Document: WT/DS295/R Page D-1 ANNEX D Request for Consultations and Request for the Establishment of a Panel Content Page Annex D-1 Request for Consultations by the United States D-2 Annex D-2 Request for the Establishment of a Panel by the United States D-5
Document codes: WT/DS295/R
Complainant: U.S.
Respondent: Mexico
Third parties: China, EU, Turkey
Dispute stage: Appellate Body
Agreements cited: Art. 12.5, 12.7, 19.3, 11.9, 21.1, 21.2, 32.1, 12.1.1  Subsidies and Countervailing Measures (SCM)Art. VI:2  GATT 1994Art. 1, 3.1, 3.2, 3.4, 3.5, 4.1, 5.8, 6.1, 6.2, 6.4, 6.8, 6.9, 6.10, 9.3, 9.4, 9.5, 11.1, 12.1, 12.2, 11.9, 18.1, 19.3, 21.1, 21.2, 32.1  Anti-dumping

ANNEX D

Request for Consultations and Request for the Establishment of a Panel

Content Page
Annex D-1 Request for Consultations by the United States D-2
Annex D-2 Request for the Establishment of a Panel by the United States D-5

ANNEX D-1

REQUEST FOR CONSULTATIONS BY THE UNITED STATES

MEXICO – DEFINITIVE ANTI-DUMPING MEASURES ON BEEF AND RICE

Request for Consultations by the United States

 The following communication, dated 16 June 2003, from the Permanent Mission of the
United States to the Permanent Mission of Mexico and to the Chairman of the Dispute Settlement
Body, is circulated in accordance with Article 4.4 of the DSU.

 My authorities have instructed me to request consultations with the Government of Mexico
pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes, Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"),
Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 ("AD Agreement"), and Article 30 of the Agreement on Subsidies and Countervailing
Measures ("SCM Agreement"), with respect to Mexi co's definitive anti-dumping measures on beef
and long grain white rice, published in the Diario Oficial on 28 April 2000
1 and 5 June 2002 2
respectively, as well as any amendments thereto or extensions thereof 3 and any related measures 4 and
also with respect to certain provisions of Mexico 's Foreign Trade Act and its Federal Code of Civil

comestibles de bovino, mercancía clasificada en las fracciones arancelarias 0201.10.01, 0202.10.01,
del Impuesto General de Importación, originarias de lo s Estados Unidos de América, independientemente del
país de procedencia, Diario Oficial, Segunda Sección 8 (28 de Abril de 2000).
Generales de Importación y de Exportación, originarias de los Estados Unidos de América, independientemente
del país de procedencia, Diario Oficial, Segunda Sección 1 (5 de Junio de 2002).
3 Including any further determinations made pursuant to court order or remand.
4 These include, for example, the Resolución final de la investigación sobre elusión del pago de cuotas
compensatorias impuestas a las importaciones de carne de bovino en cortes deshuesada y sin deshuesar,
Tarifa de la Ley del Impuesto General de Importación, originarias de los Estados Unidos de América,
independientemente del país de procedencia, Diario Oficial, Primera Sección 1 (22 de Mayo 2001).

Procedure. These measures appear to be inconsiste nt with Mexico's obligations under the provisions
of GATT 1994, the AD Agreement, and the SCM Agreement.

 In particular, the United States believes that the anti-dumping measures on beef and rice are
inconsistent with at least the following provisions:

• Article 3 of the AD Agreement, because Mexico, inter alia, based its injury (or threat) and
causation analyses on only six months of data for each of the years examined; failed to
collect or examine recent data; failed in the beef investigation to evaluate all relevant
economic factors and indices having a bearing on the state of the industry; and failed to base
its injury determinations on positive evidence or to conduct objective examinations of the
volume of dumped imports, the effect of those imports on prices in the domestic market of
like products, and the impact of the imports on domestic producers of those products;

• Article 5.8 of the AD Agreement, because Mexi co failed to terminate the rice investigation
after a negative preliminary determination of injury, and Articles 5.8 and 11.1 of the
AD Agreement because Mexico failed to exclude certain respondent US exporters from the
beef and rice measures after negative final determinations of dumping;

• Article 6 of the AD Agreement, because Mexico, inter alia, failed to provide respondent US
exporters with ample opportunity to present in writing all evidence which they considered
relevant in respect of the anti-dumping investigati ons and failed to give all interested parties a
full opportunity for the defense of their inte rests, and Article 6 and Annex II of the
AD Agreement by improperly applying the facts available to a US respondent rice exporter
that was investigated and found to have no shipments during the period of investigation;

• Article 9 of the AD Agreement, in conjunction with Article 6, because of the manner in which
Mexico determined anti-dumping margins for US exporters that were not individually
investigated;

• Article 6 and 9 of the AD Agreement and Article VI of GATT 1994, because Mexico,
inter alia, limited the application of the respondent-s pecific margins that it calculated in the
beef investigation to selected grades of meat imported within 30 days of slaughter (applying
"facts available" margins to the respondents' othe r shipments) and limited the application of a
particular US respondent exporter's margin af ter conducting an "anti- circumvention review"
that found the respondent was not engaged in circumvention;

• Articles 9 and 11 of the AD Agreement, because Mexico rejected requests by certain US
respondent exporters to conduct reviews of the beef anti-dumping order; and

• Article 12 of the AD Agreement, because Mexico failed in its final de terminations in both
investigations to set forth in sufficient detail the findings and conclusions reached on all
issues of fact and law considered material or to provide all relevant information on the matters
of fact and law and reasons which led to the imposition of final measures.

 In addition, the following provisions of Mexico's Foreign Trade Act appear to be inconsistent
with Mexico's obligations under the provisions of the AD Agreement and the SCM Agreement:

• Article 53, which requires interested parties to present arguments, information, and evidence
to the investigating authorities within 28 days of the day after publication of the initiation
notice. This provision appears to be inconsistent with Articles 6.1.1 and 12.1.1 of the AD and
SCM Agreements, respectively, which specify th at exporters/foreign producers shall be given

at least 30 days to respond to questionnaires, a nd that, as a general rule, the 30 days are to be
counted from the date of receipt of the questionnaire;

• Article 64, which codifies the "facts available" approach that Mexico applied in the rice and
beef investigations, as described in the fourth bullet above. This provision appears to be
inconsistent with Article 9 of the AD Agreem ent, in conjunction with Article 6; and with
Article 6.8 of the AD Agreement and Article 12.7 of the SCM Agreement to the extent that it
requires the application of facts available ra tes to exporters with no shipments during the
period of investigation;

• Article 68, which appears to require reviews of respondent exporters that were not assigned a
positive margin in an investigation, and appear s to require that respondent exporters seeking
reviews demonstrate that their volume of exports during the period of review was
"representative." This provision appears to be inconsistent with Artic les 5.8 and 11.1 of the
AD Agreement (as described in the second bullet above), with Article 9 of the
AD Agreement, and with Articles 11.9 and 21.1 of the SCM Agreement;

• Article 89D, which appears to require that "new shippers" requesting expedited reviews
demonstrate that their volume of exports duri ng the period of review was "representative."
This provision appears to be inconsistent with Article 9.5 of the AD Agreement and
Article 19.3 of the SCM Agreement, which re quire authorities to conduct reviews without
regard to such a condition; and

• Article 93V, which appears to provide for th e application of definitive anti-dumping or
countervailing duties on products entered prior to the date of application of provisional
measures (1) for longer than allowed under the AD and SCM Agreements, and (2) even if not
all AD or SCM Agreement requirements for a pplying such duties are met. This provision
appears to be inconsistent with Articles 7 a nd 10.6 of the AD Agreement and Articles 17 and
20.6 of the SCM Agreement.

 Finally, Article 366 of Mexico's Federal C ode of Civil Procedure, in conjunction with
Article 68 of the Foreign Trade Act, appears to be inconsistent with Articles 9 and 11 of the
AD Agreement and Articles 19 and 21 of the SCM Ag reement to the extent that the provisions
prevent Mexico from conducting reviews of anti- dumping or countervailing duty orders while a
judicial review of the order is ongoing, includ ing a "binational panel" review pursuant to
Chapter Nineteen of the North American Free Trade Agreement.

 Mexico's measures also appear to nullify or impair benefits accruing to the United States
directly or indirectly under the cited agreements.

 We look forward to receiving your reply to the present request and to fixing a mutually
convenient date for consultations.

ANNEX D-2

REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES

22 September 2003
 (03-5043)
 Original: English

MEXICO – DEFINITIVE ANTI-DUMPING MEASURES ON BEEF AND RICE

Request for the Establishment of a Panel by the United States

 The following communication, dated 19 Sept ember 2003, from the Permanent Mission of the
United States to the Chairman of the Dispute Settleme nt Body, is circulated pursuant to Article 6.2 of
the DSU.

 The United States considers that certain measures of the Government of Mexico are
inconsistent with Mexico's commitments and obligations under the General Agreement on Tariffs and
Trade 1994 ("GATT 1994"), the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 ("AD Agreement"), and the Agreement on Subsidies and
Countervailing Measures ("SCM Agreement"). In particular:

(1) On 5 June 2002, Mexico published in the Diario Oficial its definitive antidumping measure
on long-grain white rice.
1 This measure appears to be inconsis tent with the following provisions of
the AD Agreement and the GATT 1994:

 (a) Article VI of the GATT 1994 and Articles 1, 3.1, 3.2, 3.4, 3.5, and 4.1 of the
AD Agreement because Mexico based its in jury and causation analyses on only six
months of data for each of the years exam ined; failed to collect or examine recent
data; failed to properly evaluate the rele vant economic factors; failed to base its
determination on a demonstration that the dumped imports are, through the effects of
dumping, causing injury within the meani ng of the AD Agreement; and failed to base
its injury determinations on positive evidence or to conduct objective examinations of
the volume of dumped imports, the effect of those imports on prices in the domestic
market of like products, and the impact of the imports on domestic producers of those
products;

Importación y de Exportación, originarias de los Estados Unidos de América, independientemente del país de
procedencia, Diario Oficial, Segunda Sección 1 (5 de Junio de 2002).

 (b) Article 5.8 of the AD Agreement, because Mexico failed to terminate the
antidumping investigation after a negative pr eliminary determination of injury, and
Articles 5.8 and 11.1 of the AD Agreement because Mexico failed to exclude certain
respondent US exporters from the measure after negative final determinations of
dumping;

 (c) Articles 6.1, 6.2, and 6.4 of the AD Agreement, because Mexico, inter alia, failed to
give all of the interested parties in the i nvestigation notice of the information that the
authorities required or ampl e opportunity to present in writing all evidence which
they considered relevant in respect of the antidumping investigation, failed to give all
interested parties a full opportunity for the de fense of their interests, and failed to
provide timely opportunities for the responde nt US exporters to see all information
that was relevant to presentation of their cases, that was not confidential as defined in
Article 6.5, and that the authorities used in their investigation;

 (d) Article 6.8 of the AD Agreement, and paragr aphs 1, 3, 5, 6, and 7 of Annex II of the
AD Agreement, by improperly rejecting in formation submitted by US exporters and
applying the facts available in the evaluation of injury;

 (e) Article 6.9 of the AD Agreement, beca use the investigating authorities, before the
final determination was made, failed to in form the respondent US exporters of the
essential facts under consideration which formed the basis for the decision to apply a
definitive measure;

 (f) Articles 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreemen t, and paragraphs 1, 3, 5,
6, and 7 of Annex II of the AD Agreement, by applying the facts available to a US
respondent rice exporter that was investigated and found to have no shipments during
the period of investigation;

 (g) Articles 1, 6.1, 6.6, 6.8, 6.10, 9.3, 9.4, 9.5, 12.1, and 12.2 of the AD Agreement, and
paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement, by applying the facts
available in establishing the antidumping margins that it assigned to US exporters that
were not individually investigated, and by doing so in an improper manner;

 (h) Article 12.2 of the AD Agreement, because Mexico failed in its final determination in
the rice investigation to set forth in su fficient detail the findings and conclusions
reached on all issues of fact and law considered material or to provide all relevant
information on the matters of fact and law and reasons which led to the imposition of
final measures; and

 (i) Article VI:2 of the GATT 1994, because Mexico levied an antidumping duty greater
in amount than the margin of dumping.

(2) Certain provisions of Mexico's Foreign Trad e Act also appear to be inconsistent with
Mexico's obligations under vari ous provisions of the AD Agreement and the SCM Agreement.
Specifically:

 (a) Article 53 of the Foreign Trade Act requi res interested parties to present arguments,
information, and evidence to the investiga ting authorities within 28 days of the day
after publication of the initiation notice. This provision does not appear to permit the
investigating authorities to grant extensions of the 28-day deadline. Accordingly, the
provision appears to be inconsistent with Articles 6.1.1 and 12.1.1 of the AD and
SCM Agreements, respectively, which speci fy that due consideration should be

granted to extension requests and that such requests should, upon cause shown, be
granted whenever practicable;

 (b) Article 64 of the Foreign Trade Act c odifies the "facts available" approach that
Mexico applied in the rice investigation, as described in subpara graphs (f) and (g) of
section (1) above. This provision appears to be inconsistent with Articles 6.1, 6.6,
6.8, 6.10, 9.3, 9.4, and 9.5 of the AD Agreement, and paragraphs 1, 3, 5, 6, and 7 of
Annex II of the AD Agreement; and with Article s 6.6, 6.8, 6.10, 9.3, 9.4, and 9.5 of
the AD Agreement, paragraphs 1, 3, 5, 6, and 7 of Annex II of the AD Agreement,
and Articles 12.5, 12.7, and 19.3 of the SCM Agreement, to the extent that it requires
the application of facts available rates to exporters with no shipments during the
period of investigation;

 (c) Article 68 of the Foreign Trade Act appears to require reviews of respondent
exporters that were not assigned a positive ma rgin in an investigation, and appears to
require that respondent exporters seeking re views demonstrate that their volume of
exports during the period of review was "r epresentative." This provision appears to
be inconsistent with Articles 5.8 and 11. 1 of the AD Agreement (as described in
subparagraph (b) of section (1) above), with Articles 9.3 and 11.2 of the AD
Agreement, and with Articles 11.9, 21.1, and 21.2 of the SCM Agreement;

 (d) Article 89D of the Foreign Trade Act appears to require that "new shippers"
requesting expedited reviews demonstrate that their exports were subsequent to the
period of investigation and that the volume of exports during the period of review
was "representative." This provision appears to be inconsistent with Article 9.5 of the
AD Agreement and Article 19.3 of the SCM Agreement;

 (e) Article 93V of the Foreign Trade Act app ears to provide for the application of fines
on importers that enter products subject to antidumping and countervailing duty
investigations while such investigations ar e underway. This provision appears to be
inconsistent with Article 18.1 of the AD Agreement and Article 32.1 of the SCM
Agreement.

(3) Mexican officials have asserted that Article 366 of Mexico's Federal C ode of Civil Procedure
and Articles 68 and 97 of the Foreign Trade Ac t prevent Mexico from conducting reviews of
antidumping or countervailing duty orders while a judi cial review of the order is ongoing, including a
"binational panel" review pursuan t to Chapter Nineteen of the North American Free Trade
Agreement. These provisions appear to be inconsistent with Articles 9.3, 9.5, and 11.2 of the
AD Agreement, and Articles 19.3 and 21.2 of the SCM Agreement.

 On 16 June 2003, the United States Government requested consultations with the Government
of Mexico pursuant to Article 4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXII:1 of the GATT 1994, Article 17.3 of the
AD Agreement, and Article 30 of the SCM Agreemen t. The United States and Mexico held such
consultations on 31 July and 1 August 2003. These cons ultations provided some helpful clarifications
but unfortunately did not resolve the dispute.

 Accordingly, the United States respectfully re quests, pursuant to Article 6 of the DSU,
Article 17.4 of the AD Agreement, and Article 30 of the SCM Agreement, that the Dispute Settlement
Body establish a panel to examine this matter, with the standard terms of reference as set out in
Article 7.1 of the DSU. The United States further as ks that this request for a panel be placed on the
agenda for the next meeting of the Dispute Settlement Body to be held on 2 October 2003.