UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Notification of an Appeal by the United States under paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU")
Date: 31 August 2004
Document codes: WT/DS268/5
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

Notification of an Appeal by the United States
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes ("DSU")

 The following notification, dated 31 August 2004, from the Delegation of the United States, is
being circulated to Members.

 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the
United States hereby notifies its decision to app eal to the Appellate Body certain issues of law
covered in the Report of the Panel on (WT/DS268R) and certain legal interpretations developed by
the Panel in this dispute.

1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 751(c)(4)(B) of the Tariff Act re lating to "affirmative" waivers are inconsistent
with Article 11.3 of the Agreement on Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994 ("Anti-Dumping Agreement") . This finding is in error and is based on
erroneous findings on issues of law a nd related legal interpretations, in cluding, for example, that U.S.
law, including section 751(c)(4)(B) of the Tariff Ac t and section 351.218(d)(2)(iii) of the Department
of Commerce's regulations, precludes the Depart ment of Commerce from making an order-wide
determination of likelihood of continuation or recurrence of du mping, supported by reasoned and
adequate conclusions based on the facts before th e agency, where an inter ested party elects not to
participate in the sunset review at the Department of Commerce;
1

2. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the
provisions of section 351.218(d)(2)(iii) of the Depa rtment of Commerce's regulations relating to
"deemed" waivers are inconsistent with Article 11.3 of the Anti-Dumping Agreement. This finding is
in error and is based on erroneous findings on issues of law and relate d legal interpretations,
including, for example, that U.S. law, including section 751(c)(4)(B) of the Tariff Act and
section 351.218(d)(2)(iii) of the Department of Co mmerce's regulations, precludes the Department of
Commerce from making an order-wid e determination of likelihood of continuation or recurrence of
dumping, supported by reasoned and adequate conclusions based on the facts before the agency,
where an interested party elects not to participat e in the sunset review at the Department of
Commerce;
2

1See Panel Report, paras. 7.80-7.103, 8.1(a)(i)-(ii).
2See id.

3. The United States seeks review by the Appellate Body of the Panel's legal conclusion that
provisions of section 351.218(d)(2)(iii) of the Depa rtment of Commerce's regulations relating to
"deemed" waivers are inconsistent with Articles 6. 1 and 6.2 of the Anti-Dumping Agreement. These
findings are in error and are based on erroneou s findings on issues of law and related legal
interpretations, including, for example, that unde r U.S. law, including section 751(c)(4)(B) of the
Tariff Act and section 351.218(d)(2)(iii) of the Depa rtment of Commerce's regulations, an exporter
that fails to file a complete response to the notice of initiation has been deprived of ample opportunity
to submit information in accordance with Article 6. 1 or to confront parties with adverse interests
under Article 6.2, and which also renders the orde r-wide likelihood determina tion inconsistent with
Articles 6.1 and 6.2;
3

4. The United States seeks review by the Appellate Body of the Panel's legal conclusion that
provisions of section II.A.3 of the Sunset Policy Bulletin are inconsistent with Article 11.3 of the
Anti-Dumping Agreement, and, to the extent that the Panel's conclusion is premised on an erroneous
assessment of the facts, the United States seeks review of that assessment pursuant to Article 11 of the
DSU. This finding is in error and is based on e rroneous findings on issues of law and related legal
interpretations, including, for example: the Panel's conclusion that the Sunset Policy Bulletin is a
measure, based solely on its conclusion that the Ap pellate Body found this in another dispute; the
Panel's failure to rely on the meaning of the Sunset Policy Bulletin under U.S. municipal law in
assessing whether the Sunset Policy Bulletin mandates a breach; and the Panel's reliance on the
"consistent application" of the Sunset Policy Bulletin to conclude that the Sunset Policy Bulletin
mandates a breach;4

5. The United States seeks review by the Appe llate Body of the Panel's factual findings
regarding U.S. law. These findings are in error and do not represent an obj ective assessment of the
facts as required by Article 11 of the DSU;
5

6. The United States seeks review by the Appellate Body of the Panel's legal conclusion that
Argentina's Panel Request was not inconsistent with Article 6.2 of the DSU. This finding is in error
and is based on erroneous findings on issues of law and related legal interpre tations, including, for
example: the Panel's conclusion that Argentina's panel request was sufficiently clear and presented the
problem clearly,6 the Panel's conclusion that certain claims were within the terms of reference, 7 and
the Panel's conclusion that the United States did not establish prejudice.8

3See id., paras. 7.107-7.128, 8.1(a)(iii).
4See id., paras. 7.134-7.144, 7.152-7.173, 8.1(b).
5See id., paras. 7.80-7.128.
6See id., paras. 7.10-7.48.
7See id., paras. 7.49-7.70.
8See id., para. 7.71.