UNITED STATES – PROVISIONAL ANTI-DUMPING MEASURES ON SHRIMP FROM THAILAND
Document: Request for Consultations by Thailand
Date: 14 December 2004
Document codes: WT/DS324/1; G/L/726; G/ADP/D59/1
Complainant: Thailand
Respondent: U.S.
Dispute stage: Consultation
Agreements cited: Art. 1, 2.4, 6.8, 6.13, 7.1, Annex II  Anti-dumpingArt. VI  GATT 1994

UNITED STATES – PROVISIONAL ANTI-DUMPING MEASURES
ON SHRIMP FROM THAILAND

Request for Consultations by Thailand

 The following communication, dated 9 December 2004, from the delegation of Thailand to
the delegation of the United States and to th e Chairperson of the Dispute Settlement Body, is
circulated in accordance with Article 4.4 of the DSU.

 My authorities have instructed me to request c onsultations with the Unite d States pursuant to
Article 4 of the Understanding on Rules and Proc edures Governing the Settlement of Disputes
("DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT") and
Articles 17.3 and 17.4 of the Agreement on Implem entation of Article VI of the General Agreement
on Tariffs and Trade 1994 ("AD Agreement") with re spect to the provisional anti-dumping measures
imposed by the United States on certain frozen and canned warmwater shrimp from Thailand.

 On 27 January 2004, pursuant to section 732 of the Tariff Act of 1930, as amended (the
"Act"), the United States initiated an anti-dumping investigation in respect of certain frozen and
canned warmwater shrimp imported from Thailand and several other countries.
1 On 28 July 2004,
pursuant to section 733 of the Act, the United States preliminarily determined that certain frozen and
canned warmwater shrimp from Thailand are being sold, or are likely to be sold, in the United States
at less than fair value (the "Preliminary Determination").2 The estimated margins of dumping ranged
from 5.56 per cent to 10.25 per cent. Pursuant to the Preliminary Determination and section 733(d) of
the Act, the United States suspended the liquidati on of all entries of cer tain frozen and canned
warmwater shrimp from Thailand and required cash deposits or the posting of bonds equal to the
estimated margins of dumping established in the Preliminary Determination.

 Thailand requests consultations on the follo wing aspects of the Prel iminary Determination
and consequent imposition of provisional anti-dump ing measures on imports of certain frozen and
canned warmwater shrimp from Thailand:

1 Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp from
Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam ,
69 Fed. Reg. 3876 (27 January 2004).
2 Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final
Determination, and Negative Critical Circumstances Determination: Certain Frozen and Canned Warmwater
Shrimp from Thailand, 69 Fed. Reg. 47100 (4 August 2004).

 (a) The United States' application in the Preliminary Determination of the practice known
as "zeroing" negative dumping margins, the effect of which was to create margins of
dumping where none would otherwise have been found or, at a minimum, to inflate
margins of dumping. The United States' pract ice of "zeroing" has, in the rulings of
the Dispute Settlement Body in United States – Final Dumping Determination on
Softwood Lumber from Canada
3, previously been found to be inconsistent with the
AD Agreement. Through its use of "zeroing", the United States failed to make a fair
comparison between the export price and the normal value and calculated distorted
margins of dumping, and therefore violated Articles 2.4 and 2.4.2 of the
AD Agreement.

 (b) The United States' resort in the Prelim inary Determination to the use of so-called
"adverse facts available" to determine normal values for one Thai exporter, the effect
of which was to inflate the margins of dump ing for this exporter. The United States'
resort to so-called "adverse facts availabl e" was inconsistent with Article 6.8;
paragraphs 3, 5, 6 and 7 of Annex II; and Article 6.13 of the AD Agreement.

 (c) The United States' failure to make due allowances in the Preliminary Determination
for differences that affected price comp arability between export prices and normal
values for the Thai exporters, including differences relating to levels of trade and duty
drawback payments. The United States' failure to make due allowances for these
factors is inconsistent with Article 2.4 of the AD Agreemen t and resulted in an unfair
comparison between export price and normal value, also contrary to Article 2.4.

 Thailand considers that the foregoing me thodologies, calculations, comparisons and
determinations made by the United States cannot be reconciled with Ar ticle VI of the GATT,
Articles 1 and 7.1 of the AD Agreement, and the specific provisions of the AD Agreement cited
above. Thailand reserves the right to raise issu es relating to other aspects of the Preliminary
Determination during the course of the consultations.

 Thailand looks forward to receiving your reply to this request at your earliest convenience. I
propose that the date and venue of these consultations be agreed between our two missions.

Canada, WT/DS264/AB/R (adopted 31 August 2004).