UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Recourse to Article 21.5 of the DSU by Argentina Request for the Establishment of a Panel
Date: 7 March 2006
Document codes: WT/DS268/16
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

Recourse to Article 21.5 of the DSU by Argentina

Request for the Establishment of a Panel

 The following communication, dated 6 March 2006, from the delegation of Argentina to the
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.

 Argentina hereby requests the establishmen t of a Panel under Article 21.5 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and
paragraph 2 of the Agreed Procedures under Articles 21 and 22 of the Dispute Settlement
Understanding Applicable to the WTO Dispute United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubul ar Goods from Argentina (Agreed Procedures for DS268)
1 with
respect to the purported implementation by the Un ited States of the recommendations and rulings of
the Dispute Settlement Body (DSB) in (WT/DS268).

I. The History of the Dispute

 On 17 December 2004, the DSB adopted the Appellate Body Report 2 and the Panel Report 3,
as modified by the Appellate Body, in this dispute. The resulting DSB rulings encompassed both "as
applied" violations related to the likelihood of dumping determination by the US Department of
Commerce (USDOC) in the sunset review for oil country tubular goods (OCTG) from Argentina, and
"as such" violations related to the "waiver" provisions of United States law and regulations.

 The Panel found that the USDOC 2000 likeliho od of dumping determination in the sunset
review for OCTG from Argentina
4 was inconsistent with Articles 11.3 and 6.2 of the Anti-Dumping

1 , 9 January 2006.
2 Appellate Body Report, , WT/DS268/AB/R, adopted on 17 December 2004 (the "Appellate Body
Report").
3 Panel Report, , WT/DS268/R, adopted on 17 December 2004 (the "Panel Report").
4 US Department of Commerce, Final Results of Expedited Sunset Reviews: Oil Country Tubular
Goods from Argentina, Italy, Japan, and Korea , 65 Federal Register 66701 (7 November 2000) (which
incorporates USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping
Duty Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea: Final Results
(31 October 2000)).

Agreement.
5 The Panel found that USDOC's likelihood of dumping determination was inconsistent
with Article 11.3 because (i) there was an insufficient factual basis for the USDOC to have considered
that dumping had continued over the life of the order; 6 and (ii) the application of the waiver
provisions invalidated the factual basis for th e USDOC's likelihood of dumping determination. 7
These findings were not appealed by the United States.

 With respect to the "waiver" provisions of US laws and regulations, the Appellate Body
upheld the Panel findings that:

 (i) Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the
USDOC Regulations are inconsistent, as such, with Article 11.3 of the Anti-Dumping
Agreement; and

 (ii) Section 351.218(d)(2)(iii) of the USDOC Regulations is inconsistent, as such, with
Articles 6.1 and 6.2 of the Anti-Dumping Agreement with respect to respondents that
file incomplete submissions in response to the USDOC's notice of initiation of a
sunset review.
 8

 The DSB recommended that the United States br ing its measures into conformity with its
WTO obligations.
9

 On 7 June 2005, an Arbitrator appointed pursu ant to Article 21.3(c) of the DSU determined
that the "reasonable period of time" for the Un ited States to implement the recommendations and
rulings of the DSB would be 12 months from th e date on which the DSB adopted the Panel and
Appellate Body Reports, i.e., by 17 December 2005.10

 On 28 October 2005, the United States published in the Federal Register a notice of
amendment of section 351.218(d)(2) of the USDOC Regulations. 11 T h e Federal Register notice
provides that the USDOC was "amending its regulati ons relating to sunset reviews to conform the
existing regulation to the United States' obligations under Articles 6.1, 6.2, and 11.3" of the Anti-
Dumping Agreement. 12 The amendment was effective as of 31 October 2005. The United States
made no changes to Section 751(c)(4)(B) of the Tariff Act of 1930.

 On 2 November 2005, the USDOC initiate d proceedings under Section 129 of the Uruguay
Round Agreements Act regarding the Panel's findings conc erning the Department's likelihood
determination. The USDOC did not issue any su pplemental questionnaires, or provide a briefing
schedule as to the timing of rebuttal and reply comments. There was no public hearing.

 On 16 December 2005, the USDOC issued its Section 129 Determination (the "2005 Section
129 Determination"), in which it states: "we find there is likelihood of continuation or recurrence of

8 Appellate Body Report, para. 365(c)(i) and (ii).
9 WT/DSB/M/180.
10 . Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the
Settlement of Disputes. Award of the Arbitrator. WT/DS268/12. 7 June 2005.
11 US Department of Commerce, Procedures for Conducting Five-Year ("Sunset") Reviews for
Antidumping and Countervailing Duty Orders: Final Rule, 70 Federal Register 62061 (28 October 2005).
12 Id.

dumping had the antidumping duty order on OCTG from Argentina been revoked in 2000, i.e., at the
end of the original sunset period."13

 On 20 December 2005, the United States asserted to the DSB that it had "implemented the
recommendations and rulings of the DSB in this dispute."
14

 On 26 January 2006, Argentina requested consultations with the United States under
Article 21.5 of the DSU and paragraph 1 of the Agreed Procedures for DS268. 15 The parties held
consultations in Washington, D.C. on 7 February 2006, and by teleconference on 22 February 2006.
The consultations failed to resolve the dispute.

II. Request for the Establishment of a Panel

 There is thus "disagreement as to the existen ce or consistency with a covered agreement of
measures taken to comply with the recommendati ons and rulings" of the DSB in this case.
Accordingly, Argentina hereby requests the estab lishment of a Panel under Article 21.5 of the DSU
and paragraph 2 of the Agreed Procedures for DS268 with respect to the purported implementation by
the United States of the recommendations and rulings of the DSB in this case (WT/DS268).

 The following measures of the United States taken to comply with the recommendations and
rulings of the DSB are at issue in this proceeding:

• USDOC's 2005 Section 129 Determination (w hich purportedly (i) supplants or
modifies the WTO-inconsistent USDOC 2000 likelihood of dumping determination,
16
and (ii) provides the sole support for, or additional support for, USDOC's 2001 notice
of continuation of the antidumping order on OCTG from Argentina).
17
• Section 351.218(d)(2) of the USDOC Regulations, as amended by the United States.18

 In addition, also at issue in this proceeding is the failure of the United States to take certain
measures to comply with the recommendations and rulings of the DSB:

• The failure of the United States to "imp lement" the 2005 Section 129 Determination,
pursuant to Section 129(b)(4) of the Uruguay Round Agreements Act.

• The failure of the United States either to re peal Sections 751(c)(4)(A) and (B) of the
Tariff Act of 1930, or to amend these provisions to remove the WTO-inconsistency.

13 US Department of Commerce, Issues and Decision Memorandum, Section 129 Determination: Final
Results of Sunset Review, Oil Country Tubular Goods from Argentina, A-357-810, 16 December 2005, at 11.
14 Statements by the United States at the December 20th Meeting of the WTO Dispute Settlement Body .
http://www.us-mission.ch/Press2005/1221DSBmeeting.html.
15 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods, Recourse
to Article 21.5 of the DSU, Request for Consultations, WT/DS268/15, 30 January 2006.
16 US Department of Commerce, Final Results of Expedited Sunset Reviews: Oil Country Tubular
Goods from Argentina, Italy, Japan, and Korea , 65 Federal Register 66701 (November 7, 2000) (which
incorporates USDOC Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping
Duty Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea: Final Results
(31 October 2000)).
17 US Department of Commerce, Continuation of Countervailing Duty and Antidumping Duty Orders
on Oil Country Tubular Goods from Argentina, Italy, Japa n, Korea and Mexico, and Partial Revocation of
Those Orders From Argentina and Mexico With Respect to Drill Pipe, 66 Federal Register 38630, 25 July 2001.
18 US Department of Commerce, Procedures for Conducting Five-Year ("Sunset") Reviews for
Antidumping and Countervailing Duty Orders: Final Rule, 70 Federal Register 62061 (28 October 2005).

 Argentina requests the Panel to find that through these measures and omissions the United
States has failed to implement the recommendations a nd rulings of the DSB in this dispute, and has
violated its WTO obligations, for the reasons set out below:

 A. The USDOC's 2005 Section 129 det ermination is inconsistent with
US WTO obligations

 In 2001, the United States extended the an ti-dumping duty order on Argentine OCTG based
on USDOC's 2000 determination that dumping would be likely to continue or recur.
19 The original
Panel in this dispute ruled that the USDOC ac ted inconsistently with US obligations under
Articles 6.2 and 11.3 of the Anti-Dumping Agreement.20

 The 2005 Section 129 Determination failed to implement the recommendations and rulings of
the DSB and is inconsistent with the WTO obligations of the United States for the following reasons:

 First, the 2005 Section 129 Determina tion is inconsistent with Articles 11.1, 11.3 and 11.4 of
the Anti-Dumping Agreement because:

 1. USDOC developed and relied on a new factual basis in 2005 to support its 2000
WTO-inconsistent likelihood of dumping determination; and

 2. USDOC relied in 2005 on its infere nce from 2000 of likely dumping based on the
post-order decline in Argentine OCTG im ports, where USDOC did not (either in
2000 or 2005) support its assumption of lik elihood of dumping and determine the
reason for the volume decline.

Therefore, in the absence of a suffi cient factual basis for an affirma tive likelihood determination, the
United States could not extend the anti-dumpi ng duty order on OCTG from Argentina beyond the
period specified in Articles 11.3 and 11.4 of the Anti-Dumping Agreement. The Anti-Dumping
Agreement prohibits a Member from maintaining anti-dumping duties beyond five years in the
absence of strict compliance with the requirements of Articles 11.1, 11.3 and 11.4 of the Anti-
Dumping Agreement.

 Second, in the alternative , even assuming arguendo that the USDOC were permitted to
develop factual information in 2005 to support its 2000 likelihood determination, the 2005 Section
129 Determination nevertheless failed to satisfy the requirements of the Anti-Dumping Agreement for
the following reasons.

 1. The USDOC did not properly establish a su fficient factual basis, did not objectively
assess the facts, applied a WTO-inconsistent legal standard, and did not reach a
reasoned conclusion supported by positive evidence that expiry of the antidumping
duty order would be likely to lead to continuation or recurrence of dumping in
violation of Articles 11.1 and 11.3 of the Anti-Dumping Agreement:

a. The USDOC determination with resp ect to the Argentine exporters is
inconsistent with Articles 11.1 and 11.3 of the Anti-Dumping Agreement.

19 US Department of Commerce, Continuation of Countervailing Duty and Antidumping Duty Orders
on Oil Country Tubular Goods from Argentina, Italy, Japa n, Korea and Mexico, and Partial Revocation of
Those Orders From Argentina and Mexico With Respect to Drill Pipe, 66 Federal Register 38630, 25 July 2001.
20 Panel Report, paras. 7.219, 7.222, 8.1(d)(i).

b. As for the USDOC's statement in the 2005 Section 129 Determination that it
also relied on its finding from the origin al sunset review that the post-order
volume decline created a basis for inferring that dumping would be likely to
continue or recur, this was an insufficient basis to support the 2000 likelihood
determination and also cannot support the 2005 likelihood determination in
violation of Articles 11.1 and 11.3 of the Anti-Dumping Agreement.

 2. The USDOC's Section 129 proceeding was al so inconsistent with Articles 6.1, 6.2,
6.4, 6.5, 6.5.1, 6.6, 6.8, 6.9, 12.2 and Annex II of the Anti-Dumping Agreement:

a. The USDOC's failure to provide the pa rties notice regarding the procedures it
would follow to make its determination and to notify the parties of the
essential facts under consideration that fo rmed the basis for the Section 129
Determination, including, when necessary, by providing reasonable
summaries of confidential information, was inconsistent with US obligations
under Articles 6.1, 6.4, 6.5, 6.5.1, 6.9, and 12.2 of the Anti-Dumping
Agreement.

b. The USDOC‘s failure to hold a hear ing in the Section 129 proceeding to
provide to interested parties a full opportunity for the defense of their
interests was inconsistent with US obligations under Article 6.2 of the
Anti-Dumping Agreement.

c. The USDOC's failure to require inte rested parties to submit non-confidential
summaries of their written submissions in the Section 129 proceeding in such
a manner as to permit a reasonable unde rstanding of the substance of the
confidential information submitted, in violation of US obligations under
Articles 6.1, 6.2, 6.5, 6.5.1 of the Anti-Dumping Agreement.

d. The USDOC's characterization of Si derca's submitted cost information as
unreliable, and USDOC's treatment of Acindar's information, was
inconsistent with US obligations under Articles 6.1, 6.2, 6.4, 6.6, 6.8 and
Annex II of the Anti-Dumping Agreement.

e. The USDOC's failure to provide public notice and sufficient explanation with
respect to the 2005 Section 129 Determ ination is inconsistent with US
obligations under Articles 11.3 and 12.2 of the Anti-dumping Agreement.

 3. The failure of the US Trade Representativ e to direct the USDOC to "implement" the
2005 Section 129 Determination, pursuant to Section 129(b)(4) of the Uruguay
Round Agreements Act, was inconsistent with US obligations under Article 13 of the
Anti-Dumping Agreement. In failing to implement the 2005 Section 129
Determination, the United States denied the Argentine respondents an opportunity for
judicial review in US courts of the dete rmination purportedly providing the basis for
the United States to continue the imposi tion of anti-dumping duties on OCTG from
Argentina.

 B. Sections 751(c)(4)(A) & (B) of the Tariff Act of 1930 are inconsistent with
US WTO obligations

 Section 751(c)(4)(B) of the Tariff Act of 1930 has been neither repealed nor amended. It
therefore remains in existence, unchanged from the form in which it was found to violate Article 11.3
of the Anti-Dumping Agreement. Furthermore, th e amendments to the USDOC regulations have not

eliminated the WTO-inconsistency of this statut ory provision operating in conjunction with Section
351.218(d)(2)(ii) of USDOC's regulations, and Section 751(c)(4)(A) of the Tariff Act.

 Therefore, Sections 751(c)(4)(A) & (B) of th e Tariff Act are not in conformity with the
recommendations and rulings of the DSB, or with US obligations under Articles 11.1 and 11.3 of the
Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.

 C. Section 351.218(d)(2) of the USDOC Regulations, as amended, is inconsistent
with US WTO obligations

 The United States has eliminated paragraph (d)(2)(iii) of Section 351.218 of the USDOC
Regulations. Additionally, the United States has am ended paragraph (d)(2)(ii) of Section 351.218 of
the USDOC Regulations. This latter paragraph now provides in part that every statement of waiver
must include a statement that the respondent intere sted party is likely to dump or benefit from a
countervailable subsidy (as the case may be) if the order is revoked or the investigation is
terminated.
21
 The revised Regulation does not address the statutory consequences for parties who "elect not
to participate in a review" (as provided for in Section 751(c)(4)(A)) of the Tariff Act of 1930) but who
also do not file a Statement of Waiver. In thes e circumstances, the terms of Section 751(c)(4)(B)
mandate that USDOC "conclude that revocation of the order would be likely to lead to continuation or
recurrence of dumping…with respect to that interest ed party." The United States has therefore failed
to bring Section 751(c)(4)(B) of the Tariff Act of 1930 into conformity with the recommendations and
rulings of the DSB and with US obligations under Articles 11.1 and 11.3 of the Anti-Dumping
Agreement.

 The revised Regulation is also inconsiste nt with the obligations of the USDOC under
Articles 11.1 and 11.3 of the Anti-Dumping Agreement to, inter alia , "arrive at a reasoned
conclusion" on the basis of "positive evidence."

 By mandating that a party filing a Statement of Waiver must include a statement that it is
likely to dump, and by requiring USDOC to conclude th at dumping is likely to continue or recur with
respect to any waiving interested party, Sec tion 351.218(d)(2)(ii) denies non-waiving interested
parties the full opportunity for the defense of their interests, in violation of US obligations under
Articles 6.1 and 6.2 of the Anti-Dumping Agreement.

 By mandating that a party filing a Statement of Waiver must include a statement that it is
likely to dump, the USDOC will be required to ma ke a likelihood determination without satisfying
itself as to the accuracy of the in formation supplied by interested parties upon which its findings are
based, in violation of US obligations under Article 6.6 of the Anti-Dumping Agreement.

 The United States has therefore failed to brin g the US statutory and regulatory waiver
provisions into conformity with US obligations under Articles 6.1, 6.2, 6.6, 11.1, and 11.3 of the
Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement.

 For all of the measures identified above, the United States also failed to comply with its
obligations under Articles 1 and 18.1 of the Anti-Du mping Agreement and Article XVI:4 of the WTO
Agreement.