UNITED STATES - FINAL ANTI-DUMPING MEASURES ON STAINLESS STEEL FROM MEXICO
Document: Recourse to Article 21.5 of the DSU by Mexico Request for the Establishment of a Panel
Date: 8 September 2010
Document codes: WT/DS344/20
Complainant: Mexico
Respondent: U.S.
Third parties: Brazil, Chile, China, EU, Japan, South Korea, Thailand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 1, 2.1, 2.4, 2.4.2, 9, 18.4  Anti-dumpingArt. VI:1, VI:2  GATT 1994Art. XVI:4  Agreement Establishing the World Trade Organization

UNITED STATES - FINAL ANTI-DUMPING MEASURES
ON STAINLESS STEEL FROM MEXICO

Recourse to Article 21.5 of the DSU by Mexico

Request for the Establishment of a Panel

 The following communication, dated 7 September 2010, from the delegation of Mexico to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

The Government of Mexico hereby request s the establishment of a panel pursuant to
Articles 6 and 21.5 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU"), Article XXIII of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), Article 17 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and paragraph 2 of the
Agreement between Mexico and the United States Regarding Procedures under Articles 21 and 22 of
the Dispute Settlement Understanding ("Sequencing Agreement")
1, with respect to the issues
identified below.

I. BACKGROUND TO THE REQUEST
1. On 20 May 2008, the Dispute Settlement Body ("DSB") adopted the Appellate Body Report
and the Panel Report, as modified by the Appellate Body Report, in (WT/DS344) (US - Zeroing (Mexico)).2 The
DSB ruled that:
 (i) Model zeroing in original investigations is , "as such," inconsistent with Article 2.4.2
of the Anti-Dumping Agreement3;

 (ii) the United States Department of Comme rce ("USDOC") acted inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement in the investigation on Stainless Steel
Sheet and Strip in Coils from Mexico by using model zeroing
4;

 (iii) simple zeroing in periodic reviews is, "as such," inconsistent with Article VI:2 of the
GATT 1994 and Article 9.3 of the Anti-Dumping Agreement
5; and

1 WT/DS344/17.
2 Minutes of DSB Meeting, WT/DSB/M/250, para. 74 (20 May 2008). See Appellate Body Report,
US - Zeroing (Mexico), WT/DS344/AB/R (30 April 2008); Panel Report, US - Zeroing (Mexico), WT/DS344/R
(20 December 2007).
3 Panel Report, US - Zeroing (Mexico), para. 8.1(a).
4 Ibid., para. 8.1(b).
5 Appellate Body Report, US - Zeroing (Mexico), para. 165(a).

 (iv) the United States acted inconsistently with Article VI:2 of the GATT 1994 and
Article 9.3 of the Anti-Dumping Agreement by applying simple zeroing in the
five periodic reviews at issue in this dispute (and identified as case numbers 1 to 5 in
the Annex to this Request).
6

2. On 2 June 2008, the United States informed the DSB that it intended to comply with its
WTO obligations in this dispute, but that it would require a reasonable period of time to do so. 7 The
United States requested 15 months, ending on 20 A ugust 2009, to take legislative action and/or
administrative action pursuant to Section 123 of the Uruguay Round Agreements Act to implement
the recommendations and rulings of the DSB with respect to simple zeroing used in periodic reviews.8
Mexico and the United States, however, were unabl e to agree on a reasonable period of time for
implementation.9
3. On 11 August 2008, Mexico requested that th e reasonable period of time be determined
through binding arbitration pursuant to Article 21.3(c) of the DSU. 10 On 20 October 2008, the
Arbitrator determined that the reasonable period of time ("RPT") for the United States to implement
the recommendations and rulings of the DSB was 11 m onths plus ten days from the date of adoption
of the Panel and Appellate Body Reports. The RPT ended on 30 April 2009.11
4. On 18 May 2009, Mexico and the United States concluded the Sequencing Agreement with a
view to facilitating the procedures for a resolution of this dispute under Articles 21 and 22 of the
DSU.
5. On 19 July 2009, Mexico initiated the procedures under Article 21.5 of the DSU by
requesting that the United States enter into c onsultations. The request was circulated in
document WT/DS344/13 of 24 August 2009. Consultations were held on 2 September 2009.
6. Consultations have allowed a better understanding of respectiv e positions, but have failed to
settle the dispute. Accordingly, "there is disag reement as to the existence or consistency with a
covered agreement of measures taken to comply w ith the recommendations and rulings" of the DSB
within the meaning of Article 21.5 of the DSU.
II. IMPLEMENTATION ACTION AND INACTION DECLARED BY THE
UNITED STATES
7. On 27 December 2006, the USDOC published a notice stating its intention to abandon the use
of zeroing in average-to-average comparisons in an ti-dumping original investigations, pursuant to the
recommendations and rulings of the DSB. 12 The final modification became effective for
investigations initiated on or after 22 February 2007.13
8. At the DSB meeting on 20 May 2009, the United States informed the DSB that it had issued a
new final determination on 31 Marc h 2009, recalculating the margin of dumping in the original

6 Ibid., para. 165(b).
7 Minutes of DSB Meeting, WT/DSB/M/251, para. 9 (2 June 2008).
8 US - Zeroing (Mexico), Award of the Arbitrator , Arbitration under Article 21.3(c) of the DSU,
WT/DS344/15, paras. 6-21 (31 October 2008).
9 Ibid., para. 2.
10 Ibid.
11 Ibid., para. 65.
12 Antidumping Proceedings: Calculation of the Weighted-Aver age Dumping Margin during an
Antidumping Investigation, 71 FR 77722 (Department of Commerce) (27 December 2006) (final modification).
13 Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin in Antidumping
Investigations, 72 FR 3783 (Department of Commerce) (26 January 2007) (change in effective date of final
modification).

investigation on Stainless Steel Sheet and Strip in Coils from Mexico without model zeroing. 14 The
USDOC published a notice confirming implementa tion of this determination, effective
23 April 2009.15 The determination, and instructions to US Customs and Border Protection issued
pursuant thereto, revised the "all others" anti-dumpi ng duty cash deposit rate prospectively for subject
entries made from 23 April 2009 forward, but did not affect the anti-dumping duty cash deposit rate
for the sole respondent, ThyssenKrupp Mexinox S.A. de C.V.16
9. With respect to the five administrative reviews that were challenged "as applied," the
United States has taken no action and informed the DS B that "any prospective effect of those reviews
had been eliminated and all entries of merchandi se under the five reviews had been liquidated for
customs purposes." 17 With respect to other findings and recommendations in the dispute, the
United States informed the DSB that it had "also been conferring with Mexico about the steps that the
United States has taken to comply with the recommendations and rulings of the DSB." 18 However, no
other action has been taken by the United States to implement the recommendations and rulings in
this dispute and the United States has continued to use simple zeroing in a series of closely connected
measures as further described herein.
III. MEASURES AT ISSUE AND CLAIMS MADE IN THESE PROCEEDINGS
10. Mexico considers that the United States has failed to implement the recommendations and
rulings of the DSB in this dispute and is therefor e in breach of its WTO obligations. The claims in
respect of which Mexico is seeking establishment of a panel are as follows:
 (i) As described in paragraph 1(iii) of th is Request, the DSB made recommendations and
rulings that the use of simple zeroing in periodic reviews is "as such" inconsistent
with Article VI:2 of the GATT 1994 and Article 9.3 of the Anti-Dumping Agreement.
The United States has taken no steps to eliminate simple zeroing in periodic reviews
and has therefore failed to implement the DSB's recommendations and rulings in this
regard by the end of the RPT or thereafter. By continuing to maintain and use simple
zeroing in periodic reviews as a measure of general and prospec tive application and
failing otherwise to implement the DSB's recommendations and rulings with respect
to this measure, the United States has acted and continues to act inconsistently with
Articles 17.14, 21.1 and 21.3 of the DSU, Articles 2.1, 2.4 and 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

 (ii) As described in paragraph 1(iv) of this Request, the DSB made recommendations and
rulings that the United States acted inc onsistently with Article VI:2 of the
GATT 1994 and Article 9.3 of the Anti-Dump ing Agreement by applying simple
zeroing in the five periodic reviews originally at issue in this dispute (and identified
in the Annex to this Request as case numbers 1 to 5). The margins of dumping
calculated using zeroing in these five periodi c reviews continue to have legal effects
after the end of the RPT and have been relied upon by the USDOC in several
subsequent closely connected measures, including in the 2005 and 2010 "sunset"

14 Issues and Decision Memorandum for the Final Results of Proceeding Under Section 129 of the
Uruguay Round Agreements Act: Antidumpi ng Measures on Stainless Steel from Mexico , A-201-822
(31 March 2009).
15 Implementation of the Findings of the WTO Dispute Settlement Panel and Appellate Body in
United States - Final Anti-Dumping Meas ures on Stainless Steel from Mexico , 74 FR 19527 (Department of
Commerce) (29 April 2009) (notice of determination under Section 129 of the Uruguay Round Agreements
Act).
16 See US Customs and Border Protection Message No. 9126204 (6 May 2009).
17 Minutes of DSB Meeting, WT/DSB/M/268, para. 74 (20 May 2009).
18 Ibid.

reviews
19 and in revocation decisions made in the context of subsequent anti-dumping
administrative reviews, including the 7 th and 9 th administrative reviews. 20 The
United States has failed to adopt any measur es by the end of the RPT or thereafter to
implement the DSB's recommendations and rulings regarding the use of simple
zeroing in case numbers 1 to 5. By continuing to maintain and use the simple zeroing
measure in these five periodic reviews and failing to implement the
DSB's recommendations and rulings, the Un ited States acts inconsistently with
Articles 17.14, 21.1 and 21.3 of the DSU, Articles 2.1, 2.4 and 9.3 of the
Anti-Dumping Agreement and Article VI:2 of the GATT 1994.

 (iii) This Request also concerns the use of zeroing in a series of closely connected
measures. These closely connected measures include:

 (a) The six subsequent periodic review s of the same anti-dumping duty order on
stainless steel sheet and strip in coils from Mexico (identified in the Annex to
this Request as case numbers 6 to 11), and any subsequent amendments to the
same
21, in which margins of dumping for cash deposit purposes and
assessment amounts are calculated using simple zeroing;

 (b) the 2005 and 2010 five-year "sunset" reviews of the anti-dumping order on
stainless steel sheet and strip in coils from Mexico conducted by the USDOC
pursuant to section 751(c) of the Tariff Act of 1930, as am ended (identified
in the Annex to this Request as case numbers 12 and 13), and any subsequent
amendments to the same, in whic h the USDOC relied upon margins of
dumping calculated using simple zeroing;

 (c) all other subsequent closely connected measures taken by the United States in
relation to the anti-dumping order on st ainless steel sheet and strip in coils
from Mexico in which the USDOC calculated, or relied upon, margins of
dumping calculated using simple zeroi ng or model zeroing, including the
negative "absence of dumping" revoca tion determinations pursuant to
19 C.F.R. § 351.222(b)(2) made in the 7
th and 9 th administrative reviews
(identified in the Annex to this Re quest as case numbers 7 and 9), and any
subsequent amendments to the same; and

 (d) any other determinations and measu res that derive mechanically from the
measures described in paragraphs 10(iii)(a ) to (c) that bear a close nexus to
the referenced five originally cha llenged periodic reviews including any

19 Final Results of Full Sunset Review - Stainless Steel Sh eet and Strip in Coils from Mexico ,
70 FR 6620 (Department of Commerce) (8 February 2005); Initiation of Sunset Review - Stainless Steel Sheet
and Strip in Coils from Mexico , 75 FR 30437 (USITC) (1 June 2010); Letter from James Maeder, Director,
Office 2 AD/CVD Operations to Catherine D. Felippo, Director, Office of Investigations (22 July 2010).
20 Stainless Steel Sheet and Strip in Coils from Mexico; Final Results of Antidumping Duty
Administrative Review, 73 FR 7710 (Department of Commerce) (11 February 2008), subsequently amended as
Stainless Steel Sheet and Strip in Coils from Mexico: Amen ded Final Results of Antidumping Duty
Administrative Review, 73 FR 14215 (17 March 2008).
21 Cases 6, 7, 8, and 9 are each subject to pending review before binational panels established under
Chapter 19 of the North American Free Trade Agreemen t (NAFTA). The review of the original USDOC
determination in Case 6 (i.e. the administrative review covering the 2004-2005 annual administrative review
period) resulted in a decision from the NAFTA panel finding that the use of zeroing in the calculation of
margins of dumping in administrative reviews violates US law. See In the Matter of Stainless Steel Sheet and
Strip in Coils from Mexico, USA-MEX-2007-1904-01 (14 April 2010). That matter has been "remanded" to the
USDOC with instructions to recalculate the margin of dumping for the 2004-2005 ad ministrative review period
without zeroing. However, the USDOC has persisted in using zeroing in the margin calculation.

instructions and notices issued pursu ant thereto, and any subsequent
amendments to the same.

By failing to take action to bring these measures into compliance as of the
end of the RPT established in this proceeding and by continuing to use simple
zeroing in subsequent closely connected measures, the United States has
imposed, assessed and/or collected anti-dumping duties in excess of the
proper margin of dumping. The United States thereby improperly imposes
duties on the importation of Mexican goods in excess of the duties permitted
under the United States' Schedule of C oncessions and otherwise nullifies or
impairs benefits accruing to Mexico under the covered agreements. The
United States' failure to take measures to eliminate simple zeroing from these
measures and, thereby, to bring itself into conformity with its
WTO obligations by the end of the RPT, is inconsistent with Articles 17.14,
21.1 and 21.3 of the DSU. As a result of these actions and omissions, the
United States continues to act inconsisten tly with Articles 2.1, 2.4, 9.3, 11.2
and 11.3 of the Anti-Dumping Agreement and Article VI:2 of the
GATT 1994, as set forth in the DSB's recommendations and rulings.

 (iv) Further, the United States' measures taken to comply as described herein, if and to the
extent they exist, are inconsistent with Articles 2.1, 2.4, 9.3, 11.2 and 11.3 of the
Anti-Dumping Agreement and Articles II:1(a), II:1(b), VI:1 and VI:2 of the
GATT 1994 for the reasons given in the preceding paragraphs.

IV. CONCLUSION
11. Mexico requests that a panel be established under Article 21.5 of the DSU with standard
terms of reference, as set forth in Article 7.1 of th e DSU, and asks that this request be placed on the
agenda of the DSB meeting scheduled for 21 September 2010.
12. Pursuant to paragraph 2 of the Sequencing Agre ement, Mexico notes that the United States is
required to accept the establishment of the panel at the first DSB meeting at which Mexico's request
for the establishment of an Article 21.5 panel appears on the agenda.

ANNEX

STAINLESS STEEL SHEET AND STRIP IN COILS FROM MEXICO
(USDOC CASE NO. A-201-822)

CASE PERIOD OF REVIEW PUBLICATION
1 4 January 1999 - 30 June 2000 Stainless Steel Sheet and Strip in Coils from Mexico,
67 FR 6490 (USDOC) (12 February 2002), subsequently
amended as Stainless Steel Sheet and Strip in Coils from
Mexico, 67 FR 15542 (USDOC) (2 April 2002).
2 1 July 2000 - 30 June 2001 Stainless Steel Sheet and Strip in Coils from Mexico,
68 FR 6889 (USDOC) (11 February 2003), subsequently
amended as Stainless Steel Sheet and Strip in Coils from
Mexico, 68 FR 13686 (USDOC) (20 March 2003).
3 1 July 2001 - 30 June 2002 Stainless Steel Sheet and Strip in Coils from Mexico,
69 FR 6259 (USDOC) (10 February 2004).
4 1 July 2002 - 30 June 2003 Stainless Steel Sheet and Strip in Coils from Mexico,
70 FR 3677 (USDOC) (26 January 2005).
5 1 July 2003 - 30 June 2004 Stainless Steel Sheet and Strip in Coils from Mexico,
70 FR 73444 (USDOC) (12 December 2005).
6 1 July 2004 - 30 June 2005 Stainless Steel Sheet and Strip in Coils from Mexico,
71 FR 76978 (USDOC) (22 December 2006).
7 1 July 2005 - 30 June 2006 Stainless Steel Sheet and Strip in Coils from Mexico,
73 FR 7710 (USDOC) (11 February 2008), subsequently
amended as Stainless Steel Sheet and Strip in Coils from
Mexico, 73 FR 14215 (17 March 2008).
8 1 July 2006 - 30 June 2007 Stainless Steel Sheet and Strip in Coils from Mexico,
74 FR 6365 (USDOC) (9 February 2009).
9 1 July 2007 - 30 June 2008 Stainless Steel Sheet and Strip in Coils from Mexico,
75 FR 6627 (USDOC) (10 February 2010), subsequently
amended as Stainless Steel Sheet and Strip in Coils from
Mexico, 75 FR 17122 (USDOC) (5 April 2010).
10 1 July 2008 - 30 June 2009 Preliminary Results - Stainless Steel Sheet and Strip in Coils
from Mexico, 75 FR 47780 (USDOC) (9 August 2010).
11 1 July 2009 - 30 June 2010 Initiation - Stainless Steel Sheet and Strip in Coils from
Mexico, 75 FR 53274 (USDOC) (31 August 2010).
12 1 st (2005) Sunset Review Final Results of Full Sunset Review - Stainless Steel Sheet
and Strip in Coils from Mexico, 70 FR 6620 (USDOC)
(8 February 2005).
13 2 nd (2010) Sunset Review Initiation of Sunset Review - Stainless Steel Sheet and Strip
in Coils from Mexico, 75 FR 30437 (USITC) (1 June 2010);
Letter from James Maeder, Director, Office 2 AD/CVD
Operations to Catherine D. Felippo, Director, Office of
Investigations (22 July 2010).