UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Recourse to Article 21.5 of the DSU by Argentina Request for Consultations
Date: 30 January 2006
Document codes: WT/DS268/15
Complainant: Argentina
Respondent: U.S.
Third parties: China, EU, Japan, South Korea, Mexico, Taiwan
Dispute stage: Implementation & Compliance
Agreements cited: Art. 1, 2, 3, 6, 11, 12, 18, Annex II  Anti-dumpingArt. VI, X  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

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 (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, , WT/DS268/R, para. 8.1(d)(i).

 (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, , WT/DS268/AB/R, para. 365(c)(i) and (ii).
4 WT/DSB/M/180.
5 . 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 Country Tubular Goods from Argentina, 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.

 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 Parties 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 determination 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 determination 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.

• 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 parties 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.

 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.