WT/DS268/RW 
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  ANNEX F 
 
REQUEST FOR THE ESTABLISHMENT 
OF A PANEL 
 
 
Contents Page 
Annex F Request for the Establishment of  a Panel – Document WT/DS268/16 F-2 
 WT/DS268/RW 
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  ANNEX F 
 
REQUEST FOR THE ESTABLISHMENT 
OF A PANEL 
 
 
 WORLD TRADE  
ORGANIZATION  WT/DS268/16 
7 March 2006 
 (06-1025) 
 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 the Establishment of a Panel 
 
  The following communication, dated 6 March 2006, from the delegation of Argentina to the 
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU. 
 
_______________ 
 
  Argentina hereby requests the establishmen t of a Panel under Article 21.5 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  (DSU) and 
paragraph 2 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 Tubul ar Goods from Argentina  (Agreed Procedures for DS268)
1 with 
respect to the purported implementation by the Un ited States of the recommendations 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). 
 
I. The History of the Dispute 
 
 On 17 December 2004, the DSB adopted the Appellate Body Report2 and the Panel Report3, 
as modified by the Appellate Body, in this dispute.  The resulting DSB rulings encompassed both "as 
applied" violations related to the likelihood of dumping determination by the US Department of 
                                                      
1 WT/DS268/14, 9 January 2006. 
2 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, adopted on 17 December 2004 (the "Appellate Body 
Report"). 
3 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina , WT/DS268/R, adopted on 17 December 2004 (the "Panel Report").  WT/DS268/RW 
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  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 law and regulations. 
  The Panel found that the USDOC 2000 likeliho od of dumping determination in the sunset 
review for OCTG from Argentina
4 was inconsistent with Articles 11.3 and 6.2 of the Anti-Dumping 
Agreement.5  The Panel found that USDOC's likelihood of  dumping determination was inconsistent 
with Article 11.3 because (i) there was an insufficien t factual basis for the USDOC to have considered 
that dumping had continued over the life of the order;6 and (ii) the application of the waiver 
provisions invalidated the factual basis for th e USDOC's likelihood of dumping determination.7  
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:   (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.
 8 
  The DSB recommended that the United States br ing its measures into conformity with its 
WTO obligations.
9 
 
 On 7 June 2005, an Arbitrator appointed pursu ant 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 2005.10 
  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.
11  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.12  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. 
                                                      
4 US Department of Commerce, Final Results of Expedited Sunset Reviews:  Oil Country Tubular 
Goods from Argentina, Italy, Japan, and Korea , 65 Federal Register 66701 (7 November 2000) (which 
incorporates USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping 
Duty Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea:  Final Results 
(31 October 2000)). 
5 Panel Report, para. 8.1(d)(i). 
6 Panel Report, para. 7.219; see also  para. 8.1(d)(i). 
7 Panel Report, para. 7.222; see also  para. 8.1(d)(i). 
8 Appellate Body Report, para. 365(c)(i) and (ii). 
9 WT/DSB/M/180. 
10 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. 
11 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). 
12 Id. WT/DS268/RW 
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 On 2 November 2005, the USDOC initiate d proceedings under Section 129 of the Uruguay 
Round Agreements Act  regarding the Panel's findings conc erning 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 comments.  There was no public hearing. 
 
 On 16 December 2005, the USDOC issued its Section 129 Determination (the "2005 Section 129 Determination"), in which it states:  "we find there is likelihood of continuation or recurrence of dumping had the antidumping duty order on OCTG from Argentina been revoked in 2000, i.e., at the 
end of the original sunset period."
13 
 
 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."
14   
  On 26 January 2006, Argentina requested consultations with the United States under 
Article 21.5 of the DSU and paragraph 1 of the Agreed Procedures for DS268.
15  The parties held 
consultations in Washington, D.C. on 7 February 2006, and by teleconference on 22 February 2006.  
The consultations failed to resolve the dispute.  
II. Request for the Establishment of a Panel 
  There is thus "disagreement as to the existen ce or consistency with a covered agreement of 
measures taken to comply with the recommendati ons and rulings" of the DSB in this case.  
Accordingly, Argentina hereby requests the estab lishment of a Panel under Article 21.5 of the DSU 
and paragraph 2 of the Agreed Procedures for DS268  with respect to the purported implementation by 
the United States of the recommendations and rulings of the DSB in this case (WT/DS268). 
 
 The following measures of the United States taken to comply with the recommendations and rulings of the DSB are at issue in this proceeding:  
• USDOC's 2005 Section 129 Determination (w hich purportedly (i) supplants or 
modifies the WTO-inconsistent USDOC 2000 likelihood of dumping determination,
16 
and (ii) provides the sole support for, or additional support for, USDOC's 2001 notice 
of continuation of the antidumping order on OCTG from Argentina).17 
• Section 351.218(d)(2) of the USDOC Regulations, as amended by the United States.18 
 
                                                      
13 US Department of Commerce, Issues and Decision Memorandum, Section 129 Determination:  Final 
Results of Sunset Review, Oil Country Tubular Goods from Argentina , A-357-810, 16 December 2005, at 11. 
14 Statements by the United States at the December  20th Meeting of the WTO Dispute Settlement Body .  
http://www.us-mission.ch/Press2005/1221DSBmeeting.html . 
15 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods, Recourse 
to Article 21.5 of the DSU, Request for Consultations , WT/DS268/15, 30 January 2006. 
16 US Department of Commerce, Final Results of Expedited Sunset Reviews:  Oil Country Tubular 
Goods from Argentina, Italy, Japan, and Korea , 65 Federal Register 66701 (November 7, 2000) (which 
incorporates USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping 
Duty Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea:  Final Results 
(31 October 2000)). 
17 US Department of Commerce, Continuation of Countervailing Duty and Antidumping Duty Orders 
on Oil Country Tubular Goods from Argentina, Italy, Japa n, Korea and Mexico, and Partial Revocation of 
Those Orders From Arge ntina and Mexico With Respect to Drill Pipe , 66 Federal Register 38630, 25 July 2001. 
18 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).  WT/DS268/RW 
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   In addition, also at issue in this proceeding is  the failure of the United States to take certain 
measures to comply with the recommendations and rulings of the DSB:  
• The failure of the United States to "imp lement" the 2005 Section 129 Determination, 
pursuant to Section 129(b)(4) of the Uruguay Round Agreements Act . 
 
• The failure of the United States either to re peal Sections 751(c)(4)(A) and (B) of the 
Tariff Act of 1930, or to amend these provisi ons to remove the WTO-inconsistency. 
  Argentina requests the Panel to find that through these measures and omissions the United 
States has failed to implement the recommendations a nd rulings of the DSB in this dispute, and has 
violated its WTO obligations, for the reasons set out below: 
 
 A. The USDOC's 2005 Section 129 det ermination is inconsistent with 
US WTO obligations 
 
 In 2001, the United States extended the an ti-dumping duty order on Argentine OCTG based 
on USDOC's 2000 determination that dumping would be likely to continue or recur.
19  The original 
Panel in this dispute ruled that the USDOC ac ted inconsistently with US obligations under 
Articles 6.2 and 11.3 of the Anti-Dumping Agreement.20 
  The 2005 Section 129 Determination failed to implement the recommendations and rulings of 
the DSB and is inconsistent with the WTO obliga tions of the United States for the following reasons: 
 
 First , the 2005 Section 129 Determina tion is inconsistent with Articles 11.1, 11.3 and 11.4 of 
the Anti-Dumping Agreement because:   1. USDOC developed and relied on a new factual basis in 2005 to support its 2000 
WTO-inconsistent likelihood of  dumping determination; and 
  2. USDOC relied in 2005 on its infere nce from 2000 of likely dumping based on the 
post-order decline in Argentine OCTG im ports, where USDOC did not (either in 
2000 or 2005) support its assumption of lik elihood of dumping and determine the 
reason for the volume decline. 
 Therefore, in the absence of a suffi cient factual basis for an affirma tive likelihood determination, the 
United States could not extend the anti-dumpi ng duty order on OCTG from Argentina beyond the 
period specified in Articles 11.3 and 11.4 of the Anti-Dumping Agreement. The Anti-Dumping Agreement prohibits a Member from maintaining anti-dumping duties beyond five years in the 
absence of strict compliance with the requirements of Articles 11.1, 11.3 and 11.4 of the Anti-
Dumping Agreement.   Second , in the alternative , even assuming arguendo  that the USDOC were permitted to 
develop factual information in 2005 to support its  2000 likelihood determination, the 2005 Section 
129 Determination nevertheless failed to satisfy th e requirements of the Anti-Dumping Agreement for 
the following reasons.  
                                                     
 
19 US Department of Commerce, Continuation of Countervailing Duty and Antidumping Duty Orders 
on Oil Country Tubular Goods from Argentina, Italy, Japa n, Korea and Mexico, and Partial Revocation of 
Those Orders From Arge ntina and Mexico With Respect to Drill Pipe , 66 Federal Register 38630, 25 July 2001. 
20 Panel Report, paras. 7.219, 7.222, 8.1(d)(i). WT/DS268/RW 
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   1. The USDOC did not properly establish a su fficient factual basis, did not objectively 
assess the facts, applied a WTO-inconsistent legal standard, and did not reach a reasoned conclusion supported by positive evidence that expiry of the antidumping 
duty order would be likely to lead to continuation or recurrence of dumping in violation of Articles 11.1 and 11.3 of the Anti-Dumping Agreement: 
 
a. The USDOC determination with resp ect to the Argentine exporters is 
inconsistent with Articles 11.1 and 11 .3 of the Anti-Dumping Agreement. 
 
b. As for the USDOC's statement in the 2005 Section 129 Determination that it 
also relied on its finding from the origin al sunset review that the post-order 
volume decline created a basis for inferring that dumping would be likely to continue or recur, this was an insuffi cient basis to support the 2000 likelihood 
determination and also cannot support the 2005 likelihood determination in 
violation of Articles 11.1 and 11.3 of the Anti-Dumping Agreement. 
 
 2. The USDOC's Section 129 proceeding was al so inconsistent with Articles 6.1, 6.2, 
6.4, 6.5, 6.5.1, 6.6, 6.8, 6.9, 12.2 and Annex II of the Anti-Dumping Agreement: 
 
a. The USDOC's failure to provide the pa rties notice regarding the procedures it 
would follow to make its determination and to notify the parties of the 
essential facts under consideration that fo rmed the basis for the Section 129 
Determination, including, when necessary, by providing reasonable summaries of confidential information, was inconsistent with US obligations 
under Articles 6.1, 6.4, 6.5, 6.5.1, 6.9, and 12.2 of the Anti-Dumping Agreement. 
 
b. The USDOC‘s failure to hold a hear ing in the Section 129 proceeding to 
provide to interested parties a full opportunity for the defense of their interests was inconsistent with US obligations under Article 6.2 of the 
Anti-Dumping Agreement. 
 
c. The USDOC's failure to require inte rested parties to submit non-confidential 
summaries of their written submissions in the Section 129 proceeding in such a manner as to permit a reasonable unde rstanding of the substance of the 
confidential information submitted, in violation of US obligations under 
Articles 6.1, 6.2, 6.5, 6.5.1 of the Anti-Dumping Agreement. 
 
d. The USDOC's characterization of Si derca's submitted cost information as 
unreliable, and USDOC's treatment of Acindar's information, was inconsistent with US obligations under Articles 6.1, 6.2, 6.4, 6.6, 6.8 and 
Annex II of the Anti-Dumping Agreement. 
 
e. The USDOC's failure to provide public notice and sufficient explanation with 
respect to the 2005 Section 129 Determ ination is inconsistent with US 
obligations under Articles 11.3 and 12.2 of the Anti-dumping Agreement. 
  3. The failure of the US Trade Representativ e to direct the USDOC to "implement" the 
2005 Section 129 Determination, pursuant to Section 129(b)(4) of the Uruguay 
Round Agreements Act, was inconsistent with  US obligations under Article 13 of the 
Anti-Dumping Agreement.  In failing to implement the 2005 Section 129 Determination, the United States denied th e Argentine respondents an opportunity for 
judicial review in US courts of the dete rmination purportedly providing the basis for  WT/DS268/RW 
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  the United States to continue the imposi tion of anti-dumping duties on OCTG from 
Argentina. 
 
 B. Sections 751(c)(4)(A) & (B) of the Tariff Act of 1930 are inconsistent with 
US WTO obligations 
 
 Section 751(c)(4)(B) of the Tariff Act of 1930 has been neither repealed nor amended. It 
therefore remains in existence, unchanged from the form in which it was found to violate Article 11.3 
of the Anti-Dumping Agreement.  Furthermore, th e amendments to the USDOC regulations have not 
eliminated the WTO-inconsistency of this statut ory provision operating in conjunction with Section 
351.218(d)(2)(ii) of USDOC's regulations, a nd Section 751(c)(4)(A) of the Tariff Act. 
  Therefore, Sections 751(c)(4)(A) & (B) of th e Tariff Act are not in conformity with the 
recommendations and rulings of the DSB, or with US obligations under Articles 11.1 and 11.3 of the 
Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. 
 
 C. Section 351.218(d)(2) of the USDOC Regulations, as amended, is inconsistent 
with US WTO obligations 
 
 The United States has eliminated paragraph (d)(2)(iii) of Section 351.218 of the USDOC 
Regulations. Additionally, the United States has am ended paragraph (d)(2)(ii)  of Section 351.218 of 
the USDOC Regulations. This latter paragraph now provides in part that every statement of waiver 
must include a statement that the respondent intere sted 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.
21 
 The revised Regulation does not address the statutory consequences for parties who "elect not 
to participate in a review" (as provided for in S ection 751(c)(4)(A)) of the Tariff Act of 1930) but who 
also do not file a Statement of Waiver.  In thes e circumstances, the terms of Section 751(c)(4)(B) 
mandate that USDOC "conclude that revocation of the order would be lik ely to lead to continuation or 
recurrence of dumping…with respect to that interest ed party."  The United States has therefore failed 
to bring Section 751(c)(4)(B) of the Tariff Act of 1930 into conformity with the recommendations and 
rulings of the DSB and with US obligations under Articles 11.1 and 11.3 of the Anti-Dumping 
Agreement. 
  The revised Regulation is also inconsiste nt with the obligations of the USDOC under 
Articles 11.1 and 11.3 of the Anti-Dumping Agreement to, inter alia , "arrive at a reasoned 
conclusion" on the basis of "positive evidence." 
 
 By mandating that a party filing a Statement of Waiver must include a statement that it is likely to dump, and by requiring USDOC to conclude th at dumping is likely to continue or recur with 
respect to any waiving interested party, Sec tion 351.218(d)(2)(ii) denies non-waiving interested 
parties the full opportunity for the defense of their interests, in violation of US obligations under Articles 6.1 and 6.2 of the Anti-Dumping Agreement. 
 
 By mandating that a party filing a Statement of Waiver must include a statement that it is likely to dump, the USDOC will be required to ma ke a likelihood determination without satisfying 
itself as to the accuracy of the in formation supplied by interested parties upon which its findings are 
based, in violation of US obligations under Article 6.6 of the Anti-Dumping Agreement. 
 
                                                     
 
21 70 Federal Register at 62062. WT/DS268/RW 
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   The United States has therefore failed to brin g the US statutory and regulatory waiver 
provisions into conformity with US  obligations under Articles 6.1, 6.2, 6.6, 11.1, and 11.3 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.  
__________