Document: WT/DS383/R Page D-1 ANNEX D REQUEST FOR THE ESTABLISHMENT OF A PANEL Contents Page Annex D-1 Request for the Establishm ent of a Panel by Thailand D-2
Document codes: WT/DS383/R
Complainant: Thailand
Respondent: U.S.
Third parties: Argentina, EU, Japan, South Korea, Taiwan
Dispute stage: Panel
Agreements cited: Art. 2.4.2  Anti-dumping

ANNEX D

REQUEST FOR THE ESTABLISHMENT OF A PANEL

Contents Page
Annex D-1 Request for the Establishm ent of a Panel by Thailand D-2

ANNEX D-1

REQUEST FOR THE ESTABLISHMENT
OF A PANEL BY THAILAND

UNITED STATES – ANTI-DUMPING MEASURES ON POLYETHYLENE
RETAIL CARRIER BAGS FROM THAILAND

Request for the Establishment of a Panel by Thailand

 The following communication, dated 9 March 2009, from the delegation of Thailand to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 Upon instructions from my authorities, I wish to convey the request of the Government of the
Kingdom of Thailand ("Thailand") to the Dispute Se ttlement Body (the "DSB") for the establishment
of a panel pursuant to Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (the
"GATT 1994"), Articles 4 and 6 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (the "DSU"), and Article 17.4 of the Agreement on Implementation of Article
VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement") with
respect to certain anti-dumping measures imposed by the United States on imports of Polyethylene
Retail Carrier Bags ("plastic carrier bags") from Thailand.

Prior Consultations

 On 26 November 2008, Thailand requested cons ultations with the United States pursuant to
Article 4 of the DSU, Article XXIII of the GATT 1994 and Article 17 of the Anti-Dumping
Agreement.
1 These consultations were requested concerning anti-dumping measures imposed by the
United States on imports of plastic carrier bags from Thailand. Consultations were held in Geneva on
28 January 2009. While these consultations assisted in clarifying the issues be fore the parties, they
failed to resolve the dispute.

1 See G/ADP/D76/1, G/L/873, WT/DS383/1.

The Measure at Issue

 The specific measure at issue is the anti- dumping order imposed by the United States on
plastic carrier bags from Thailand and the final de termination by the United States Department of
Commerce ("USDOC"), as amended, leading to th at order. The United States initiated its
anti-dumping investigation of plastic carrier bags from Thailand on 1 April 2002. The investigation
was conducted by the USDOC. The final determin ation in this investigation was published on
18 June 2004
2 (the "Final Determination") and an ame nded final determinati on was published by the
USDOC on 15 July 2004. 3 Following a final determination of injury by the United States
International Trade Commission, the United States issued an anti-dumping duty order on imports of
Polyethylene Retail Carrier Bags from Thailand on 9 August 2004 (the "Order"). 4 The Final
Determination, as amended, and the Order comprise the measure at issue in this dispute.

 In the Final Determination, as amended, the USDOC used the "zeroing" methodology to
determine the final dumping margins for certain Thai e xporters subject to the order. Accordingly, for
certain Thai exporters of plastic retail bags, the Final Determina tion, as amended, as well as the
Order, reflected and included anti- dumping margins that were calculat ed on the basis of "zeroing".
The use of the "zeroing" methodology is evident fro m the computer programs used to calculate the
margins of dumping in the Final Determination, as amended, on which the anti-dumping duty order
was based. More specifically, the methodology of "zeroing" negative anti-dumping margins in the
above determination refers to the following:

(1) different "models," i.e., types, of products are identified based on the most relevant
product characteristics;
(2) weighted average prices in the United St ates and weighted average normal values in
the comparison market are calculated on a model-specific basis for the entire period
of investigation;
(3) the weighted average normal value of each model is compared to the weighted
average United States price for that same model;
(4) to calculate the dumping margin for an exporter, the amount of dumping for each
model is summed and then divided by th e aggregated United States price for all
models;
(5) before summing the total amount of dumping for all models, all negative margins on
individual models are set to zero.
Through this method, the USDOC calculates margins of dumping and collects anti-dumping duties in
amounts that exceed the actual extent of dumping, if any, by the investigated companies.

 Thailand considers that this measure is inconsis tent with the obligations of the United States
under the provisions of the GATT 1994 and the Anti-Dumping Agreement described below.

2 See Notice of Final Determination of Sales at Less Than Fair Value: Polyethylene Retail Carrier
Bags from Thailand, 69 Fed. Reg. 34122, 18 June 2004.
3 See Notice of Amended Final Determination of Sales at Less Than Fair Value: Polyethylene Retail
Carrier Bags from Thailand, 69 Fed. Reg. 42419, 15 July 2004.
4 See Antidumping Duty Order: Polyethylene Retail Carrier Bags from Thailand , 69 Fed. Reg. 48204,
9 August 2004.

The Legal Basis of the Complaint

 Through the USDOC's methodology of "zeroing", the United States treats transactions with
negative dumping margins as having margins equal to zero in determining weighted average
anti-dumping margins in an anti-dumping investigation.

 The use of "zeroing" led the United States to make a finding of dumping where none would
have otherwise been made or to calculate inflated margins of dumping. Thailand considers that the
USDOC's use of its methodology of "zeroing" (in th e Final Determination, as amended, which was a
basis for the Order) is inconsistent with the obliga tions of the United States under the first sentence of
Article 2.4.2 of the Anti-Dumping Agreement.

 The "zeroing" methodology that the USDOC used in its anti-dumping investigation of plastic
carrier bags from Thailand is identical to the met hodology that was held to be inconsistent with the
obligations of the United States under the Anti- Dumping Agreement in the following disputes: United
States – Final Dumping Determination on Softwood Lumber from Canada
5 and United States – Anti-
Dumping Measures on Shrimp from Ecuador,6 and United States – Measures Relating to Shrimp from
Thailand.7

Request for the Establishment of a Panel

 Accordingly, Thailand requests that the DSB establish a panel pursuant to Article XXIII:1 of
the GATT 1994, Articles 4 and 6 of the DSU, and Article 17.4 of the Anti-Dumping Agreement.
Thailand requests that the establishment of a panel in this matter be placed on the agenda of the
meeting of the DSB scheduled for 20 March 2009.