11.1 
and 11.3 of the Anti-Dumping Agreement.  
3. The United States has failed to bring Section 351.218(d)(2) of the USDOC Regulations 
into conformity with its WTO obligations 
 
 United States has eliminated paragraph (d)(2)(iii) of Section 351.218 of the USDOC 
Regulations. Additionally, United States has ame nded paragraph (d)(2)(ii) of Section 351.218. This 
paragraph now provides in part that every statemen t of waiver must include "a statement that the 
respondent interested party is likely to dump or benefit from a countervailable subsidy (as the case 
may be) if the order is revoked or  the investigation is terminated.
11 
                                                      
11 70 Federal Register  at 62062.  WT/DS268/15 
 Page 5 
 
 
   
 The revised regulation is inconsistent with  the obligation of the USDOC under Articles 11.1 
and 11.3 of the Anti-Dumping Agreement to "arri ve at a reasoned conclusion" on the basis of 
"positive evidence."  
 By mandating that a party filing a Statement of Waiver include a statement that it is likely to 
dump, Section 351.218(d)(2)(ii) denies interested parties a full opportunity for the defense of their interests, in violation of Article 6.2 of the Anti-Dumping Agreement.   By mandating that a party filing a Statement of Waiver include a statement that it is likely to 
dump, the USDOC will make a determination without satisfying itself as to the accuracy of the 
information supplied by interested parties upon whic h their findings are based, in violation of US 
obligations under Article 6.6 of  the Anti-Dumping Agreement. 
  By mandating that a party filing a Statement of Waiver include a statement that it is likely to 
dump, Section 351.218(d)(2)(ii) prevents the US DOC from making a determination satisfying the 
requirements of Article 6.8 and Annex II of the Anti-Dumping Agreement. 
  The United States has therefore failed to brin g the US statutory and regulatory waiver 
provisions into conformity with US obligations und er Articles 6.1, 6.2, 6.6, 6.8, 11.1, 11.3 and 
Annex II of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. 
 
 For all of the measures identified above, the United States also failed to comply with its 
obligations under Articles 1 and 18.1 of the Anti-Du mping Agreement and Article XVI:4 of the WTO 
Agreement.  
 Argentina reserves all of its WTO rights in r espect of the United States' purported compliance 
with its obligations in this case.   We look forward to receiving your reply to the present request and to fixing a mutually 
convenient date for consultations.  
__________