UNITED STATES – ANTI-DUMPING MEASURES ON POLYETHYLENE RETAIL CARRIER BAGS FROM THAILAND
Document: Agreement on Procedures between Thailand and the United States
Date: 12 January 2010
Document codes: WT/DS383/4
Complainant: Thailand
Respondent: U.S.
Third parties: Argentina, EU, Japan, South Korea, Taiwan
Dispute stage: Panel
Agreements cited: Art. 2.4.2  Anti-dumping

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

Agreement on Procedures between Thailand and the United States

 The following communication, dated 7 January 2010, from the delegation of Thailand and the
delegation of the United States to the Chairman of th e Dispute Settlement Body, is circulated at the
request of those delegations.

 Thailand and the United States wish to inform the Dispute Settlement Body that we have
reached an agreement on procedures in the dispute (DS383).

 Please find attached the text of the agreement. We would ask you to circulate the agreement
to the Dispute Settlement Body in the WT/DS383 document series.

Agreement on Procedures between Thailand and the United States

 On 26 November 2008, the Government of th e Kingdom of Thailand ("Thailand") requested
consultations with the United States pursuant to Article 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disput es (the "DSU"), Article XXIII of the General
Agreement on Tariffs and Trade 1994 (the "GA TT 1994"), and Article 17 of the Agreement on
Implementation of Article VI of the Gene ral Agreement on Tariffs and Trade 1994 (the
"Anti-Dumping Agreement"), with respect to an ti-dumping measures on polyethylene retail carrier
bags ("plastic carrier bags") from Thailand. C onsultations were held by Thailand and the
United States (the "parties") on 28 January 2009. These consultations have enabled the Parties to
agree on the following procedures for purposes of this dispute:

1. Thailand will request the establishment of a pa nel in this dispute at the Dispute Settlement
Body ("DSB") meeting scheduled for 20 March 2009. The United States will not oppose the
establishment of the panel at that meeting. A co py of Thailand's request for the establishment of a
panel is attached to this agreement. The parties agree to make every effort to ensure that they
compose the panel without recourse to the Director General under Article 8.7 of the DSU.

2. The parties will cooperate to enable the panel to circulate its report as quickly as possible in
light of the requirements of the DSU. To that end, the parties will work to reach agreement on
working procedures that aim to expedite the panel proceedings. The parties will jointly ask the panel
to adopt these procedures, which will enable it to complete its work within the six-month period
envisaged in Article 12.8 of the DSU. The parties also agree to request the panel to ask that the
parties file only one written submission each, and that the panel forego meetings with the parties, or,
at the most, have only one such meeting. The par ties also agree to share with each other drafts of
their respective written submissions prior to submitti ng them to the panel and to take all reasonably
available steps to accelerate the proceedings.

3. The United States will not contest Thailand' s claim that the measures identified in the
attached request for the establishment of a pane l are inconsistent with the first sentence of
Article 2.4.2 of the Anti-Dumping Agreement on the grounds stated in United States – Final Dumping
Determination on Softwood Lumber from Canada, WT/DS264/AB/R (adopted 31 August 2004).

4. Thailand will not request that the panel suggest ways in which the United States could
implement the panel's recommendations pursuant to the second sentence of Article 19.1 of the DSU.

5. Provided that the panel's finding is limited to a finding that the measures identified in the
attached request for the establishment of a pane l are inconsistent with the first sentence of
Article 2.4.2 of the Anti-Dumping Agreement, the parties agree that, pursuant to Article 21.3(b) of the
DSU, the reasonable period of time for bringing each such measure into conformity with the
Anti-Dumping Agreement will be six months, begi nning on the date on which the DSB adopts the
report of the panel.

6. Subject to the consultation requirements of Section 129(b) of the Uruguay Round Agreements
Act ("URAA"), 19 U.S.C. § 3538(b), the United States will use Section 129(b) to recalculate margins
of dumping and to issue a new determination in or der to render the anti-dumping measures on plastic
carrier bags from Thailand consistent with the recommendations and rulings of the DSB. If any such
recalculation that is performed under Section 129(b) results in a change in a cash deposit rate or
revocation, in part or in whole, for the anti-dum ping measures on plastic bags from Thailand, the new
cash deposit rate or revocation will ha ve prospective effect only, taking effect with respect to entries
made no sooner than the date on which the Un ited States Trade Representative directs the

United States Secretary of Commerce to implement its recalculation of the margins and new
determination, as set forth in Section 129(c)(1) of the URAA, 19 U.S.C. §3538(c)(1).

7. The parties also mutually understand that th e scope of Thailand's request for the establishment
of a panel does not include any claim regarding marg ins of dumping determined solely on the basis of
adverse facts available in the Final Determination as amended. The parties agree that they will inform
the panel in their written submissions, whether made jointly or separately, that they are seeking
findings consistent with this unders tanding. Accordingly, to the extent that the findings of the panel
are consistent with the parties' understanding, implementation would not involve a recalculation of
such margins of dumping.

For Thailand

(signed)
H.E. Mr Thawatchai Sophastienphong
Ambassador
Geneva
For the United States

(signed)
Mr David P. Shark
Chargé d'affaires, a.i.
Geneva

10 March 2009

 (09-1226)
 Original: English

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.

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

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

18 June 20042 (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:

(a) different "models," i.e., types, of product s are identified based on the most relevant
product characteristics;
(b) weighted average prices in the United States and weighted average normal values in
the comparison market are calculated on a m odel-specific basis for the entire period
of investigation;
(c) the weighted average normal value of each model is compared to the weighted
average United States price for that same model;
(d) to calculate the dumping margin for an exporter, the amount of dumping for each
model is summed and then divided by the aggregated United States price for all
models;
(e) 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.

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

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.

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.