UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA
Document: Request for the Establishment of a Panel by Argentina
Date: 4 April 2003
Document codes: WT/DS268/R; WT/DS268/2
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

ANNEX F

REQUEST FOR THE ESTABLISHMENT
OF A PANEL

UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA

Request for the Establishment of a Panel by Argentina

 The following communication, dated 3 April 2003, from the Permanent Mission of Argentina
to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 7 October 2002, the Government of the Re public of Argentina requested consultations
with the Government of the United States of America pursuant to Article 4 of the (WTO) Understanding on Rules and Pr ocedures Governing the Settlement of Disputes
(DSU), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), and
Article 17.3 of the Agreement on Implementation of Article VI of GATT 1994 (the Anti-Dumping
Agreement) regarding the determinations of the US Department of Commerce (Department) and the
US International Trade Commission (Commission) in the sunset reviews of the anti-dumping duty
measure on oil country tubular goods (OCTG) from Argentina.

 The first consultation was held in Geneva, Switzerland, on 14 November 2002. A second
consultation was held in Washington, D.C., on 17 December 2002. While the consultations enabled
the parties to gain a better understanding of their re spective positions, unfortunately the consultations
failed to produce a mutually agreeable solution.

 In the original anti-dumping duty investigatio n of OCTG from Argentina covering the period
1 January 1994 through 30 June 1994, the Department determined that Siderca S.A.I.C. (Siderca), an
Argentine producer and exporter of OCTG, was dumping at a margin of 1.36 per cent. 1 The

1 Final Determination of Investigation of Sales at Less Than Fair Value of Oil Country Tubular Goods
From Argentina, 60 Federal Register 33539 (28 June 1995). The 1.36 per cent margin was calculated on the
basis of the Department's practice of "zeroing" negative dumping margins.

Department did not conduct a substantive administra tive review of the anti-dumping duty measure on
OCTG from Argentina in the five years following its imposition.

 On 3 July 2000, the Commission and the Department initiated sunset reviews of the
anti-dumping measures on OCTG from Argentina, Italy, Japan, Korea, and Mexico.
2 Based on the
Department's determination that the responses su bmitted by Argentine respondent parties to the
initiation notice were "inadequate", the Department conducted an "expedited" sunset review of the
anti-dumping duty measure applicable to OCTG from Argentina (Department's Determination to
Expedite).3 On the basis of the "expedited" review, the Department determined that termination 4 of
the anti-dumping duty measure on OCTG from Argentin a would be likely to lead to continuation or
recurrence of dumping at 1.36 per cent (Department's Sunset Determination).5

 The Commission determined that terminati on of the anti-dumping duty measure on OCTG
(other than drill pipe – i.e., casing and tubing) from Argentina, Italy, Japan, Korea, and Mexico would
be likely to lead to continuation or recurrence of material injury to an industry in the United States
within a reasonably foreseeable time (Commission's Sunset Determination). 6 The Commission also
determined that termination of the anti-dumpi ng duty measure on drill pipe from Japan would be
likely to lead to continuation or recurrence of material injury to an industry in the United States within
a reasonably foreseeable time. On 25 July 2001, th e Department issued a determination to continue
the anti-dumping duty measure on OCTG from Argent ina (Department's Determination to Continue
the Order).7

 The Republic of Argentina considers that the Department's Determination to Expedite, the
Department's Sunset Determination, the Commission 's Sunset Determination, and the Department's
Determination to Continue the Or der are inconsistent with US WTO obligations, and that certain
aspects of US laws, regulations, policies and proc edures related to the administration of sunset
reviews are inconsistent with US WTO obligations. The Republic of Argentina requests that a panel
be established in accordance with Articles 4.7 and 6 of the DSU to address the specific claims related
to the US sunset reviews of anti-dumping duty measure on OCTG from Argentina as set forth below.

2 Notice of Initiation of Five-Year ("Sunset") Reviews, 65 Federal Register 41053 (3 July 2000)
(Department's notice); Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico , 65
Federal Register 41088 (3 July 2000) (Commission's notice).
3 Oil Country Tubular Goods From Argentina: Adequacy of Respondent Interested Party Responses to
the Notice of Initiation , Department of Commerce Memorandum For J. May from E. Cho, No. A-357-810
(22 Aug. 2000).
4 Referred to as "revocation" under US law.
5 Final Results of Expedited Sunset Reviews: Oil Country Tubular Goods From Argentina, Italy,
Japan, and Korea , 65 Fed. Reg. 66701 (7 Nov. 2000) (together with the Department of Commerce Issues and
Decision Memorandum for the Expedited Sunset Reviews of the Anti-Dumping Duty Orders on Oil Country
Tubular Goods From Argentina, Italy, Japan, and Korea, dated 31 October 2000, and incorporated by reference
into the Department's Sunset Determination).
6 Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico, Inv. Nos. 701-TA-364
(Review), 731-TA-711, and 713-716 (Review), USITC Pub. 3434 (June 2001); 66 Federal Register 35997
(10 July 2001).
7 Continuation of Countervailing and Anti-Dumping Duty Orders on Oil Country Tubular Goods from
Argentina, Italy, Japan, Korea and Mexico, and Partial Revocation of Those Orders from Argentina and Mexico
With Respect to Drill Pipe, 66 Fed. Reg. 38630 (25 July 2001).

A. THE DEPARTMENT'S DETERMINATION TO EXPEDITE AND THE DEPARTMENT'S SUNSET
DETERMINATION ARE INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT AND THE GATT
1994
1. US laws, regulations, and procedures regardi ng "expedited" sunset re views are inconsistent
with Articles 11, 2, 6 and 12 of the Anti-Dumping Agreement. In particular, 19 U.S.C. § 1675(c)(4)
and 19 C.F.R. § 351.218(e) operate in certain instan ces to preclude the Department from conducting a
sunset review and making a determination as to whether termination of an anti-dumping duty measure
would be likely to lead to continuation or recurren ce of dumping, in violation of Articles 11.1, 11.3,
11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3, and Annex II of the Anti-Dumping
Agreement. When a respondent interested party is deemed by the Department to have "waived"
participation in the Department's sunset review, US law mandates that the Department find that
termination of the order would be likely to lead to continuation or recurrence of dumping, without
requiring the Department to conduct a substantive review and to make a determination based on the
substantive review.

2. The Department's application of the expedited sunset review procedures in the sunset review
of OCTG from Argentina was inconsistent with Articles 11, 2, 6 and 12 of the Anti-Dumping
Agreement because: (1) Siderca was deemed to have waived its right to participate in the sunset
review, despite its full cooperation with the Department, in violation of Articles 11.1, 11.3, 11.4, 2.1,
2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3 and Annex II; (2) the Department did not in fact
conduct a "review" within the meaning of Article 11.3; and the (3) the Department failed to
"determine" – as required by Article 11.3 – whethe r termination of the anti-dumping order would be
likely to lead to continuation or recurrence of dumping.

3. The Department's Determination to Expedite th e review of Argentina solely on the basis that
Siderca's shipments to the United States constituted less than 50 per cent of the total exports from
Argentina was inconsistent with Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10,
12.2, 12.3 and Annex II of the Anti-Dumping Agreement.

4. The Department's Sunset Determination is inc onsistent with Article 11.3 of the Anti-Dumping
Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable
presumption under US law as such that termination of the anti-dumping duty measure would be likely
to lead to continuation or recurr ence of dumping. This unlawful presumption is evidenced by the
consistent practice of the Department in sunset re views (which practice is based on US law and the
Department's Sunset Policy Bulletin).

5. The Department's application of the stan dard for determining whether termination of
anti-dumping measure would be "likely to lead to continuation or recurrence of dumping" is
inconsistent with Article s 11.1, 11.3, 2.1, 2.2, and 2.4 of the Anti-Dumping Agreement. The
Department's finding in this case that dumping was likely to recur in the event of termination, and that
the likely margin of dumping would be 1.36 percent, is inconsistent with the standard established by
Article 11.3 of the Anti-Dumping Agreement. The De partment's reliance on the 1.36 per cent margin
from the original investigation cannot support a determination that dumping would be likely to
continue or recur under Article 11.3. In addition, the 1.36 per cent margin – calculated on the basis of
the Department's practice of "zeroing" negative dumping margins – cannot support the Department's
Sunset Determination or the Department's Determination to Continue the Order.

B. T
HE COMMISSION'S SUNSET DETERMINATION WAS INCONSISTENT WITH THE ANTI-DUMPING
AGREEMENT AND THE GATT 1994
1. The Commission's application of the standa rd for determining whether the termination of
anti-dumping duty measure would be "likely to lead to continuation or recurrence of ... injury" was

inconsistent with Articles 11, 3 and 6 of the Anti-Dumping Agreement. The Commission failed to
apply the plain and ordinary meaning of the term "likely" and instead applied a lower standard in
assessing whether injury would continue or recur in the event of termination, in violation of
Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.

2. The Commission failed to conduct an "objective ex amination" of the record and failed to base
its determination on "positive evidence" regardi ng whether termination of the anti-dumping duty
measure "would be likely to lead to continuation or recurrence" of injury. In particular, the
Commission's conclusions with respect to the volu me of imports, price effects on domestic like
products, and impact of imports of the domestic industry demonstrate the Commission's failure to
conduct an objective examination in violation of Articles 11, 3, and 6. The Commission's findings on
these issues do not constitute "pos itive evidence" of likely injury in the event of termination, in
violation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.

3. The US statutory requirements that the Comm ission determine whether injury would be likely
to continue or recur "within a reasonably foreseeable time" (19 U.S.C. § 1675a(a)(1)) and that the
Commission "shall consider that the effects of re vocation or termination may not be imminent, but
may manifest themselves only over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are
inconsistent with Articles 11.1, 11.3 and 3 of the Anti-Dumping Agreement.

4. The Commission's application of a "cumulative" injury analysis in the sunset review of the
anti-dumping duty measures on OCTG from Argentina was inconsistent with Articles 11.1, 11.3, 3.1,
3.2, 3.3, 3.4 and 3.5 of the Anti-Dumping Agreement. There is no textual basis in the Anti-Dumping
Agreement for conducting a cumulative injury an alysis in an Article 11.3 review. Assuming
arguendo that cumulation is permitted in Article 11.3 reviews, then the Commission was required to
adhere to the requirements of Article 3.3 (including those related to de minimis margins and negligible
imports) in the Commission's Sunset Determination. The Commission's cumulative injury analysis in
the Commission's Sunset Determination failed to satisfy the Article 3.3 requirements.

 Argentina also considers that certain aspects of the following US laws, regulations, policies,
and procedures related to the determinations of the Department and the Commission are inconsistent
with US WTO obligations, to the extent that any of these measures mandate action by the Department
or Commission that is inconsistent with US WTO obligations or preclude the Department or
Commission from complying with US WTO obligations:

• Sections 751(c) and 752 of the Tariff Act of 19 30, as amended, codified at Title 19 of
the United States Code §§ 1675(c) and 1675a; and the US Statement of
Administrative Action (regarding the Agreement on Implementation of GATT Article
VI) accompanying the Uruguay Round Agreements Act (the SAA), H.R. Doc. No.
103-316, vol. 1;

• The Department's Policies Regarding the Conduct of Five-year ("Sunset") Reviews of
Anti-Dumping and Countervailing Duty Orders ; Policy Bulletin, 63 Federal Register
18871 (16 April 1998) (Sunset Policy Bulletin);

• The Department's sunset review regulations, codified at Title 19 of the United States
Code of Federal Regulations § 351.218; and the Commission's sunset review
regulations, codified at Title 19 of the United States Code of Federal Regulations §§
207.60-69 (Subpart F).

 Argentina considers that the Department's Determination to Expedite, the Department's
Sunset Determination, the Commission's Sunset De termination, the Department's Determination to

Continue the Order and the above mentioned US laws, regulations, policies and procedures are
inconsistent with the following provisions of th e Anti-Dumping Agreement, the GATT 1994, and the
WTO Agreement:

• Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping Agreement;
• Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and
• Article XVI:4 of the WTO Agreement.

 Accordingly, Argentina respectfully requests that, pursuant to Article XXIII of the GATT
1994, Article 6 of the DS U, and Article 17 of the Anti-Dumping Agreement, a panel with standard
terms of reference be established at the next mee ting of the Dispute Settlement Body to examine and
find that the measures identified herein are inconsistent with US obligations under the Anti-Dumping
Agreement, the GATT 1994, and the WTO Agreement. To that end, I would be grateful if this request
could be included in the agenda of the Dispute Settlement Body scheduled for 15 April 2003.

 The above text describes the legal basis of the cl aims. It does not restrict the arguments that
Argentina may develop before the panel.