WORLD TRADE  
ORGANIZATION  WT/DS268/R 
16 July 2004 
 (04-2956) 
 Original:   English 
 
 
 
 
 
UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING 
 MEASURES ON OIL COUNTRY TUBULAR GOODS FROM 
ARGENTINA (DS268) 
 
 
Report of the Panel 
 
 
 
 
 
 
 
  
 
 
 
   
  WT/DS268/R 
 Page i 
 
 
TABLE OF CONTENTS 
Page  
I. INTRODUCTION ................................................................................................................... .1 
II. FACTUAL ASPECTS ..............................................................................................................1  
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS.........................2  
A. ARGENTINA ............................................................................................................................... ..2 
B. UNITED STATES ...........................................................................................................................5  
IV. ARGUMENTS OF THE PARTIES ........................................................................................5  
V. ARGUMENTS OF THE THIRD PARTIES ..........................................................................5  
VI. INTERIM REVIEW................................................................................................................. 5 
A. REQUEST OF ARGENTINA ............................................................................................................5  
B. REQUEST OF THE UNITED STATES ..............................................................................................8  
VII. FINDINGS....................................................................................................................... ..........9  
A. GENERAL ISSUES .........................................................................................................................9  
1. Standard of Review............................................................................................................. ......9  
2. Burden of Proof................................................................................................................ .......10  
B. UNITED STATES ' REQUEST FOR PRELIMINARY RULINGS ..........................................................10  
1. Alleged Vagueness of Argentina's Request for Esta blishment ...........................................11  
(a) Claims raised on page 4 of Argentina's panel request ..............................................................11  
(i) Section VII.A of Argentina's first written su bmission and section III.A of its second 
written submission ............................................................................................................. .......13  
(ii) Section VII.B.2 of Argentina's first written submission ............................................................14  
(iii) Section VII.E.1 of Argentina's first written submission ............................................................15  
(iv) Section VIII.C.2 of Argentina's first written submission and section III.D.2 of its 
second written submission ...................................................................................................... ..15 
(v) Section IX of Argentina's first written submission and section V of its second written 
submission..................................................................................................................... ............16  
(vi) Section X of Argentina's first written submission .......... ...................... ................... ..................16  
(vii) Section III.B of Argentina's second written submission.. ..........................................................16  
(viii) Conclusion ..................................................................................................................... ...........17  
(b) References to Articles 6 or 3 of the Anti -Dumping Agreement in sections B.1, B.2 
and B.3 of the panel request................................................................................................... ...17 
(i) Conclusion ..................................................................................................................... ...........19  
2. Certain Claims That Have Allegedly No t Been Raised in Argentina's Panel 
Request........................................................................................................................ .............19  
(a) Argentina's claim challenging the US practice as such and as applied in the instant 
sunset review regarding the alleged irrefutable pr esumption in sunset reviews.......................19  
(b) Argentina's claim regarding the alleged irrefutable presumption under US law as such..........20  
(c) Argentina's claim under Article X:3(a) of the GATT 1994 ......................................................20  WT/DS268/R 
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(d)
 Argentina's claim regarding the USITC's suns et determinations in the instant sunset 
review......................................................................................................................... ...............21  
(e) Argentina's consequential claims under Articles 1 and 18 of the Anti-Dumping 
Agreement, Article VI of the GATT 1994 and ArticleXVI:4 of the WTO Agreement............21  
(f) Conclusion ..................................................................................................................... ...........21  
3. The Issue of Prejudice ......................................................................................................... ...21 
C. CLAIMS REGARDING US LAW AS SUCH...................................................................................22  
1. Waiver Provisions under US Law ......... .............................. ................. ................. ................22  
(a) Arguments of parties........................................................................................................... ......22  
(i) Argentina ...................................................................................................................... ............22  
(ii) United States .................................................................................................................. ...........22  
(b) Arguments of third parties ..................................................................................................... ...23 
(i) European Communities........................................................................................................... ..23 
(ii) Japan.......................................................................................................................... ...............23  
(iii) Korea .......................................................................................................................... ..............23  
(iv) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ......................................23  
(c) Evaluation by the Panel ........................................................................................................ ....23  
(i) Alleged Violations of Article 11.3 of the Agreement.................................................................23  
Measures at issue ............................................................................................................................... ......... 23  
Nature of the obligations in Article 11.3 ................................................................................................... 25  
Examination of the consistency of the waiver provisions ......................................................................... 26  
Deemed waivers ............................................................................................................................... ... 26 
Affirmative waivers ............................................................................................................................. 28  
Company-specific vs. order-wide sunset determinations .......................................................................... 28  
Conclusion ............................................................................................................................... ................... 29  
(ii) Alleged Violations of Articles 6.1 and 6.2 of the Agreement ....................................................29  
Applicability of Articles 6.1 and 6.2 to Sunset Reviews ........................................................................... 30  
Nature of obligations under Articles 6.1 and 6.2 of the Agreement ......................................................... 31  
Examination of the consistency of the deemed waivers provisions .......................................................... 31  
Conclusion ............................................................................................................................... ................... 34  
2. Alleged Irrefutable Presumption of Likelihood Un der US Law/Practice..........................34  
(a) Arguments of parties........................................................................................................... ......34  
(i) Argentina ...................................................................................................................... ............34  
(ii) United States .................................................................................................................. ...........34  
(b) Arguments of third parties ..................................................................................................... ...35 
(i) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ......................................35  
(c) Evaluation by the Panel ........................................................................................................ ....35  
(i) Status of the Sunset Policy Bulletin ..........................................................................................3 5  WT/DS268/R 
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(ii) Standard regarding presumptions ............................................................................................37  
(iii) Examination of the Measures Cited by Argentina ....................................................................38  
The Statute and the Statement of Administrative Action .......................................................................... 38  
Conclusion ............................................................................................................................... ........... 41  
The Sunset Policy Bulletin ......................................................................................................................... 41  
Relevant provisions of the Sunset Policy Bulletin .............................................................................. 41  
Consistent application of the Sunset Policy Bulletin ......................................................................... 43  
Conclusion ............................................................................................................................... ........... 45  
Impact of the finding regarding the Sunset Policy Bulletin on the consistency of the 
Statute ............................................................................................................................... ................... 46  
3. US Law's Standard for the Likelihood of Continuation or Recurrence of Injury 
Determinations in Sunset Reviews ....... ............................. ................... ................. ................47  
(a) Arguments of parties........................................................................................................... ......47  
(i) Argentina ...................................................................................................................... ............47  
(ii) United States .................................................................................................................. ...........47  
(b) Arguments of third parties ..................................................................................................... ...47 
(i) Korea .......................................................................................................................... ..............47  
(ii) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ......................................47  
(c) Evaluation by the Panel ........................................................................................................ ....47  
(i) Conclusion ..................................................................................................................... ...........50  
D. CLAIMS RELATING TO THE USDOC'S  LIKELIHOOD DETERMINATION IN THE OCTG  
SUNSET REVIEW ........................................................................................................................50  
1. Arguments of Parties ........................................................................................................... ...50 
(a) Argentina ...................................................................................................................... ............50  
(b) United States .................................................................................................................. ...........51  
2. Arguments of Third Parties ...................................................................................................51  
(a) European Communities........................................................................................................... ..51 
3. Evaluation by the Panel........................................................................................................ ..52 
(a) Relevant facts................................................................................................................. ...........52  
(b) Alleged violations of Articles 11.3 and 2 of the Agreement.....................................................53  
(i) Conclusion ..................................................................................................................... ...........56  
(c) Alleged violations of Article 6 of the Agreement.....................................................................56  
(i) Nature of the obligations in Articles 6.1, 6.2, 6.8 and Annex II of the Agreement and 
their applicability in sunset reviews .........................................................................................5 6 
(ii) Examination of the consistency of the US DOC's determination with Articles 6.1 and 
6.2 of the Agreement ........................................................................................................... ......57  
Conclusion ............................................................................................................................... ................... 59  
(iii) Alleged violations of Article 6.8 and Annex II of the Agreement in the OCTG review.............59  
Conclusion ............................................................................................................................... ................... 60  WT/DS268/R 
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(d)
 Alleged violations of Article 12 of the Agreement...................................................................60  
(i) Conclusion ..................................................................................................................... ...........62  
E. CLAIMS RELATING TO THE USITC' S LIKELIHOOD DETERMINATION IN THE OCTG  
SUNSET REVIEW ........................................................................................................................63  
1. Introduction................................................................................................................... ..........63  
2. Temporal Aspect of the USITC's Likelihood Determi nation .............................................63  
(a) Arguments of parties........................................................................................................... ......63  
(i) Argentina ...................................................................................................................... ............63  
(ii) United States .................................................................................................................. ...........63  
(b) Evaluation by the Panel ........................................................................................................ ....63  
(i) Conclusion ..................................................................................................................... ...........64  
3. Standard Applied by the USITC ...........................................................................................64  
(a) Arguments of parties........................................................................................................... ......64  
(i) Argentina ...................................................................................................................... ............64  
(ii) United States .................................................................................................................. ...........64  
(b) Arguments of third parties ..................................................................................................... ...65 
(i) European Communities........................................................................................................... ..65 
(ii) Japan.......................................................................................................................... ...............65  
(c) Evaluation by the Panel ........................................................................................................ ....65  
(i) Applicability of Article 3 in sunset revi ews.......................... .................. ................... ................65  
(ii) Claims relating to the USITC's determinations regarding the likely volume of dumped 
imports, their likely price effect and their likely im pact on the US domestic industry .............67  
Likely volume of dumped imports ............................................................................................................. 69  
Conclusion ............................................................................................................................... ........... 72  
Likely price effects of dumped imports ..................................................................................................... 72  
Conclusion ............................................................................................................................... ........... 73  
Likely impact of dumped imports on the US industry .............................................................................. 73  
Conclusion ............................................................................................................................... ........... 75  
4. Alleged violation of Article 3.4 of the Agreement ............................ .................. ..................75  
(a) Arguments of parties........................................................................................................... ......75  
(i) Argentina ...................................................................................................................... ............75  
(ii) United States .................................................................................................................. ...........75  
(b) Arguments of third parties ..................................................................................................... ...75 
(i) European Communities........................................................................................................... ..75 
(ii) Japan.......................................................................................................................... ...............75  
(c) Evaluation and conclusion by the Panel ...................................................................................75  
5. Alleged violation of Article 3.5 of the Agreement ............................ .................. ..................76   WT/DS268/R 
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(a) Arguments of parties........................................................................................................... ......76  
(i) Argentina ...................................................................................................................... ............76  
(ii) United States .................................................................................................................. ...........76  
(b) Arguments of third parties ..................................................................................................... ...76 
(i) European Communities........................................................................................................... ..76 
(ii) Japan.......................................................................................................................... ...............76  
(c) Evaluation and conclusion by the Panel ...................................................................................76  
6. Cumulation ..................................................................................................................... .........76  
(a) Arguments of parties........................................................................................................... ......76  
(i) Argentina ...................................................................................................................... ............76  
(ii) United States .................................................................................................................. ...........77  
(b) Evaluation by the Panel ........................................................................................................ ....77  
(i) Conclusion ..................................................................................................................... ...........79  
F. CONSEQUENTIAL CLAIMS UNDER THE ANTI-DUMPING AGREEMENT , THE WTO  
AGREEMENT AND THE GATT ...................................................................................................80  
1. Arguments of Parties ........................................................................................................... ...80 
(a) Argentina ...................................................................................................................... ............80  
(b) United States .................................................................................................................. ...........80  
2. Evaluation and conclusion by the Panel ...............................................................................80  
VIII.  CONCLUSIONS AND RECOMMENDATIONS................................................................80  
 
 
 
 
 
   
 
 
 
   
 
 
 
 WT/DS268/R 
Page vi  
 
LIST OF ANNEXES 
 
ANNEX A 
 
FIRST SUBMISSIONS OF PARTIES 
 
Contents Page 
Annex A-1 First Written Submission of Argentina1    A-2 
Annex A-2 First Written Submission of the United States  A-87 
Annex A-3        Submission from Argen tina on the Request of the United States for 
Preliminary Rulings under Article 6.2 of the DSU    A-175 
 
ANNEX B 
 
SUBMISSIONS OF THIRD PARTIES 
 
Contents Page 
Annex B-1 Third Party Submission of the European Communities B-2 
Annex B-2 Third Party Submission of Japan B-31 
Annex B-3  Third Party Submission of Korea  B-47 
Annex B-4      Third Party Submission of the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu B-56 
 
ANNEX C 
 
SECOND SUBMISSIONS OF PARTIES   
 
Contents Page 
Annex C-1 Second Written Submission of Argentina C-2 
Annex C-2 Second Written Submission of the United States C-64 
 
ANNEX D 
 
ORAL STATEMENTS, FIRST AND SECOND MEETINGS    
 
Contents Page 
Annex D-1 Opening and Closing Oral Statements of Argentina – First Meeting D-2 
Annex D-2 Oral Statement of the United States – First Meeting D-38 
Annex D-3 Third Party Oral Statement of the European Communities D-46 
Annex D-4 Third Party Oral Statement of Japan D-53 
Annex D-5 Third Party Oral Statement of Mexico D-59 
Annex D-6 Third Party Oral Statement of  the Separate Customs Territory of  
  Taiwan, Penghu, Kinmen and Matsu D-60 
Annex D-7 Opening and Closing Oral Statements of Argentina – 
  Second Meeting D-62 
Annex D-8 Opening and Closing Oral St atements of the United States –  
  Second Meeting D-86 
 
                                                      
1 Argentina confirmed, by its letter dated 12 December 2003, that all references made to Exhibit ARG-
56 in Argentina's first written submission, must now be understood as being made to Exhibit ARG-56 bis.   WT/DS268/R 
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ANNEX E 
 
QUESTIONS AND ANSWERS 
 
Contents Page 
Annex E-1 Answers of Argentina to Questi ons of the Panel- First Meeting  E-2 
Annex E-2 Answers of the United States to Questions of the Panel – First 
Meeting  E-18 
Annex E-3 Answers of the United States to Questions of the Panel – First 
Meeting (revised version)2  E-43 
Annex E-4 Answers of the United States  to Questions of Argentina – First 
Meeting E-68 
Annex E-5 Answers of the United States  to Questions of Argentina – First 
Meeting (revised version)3  E-75 
Annex E-6 Question of the European Communities to the United States – 
Third Parties Session E-82 
Annex E-7 Answers of Mexico to Questions of Argentina – Third Parties 
Session  E-83 
Annex E-8 Answers of Argentina to Questions of the Panel – Second Meeting E-85 
Annex E-9 Answers of the United States to Questions of the Panel – Second 
Meeting E-93 
Annex E-10 Answers of the United Stat es to Questions from Argentina – 
Second Meeting E-107 
Annex E-11 Comments of Argentina on the United States' Closing Statement 
and the United States' Answers to the Panel's and Argentina's 
Questions – Second Meeting E-117 
Annex E-12 Comments of the United States on Argentina's Responses to 
Questions from the Panel – Second Meeting E-133 
 
 
 
 
 
                                                      
2 Pursuant to the explanations provided by the United States at the beginning of the second substantive 
meeting of the Panel with parties, the United States provided a revised version of its written answers to the questions of the Panel in connection with the first substantive meeting of the Panel with parties.  In this revised 
version, the full text of paragraph 14 of the original document dated 8 January 2004, as well as similar sentences 
found in paragraph 17 (the penultimate sentence), paragraph 41 (the second sentence), and paragraph 44 (the latter part of the third sentence) were deleted. 
3 Pursuant to the explanations provided by the United States at the beginning of the second substantive 
meeting of the Panel with parties, the United States provided a revised version of its written answers to the questions of Argentina in connection with the first substantive meeting of the Panel with parties.  In this revised 
version, edits were made to paragraph 14 of the original document dated 8 January. WT/DS268/R 
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ANNEX F 
 
REQUEST FOR THE ESTABLISHMENT  
OF A PANEL  
 
Contents Page 
Annex F Request for the Establishment of a Panel-Document WT/DS268/2    F-1 
 
  WT/DS268/R 
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I. INTRODUCTION 
1.1 On 7 October 2002, the Government of the Re public of Argentina requested consultations 
with the Government of the United States of Am erica pursuant to Article 4 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes ("the DSU "), Article XXII:1 of the 
General Agreement on Tariffs and Trade 1994 ("the GATT 1994"), and Article 17.3 of the Agreement 
on Implementation of Article VI of GATT 1994 ("the Anti-Dumping Agreement") concerning, inter 
alia, the determinations of the United States Department of Commerce ("the USDOC") and the 
United States International Trade Commission ("the USITC") in the sunset reviews of anti-dumping 
duty measure on oil country tubular goods ("OCTG") from Argentina.4  The United States and 
Argentina consulted on 14 November and 17 Dece mber 2002, but failed to settle the dispute. 
1.2 On 3 April 2003, Argentina requested the Dispute Settlement Body ("the DSB") to establish a 
panel pursuant to Article XXIII of  the GATT 1994, Article 6 of the DSU  and Article 17 of the Anti-
Dumping Agreement.5        
1.3 At its meeting on 19 May 2003, the DSB establis hed a panel in accordance with Article 6 of 
the DSU  to examine the matter referred to the DSB by Argentina in document WT/DS268/2.  At that 
meeting, the parties to the dispute also agreed that the Panel should have standa rd terms of reference.  
The terms of reference are, therefore, the following: 
"To examine, in the light of the relevant provisions of the covered agreements cited 
by Argentina in document WT/DS268/2, the matter referred to the DSB by Argentina 
in that document and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements."    
1.4 On 22 August 2003, Argentina requested the Di rector-General to determine the composition 
of the Panel, pursuant to paragraph 7 of Article 8 of the DSU .  On 4 September 2003, the Director-
General accordingly composed the Panel as follows: 
Chairman: Mr. Paul O'Connor 
Members: Mr. Bruce Cullen 
   Dr. Faizullah Khilji  
 1.5 The European Communities, Japan, Korea, Mexico and the Separate Customs Territory of 
Taiwan, Penghu, Kinmen and Matsu reserved their third-party rights. 
1.6 The Panel met with the parties on 9-10 December  2003 and on 3 February 2004.  It met with 
the third parties on 10 December 2003. 
II. FACTUAL ASPECTS 
2.1 This dispute concerns certain aspects of US s unset reviews laws, regulations, and procedures 
as well as their application in the sunset review of the anti-dumping duty on OCTG from Argentina.  
The original anti-dumping investigation on OCTG from Argentina that gave rise to the sunset review 
at issue in these dispute settlement proceedings was initiated in 1994, i.e. before the establishment of the World Trade Organization ("the WTO") and was co mpleted in 1995, i.e. following the entry into 
force of the Marrakesh Agreement Establishing the WTO.  Therefore, the investigation was carried 
out under pre-WTO US laws and regulations. 
                                                     
 
4 WT/DS268/1. 
5 WT/DS268/2. WT/DS268/R 
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2.2 The only exporter from Argentina that was party to the original investigation was Siderca.  
The dumping margin calculated for Siderca was 1.36 pe r cent, which also established the basis for the 
anti-dumping duty imposed.  The USDOC calculate d a residual duty at the same rate, i.e. 
1.36 per cent for other Argentine exporters. 
2.3 Following the imposition of the duty, Siderca stopped exporting OCTG into the US market. 
2.4 During the five-year lifespan of the anti-dum ping duty, four administrative reviews were 
initiated by the USDOC at the request of the domes tic producers of OCTG in the United States.  In 
these administrative reviews, Siderca stated that it had not made any shipment for consumption in the 
United States and, following its analysis, the USDOC agreed with Siderca and rescinded the 
administrative review. 
2.5 On 3 July 2000, the USDOC initiated, on its own initiative, a sunset review of the anti-
dumping duty on OCTG from Argentina. The US producers, petitioners in the sunset review, 
participated in the sunset review and filed substantive responses to the USDOC. Siderca also 
participated and filed a substantive response on 2 August 2000.  On 22 August 2000, the USDOC 
decided to conduct an expedited sunset review under US law because Siderca was the lone respondent and accounted for significantly less than the threshold provided for in the Regulations of 50 per cent 
of total imports of OCTG from Argentina to the United States in the 1995-1999 period. 
2.6 In its final determination, the USDOC determin ed that dumping was likely to continue or 
recur at 1.36 per cent should the duty on OCTG fr om Argentina be revoked and reported that to the 
USITC as the likely margin of dumping. 
2.7 The USDOC's final likelihood of continuation or  recurrence of dumping determination, in 
which it found that dumping was likely to continue or recur, was published on 7 November 2000. In 
June 2001, the USITC published its final injury dete rmination in which it also found a likelihood of 
continuation or recurrence of material injury.  On 25 July 2001, the USDOC published the notice of 
continuation of the anti-dumping duty on OCTG from Argentina. 
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS  
A. A
RGENTINA  
3.1 Argentina requests the Panel: 
1. To find that 19 U.S.C. § 1675(c)(4) of the Tariff Act of 1930 and 19 C.F.R. § 
351.218(d)(2)(iii) of the USDOC's Sunset Regu lations (the “waiver provisions”) violate: 
_ Article 11.3 of the Anti-Dumping Agreement be cause the waiver provisions mandate that 
the USDOC find likelihood of continuation or recurrence of dumping without the conduct 
of a “review,” without any analysis and, henc e, without the required “determination” of 
Article 11.3; 
_ Article 6.1 of the Anti-Dump ing Agreement because the waiver provisions preclude 
respondent interested parties from being able to present evidence in sunset reviews; 
_ Article 6.2 of the Anti-Dumping Agreement because the waiver provisions deny 
respondent interested parties the ability to defend their interest in sunset reviews; 
2. To find that the provisions of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act of 1930 
are inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-
Dumping Agreement because these statutory requirements provide for an open-ended  WT/DS268/R 
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analysis for possible future injury by requiring that the USITC determine whether injury 
would be likely to continue or recur “within a reasonably foreseeable time” and that the 
USITC “shall consider that the effects of revocation or termination may not be imminent, 
but may manifest themselves only over a longer period of time”; 
3. To find that the irrefutable presumption embodied in Sections 751(c) and 752(c) of the 
Tariff Act of 1930, the provisions of Stat ement of Administrative Action (“the SAA”) 
relating to sunset reviews, and Section II.A. 3 of the Sunset Policy Bulletin (“the SPB”) 
and demonstrated in the USDOC's consiste nt practice in sunset reviews violates 
Article 11.3 because the pr incipal obligation of Article  11.3 of the Anti-Dumping 
Agreement requires that anti-dumping measures be terminated after five years of imposition, unless the authorities satisfy th e requirements for maintenance of the 
measure; 
4. To find that The USDOC’s determination to conduct an expedited sunset review and its 
conduct of an expedited review, on the basi s that Siderca’s OCTG exports to the United 
States were less than 50 per cent of the total OCTG exports from Argentina to the United States, and the application of waivers provisions were inconsistent: 
_ with the requirements of Artic les 11.3, 11.4, 6.1, 6.2, 6.8, 6.9 and Annex II of the Anti-
Dumping Agreement because notwithstanding  Siderca’s full cooperation and submission 
of a complete substantive response c onsistent with the USDOC’s regulatory 
requirements, the USDOC deemed Siderca’s res ponse to be inadequate solely on the basis 
of import data and, hence, denied Siderca the opportunity to defend its interest; 
_ with Article 11.3 of the Anti-Dumping Agreement because the USDOC rendered a 
determination of likelihood of continuation or recurrence of dumping without any 
analysis; 
_ with Article 6.1 of the Anti-Dumping Agre ement because the USDOC failed to give 
Siderca the opportunity to present evidence; 
_ with Article 6.2 because the USDOC denied Si derca the right to defend its interests;  
_ with Article 6.8 and Annex II of the An ti-Dumping Agreement because the USDOC did 
not comply with these provisions in its use of facts available; 
5. To find that the USDOC's determination to conduct an expedited sunset review and the 
USDOC's sunset determination, which incorporated the USDOC's Issues and Decision 
Memorandum by reference, violated Articles 12.2 and 12.2.2 of the Anti-Dumping 
Agreement because the USDOC failed to provide public notice and explanations in sufficient detail of its findings on all issues of fact and law; 
6. To find that The USDOC's sunset determinatio n was inconsistent with Article 11.3 of the 
Anti-Dumping Agreement because: 
_ the USDOC failed to apply the disciplines of Article 2; 
_ the USDOC failed to conduct a prospective analysis; 
_ the USDOC failed to make a determination of “likely” (or “probable”) dumping; 
_ the USDOC failed to base its determination on positive evidence; WT/DS268/R 
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_ the USDOC's reliance on the cessation of Side rca’s exports into the United States in the 
wake of the anti-dumping measure as the sole  basis for its likelihood determination was 
inconsistent with Article 11.3 of the Anti-Dumping Agreement; 
_ the USDOC's reliance on the original margin of dumping of 1.36 per cent, calculated 
using the WTO-inconsistent practice of zero ing negative margins for purposes of its 
likelihood decision, as well as its reporting of  that margin to the USITC was inconsistent 
with Article 11.3 and Article 2 of the Anti-Dumping Agreement; 
7. Separate and apart from whether US anti-dumping laws and regulations regarding sunset 
reviews are deemed to establish an unlawful presumption, or are otherwise found to be 
consistent on their face per se  with the US WTO obligations, and irrespective of whether 
the SAA and SPB are “measures” that can be subject to challenge, to find that the 
USDOC failed to administer in an impartial an d reasonable manner the US sunset review 
laws, regulations, decisions and rulings in violation of Article X:3(a) of the GATT 1994; 
8. To find that, in its determination of the likelihood of continuation or recurrence of injury 
in the instant sunset review, the USITC applied a lower standard than that which is required by Article 11.3 of  the Anti-Dumping Agreement; 
9. To find that the USITC's sunset determination violated: 
_ Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the Anti-Dumping Agreement because the USITC 
did not conduct an objective examination of the record or base its determination on 
positive evidence regarding its conclusions concerning the likely volume of imports, the 
likely price effects, and the likely impact of imports on the domestic industry; 
_ Article 3.4 of the Anti-Dumping Agreement because in assessing the likelihood of 
continuation or recurrence of injury to the domestic industry, the USITC failed to 
evaluate all the relevant economic factors and indices having a bearing on the state of the 
industry, including those enumerated in the mentioned article;  
_ Article 3.5 of the Anti-Dump ing Agreement because the USITC failed to respect the 
causation provisions of this article;  
10. To find that the USITC's application of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act 
of 1930 in the sunset review of OCTG from Ar gentina was inconsistent with Articles 3.1, 
3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-Dumping Agreement because by applying 
the “within a reasonably foreseeable time” sta ndard and by using a time frame that is not 
“imminent” but which rather relates to “a longer period of time”, the USITC speculated and conducted an open-ended analysis for possible future injury; 
11. To find that the USITC's use of cumulation in its likelihood of continuation or recurrence 
of injury determinations in the OCTG sunset review was inconsistent with Article 11.3 of 
the Anti-Dumping Agreement, which precludes the use of a cumulative injury analysis in 
sunset reviews; or, if cumulation is permitted in sunset reviews, to find in the alternative 
that the USITC's decision to cumulate in the OCTG sunset review violated Article 3.3 of 
the Anti-Dumping Agreement because the USIT C failed to comply with the conditions 
set out in the mentioned article for the use of  cumulation; in addition, to find that the 
USITC's use of cumulation also conflicted wi th the "likely" standard of Article 11.3; 
12. To find that because the United States violated its obligations under the Anti-Dumping 
Agreement, it also violated the provisions of  Article VI of the GATT 1994, Articles 1 and 
18 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO Agreement;  WT/DS268/R 
 Page 5 
 
 
13. To suggest that the United States implement the Panel's recommendations by terminating 
the anti-dumping duty on OCTG from Argentin a and by repealing its WTO-inconsistent 
laws, regulations, and procedures or by amending such laws, regulations, and procedures 
to eliminate the WTO-inconsistencies. 
B. UNITED STATES  
3.2 The United States requests the Panel to reject Ar gentina's claims in their entirety.  The United 
States requests the Panel to find that the claims  set forth in paragraph 3.1 beyond those found in 
Argentina’s panel request are not with in the Panel’s terms of reference. 
IV. ARGUMENTS OF THE PARTIES 
4.1 The arguments of the parties are set out in their written submissions and oral statements to the 
Panel and their answers to questions.  The parties' submissions, oral statements and their answers to 
questions are attached to this Report as Annexes (see List of Annexes, pages viii and ix). 
V. ARGUMENTS OF THE THIRD PARTIES 
5.1 The arguments of the third parties, the Europe an Communities, Japan, Korea, Mexico and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu are set out in their written 
submissions and oral statements to the Panel and their answers to questions .  The third parties' 
submissions, oral statements and their answers to questions are attached to this Report as Annexes 
(see List of Annexes,  pages viii and ix). 
VI. INTERIM REVIEW 
6.1 On 7 May 2004, we submitted the interim report to the parties.  Both parties submitted written 
requests for the review of precise aspects of th e interim report.  Parties also submitted written 
comments on the other party's comments.  Neither  party requested an interim review meeting. 
6.2 We have outlined our treatment of the parties' requests below.  Where necessary, we have also 
made certain technical revisions to our report. 
A. REQUEST OF ARGENTINA  
6.3 Argentina  submits that the Panel should make a legal finding that the violations committed 
by the United States of its WTO obligations cons titute nullification or impairment of Argentina's 
rights under WTO agreements within the meaning of Article 3.8 of the DSU . 
6.4 The United States  opines that since Argentina has not proved that it suffered actual harm due 
to the violations found by the Panel, the latter shou ld refrain from finding that these violations lead to 
a nullification or impairment of Argentina's rights under WTO agreements. 
6.5 We note that Article 3.8 of the DSU  sets out the presumption that in cases where there is an 
infringement of the obligations assumed under a covered agreement, the action is considered prima 
facie  to constitute a case of nullification or impairme nt of benefits under that agreement.  The cited 
article does not require that the co mplaining party prove actual harm for the Panel to find that an 
infringement of a WTO obligation also constitutes nullification or impairment of the complaining 
party's WTO rights.  We therefore made a modification to paragraph 8.2 of our report to 
accommodate Argentina's comment. WT/DS268/R 
Page 6  
 
6.6 Second, Argentina  argues that the Panel should make findings regarding Argentina's claim 
concerning the use by the USDOC of the original dumping margin, which, in Argentina's view, had 
been calculated on the basis of the so-called methodology of zeroing. 
6.7 The United States  submits that the Panel should exercise judicial economy and not make any 
findings regarding this aspect of Argentina's claim. 
6.8 We note that in paragraph 7.219 below we found that the USDOC erred in basing its factual 
finding that dumping had continued over the life of the measure on the existence of the margin of 
dumping from the original invest igation.  We therefore concluded that the factual basis of the 
USDOC's determination that dumping had continued over the life of the measure was improper.  In 
paragraph 7.223, we stated that, having found that the USDOC erred in relying on this original 
dumping margin, we did not analyse the issue of whether that margin had been calculated through 
zeroing.  We therefore decline to make additional findings in this regard. 
6.9 Third, Argentina  submits that the Panel should make findings regarding the USDOC's 
reliance on the post-order d ecline in the volume of imports of OCTG from Argentina. 
6.10 The United States  argues that the Panel should exercise judicial economy and not make any 
findings regarding this aspect of Argentina's claim. 
6.11 We note that in paragraphs 7.201-7.206 belo w, we made the relevant factual findings 
regarding Argentina's claim challenging the USDOC's de terminations in the OCTG sunset review.  In 
particular, in paragraph 7.202, we observed as  a matter of fact that the USDOC had based its 
likelihood determination on the facts that dumping had continued over the life of the measure and that 
import volumes of the subject product had declined.  It  is, therefore, clear that we have made relevant 
factual findings in this regard.  As far as legal fi ndings are concerned, we note that we have decided 
Argentina's claim regarding the USDOC's likelihood determinations in the OCTG sunset review.  We have found that the USDOC's reliance on the existence of the original dumping margin was 
inconsistent with Article 11.3 of the Anti-Dumping Agreement.  We therefore did not need to address 
whether the USDOC's reliance on declined import volumes was yet another action inconsistent with 
that article.  Argentina argues that we should make a finding in this regard in case our decision is 
appealed and the Appellate Body finds that the USDOC's reliance on the original dumping margin 
was in fact consistent with Article 11.3.  We do no t consider, however, that it would be appropriate to 
make an additional legal finding based on the hypoth etical situation Argentina posits.  We therefore 
decline to make additional findings in this regard. 
6.12 Fourth, Argentina  submits that it put forward sufficie nt argumentation to support its claim 
under Article 6.9 of the Anti-Dumping Agreement and therefore the Panel should make findings in 
this regard. 
6.13 The United States  agrees with the Panel's view that Argentina did not develop sufficient 
argumentation to make a claim under Article 6.9 and submits that the Panel should not make any 
finding in this regard. 
6.14 We consider that Argentina did not develop arguments sufficient to make a claim under 
Article 6.9.  We added paragraphs 7.243-7.244 to our  report in order to further clarify the reasons why 
we decline to make any finding un der Article 6.9 of the Agreement.
6 
                                                      
6 We note that the United States requested to be given a new comment period in case the Panel decided 
to make a finding under Article 6.9.  Given that our additional discussion in paragraphs 7.243-7.244 of our 
report is intended to clarify why we declined to make a finding regarding Argentina's argumentation under  WT/DS268/R 
 Page 7 
 
 
6.15 Fifth, Argentina  disagrees with the Panel's characteri zation of Argentina's claim regarding 
the USITC's failure to apply the "likely" standard of Article 11.3 of the Anti-Dumping Agreement in 
the OCTG sunset review.  In particular, Argentina disagrees with the Panel' s statement in paragraph 
7.280 that "... the crux of Argentina's claim is..."  and the statement in paragraph 7.285 that "...the 
essence of Argentina's claim is not..." 
6.16 The United States did not specifically respond to this comment. 
6.17 We note that Argentina's main argument in this  regard, i.e. the USITC failed to apply the 
"likely" standard of Article 11.3 in the OCTG revi ew, is correctly identified and then discussed by the 
Panel in paragraphs 7.284-7.285 below.  The stat ement in paragraph 7.280 is intended to draw 
attention to the similarity between the texts of Articles 3.1 and 3.2 of the Anti-Dumping Agreement 
on the one hand and the Panel's standard of review in  the present proceedings on the other.  As such, 
this statement does not determine the Panel's main li ne of approach with respect to this claim.  The 
statement in paragraph 7.285 is intended to link Ar gentina's claim regarding the USITC's failure to 
apply the "likely" standard to the three arguments raised by Argentina regarding the USITC's 
determinations in the OCTG sunset review, i.e. volume, price effect and consequent impact of likely dumped imports.  Similarly, this statement does not undermine, nor change, the nature of Argentina's claim. 
6.18 We therefore decline to make any modification to our findings in this regard. 
6.19 Sixth, Argentina disagrees with the Panel's characteri zation of Argentina's claim regarding 
cumulation.  In this context, Argentina argues that the Panel has failed to discuss Argentina's 
arguments that Articles 11.3 and 3.3 of the Agreem ent prohibit cumulation in sunset reviews and that 
the USITC's use of cumulation in the OCTG sunset review led to a failure to apply the "likely" 
standard of Article 11.3. 
6.20 The United States  generally disagrees with Argentina an d submits that the report adequately 
discusses Argentina's argument that Articles 11.3  and 3.3 prohibit cumulation in sunset reviews. 
6.21 We note that in paragraphs 7.325 and 7.326 belo w we have addressed Argentina's argument 
that Article 3.3 limits the use of cumulation to inves tigations.  This, in our view, is equivalent to the 
proposition that Article 3.3 prohibits the use of cumula tion in sunset reviews.  We have nevertheless 
added paragraph 7.334 to discuss Argentina's argument regarding the use of the word "duty" in the 
singular, as opposed to the plural, in Articles 11.1 and 11.3 of the Agreement in connection with the 
present claim.
7 
6.22 Regarding Argentina's claim that the USITC failed to apply the "likely" standard of 
Article 11.3 by using cumulation in the OCTG sunset  review, we note that we have discussed this 
particular issue in paragraph 7.337 below.  We therefore decline to make any modification to our 
findings in this regard. 
6.23 We have made a modification to paragraph 7.239 at the request of Argentina. 
                                                                                                                                                                     
Article 6.9, rather than constituting a finding, we do not find it necessary to give the United States another 
opportunity to make comments in this regard. 
7 We note that the United States requested to be given a new comment period in case the Panel decided 
to engage in an additional discussion of Argentina's arguments under this claim.  Given that our discussion of 
Argentina's argument regarding the word "duty" does not change our conclusion with respect to this claim and that the United States has already expressed its views on this particular issue (see, for instance, First Written 
Submission of the United States, para. 366), we do not find it necessary to give the United States another 
opportunity to make comments in this regard. WT/DS268/R 
Page 8  
 
B. R
EQUEST OF THE UNITED STATES  
6.24 The United States  requests the Panel to make certain mo difications to paragraphs 7.85 and 
7.91 to prevent a potential misunderstanding regarding the legal basis of the provisions of US law 
governing affirmative and deemed waivers.  More pa rticularly, the United States argues that under US 
law the provisions that apply to deemed waivers ar e found exclusively in the Regulations, not the 
Statute.  The modifications that the United states is suggesting are aimed at clarifying this issue. 
6.25 Argentina  disagrees with the United States with re spect to both paragraphs and opines that 
although the provision that creates the deemed waiver category is found in the Regulations, the 
Statute is also relevant with respect to the provisio ns applicable to deemed waivers in that it is the 
Statute, and not the Regulations, that sets ou t the legal consequence of deemed waivers. 
6.26 We note that, as stated in the two paragraphs cited by the United States, under US law it is the 
USDOC's Regulations, and not the Statute, which creates the deemed waivers category.  
Section 751(c)(4)(A) of the Tariff Act provides that interested parties may elect to waive participation 
in the USDOC part of a sunset review and lim it their participation to the USITC part.  
Section 351.218(d)(2)(iii) of the USDOC's Regulations, however, describes the situations in which waivers may arise.  One of the situ ations described in this section is the deemed waivers category.  
The legal consequence of waivers, regardless of the situation in which they arise, is set out in 
Section 751(c)(4)(B) of the Tariff Act, i.e. an affi rmative finding of likelihood.  We cannot, therefore, 
accept the US comment, which suggests that the Statute has no effect with respect to deemed waivers. 
6.27 Second, the United States  requests that the Panel make certain modifications to paragraphs 
7.156 and 7.158 of the report to reflect the fact that  the SPB has no authority to request the USDOC to 
do anything and similarly no authority to give  the USDOC the discretion to do anything. 
6.28 Argentina  opines that the modifications requested by the United States are aimed at re-
litigating certain substantive issues that have been decided by the Panel and therefore the Panel should 
reject them. 
6.29 We note that the basis on which the United States builds its comments at issue are closely 
related to the substance of the claims raised by th e parties and discussed by the Panel in the present 
proceedings.  We have already made a decision regarding the US' view that the SBP as such cannot 
give rise to a WTO violation because it is not bindi ng under US law.  We therefore decline to revisit 
our substantive finding in that regard.  We have nevertheless made certain modifications to the 
descriptive portions of paragraphs 7.156 and 7.158 to accommodate the concern raised by the United 
States regarding the binding effect of the SPB on the USDOC. 
6.30 Third, the United States  requests the Panel to add to the recitation of facts in paragraph 7.203 
of the report the fact that no Argentine exporter other than Siderca responded to the notice of 
initiation. 
6.31 Argentina  requests that the preceding four sentences of this paragraph be maintained should 
the Panel decide to make any mo dification to this paragraph. 
6.32 We note that the two paragraphs that follow pa ragraph 7.203 make clear that no Argentine 
exporter other than Siderca filed a substantive response to the notice of initiation in the OCTG sunset 
review.  We therefore decline to make any modification to paragraph 7.203 in this regard. 
6.33 Fourth, the United States  submits that either the Panel should point to relevant evidence that 
demonstrates that Siderca requested a hearing in  the OCTG sunset review and was declined or 
paragraphs 7.232 through 7.236 should be deleted.  WT/DS268/R 
 Page 9 
 
 
6.34 Argentina  disagrees with the United States and submits that the Panel should reject the US 
comment because the application of waiver provisions  and the conduct of an expedited sunset review 
in the OCTG sunset review precluded Siderca from  having the opportunity to request a hearing. 
6.35 We note our factual finding in paragraph 7.235 that in the OCTG sunset review, which took 
the form of an expedited sunset review under US la w, Siderca did not have an opportunity to request a 
hearing because US law precluded such an opportunity .  This is, in our view, enough ground to make 
a decision as to the WTO-consistency of the proced ural rights provided to interested parties in the 
OCTG sunset review.  In other words, we disagree wi th the view that in order to be able to challenge 
the US investigating authorities' failure to provide an opportunity for a hearing in the OCTG sunset 
review, Siderca had to make such a request and have it denied even though it was evident that such a request would not be granted as a matter of US la w.  We therefore decline to make any modification 
to our report in this regard. 
6.36 We have deleted four paragraphs from the part of our report dealing with the United States' 
request for preliminary rulings at the request of the United States.  We have also made the 
modifications requested by the United States to paragraphs 7.11, 7.74 and 7.106. 
6.37 Finally, we have made some typographical a nd style-related improvements to the interim 
report. 
VII. FINDINGS 
A. G
ENERAL ISSUES  
1. Standard of Review 
7.1 In light of the claims and arguments made by  the parties in the course of these Panel 
proceedings, we recall, at the outset of our examina tion, the standard of review we must apply to the 
matter before us. 
7.2 Article 11 of the DSU  8, in isolation, sets forth the appropriate standard of review for panels 
for all covered agreements except the Anti-Dumping Agreement.  Article 11 imposes upon panels a 
comprehensive obligation to make an "objective as sessment of the matter", an obligation which 
embraces all aspects of a panel's examination of the "matter", both factual and legal. 
7.3 Article 17.6 of the Anti-Dumping Agreement  sets forth the special standard of review 
applicable to anti-dumping disputes.  It provides:  
“(i) in its assessment of the facts of th e matter, the panel shall determine whether 
the authorities’ establishment of the facts was proper and whether their evaluation of 
those facts was unbiased and objective.  If the establishment of the facts was proper 
and the evaluation was unbiased and objective, even though the panel might have 
reached a different conclusion, the evaluation shall not be overturned;”  
“(ii) the panel shall interpret the rele vant provisions of the Agreement in 
accordance with customary rules of interpreta tion of public international law.  Where 
the panel finds that a relevant provision of  the Agreement admits of more than one 
                                                      
8 Article 11 of the DSU , entitled "Function of Panels", states:  "The function of panels is to assist the 
DSB in discharging its responsibilities under this Understanding and the covered agreements.  Accordingly, a 
panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other 
findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the 
covered agreements…"
 WT/DS268/R 
Page 10  
 
permissible interpretation, the panel shall find the authorities’ measure to be in 
conformity with the Agreement if it rests upon one of those permissible 
interpretations.” 
7.4 Thus, together, Article 11 of the DSU  and Article 17.6 of the Anti-Dumping Agreement set 
out the standard of review we must apply with respect to both the factual and legal aspects of our 
examination of the claims and arguments raised by the parties.
9 
7.5 In light of this standard of review, in examining the claims under the Anti-Dumping 
Agreement in the matter referred to us, we must ev aluate whether the United States measures at issue 
are consistent with relevant provisions of the An ti-Dumping Agreement.  We may and must find them 
consistent if we find that the United States inve stigating authorities have pr operly established the facts 
and evaluated them in an unbiased and objective manner, and that the determinations rest upon a 
"permissible" interpretation of the relevant provisions.  Our task is not to perform a de novo  review of 
the information and evidence on the record of the underlying sunset review, nor to substitute our 
judgment for that of the US authorities, even  though we might have arrived at a different 
determination were we examin ing the record ourselves. 
2. Burden of Proof 
7.6 We recall that the general principles applicable to burden of proof in WTO dispute settlement 
require that a party claiming a violation of a provision of the WTO Agreement by another Member 
must assert and prove its claim.10  In these Panel proceedings, Argentina, which has challenged the 
consistency of the United States' measures, thus be ars the burden of demonstrating that the measures 
are not consistent with the relevant provisions of the Agreement.  Argentina also bears the burden of 
establishing that its claims are properly before us .  We also note that it is generally for each party 
asserting a fact to provide proof thereof.11  In this respect, therefore, it  is also for the United States to 
provide evidence for the facts which it asserts. We also recall that a prima facie  case is one which, in 
the absence of effective refutation by the other party,  requires a panel, as a matter of law, to rule in 
favour of the party presenting the prima facie  case. 
B. UNITED STATES ' REQUEST FOR PRELIMINARY RULINGS  
7.7 In its first written submission, the United States  made a request for preliminary rulings by the 
Panel.12  From an analytical point of view, the bases of the United States' request for preliminary 
rulings can be divided into two groups.  First, the United States  asserts that Argentina's panel request 
is vague in two respects.  The United States subm its that, inconsistently with Article 6.2 of the DSU , 
the claims raised by Argentina on page 4 of its panel request do not present the problem clearly.  
Along the same line, the United States argues that references to Articles 6 and 3 of the Anti-Dumping 
Agreement in sections B.1, B.2 and B.3 of Argentina's panel request do not present the problem 
clearly, because these articles are being referre d to generally in their entirety, without any 
specification of the relevant sub-paragraphs. 
                                                      
9 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products 
from Japan ("US – Hot-Rolled Steel "), WT/DS184/AB/R, adopted 23 August 2001, paras. 54-62. 
10 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and 
Blouses from India  ("US – Wool  Shirts and Blouses") , WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, 
DSR 1997:I, 323, p. 337. 
11 Ibid.  
12 The US request for preliminary rulings is premised solely on the allegation that Argentina has failed 
to provide a brief summary of the legal basis of some of its claims sufficient to present the problem clearly, inconsistently with Article 6.2 of the DSU .  The United States has not alleged a failure to identify the specific 
measure at issue.  See, Response of the United States to Question 21 from the Panel Following the Second 
Meeting.  WT/DS268/R 
 Page 11 
 
 
7.8 Second, the United States contends that certa in claims presented in Argentina's first 
submission are not within our terms of reference be cause they were not raised in Argentina's panel 
request.  These are: 
• Argentina's claim challenging the US practice as  such and as applied in the instant sunset 
 review regarding the alleged irrefutable presumption in sunset reviews, 
• Argentina's claim regarding the alleged irre futable presumption under US law as such, 
• Argentina's claim under Article X:3(a) of the GATT 1994, 
• Argentina's claim regarding the USITC's sunset determinations in the instant sunset review, 
• Argentina's consequential claims under Article s 1 and 18 of the Anti-Dumping Agreement, 
 Article VI of the GATT 1994 and Ar ticle XVI:4 of the WTO Agreement. 
7.9 In response to the United States' request for pr eliminary rulings on the basis of Article 6.2 of 
the DSU , Argentina  generally submits that the United States  can not prevail because it has failed to 
demonstrate to the Panel that it has suffered prejud ice as a result of the alleged deficiencies in 
Argentina's panel request.  In addition to this general observation, Argentina also puts forward 
counter-arguments to the US allegations with rega rd to each aspect of the latter's request for 
preliminary rulings. 
1. Alleged Vagueness of Argentin a's Request for Establishment 
7.10 The United States  requests that we dismiss certain clai ms raised by Argentina in its panel 
request on the grounds that, inconsistently w ith the requirements of Article 6.2 of the DSU , these 
claims were identified vaguely.  In this context, the United States takes issue with the claims raised on 
page four and those raised in sections B.1 through B.3 of Argentina's panel request. 
(a) Claims raised on page 4 of Argentina's panel request 13 
7.11 The United States  argues that Argentina failed to prov ide a brief summary of the legal basis 
of the claims raised on page four of its panel reque st.  According to the United States, inconsistently 
with Article 6.2 of the DSU , the claims raised by Argentina on page 4 of its panel request fail to 
present the problem clearly and are therefore outside our terms of reference.  The United States submits that Argentina's reference to various arti cles from WTO agreements that contain multiple 
obligations fell short of the requirements of Article 6.2 of the DSU .  The United States also asserts 
that the absence of a brief summary of the legal basi s of the claims raised on page four renders this 
portion of the panel request inconsistent with Article 6.2 of the DSU . 
7.12 Argentina  argues that the Panel has to read Argenti na's panel request as a whole in deciding 
whether it meets the requirements of Article 6.2 of the DSU .  Argentina submits that the minimum 
requirement to clarify the legal basis of a claim in  WTO dispute settlement proceedings is the citation 
of the treaty articles alleged to have been violated.  According to Argentina, claims on page four of its 
panel request met this standard.  Argentina contends  that, although Article 6.2 does not require the 
inclusion of a narrative description of the legal basis of a claim, Argentina did provide such a 
description in relation to its page four claims.  Arge ntina states that page four of its panel request is 
                                                     
 
13 We note that page four of Argentina's panel request is not limited to the part that the United States is 
challenging on the grounds of vagueness.  The United States is taking issue with the portion of page four of Argentina's panel request that is found between the paragraph numbered four and the concluding paragraph that 
starts with "Accordingly, Argentina respectfully requests that..."  Given that both parties refer to this portion of 
Argentina's panel request as "page four", we have also used the same characterization for ease of reference. WT/DS268/R 
Page 12  
 
not intended to set out additional claims that are not found elsewhere in the request.  According to 
Argentina, therefore, even if page four is severed from the rest of its panel request, the effect would be 
minimal.
14 
7.13 We note that, under Article 7 of the DSU , it is Argentina's panel re quest that determines our 
terms of reference in these proceedings.  Article 6.2 of the DSU , which sets out the requirements 
applicable to the requests for the establishment of a panel, provides: 
The request for the establishment of a panel sh all be made in writing.  It shall indicate 
whether consultations were held, identify th e specific measures at issue and provide a 
brief summary of the legal basis of the co mplaint sufficient to present the problem 
clearly.  In case the applicant requests the establishment of a panel with other than 
standard terms of reference, the written request shall include the proposed text of 
special terms of reference. 
7.14 According to Article 6. 2, therefore, a panel request must identify the specific measures at 
issue  and must provide a brief summary of the  legal basis of the complaint .  Together, these two 
elements comprise the "matter referred to the DSB", which forms the basis for a panel's terms of reference under Article 7.1 of the DSU .  It is important that the panel request be sufficiently clear for 
two reasons: First, it defines the scope of the dispute.  Second, it serves the due process  objective of 
notifying the parties and third parties of the natu re of a complainant's case.  We must therefore 
scrutinize carefully Argentina's panel request "to ensure its compliance with both the letter and the 
spirit of Article 6.2 of the DSU ."  In doing that, we shall consider Argentina's panel request as a whole 
and take into account the circumstances of the present proceedings.
15 
7.15 With these considerations in mind, we now turn  to the text of Argentina's panel request to 
decide whether it conforms to the requirements of that  article.  The portion of page four of Argentina's 
panel request contested by the United States reads: 
Argentina also considers that certain aspects of the following US laws, regulations, 
policies, and procedures related to the de terminations of the Department and the 
Commission are inconsistent with US WTO obligations, to the extent that any of 
these measures mandate action by the Depart ment 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 1930, 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); 
                                                      
14 Argentina’s Comments on the US Closing Statement at the Second Substantive Meeting of the Panel, 
and US Answers to Questions from the Panel and Argentina in Connection with the Second Substantive Meeting, 
para. 49. 
15 We find support for our approach in the Appellate Body decision in US – Carbon Steel .  See, 
Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat 
Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted 19 December 2002, 
paras. 125-127.  WT/DS268/R 
 Page 13 
 
 
• The Department's sunset revi ew 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 Determination, the Department's Determination to Continue th e Order and the above mentioned US laws, 
regulations, policies and procedures are inconsistent with the following provisions of 
the 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.
16 
7.16 We note that on page four, Argentina invokes various articles of the Anti-Dumping 
Agreement and other WTO agreements in their entirety, many of which contain multiple obligations, 
such as Articles 2, 3 and 6 of the Anti-Dumping Agreement.  However, as we stated above, we shall 
not read page four of Argentina's panel request in is olation.  Argentina's panel request consists of four 
pages altogether.  We have to scrutinize the text of the panel request as a whole in inquiring whether it 
conforms to the requirements of Article 6.2. 
7.17 The crux of the US allegation regarding page four of Argentina's panel request is that page 
four is vague in the sense of being overly broad.  The United States argues that since page four is not 
sufficiently clear, it is not possible to discern the na ture of the claims raised in this part of the panel 
request. 
7.18 In our view, the task before us is not to decide, in the abstract, whether Argentina's panel 
request conforms to the require ments of Article 6.2 of the DSU . Rather, the issue is  whether Argentina 
has, during the course of these proceedings, asked us to address claims which are not identified with 
sufficient clarity in its panel request to satisfy the terms of Article 6.2 and thus could not be foreseen 
by the defendant and the third parties.  To that end, we invited the United States to identify, in 
concrete terms, which claims in Argentina's submi ssions to the Panel were based exclusively on page 
four of the panel request and therefore should, in the United States' view, be found to be outside our 
terms of reference.  In response to our question, th e United States identified a number of claims raised 
by Argentina in its first and second submissions that it considered to fall in this category.  In response 
to the US allegation, Argentina generally argued th at the United States was attempting to recast 
Argentina's claims, and asked the Panel to reject the US allegations in this re gard in their entirety. 
7.19 The claims that are alleged by the United States to be outside our terms of reference because 
of the alleged vagueness on page four of Argentina's panel request17 and our analysis with regard to 
each one of them are as follows: 
(i) Section VII.A of Argentina's first written subm ission and section III.A of its second written 
submission 
7.20 The United States  asserts that although section A of Ar gentina’s panel request refers only to 
Section 351.218(e) of the USDOC's Regulations, in section VII.A of its first written submission and 
                                                      
16 WT/DS268/2, p.4. 
17 See, Response of the United States to Question 22  from the Panel Following the Second Meeting. WT/DS268/R 
Page 14  
 
section III.A of its second written submission, Arge ntina extends the scope of this claim to Section 
351.218(d)(2)(iii) of the Regulations.  Argentina  submits that the Panel should reject the US 
allegation. 
7.21 We note that section A.1 of Argentina's panel request reads, in relevant part: 
...In particular, 19 U.S.C. § 1675(c)(4) and 19 C.F.R. § 351.218(e) operate in certain 
instances 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 recurrence of dumping, in violation of Articles 11.1, 
11.3...of the Anti-Dumping Agreement.  When a respondent interested party is 
deemed
 by the Department to have "waived"  participation in the Department 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 .  (emphasis added) 
7.22 We note that, as the United States also concedes18, the narrative part of section A.1 clearly 
refers to US law's provisions relating to deemed waivers and asserts that the USDOC is precluded 
from making the requisite determination in these ca ses.  We therefore consider that the text of 
Argentina's panel request makes it sufficiently clea r that Argentina could pursue a claim challenging 
Section 351.218(d)(iii) of the Regulations, which contains the provision that creates the deemed 
waivers category under US law. 
7.23 Furthermore, we note that the United States also  acknowledges that this  alleged extension of 
Argentina's claim did not cause any prejudice to the United States.19 
7.24 We therefore decline the US request for a preliminary ruling in this regard. 
(ii) Section VII.B.2 of Argentin a's first written submission 
7.25 The United States  argues that section VII.B.2 of Argentina's first written submission contains 
claims regarding 19 U.S.C. 1675(c) and 1675a(c), th e SAA, and the SPB.  However, section A of the 
panel request refers to 19 U.S.C. 1675(c)(4) only and does not refer to the other provisions of 19 
U.S.C. 1675(c), 19 U.S.C. 1675a(c), the SAA, or th e SPB.  According to the United States, therefore, 
these portions of Argentina's claims are outside the Panel's terms of reference and have to be 
disregarded by the Panel.  Argentina  submits that the Panel should reject the US allegation. 
7.26 We note that Section A.4 of Argentina's panel request provides: 
The Department's Sunset Determination is in consistent 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 recurrence of dumping.  This unlawful presumption is evidenced by the consistent practice of the 
Department in sunset reviews (which practice is based on US law and the 
Department's Sunset Policy Bulletin ).  (emphasis added) 
                                                      
18 Footnote 26 to the Response of the United States to Question 22 from the Panel Following the 
Second Meeting. 
19 First Written Submission of the United States, footnote 103; footnote 26 to the Response of the 
United States to Question 22 from the Panel Following the Second Meeting.  WT/DS268/R 
 Page 15 
 
 
7.27 We note that section A.4 of Argentina's panel request takes issue with US law's provisions 
relating to the likelihood of continuation or recurrence of dumping determinations.  In addition to this 
general reference, the mentioned section also cites the SPB and the USDOC's pr actice in this regard.  
In our view, this section is sufficiently clear to inform the United States that Argentina may pursue a 
claim to challenge the provisions of US law rega rding the alleged irrefutable presumption under US 
law concerning the likelihood of continuation or recurrence of dumping dete rminations in sunset 
reviews.  We consider that the references to 19  U.S.C. 1675(c), 19 U.S.C. 1675a(c) and the SAA on 
page four of the panel request, viewed in conjunc tion with section A.4, further clarify that Argentina 
can invoke these provisions of US law in its first written submission to the Panel. 
(iii) Section VII.E.1 of Argentin a's first written submission 
7.28 The United States  argues that section VII.E.1 of Argent ina's first written submission raises a 
claim regarding the United States' administration of  its laws, regulations, decisions, and rulings with 
respect to sunset reviews in violation of Article X: 3(a) of the GATT 1994.  However, section A.4 of 
the panel request only challenges the OCTG sunset determination in this rega rd, rather than all US 
laws, regulations, decisions, and rulings with respect to all sunset reviews.  Argentina  submits that 
the Panel should reject the US allegation. 
7.29 We need not, and do not, address this aspect of the US request for a preliminary ruling here 
given that this claim was submitted by Argentina as an alternative to its claim regarding the alleged 
irrefutable presumption under US law regarding th e likelihood of continuation or recurrence of 
dumping determinations and that we did not address it20. 
(iv) Section VIII.C.2 of Argentina's first written submission and section III.D.2 of its second 
written submission 
7.30 The United States  argues that section VIII.C.2 of Ar gentina's first written submission and 
section III.D.2 of its second written submission cont ains a claim regarding th e USITC’s application of 
19 U.S.C. 1675a(a)(1) and (5) in the instant suns et review even though section B.3 of the panel 
request is limited to US law "as such" and makes no reference to the instant sunset review.  
Argentina  submits that the Panel should reject the US allegation. 
7.31 We note that section B of Argentina's panel request reads, in relevant part: 
B. The Commission's Sunset Determination  was inconsistent with the Anti-
Dumping Agreement  and the GATT 1994: 
... 3. The US statutory requirements that the Commission 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 
revocation 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.  (emphasis added) 
7.32 On its face, section B.3 of Argentina's panel re quest seems to be limited to the US statutory 
provisions and does not refer to the USITC's applic ation of these statutory provisions in the sunset 
review at issue.  However, the heading of section B refers to the USITC's determinations in this sunset 
review.  Therefore, we consider that the text of section B, including the heading, is sufficiently clear 
                                                     
 
20 See, infra  para. 7.169. WT/DS268/R 
Page 16  
 
to inform the United States that Argentina may challenge the application of the cited statutory 
provisions in the sunset review at issue. 
(v) Section IX of Argentina's first written submission and section V of its second written 
submission 
7.33 The United States argues that Article VI of the GATT 1994, Articles 1 and 18 of the Anti-
Dumping Agreement and Article XVI: 4 of the WTO Agreement that are being raised in section IX of 
Argentina's first written submission and section V of its second written submission only appear on 
page four of Argentina's panel request.  According to the United States, therefore, these claims are 
outside our terms of reference.  Argentina  submits that the Panel should reject the US allegation. 
7.34 We note that we exercised judicial economy with  respect to these consequential claims raised 
by Argentina and did not rule on them
21.  We therefore need not, and do not, rule on this aspect of the 
US request for a preliminary ruling either. 
(vi) Section X of Argentina's first written submission 
7.35 The United States  takes issue with the phrase “US sunset review, statutory, regulatory, and 
administrative provisions as such violate the Anti-Dumping Agreement and the WTO Agreement” in 
the conclusion part of Argentina's first written subm ission and argues that the only basis for this 
general assertion is page four of Argentina's panel request.  Argentina  submits that the Panel should 
reject the US allegation. 
7.36 We note that the phrase cited by the United States is heading A under the "Conclusion" 
section of Argentina's first written submission.  As evidenced by its name, rather than introducing 
new claims, the conclusion is intended to, and does  in fact, repeat the claims already raised by 
Argentina throughout its first submission.  Given that we have not made substantive rulings regarding the "Conclusion" section of Argentina's first written su bmission, we need not, and do not, address this 
aspect of the US request for a preliminary ruling. 
(vii) Section III.B of Argentina' s second written submission 
7.37 Regarding the alleged irre futable presumption, the United States  argues that the claim raised 
in section III.B of Argentina's second written submission regarding certain provisions of the US Statute, the SAA and the SPB are outside our terms of reference because section A.4 of Argentina's 
panel request only contains a claim aimed agai nst the application of an alleged irrefutable 
presumption in the instant sunset review.  Argentina  submits that the Panel should reject the US 
allegation. 
7.38 We note once again that section A.4 of  Argentina's panel requests provides: 
The Department's Sunset Determination is in consistent 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 recurrence of 
dumping.  This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the 
Department's Sunset Policy Bulletin ).  (emphasis added) 
7.39 Given the two clear references in this sectio n to US law regarding the alleged irrefutable 
presumption, we consider that Argentina's panel requ est made it sufficiently clear to the United States 
                                                      
21 See, infra  para. 7.342.  WT/DS268/R 
 Page 17 
 
 
that Argentina could be raising a claim aimed ag ainst US law as such concerning this alleged 
irrefutable presumption. 
(viii) Conclusion 
7.40 In conclusion, we decline the US request fo r preliminary rulings relating to the alleged 
vagueness of the claims set forth on page four of Argentina's panel request. 
(b) References to Articles 6 or 3 of the Anti-Dumpi ng Agreement in sections B.1, B.2 and B.3 of 
the panel request 
7.41 The United States  argues that Argentina's references  to Article 6 of the Anti-Dumping 
Agreement in sections B.1 and B.2, and to Article 3 in  section B.3, of its panel request in their entirety 
fail to present the problem clearly.  According to the United States, since Articles 3 and 6 of the Anti-
Dumping Agreement both contain multiple obligations, the mere listing of these articles in their entirety makes it impossible to discern the nature  of Argentina's problem, inconsistently with 
Article 6.2 of the DSU .  The United States also claims to have suffered prejudice due to these 
deficiencies in sections B.1, B.2 and B.3 of Arge ntina's panel request because it did not know what 
case to answer.  Therefore, the United States requires us to find that the claims of inconsistency with 
Article 6 in sections B.1 and B.2 and the claim of  inconsistency with Article 3 in section B.3 of 
Argentina's panel request are not within our terms of reference. 
7.42 Regarding the references to Article 6, Argentina  submits that these references present the 
problem clearly because Article 6 is relevant to suns et reviews in its entirety.  With regard to the 
reference to Article 3, Argentina similarly argues that  given that Article 3 is generally applicable to 
sunset reviews and that it is particularly relevant to the issue of the time-frame on the basis of which 
sunset determinations have to be made, this refe rence also presents the problem clearly.  Argentina 
argues that Article 6.2 requires that claims – not ar guments – be set out in the panel request and that 
its panel request sets out its claims under Articles 3 and 6 with sufficient clarity.  Finally, Argentina 
asserts that we should decline the US request becaus e the United States has not been prejudiced in its 
right to defend itself due to the alleged inconsistenc y with Article 6.2 of sections B.1, B.2 and B.3 of 
its panel request. 
7.43 We note that the contested sections B.1 through B.3 of Argentina's panel request read: 
The Commission's Sunset Determination  was inconsistent with the Anti-
Dumping Agreement  and the GATT 1994: 
1. The Commission's application of th e standard for determining whether the 
termination of anti-dumping duty measure woul d 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 instea d 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 examination" of the record 
and failed to base its determination on  "positive evidence" regarding 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 volume 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 WT/DS268/R 
Page 18  
 
Commission's findings on these issues do not constitute "positive ev idence" of likely 
injury in the event of termination, in viol ation 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 Commission 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 
revocation 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. 
7.44 We note that sections B.1 and B.2 contain a numb er of references to specific paragraphs of 
Articles 11 and 3 of the Anti-Dumping Agreement and a general reference to Article 6.  Section B.1 
contains Argentina's claim regarding the standard ap plied by the USITC in the instant sunset review, 
whereas section B.2 deals with the USITC's alleged failure to carry out an objective examination.  We 
note, however, that with respect to both claims, Ar gentina has not invoked Article 6 in its submissions 
to the Panel during these proceedings.  Consequently, in our report, we have not made any findings with regard to Article 6 under these two claims.  We  therefore need not, and do not, rule on the US 
request for a preliminary ruling concerning the gene ral references to Article 6 of the Anti-Dumping 
Agreement in sections B.1 and B. 2 of Argentina's panel request. 
7.45 Turning to section B.3, we note th at this section contains a gene ral reference to Article 3, as 
well as specific references to two individual paragraphs of Article 11 of the Anti-Dumping 
Agreement.  We also note that in its submissions  to the Panel, although Argentina cited various 
subparagraphs of Article 3 in support of its claim challenging US law's provisions regarding the time-
frame on the basis of which the USITC carries out its likelihood determinations, it only developed 
arguments under paragraphs 7 and 8 thereof.  Therefore, the issue is whether section B.3 of 
Argentina's panel request was sufficiently clear to  inform the United States that Argentina could 
invoke Articles 3.7 and 3.8 as part of this claim.   
7.46 As we have already stated, Article 3 contains, in its various paragraphs, detailed rules dealing 
with injury determinations in anti-dumping investig ations.  These provisions govern different aspects 
of injury determinations.  Paragraphs 7 and 8, in their turn, deal with threat of material injury determinations in anti-dumping inves tigations.  Article 3 sets out certa in factors to be considered in 
threat of material injury determinations whereas Article 3.8 requires that special care be exercised in 
the application of anti-dumping meas ures on the basis of a threat of material injury.  Among other 
things, Article 3.7 also contains provisions regarding the timing aspect of threat of material injury 
determinations.  In this context, we note that th e chapeau of Article 3.7 reads in the relevant part: 
A determination of a threat of material inju ry shall be based on facts and not merely 
on allegation, conjecture or remote possibility
.  The change in circumstances which 
would create a situation in which the dump ing would cause injury must be clearly 
foreseen and imminent10....  
___________ 
10 One example, though not an exclusive one, is that there is convincing reason to 
believe that there will be, in the near future , substantially increased importation of the 
product at dumped prices.  (emphasis added) 
7.47 We note that there are important textual indica tions that Article 3.7 entails certain elements 
that deal with the time-frame on the basis of which th reat of material injury determinations are to be 
made.  In our view, a comparison of the text of Article 3.7 with section B.3 of Argentina's panel 
request reveals certain textual similarities.  For instance, the use of certain words or phrases such as  WT/DS268/R 
 Page 19 
 
 
"imminent", "within a reasonably fore seeable time" and "over a longer period of time" in section B.3 
of Argentina's panel request demonstrates that the panel request was sufficiently clear to allow the 
United States to expect that Argentina could be relying on Articles 3.7 and 3.8 in its submissions to 
the Panel in this regard.  We th erefore conclude that although Article 3 of the Agreement contains 
multiple obligations that apply to different aspects of injury determinations, in the circumstances of 
the present proceedings, section B.3 of Argentina's panel request was sufficiently clear to inform the 
United States about the nature of the claim that could be pursued by Argentina. 
(i) Conclusion 
7.48 In conclusion, we decline the US request for preliminary rulings regarding the citation of 
Articles 6 and 3 of the Anti-Dumping Agreement in their entirety in sections B.1 through B.3 of 
Argentina's panel request. 
2. Certain Claims That Have Allegedly Not Be en Raised in Argentina's Panel Request 
7.49 The United States  asserts that certain claims that appear in Argentina's first written 
submission are not within our terms of reference because these claims have not been raised in 
Argentina's panel request. 
7.50 Argentina  argues that none of the matters referred to by the United States in this context are 
new because they are all found in Argentina's panel request.  Further, Argentina submits that in order 
for an allegation of inconsistency with Article 6.2 to prevail, the defending party has to prove actual 
prejudice resulting from the alleged deficiency, whic h, according to Argentina, the United States has 
not done so far. 
7.51 Claims which, in the United States' view, are outside our terms of reference and our analysis 
with respect to each of them are as follows: 
(a) Argentina's claim challenging the US practice as  such and as applied in the instant sunset 
review regarding the alleged irrefutable presumption in sunset reviews 
7.52 The United States  submits that Argentina's claim challenging the US practice as such and as 
applied in the instant sunset review regarding the a lleged irrefutable presumpti on in sunset reviews is 
not included in its panel request and therefore the Panel should find these claims to be outside its terms of reference. 
7.53 Argentina  argues that section A.4 of its panel reque st contains both an "as such" and an "as 
applied" claim regarding the US practice concerning the alleged irrefutable presumption in sunset 
reviews. 
7.54 We note that section A.4 of Argentina's panel request reads: 
4. The Department's Sunset Determination
 is inconsistent 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 recurrence 
of dumping.  This unlawful presumption is evidenced by the consistent practice  of the 
Department in sunset reviews (which practice  i s  b a s e d  o n  U S  l a w  and the 
Department's Sunset Policy Bulletin).  (emphasis added) WT/DS268/R 
Page 20  
 
7.55 We also note that we did not rule on Arge ntina's claim regarding the USDOC's practice as 
such in this regard.
22  We therefore need not, and do not, rule  on this aspect of the US request for a 
preliminary ruling. 
7.56 In our view, however, it is nevertheless clear that section A.4 takes issue with an alleged 
irrefutable presumption in the context of sunset review s.  Further, the first sentence links this alleged 
presumption to the USDOC's determination in the instant sunset review whereas the second sentence 
links it to the USDOC's practice. 
(b) Argentina's claim regarding the alleged irrefutable presumption under US law as such 
7.57 The United States  asserts that Argentina's claim that 19 USC. §§ 1675(c) and 1675(a)(c), the 
SAA, and the SPB, taken together, establish an irre futable presumption that is inconsistent with 
Article 11.3 of the Anti-Dumping Ag reement is not within our terms of reference because this claim is 
not set out in Argentina's panel request.  The United St ates argues that section A.4, which is the only 
place where Argentina is raising its claim regardi ng this alleged presumption, is limited to the 
USDOC's determinations in this sunset review and thus does not challenge the US law. 
7.58 Argentina  submits that section A.4 of its panel reque st clearly states that Argentina's claim 
regarding the irrefutable presumption is premised on  Argentina's allegation that the US law contains 
such a presumption.  Therefore, this claim is within the Panel's terms of reference. 
7.59 We note once again that section A.4 of  Argentina's panel request reads: 
4. The Department's Sunset Determination is inconsistent 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 recurrence of dumping.  This unlawful presumption is evidenced by the consistent practice of the 
Department in sunset reviews (whi ch practice is based on US law
 and the 
Department's Sunset Policy Bulletin ).  (emphasis added) 
7.60 We note that section A.4 of the panel request contains the phrases "irrefutable presumption 
under US law as such" and "practice is based on US law and the Department's Sunset Policy 
Bulletin".  Thus, we consider that the text of this section is sufficiently clear to put the United States 
on notice that Argentina may pursue a claim against US law as such regarding the alleged irrefutable 
presumption. 
(c) Argentina's claim under Article X:3(a) of the GATT 1994 
7.61 The United States  argues that section VII.E of Argentina' s first written submission introduces 
a claim of inconsistency with Article X:3(a) of th e GATT 1994 regarding the US practice as such and 
as applied in the instant sunset review.  However, in the view of the United States, section A.4 of 
Argentina's panel request challenges only the USDO C's sunset determination in the instant sunset 
review, not the US practice as such. 
7.62 Argentina  argues that section A.4 of its panel request clearly contains a claim under 
Article X:3(a) of the GATT 1994 regarding the US practice as such and as applied in the instant sunset review. 
                                                     
 
22 See, infra , para. 7.168.  WT/DS268/R 
 Page 21 
 
 
7.63 We note that this aspect of the US request for a preliminary ruling is the same as the one the 
United States raised in the context of its challenge regarding page four of Argentina's panel request.  
Therefore, on the basis of our above analysis ( supra , para. 7.29) we decline the US request here. 
(d) Argentina's claim regarding the USITC's sunset determinations in the instant sunset review 
7.64 The United States  contends that section VIII.C.2 of Argentina's first written submission 
contains a claim regarding the USITC’s application of 19 U.S.C. 1675a(a)(1) and (5) in the instant sunset review.  According to the United States, ho wever, the relevant portion of Argentina's panel 
request, section B.3, is limited to the US statutor y provisions "as such" and makes no reference to the 
instant sunset review. 
7.65 Argentina  asserts that the heading of section B of its panel request clearly states that 
Argentina is also challenging the application of the US statutory provisions by the USITC in the 
instant sunset review. 
7.66 We note that this aspect of the US request for a preliminary ruling is the same as the one the 
United States raised in the context of its challenge regarding page four of Argentina's panel request.  
Therefore, on the basis of our above analysis ( supra , paras. 7.31-7.32) we decline the US request here. 
(e) Argentina's consequential claims under Article s 1 and 18 of the Anti-Dumping Agreement, 
Article VI of the GATT 1994 and Ar ticle XVI:4 of the WTO Agreement 
7.67 The United States submits that Article VI of the GATT  1994, Articles 1 and 18 of the Anti-
Dumping Agreement and Article XVI: 4 of the WTO Agreement that are being raised in section IX of 
Argentina's first written submission only appear on pa ge four of Argentina's pa nel request.  Given the 
US assertion that page four is not within our term s of reference, the United States argues that we 
should find these claims to be outside our terms of reference. 
7.68 Argentina  argues that given that these provisions  are cited as consequential claims, their 
mere citation on page four of Argentina's panel reque st is sufficient to present the problem clearly in 
conformity with Article 6.2 of the DSU . 
7.69 We note that this aspect of the US request for a preliminary ruling is the same as the one the 
United States raised in the context of its challenge regarding page four of Argentina's panel request.  Therefore, on the basis of our above analysis ( supra , para. 7.34) we decline to rule on the US request. 
(f) Conclusion 
7.70 In conclusion, we decline the US request for preliminary rulings regarding certain matters that 
are allegedly not raised in Argentina's panel request. 
3. The Issue of Prejudice 
7.71 Finally, we note that as our analysis with resp ect to the totality of the United States' request 
for preliminary rulings was based on a textual analys is of Argentina's panel request, we did not need 
to inquire into the issue of whether the United States had been prejudiced in its right to defend itself in 
the present proceedings due to the alleged inconsiste ncies in the panel request.  We nevertheless note 
that the United States has not shown to the Panel that it had been prejudiced in its right to defend itself 
in these proceedings due to these alleged inconsistencies in Argentina's panel request.  In several 
instances, the United States argued that it did not know what case it had to answer because of the lack WT/DS268/R 
Page 22  
 
of precision with respect to certain  parts of Argentina's panel request.
23  However, we consider that 
without supporting arguments, this simple allega tion can not be taken to establish prejudice.24 
C. CLAIMS REGARDING US LAW25 AS SUCH 
1. Waiver Provisions under US Law 
(a) Arguments of parties 
(i) Argentina 
7.72 Argentina argues that Section 751(c)(4) of th e Tariff Act and Section 351.218(d)(2)(iii) of the 
Regulations ("hereinafter "waiver provisions"), which relate to the circumstances in which an exporter 
waives its right to participate in a sunset review, ar e inconsistent with Article 11.3 of the Agreement.  
Argentina submits that these waiver provisions, un der certain circumstances, direct the USDOC to 
find likelihood of continuation or recurrence of du mping without carrying out a substantive review as 
required under Article 11.3.  Argentina contends that  Article 11.3 requires th e investigating authority 
to take an active role in sunset reviews.  In  order to make the required determination under 
Article 11.3, the investigating authority has to gather  and evaluate relevant facts. It can not passively 
assume that dumping is like ly to continue or recur. 
7.73 According to Argentina, the US waiver prov isions also violate Articles 6.1, 6.2 and 
consequently 11.4 of the Agreement because they de ny exporters involved in a sunset review the 
opportunity to submit evidence to the investigating authority and to defend themselves in sunset 
reviews. 
(ii) United States 
7.74 According to the United States, apart from th e cross-references in Articles 11.4 and 12.3, 
Article 11.3 is the only provision in the Agreement that sets out the rules that govern sunset reviews.  
Aside from the obligations set out in these provisions, the Agreement leaves the conduct of sunset 
reviews to the discretion of the investigati ng authorities.  Article 11.3 does not require the 
investigating authorities to conduct a full sunset re view, as defined under US law, in all cases.  
Investigating authorities would have wasted their an d some private parties' resources had they been 
required to conduct a full sunset review in all ca ses.  The United States argues that the waiver 
provisions simply determine the factual ba sis upon which the USDOC will make sunset 
determinations and in no way prevent the USDOC fr om making the requisite likelihood determination 
under Article 11.3.  The waiver provisions effectua te the expeditious completion of sunset reviews 
vis-à-vis interested parties that fail to submit substant ive responses to the notice of initiation of a 
sunset review, as allowed under Article 6.14 of the Agreement. 
7.75 The United States also contends that the waiver  provisions do not contradict Articles 6.1 and 
6.2 of the Agreement.  The United States argues th at US law provides interested parties in sunset 
reviews with ample opportunity to submit evidence and to defend their interests as required in these provisions.  According to the United States, sinc e the evidentiary standards for expedited sunset 
                                                     
 
23 See, for instance, First Written Submission of the United States, para. 110; Second Oral Submission 
of the United States, para. 41. 
24 We find support for this approach in the Appellate Body decision in Korea-Dairy  and the panel 
decision in HFCS .  See, Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain 
Dairy Products ("Korea – Dairy "), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 131; Panel 
Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States  
("Mexico – Corn Syrup  "), WT/DS132/R and Corr.1, adopted 24 February 2000, DSR 2000:III, 1345, para. 7.17. 
25 Throughout this report, we use the term "US law" to refer to the relevant statutory provisions, the 
Regulations and other legal instruments in the US legal system, such as the SAA and the SPB.  WT/DS268/R 
 Page 23 
 
 
reviews provided for under US law are consistent w ith Article 6, the fact that the United States 
provides interested parties in full sunset review s with extended opportunities to submit evidence can 
not render US law WTO-inconsistent. 
(b) Arguments of third parties 
(i) European Communities 
7.76 The European Communities criticises the SAA' s mere concentration on the issue of the 
extraordinary administrative burden on the agency resources and on achieving administrative 
efficiency.  Though acknowledging the importance of such objective, the European Communities 
submits that, as a matter of WTO law, resource allo cation issues could never justify the disregard of 
Article 11.3 in sunset reviews. 
(ii) Japan 
7.77 Japan agrees with Argentina that the waiver provisions of US law are inconsistent with 
Articles 6, 11.3 and 18.4 of the Anti-Dumping Ag reement and Article XVI:4 of the WTO Agreement. 
(iii) Korea 
7.78 Korea submits that all interested parties have to  be given the opportunity to present evidence 
and to defend their interests.  In Korea’s view, expedited sunset reviews – whether on the basis of 
waiver or inadequacy – conflict with Articles 6.1 and 6.2.  Korea also argues that the USDOC's 
practice does not comply with the provisions of Ar ticle 6.8 and Annex II of the Agreement governing 
the use of facts available. 
(iv) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
7.79 According to the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, 
although the conduct of an expedited sunset review  in and of itself is not WTO-inconsistent, the 
provisions that direct the USDOC to make a likelih ood determination in cases where interested parties 
waive their right to particip ate are inconsistent with Article 11.3 of the Agreement. 
(c) Evaluation by the Panel 
(i) Alleged Violations of Article 11.3 of the Agreement 
Measures at issue  
7.80 Argentina challenges the waiver provisions of US law as such.26  Specifically, Argentina's 
claim relates to Section 751(c)(4) of the Tariff Act and Section 351.218(d)(2)(iii) of the Regulations.  
Argentina does not challenge Secti on 351.218(d)(2)(i) of the Regulations.  We did, however, refer to 
Section 351.218(d)(2)(i) of the Regulations as context for analysis below. 
7.81 Section 751(c)(4) of the Tariff Act of  1930 provides, in relevant part: 
(4) Waiver of participation by certain interested parties 
(A) In general 
                                                      
26 Argentina is not challenging the provisions of US law regarding expedited sunset reviews as such.  
See, Response of Argentina to Question 1 from the Panel Following the Second Meeting. WT/DS268/R 
Page 24  
 
An interested party described in section 16 77(9)(A) or (B) of this title may elect not 
to participate in a review conducted by  the administering authority under this 
subsection and to participate only in the review conducted by the Commission under 
this subsection. 
(B) Effect of waiver 
In a review in which an interested party waives its participation pursuant to this 
paragraph, the administering authority shall conclude
 that revocation of the order or 
termination of the inves tigation would be likely  to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that 
interested party .27  (emphasis added) 
7.82 Next, we turn to Section 351.218(d)(2) of the USDOC's Sunset Regulations, which provides 
in relevant part: 
(2) Waiver of response by a respondent in terested party to a notice of initiation– 
(i) Filing a Statement of Waiver. A re spondent interested party may waive 
participation  in a sunset review before the Department under Section 751(c)(4) of the 
Act by filing a Statement of Waiver with th e Department, not later than 30 days after 
the date of publication in the Federal Re gister of the notice of initiation. If a 
respondent interested party waives partic ipation in a sunset review before the 
Department, the Secretary will not accept or consider any unsolicited submissions 
from that party during the course of the review. Waiving participation in a sunset 
review before the Department will not affect a party's opportunity to participate in the 
sunset review conducted by the International Trade Commission.  (emphasis added) 
... (iii) No response from an interested party. The Secretary will consider the failure
 by a 
respondent interested party to file a comp lete substantive response to a notice of 
initiation under paragraph (d)(3) of this section as a waiver of participation  in a sunset 
review before the Department.28  (emphasis added) 
7.83  We note that Section 751(c)(4)(A) of the Tariff Act provides that an interested party may 
elect to waive its participation in sunset review proceedings conducted by the USDOC and participate 
only in sunset review proceedings conducted by the USITC.  Section 351.218(d)(2)(i) of the 
Regulations provides that an inte rested party may waive participatio n by filing a statement of waiver 
with the USDOC.  We will refer to this as an "explicit"  or "affirmative" waiver .  Further, according to 
Section 351.218(d)(2)( iii) of the Regulations, the USDOC will c onsider the failure of an interested 
party to submit a complete substantive response to  the notice of initiation of a sunset review to 
constitute a waiver of participation in the USDOC's sunset review proceedings.  We will refer to this 
as an "implicit"  or "deemed" waiver .   
7.84 On the basis of the above-cited provisions of US law, we understand the operation of the 
waiver provisions to be as follows:  Following the publication of the notice of initiation of a sunset 
review, foreign exporters (referred to as "respondent interested parties" under US law) which desire to 
participate in the sunset review proceedings befo re the USDOC must submit a complete substantive 
response to the USDOC.  For the substantive response to be complete, it has to contain all of the items 
listed in Section 351.218(d)(3) of the Regulations.  According to Section 751(c)(4)(A) of the Tariff 
                                                      
27 Codified in 19 U.S.C. § 1675(c)(4) (Exhibit  ARG-1 at 1152). 
28 Codified in 19 C.F.R. § 351.218(d)(2) (Exhibit ARG-3).  WT/DS268/R 
 Page 25 
 
 
Act, an interested party in a sunset review may el ect to waive its right to participate in the USDOC 
part of a sunset review.  Section 351.218(d)(2)(i) of  the Regulations provides that interested exporters 
who wish to waive participation may do so by submitting a statement of waiver to the USDOC.  
Under Section 351.218(d)(2)(iii) of the Regulations, an exporter's failure to submit a complete 
substantive response to the notice of initiation is deemed to constitute a waiver of its right to 
participate in the USDOC proceedings.  In either case, the application of Section 1675(c)(4) of the 
Tariff Act leads to the same result: The USDOC "s hall" find likelihood of continuation or recurrence 
of dumping with respect to an exporter which waives its right to participate. 
7.85 We consider it important to note that the dis tinction between affirmative and deemed waivers 
stems from Section 351.218(d)(2)(iii) of the Regulations, not the Tariff Act.  The Tariff Act simply 
provides that interested parties ma y choose not to participate in the USDOC part of a sunset review, 
and that the effect of a waiver is an affi rmative finding of likelihood by the USDOC.  
Section 351.218(d)(2)(iii) of the Regulations, howev er, creates the deemed waiver category by 
stipulating that submission of an incomplete, or no, response to the notice of initiation also constitutes 
a waiver.  Therefore, our findings  regarding affirmative waivers will have implications on the Tariff 
Act whereas those relating to deemed waivers will only affect Section 351.218(d)(2)(iii) of the 
Regulations. 
Nature of the obligations in Article 11.3    
7.86 Argentina contends that the above-cited waiver pr ovisions of US law are inconsistent with the 
investigating authorities' obligation to determine li kelihood of continuation or recurrence of dumping 
under Article 11.3 of the Agreement. 
7.87 Article 11.3 of the Anti-Du mping Agreement reads: 
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not late r than five years from its imposition (or 
from the date of the most r ecent review under paragraph 2 if that review has covered 
both dumping and injury, or under this pa ragraph), unless the authorities determine, 
in a review initiated before that date  on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry within a 
reasonable period of time prior to that date, that the expiry of the duty would be likely 
to lead to continuation or recurrence of dumping and injury.22  The duty may remain 
in force pending the outcome of such a review. 
___________ 
22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a 
finding in the most recent assessment pr oceeding under subparagraph 3.1 of Article 9 
that no duty is to be levied shall not by itself require the authorities to terminate the 
definitive duty. 
7.88 Article 11.3 provides that an anti-dumping duty must be terminated after five years "unless 
the authorities determine, in a review ..." that expiry of the duty would be likely to lead to continuation 
or recurrence of dumping and injury.  The ordinary meaning of "determine" is, inter alia , "settle or 
decide (a dispute, controversy, etc., or a senten ce, conclusion, issue, etc.) as a judge or arbiter"29.  This 
ordinary meaning seems to fit the usage of "deter mine" in Article 11.3, which requires that the 
investigating authority determine that dumping and injury is likely to continue or recur in a case 
where the duty is revoked.  The Article 11.3 obligation to “determine” the likelihood of continuation 
or recurrence of dumping requires the investigating authority to make a reasoned finding on the basis 
                                                      
29 The New Shorter Oxford English Dictionary, Oxford University Press, p. 651. WT/DS268/R 
Page 26  
 
of positive evidence that dumping is likely to con tinue or recur should the measure be revoked.  The 
obligation to make such a determination precludes an investigating authority from simply assuming 
that likelihood exists.  The authority must act with an appropriate degree of diligence and arrive at a 
reasoned conclusion on the basis of information gather ed as part of a process of reconsideration and 
examination.
30 
7.89 Accordingly, we consider that Article 11.3 requires that an investigating authority's 
determination that dumping is likely to continue or recur must be supported by reasoned and adequate 
conclusions based on the facts before it in a sunset  review.  We will therefore consider whether the 
waiver provisions of US law prevent the USDOC fr om making such a determination in situations 
where an interested party has waived its ri ght to participate in a sunset review .31 
Examination of the consistency of the waiver provisions  
7.90 In the context of its claim under Article 11.3 of the Agreement, Argentina is challenging the 
provisions of US law relating to both affirmative and deemed waivers.32  We will, therefore, analyse 
both of these two types of waivers in light of th e investigating authorities' obligation to determine 
likelihood of continuation or recurr ence of dumping under Article 11.3. 
Deemed waivers 
7.91 We recall that under 351.218(d)(2)(iii) of the USDOC's Regulations, there will be a deemed 
waiver in cases where an exporter submits an incomp lete – or no – substantive response to the notice 
of initiation of a sunset review.  Pursuant to S ection 751(c)(4)(B) of the Tariff Act, which makes no 
distinction between affirmative an d deemed waivers, the consequence of a waiver is a finding of 
likelihood of continuation or r ecurrence of dumping by the USDOC with respect to that exporter. 
7.92 The first factual situation that leads to a deemed waiver is the submission by an exporter of an 
incomplete substantive response to the notice of initiation of a sunset review.  In this case, the 
exporter intends to participate in the sunset revi ew and submits information to the USDOC.  However, 
the submission is not complete, i.e. it does not cont ain all the information that US law requires to be 
submitted in a substantive response to the notice of initiation of a sunset review.  US law mandates a 
finding of likelihood in this case. 
7.93 In our view, where the foreign exporter submit s information to the USDOC, the obligation to 
make a reasoned determination of likelihood unde r Article 11.3 of the Agreement requires the 
USDOC to take that information into consideration in its sunset determination.33  Taken together, 
however, Section 751(c)(4)(B) of the Tariff Act and Section 351.21 8(d)(2)(iii) direct the USDOC to 
find that likelihood exists with respect to a give n exporter simply because the exporter's substantive 
response to the notice of initiation does not contain so me of the information pres cribed under US law.  
                                                      
30 We find support for this approach in the Appellate Body decision in US – Corrosion-Resistant Steel 
Sunset Review .  See, Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), 
WT/DS244/AB/R, 15 December 2003, paras. 111-115. 
31 We note that it is clear, and United States has not argued to the contrary, that waiver provisions bind 
the USDOC.  Therefore, in the context of Argentina's present claim, we do not need to address the applicability 
of the mandatory/discretionary distinction.  The only issue in this context is whether or not the content of the waiver provisions is WTO-inconsistent. 
32 Response of Argentina to Question 1 from the Panel Following the Second Meeting. 
33 Except, of course, to the extent it was entitled to disregard such information pursuant to Article 6.8 
and Annex II of the Agreement.  The United States has not, however, argued that US law regarding waiver provisions can be justified under those provisions. This does not of course prejudge the credibility and relevance 
of, and weight to be given to, the information submitted by an exporter, which will vary from case to case.  The 
waiver provisions of US law, however, preclude the USDOC from considering these matters.  WT/DS268/R 
 Page 27 
 
 
Thus, the USDOC is precluded from taking into consid eration, in its determin ation with respect to a 
given exporter, the facts submitted by that exporter (o r any other facts before it that might be relevant 
to its determination), and it is further precluded fr om receiving, much less considering, any other facts 
relevant to this question.  To the contrary, it is required to make an affirmative determination on the 
basis of one fact alone: the failure of the exporter  to submit a complete substantive response to the 
notice of initiation of a sunset review.34  In our view, this can not be a determination supported by 
reasoned and adequate conclusions based on the facts before an investigating authority. 
7.94 The second situation that may lead to a deemed wa iver is failure to resp ond at all to the notice 
of initiation of a sunset review.  In  this case, the exporter concerned neither explicitly waives its right 
to participate nor submits any information to the USDOC.  Under Section 351.218(d)(2)(iii) of the Regulations, this situation is  also deemed to constitute a waiver of participation.
35  Pursuant to 
Section 751(c)(4)(B) of the Tariff Act, the USDOC is  required to find likelihood with respect to the 
exporter that remains silent following th e publication of the notice of initiation. 
7.95 We recall our view that Article 11.3 requires that an investigating authority's determination 
that dumping is likely to continue or recur be supported by reasoned and adequate conclusions based on the facts before the authority in a sunset review.  In the factual situation we are now analyzing, the 
failure of the exporter to put any information before the USDOC may mean that the USDOC has little 
or no information before it that is relevant to whet her dumping by that exporter is likely to continue or 
recur (although some relevant evidence, such as the results of administrative reviews, may 
nevertheless be available).  Such non-cooperation clearly is not without consequences for the 
exporter.  Under these circumstances, the USDOC may, consistent with the terms of Article 6.8 and Annex II of the Agreement, resort to the use of  the facts available, including information from 
secondary sources.  As Annex II clearly indicates, "this situation could lead to a result which is less 
favourable to the party than if the party did cooperate" .  It is clear to us that in this context, the 
USDOC may have no choice but to make its determ ination on the basis of a more limited and less 
robust record than would exist had the exporter co-o perated.  This does not,  however, mean that the 
USDOC may be automatically authorized, and indeed required, to make an affirmative finding that 
the continuation or recurrence of dumping by the exporter is likely, without any further inquiry and 
irrespective of any rele vant evidence before it.
36  In our view, an affirmative determination based 
exclusively upon the fact that the exporter did not respond to a notice of initiation, and which 
disregards entirely even the possibility that other re levant information might be in the record, is not 
supported by reasoned and adequate conclusions based on the facts before an investigating authority, inconsistently with Article 11.3.
37   
                                                      
34 We note that Section 351.218(d)(2)(iii) of the USDOC's Regulations does not take account of the 
amount of the missing information in a substantive response to the notice of initiation when declaring that 
response to be "incomplete".  In other words, this section provides on its face that no matter how minimal the 
quantity or the quality of the missing information is, if the response to the notice of initiation is incomplete the result will be an automatic finding of likelihood of continuation or recurrence of dumping by the USDOC. 
35 The United States confirmed that under US law failure to respond at all to the notice of initiation of a 
sunset review is equal to the submission of an incomplete substantive response.  Response of the United States to Question 8 from the Panel Following the First Meeting. 
36 As previously noted ( supra , note 33), the United States does not argue that its waiver provisions may 
be justified under Article 6.8 and Annex II of the Agreement. 
37 We note that this approach to non-cooperation in a sunset review is no different from the approach 
that an investigating authority takes in an original investigation.  If an exporter fails to respond to a 
questionnaire or otherwise to participate in an investigation, the investigating authority may resort to the facts 
available.  While it is likely, and perhaps highly probable, that the investigating authority's determination based on facts available will be unfavourable to the exporter, this would not exclude the investigating authority from 
the obligation to make a determination based on such information as was available to it pursuant to the rules set 
forth in Article 6.8 and Annex  II of the Agreement. WT/DS268/R 
Page 28  
 
Affirmative waivers 
7.96 Under Section 751(c)(4)(A) of the Tariff Act an d Section 351.218(d)(2)(i) of the Regulations, 
an exporter may file a statement of waiver declarin g that it will not participate in the USDOC portion 
of a sunset review.  In this situation, Section 751( c)(4)(B) directs the USDOC to make an affirmative 
finding of likelihood with regard to the exporter that explicitly waives its right to participate in the 
USDOC part of the sunset review. 
7.97 Argentina asserts that Section 751(c)(4)(B) of the Tariff Act requires a finding of likelihood 
for an exporter that explicitly waives its right to pa rticipate in a sunset review and is inconsistent with 
the obligation to determine set out in Article 11.3  of the Agreement.  According to Argentina, the 
investigating authority has the obligation to carry out an examination on the basis of positive evidence 
to make a reasoned determination even in a case of an affirmative waiver.  It can not simply assume 
that dumping is likely to continue  or recur without any analysis.
38 
7.98 We note that in a sunset review where an exporter explicitly states that it intends not to 
participate in the review, it is likely to be much ea sier for the investigating authority to discharge its 
obligation to determine likelihood with respect to that  particular exporter, compared with an exporter 
that fully cooperates with the investigating authority.   This is because in most cases the bulk of the 
information concerning the issue of whether an exporter is likely to continue or recur to dump in the 
event of revocation of the order will be  submitted by the exporter concerned. 
7.99 We nevertheless consider that even in a case of affirmative waiver, the investigating 
authority's obligation to make a determination supported by reasoned and adequate conclusions based 
on the facts before it continues to apply.  The investigating authority can not simply assume, without 
further inquiry, that dumping is likely to con tinue or recur because the exporter chose not to 
participate in the review.  In this respect, we incorporate our above analysis ( supra , paras. 7.94-7.95) 
regarding deemed waivers in cases  where the exporter remains sile nt following the initiation of the 
sunset review.  In our view, therefore, the provis ions of US law relating to affirmative waivers are 
also inconsistent with the obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3 of the Agreement. 
Company-specific vs. order-wide sunset determinations
 
7.100  The United States submits that, under US law, the final likelihood determination in a sunset 
review is made on an order-wide basis for a co untry.  Although US law mandates an affirmative  
finding of likelihood with respect to exporters that have waived their right to participate in a sunset 
review, it does not do so with respect to the order-wide determination.39  Therefore, depending on 
whether there are exporters that have waived their ri ght to participate, a US sunset review may include 
two steps:  If no exporter has waived its right to participate, there will only be one sunset 
determination, which will be made on an order-wide basis.  If, howe ver, some exporters have waived 
their right to participate, then the USDOC will ma ke an affirmative likelihood determination with 
respect to these exporters.  The USDOC will then make a final order-wide s unset determination for 
the country.40  Depending on the share of the exporters that have submitted a complete substantive 
                                                      
38 Response of Argentina to Question 1 from the Panel Following the Second Meeting. 
39 Response of the United States to Questions 4(c) and 5(d) from the Panel Following the First 
Meeting; Second Written Submission of the United States, para. 21. 
40 Under US law, in cases where the respondent interested parties submitting a complete substantive 
response to the notice of initiation account for less than 50 per cent of the total exports of the subject product 
into the United States over the five-year period preceding the initiation of the sunset review, their complete 
substantive responses will be considered to be inadequate under Section 351.218(e)(1)(ii)(A) of the Regulations.  According to Section 751(c)(3 )(B) of the Tariff Act and Section 351.218( e)(1)(ii)(C)(2) of th e Regulations, in 
case of an inadequate substantive response, the USDOC will conduct an expedited sunset review and will, 
"without further investigation", make its sunset determinations on the basis of facts available.  WT/DS268/R 
 Page 29 
 
 
response to the notice of initiation, that final dete rmination will be made either through a full or an 
expedited sunset review.  The United States, therefore, submits that the waiver provisions do not 
violate Article 11.3 of the Agreement because they do not determine, in and of themselves, the final 
outcome of a sunset review; they only determine the outcome of the first step.41 
7.101  Even focusing on the final order-wide determin ation, we find the US argument unconvincing.  
As explained above, Article 11.3 requires that an investigating authority's determination that 
continuation or recurrence of dumping is likely must be supported by reasoned and adequate 
conclusions based on the facts before it.  The United States concedes that company-specific likelihood 
determinations are "considered" when making an order-wide likelihood determination, and argues 
only that they do not determine, in and of themselves, the order-wide result.42  To the extent that the 
order-wide determination of likelihood is based in whole or in part upon a company-specific 
determination that was improperly established, we  do not see how the order-wide determination can 
be supported by reasoned and adequate conclusions based on the facts before the investigating 
authority. 
7.102  We note in this regard that a company-specific determination of likelihood may have a 
significant, if not conclusive, impact on an order-wide determination.  Where, for example, the exporter that has waived participa tion is the only exporter, the company-specific result is likely to be 
conclusive.  In fact, we asked the United States whether the USDOC had ever made an affirmative 
likelihood determination with respect to some exporters that had waived their right to participate, and 
then found no likelihood on an order-wide basis.  The United States responded in the negative.
43  Nor 
has the United States cited a provision of US la w that clearly states that the order-wide sunset 
determinations are independent from the company-sp ecific determinations made pursuant to the 
waiver provisions. 
Conclusion  
7.103  In conclusion, we find that both affirmative a nd deemed waivers provisio ns of US law, i.e. 
Section 751(c)(4)(B) of the Tariff Act and Section 351.218(d)(2)(iii) of the USDOC's Regulations, are 
inconsistent with the investigating authorities' ob ligation to determine likelihood of continuation or 
recurrence of dumping under Article 11 .3 of the Anti-Dumping Agreement. 
(ii) Alleged Violations of Articles 6.1 and 6.2 of the Agreement 
7.104  Argentina  argues that deemed waivers provisions of  US law, i.e. Section 351.218(d)(2)(iii) 
of the Regulations, violate Articles 6.1 and 6.2 of the Agreement because by precluding the USDOC 
                                                      
41 See, for example, Second Written Submission of th e United States, para. 21; Response of the United 
States to Question 2 from the Panel Following the First Meeting. 
In this context, we note that, as the United States asserts, both the SAA and the SPB clearly provide 
that the USDOC will make its sunset determinations on an order-wide basis.  The SAA (Exhibit US-11 at 879); the SPB (Exhibit ARG-35 at 18872).  We also note the Appellate Body's ruling in US – Corrosion-Resistant 
Steel Sunset Review that sunset determinations can be made on an order-wide basis.  Appellate Body Report, US 
– Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 155. 
42 In this respect, the United States stated: 
The United States has not argued that a waiver “does not affect” the final order-wide 
likelihood determination.  While the individual affirmative likelihood determinations may affect the order-wide likelihood determination, they do not determine, in and of themselves, 
the ultimate outcome of the order-wide analysis.  Commerce considers all the information on 
the administrative record, including prior agency determinations and the information 
submitted by the interested parties or collected by Commerce, as well as any individual affirmative likelihood determinations, when making the order-wide likelihood determination. 
Response of the United States to Question 4(b) from the Panel Following the Second Meeting. 
43 Response of the United States to Question 4(a) from the Panel Following the Second Meeting. WT/DS268/R 
Page 30  
 
from making the required likelihood determinatio n under Article 11.3, these provisions deprive 
interested parties of their right to  submit evidence and to defend thei r interests, inconsistently with 
Articles 6.1 and 6.2, respectively. 
7.105  The United States  asserts that no provision of US law prevents interested parties from 
submitting evidence to the investigating authority and from defending their interests in sunset reviews 
in conformity with Articles 6.1 and 6.2 of the Agreement. 
7.106  We note that in the context of the present claim regarding US law, Argentina does not 
challenge affirmative waivers provisions and limits its claim to the deemed waivers provisions.  We 
shall, therefore, base our analysis exclusively on the deemed waivers provisions. 
Applicability of Articles 6.1 and 6.2 to Sunset Reviews
 
7.107  We note that Argentina's claim here is based on the assumption that Articles 6.1 and 6.2 of the 
Agreement apply to sunset reviews.  According to Argentina, these provisions apply to sunset reviews 
by virtue of the cross-reference in Article 11.4.  The United States contends that this cross-reference 
incorporates into sunset reviews only those provis ions of Article 6 that deal with evidence and 
procedure, but does not specifi cally dispute that Articles 6.1 and 6.2 fall within this category.44 
7.108  The first issue before us is, therefore, whether the provisions of Articles 6.1 and 6.2 apply to 
sunset reviews. 
7.109  Article 11.4 of the Anti-Du mping Agreement reads: 
The provisions of Article 6 rega rding evidence and procedure  shall apply to any 
review carried out under this Article.  Any such review shall be carried out 
expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.  (emphasis added) 
7.110  We note that the cross-reference in Article 11.4 of the Agreement makes the provisions of 
Article 6 regarding evidence and procedure applicable to sunset reviews.  We also note, however, that 
the cross-reference in Article 11.4 to Article 6 is  qualified by the language  "regarding evidence and 
procedure".  Considering that the drafters often did not qualify the cross-refere nces in other parts of 
the Agreement, we have to address the significance of this language with regard to the applicability in 
sunset reviews of paragraphs 1 and 2 of Article 6 cited by Argentina. 
7.111  In our view, two possible approaches can be ta ken regarding the meaning and effect of this 
qualifying language in Article 11.4:  First, it can be argued that on its face this  language suggests that 
there may be provisions in Article 6 that deal w ith matters other than "evidence and procedure".  
Otherwise, the drafters would not have inserted th is qualifying language in Article 11.4.  Therefore, 
when faced with the question of whether certain indi vidual paragraphs/provisions of Article 6 apply to 
sunset reviews, the treaty interpreter has to analys e the provision at issue with the qualifying language 
in Article 11.4 in mind to decide whether or not that provision deals with "evidence and procedure".  
The second approach could be that this language in  Article 11.4 does not qualify the cross-reference 
to Article 6; it simply reiterates the fact that Ar ticle 6 contains rules that deal with "evidence and 
procedure".  This is evidenced in the tit le of Article 6, which reads "Evidence". 
7.112  In our view, Articles 6.1 and 6.2 deal with "e vidence and procedure".  Article 6.1 of the 
Agreement sets out rules regarding interested part ies' right to be given notice of the information 
required by the investigating authority and an  ample opportunity to submit evidence to the 
investigating authority.  Article 6.2 provides that inte rested parties shall be given a full opportunity to 
                                                     
 
44 Response of the United States to Question 10(a) from the Panel Following the First Meeting.  WT/DS268/R 
 Page 31 
 
 
defend their interests.  Therefore, no matter which one of the above-cited tw o approaches is followed 
regarding the meaning of the qualifying language in Ar ticle 11.4, we consider that Articles 6.1 and 6.2 
apply to sunset reviews. 
Nature of obligations under Articles 6.1 and 6.2 of the Agreement  
7.113  Having concluded that the provisions of Articles 6.1 and 6.2 of the Agreement apply to sunset 
reviews, we now turn to the provisions of these two articles. 
7.114  Article 6.1 provides, in relevant part that: 
All interested parties in an anti-dumping investigation shall be given notice of the 
information which the authorities require and ample opportunity to present in writing 
all evidence which they consider relevant in respect of the investigation in question.   
7.115  We note that Article 6.1 stipulates generally that  an investigating authority in a sunset review 
must give notice of the information that it requires from interested parties an d allow interested parties 
ample opportunity to present in writing all evidence  that the interested parties themselves deem 
relevant to the defence of their position in that su nset review.  In its subparagraphs, Article 6.1 sets 
forth more specific procedural rights relating, inter alia , to questionnaires. 
7.116  Article 6.2 provides: 
Throughout the anti-dumping investigation all interested parties shall have a full 
opportunity for the defence of their interests.   To this end, the authorities shall, on 
request, provide opportunities for all intere sted parties to meet those parties with 
adverse interests, so that opposing view s may be presented and rebuttal arguments 
offered.  Provision of such opportunities mu st take account of the need to preserve 
confidentiality and of the convenience to th e parties.  There shall be no obligation on 
any party to attend a meeting, and failure to  do so shall not be prejudicial to that 
party's case.  Interested parties shall also have the right, on justification, to present 
other information orally. 
7.117  Article 6.2 generally deals with th e right of interested parties to defend their interests in an 
investigation and, by operation of Article 11.4, in a sunset review.  More specifically, it provides that 
the investigating authority must provide, on request , interested parties an opportunity to meet other 
interested parties in the proceeding to hear their views and to make their own views known to them.  
In other words, Article 6.2 grants interested parties a right to participate in a hearing or otherwise to 
confront those parties with adve rse interests.  Further, it gives interested parties the right, on 
justification, to present other information orally. 
Examination of the consistency of the deemed waivers provisions  
7.118  Turning to the provisions of US  law challenged by Argentina, i.e. those dealing with deemed 
waivers, we recall that the provision of US law that creates the deemed waiver category is 
Section 351.218(d)(2)(iii) of the USDOC's Regulations .  This section considers exporters submitting 
incomplete responses to the notice of initiation of a sunset review and those that submit no response at all to have waived their right to participate in a sunset review.  The consequence of having been 
deemed to waive the right to participate in a sunset review is the same as in the case of an affirmative 
waiver: an affirmative finding of likelihood of continuation or recurrence of dumping by the USDOC, 
as mandated by Section 751(c)(4)(B) of the Tariff Ac t.  In this respect, the Statute does not distinguish 
between affirmative and deemed waivers. WT/DS268/R 
Page 32  
 
7.119  In order to evaluate whether the provisions of US law regarding deemed waivers fall foul of 
Articles 6.1 and 6.2, we must first examine the pr ecise implications of a deemed waiver on an 
exporter's ability to participate in a sunset revi ew.  We shall then analyse separately two factual 
situations that lead to a deemed waiver, i.e. failu re to submit a complete response to the notice of 
initiation and failure to respond at all. 
7.120  We recall that Section 751(c)(4)(B) of the Ta riff Act requires the USDOC to make an 
affirmative finding of likelihood with respect to th e exporter that has elected to waive its right to 
participate.  Section 351.218(d)(2)(iii) of the USDOC' s Regulations provides that an exporter that has 
not filed a complete substantive resp onse to the notice of initiation of  a sunset review is deemed to 
have waived its right to participate.  As a result, that exporter will also be subject to an affirmative 
finding of likelihood by the USDOC. 
7.121  We note that in a deemed waiver situation, US  law does not allow the USDOC to take into 
account evidence submitted by an exporter in its incomplete submission when making its likelihood 
determination in respect of that exporter.
45  Further, it is clear that an exporter who has submitted an 
incomplete response is precluded from presenting  any further evidence to the USDOC (and in any 
event, the USDOC would be precluded from taking it into account when making its likelihood determination with respect to that exporter).  It is  also clear that the exporter would not be permitted 
to participate in hearings or other proced ures to confront other interested parties.
46  In fact, these 
conclusions flow naturally from the fact that the ex porter is deemed to have  waived participation in 
the review, and are not disputed by the United States. 
7.122  The first situation that may lead to a deemed wa iver is the submission by an exporter of an 
incomplete response to the notice of initiation.  We recall that under US law, an exporter that is 
deemed to have waived its right to participate by  submitting an incomplete response can not submit 
further evidence to the USDOC.  Further, we also recall that the USDOC is required to reach an 
affirmative likelihood determination with respect to this exporter without considering evidence 
submitted in the exporter's incomplete response.  It fo llows that the exporter is deprived of its right to 
submit evidence to the USDOC.  This obviously runs foul of Article 6.1 of the Agreement, which requires that interested parties be given an am ple opportunity to submit information to the 
investigating authority.  We see no provision in the Agreement that allows such denial of the 
procedural rights provided for in Article 6.1 on the grounds that the exporter made an incomplete 
submission to the notice of initiation. 
7.123  We also find US law to be inconsistent with Ar ticle 6.2 of the Agreement in that it denies an 
exporter that is deemed to have waived its right to participate in a sunset review by submitting an 
incomplete response to the notice of initiation of a suns et review the right to participate in a hearing or 
otherwise to confront thos e parties with adverse interests.  We find no justification in the Agreement 
that would allow such a departure from the provisions of Article 6.2 on the grounds that that exporter 
has submitted an incomplete response to the notice of initiation. 
7.124  The United States argues that the information contained in an incomplete submission of an 
exporter which is deemed to have waived its ri ght to participate is nevertheless taken into 
                                                     
 
45 Section 751(c)(4)(B) of the Tariff Act, codified in 19 U.S.C. § 1675(c)(4)(B) (Exhibit ARG-1 at 
1152). 
46 In this respect, we note the following statement of the United States: 
If an exporter in fact submitted an incomplete substantive response – a hypothetical situation – 
that exporter would be deemed to have waived its right to participate in the sunset review, 
pursuant to Section 351.218(d)(2)(iii).  Therefore, the exporter would not have the right to 
submit additional evidence or request a hearing. Response of the United States to Question 2(e) from the Panel to the United States Following the First 
Meeting.  We note that the United States made a similar statement in its second written submission.  See, 
Second Written Submission of the Unites States, para. 25.  WT/DS268/R 
 Page 33 
 
 
consideration by the USDOC in its order-wi de analysis for the country as a whole.47  According to the 
United States, therefore, deemed waivers provisio ns of US law are not inconsistent with the 
provisions of Article 6.1 of the Agreement. 
7.125  In our view, to the extent that the order-wide determination of likelihood is based in whole or 
in part upon a company-specific determination that was established inconsistently with Articles 6.1 
and 6.2 of the Agreement, we do not see how the orde r-wide determination can be interpreted as being 
consistent with these two provisions.  We consider that the violations of Articles 6.1 and 6.2 at the 
company-specific level would necessarily taint the USDOC's order-wide determination.  Assuming 
arguendo  that the USDOC does evaluate this informati on in its order-wide analysis consistently with 
the requirements of Articles 6.1 and 6.2, that ca n not cure the inconsistency stemming from the 
USDOC's failure to consider that information in the company-specific determination relating to the 
exporter submitting the information. 
7.126  Further, the United States has not clarified to us in what ways and for what purpose 
information submitted by an exporter that is not being used in the company-specific determination 
conducted for that particular ex porter can be used in the order-w ide sunset determination for the 
country subject to the sunset review.  For instance, in a sunset review where all exporters either failed 
to respond at all or submitted incomplete responses, the USDOC would have to make an affirmative 
likelihood determination with respect to all exporters  by virtue of Section 751(c)(4)(B) of the Tariff 
Act, without taking into account the informa tion contained in these exporters' incomplete 
submissions.  Yet, according to the US argument, the USDOC would conduct another order-wide 
analysis for the country as a whole in which it would consider the information contained in the incomplete submissions of these exporters.  We  do not understand how usefully this information 
could be considered for the country as a whole, given that it would not be used with respect to the 
individual exporter submitting it.  As we stated above ( supra , para. 7.102), there has never been a 
sunset review in which the USDOC found no like lihood in the order-wide analysis where it had 
already found likelihood for some exporters under the waiver provisions. This supports our view that the US explanation regarding the consideration of the evidence submitted in the incomplete responses 
of some exporters does not reflect the US practice and is far from convincing. 
7.127  The second situation that can lead to a deemed  waiver is an exporter's failure to respond, 
within the specified time period, to a notice of initiation.  Under US law, exporters that do not submit 
a timely substantive response to the notice of initiation of a sunset review are precluded from 
submitting any further evidence to the USDOC and from  requesting, or particip ating in, hearings.  In 
our view, the fact that an exporter failed to submit a substantive response to the notice of initiation at 
the outset of a sunset review can not justify depriv ing that exporter of its procedural rights under 
Articles 6.1 and 6.2 of the Agreement for the rest of  the sunset review.  We recognize that in many 
such cases the USDOC will be entitled to resort to  facts available under Article 6.8 and Annex II of 
the Agreement, which, in turn, may lead to an un favourable determination w ith respect to such an 
exporter.  In that regard, the USDOC may decline, on a case-by-case basis, to take into consideration evidence submitted by that exporter if the submission is not made within a reasonable time.
48  Article 
6.8 and Annex II do not, however, allow the USDOC  to disregard all evidence submitted by an 
exporter in the period following the deadline for th e submission of a substantive response to the notice 
of initiation on the ground that the exporter failed to  make such a submission in the first place.  The 
USDOC can only disregard information submitted by an exporter on the grounds, and by following 
the procedure, provided for in Article 6.8 and Annex II.  It follows that the deemed waivers provisions 
of US law violate Articles 6.1 and 6.2 of the Ag reement in this second factual situation too. 
                                                      
47 Response of the United States to Questions 2(e) and 7(b) from the Panel Following the First 
Meeting; Second Written Submission of the United States, para. 24. 
48 We find support for this proposition in the Appellate Body Report in US – Hot-Rolled Steel .  See, 
Appellate Body Report, US – Hot-Rolled Steel , supra , note 9, paras. 80-82.  WT/DS268/R 
Page 34  
 
Conclusion
 
7.128  In conclusion, we find Section 351.218(d)(2)( iii) of the USDOC's Regulations relating to 
deemed waivers to be inconsistent with  Articles 6.1 and 6.2 of the Agreement.49 
2. Alleged Irrefutable Presumption of Likelihood Under US Law/Practice 
(a) Arguments of parties 
(i) Argentina 
7.129  Argentina asserts that US law as such is incons istent with Article 11.3 because it contains an 
irrefutable presumption of likelihood of continua tion or recurrence of dumping in sunset reviews 
where certain factual scenarios are met.  According to  Argentina, US law in this respect consists of 
Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset reviews, and Section II.A.3 of the SPB.  Argentina considers that the statutory provisions cannot be 
analysed in isolation from the SAA and the SPB.  Argentina points out that the SAA and the SPB 
provide the USDOC with a simple checklist as the basis for the latter's decision as to whether there is 
a likelihood of continuation or recurrence of dumping.  The SPB contains three basic factual scenarios 
that would support a finding of likelihood of cont inuation or recurrence of dumping in a sunset 
review.  Therefore, rather than carrying out a pros pective analysis as required under Article 11.3 of 
the Agreement, the USDOC simply checks whether one of these three scenarios is present, and if so, 
concludes that there is a likelihood of continuation or recurrence of dumping should the measure be 
lifted.  Argentina argues  that USDOC has a consistent practi ce which demonstrates that the USDOC 
attributes a decisive relevance to th e factual scenarios set out in the SPB. 
7.130  Independently from its challe nge to US law, Argentina also argues that the USDOC's 
consistent practice as such is inconsistent with Ar ticle 11.3 of the Agreement because it embodies the 
WTO-inconsistent irrefutable presumption regarding the likelihood of continua tion or recurrence of 
dumping determinations in sunset reviews.  For inst ance, according to Argentina, in all sunset reviews 
in which a domestic interested party participat ed the USDOC found likelihood of continuation or 
recurrence of dumping.  According to Argentina, "practice that prescribe[s] a standard can be subject 
to WTO challenge."
50  Therefore, this practice is al so susceptible to a WTO challenge. 
7.131  If the Panel rejects Argentina's claim regarding the alleged irrefutable presumption under US 
law/practice, Argentina requ ires the Panel to find that the United States failed to administer its sunset 
review laws and regulations in a manner cons istent with Article X: 3(a) of the GATT 1994. 
(ii) United States 
7.132  The United States asserts that neither the SPB nor the SAA contains an irrefutable 
presumption regarding the likelihood of continuation or recurrence of dumping determinations in sunset reviews.
51  Even if they did, the United States contends that these two instruments do not 
                                                      
49 We note that Argentina also argues that violations of Articles 6.1 and 6.2 lead to consequential 
violations of Articles 11.3 and 11.4 of the Agreement.  Given that these are purely consequential claims, we 
exercise judicial economy and do not rule on them. 
50 First Written Submission of Argentina, para. 139. 
51 Regarding Argentina's challenge against the Tariff Act in the context of  this claim, the United States 
pointed out that: 
[Argentina] does not allege that any US statutory provision establishes the presumption, nor 
could it, because there is no such provision.  Instead, it turns to three items:  the SAA, the Sunset Policy Bulletin, and supposed Commerce “practice.” 
First Written Submission of the United States, para. 174. 
  WT/DS268/R 
 Page 35 
 
 
constitute "measures" for purposes  of WTO dispute settlement proceedings, nor are they binding legal 
instruments under US law.  They therefore can not be challenged in the WTO.  Similarly, the United 
States submits that the USDOC's practice concerni ng sunset reviews cannot be challenged under 
WTO law because practice as such is not a measure. 
(b) Arguments of third parties 
(i) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
7.133  Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu submits that the SAA and 
the SPB are not binding legal instruments under US law. Therefore, there does not seem to be an 
irrefutable presumption of likelihood of continua tion or recurrence of dumping under US law.  
Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu contends that no conclusive 
inference can be drawn from the USDOC's practice in sunset reviews. 
(c) Evaluation by the Panel 
(i) Status of the Sunset Policy Bulletin 
7.134  Argentina submits that US law is  inconsistent with Article 11.3  of the Agreement in that it 
contains an irrefutable presumption regarding the likelihood of continuation or recurrence of dumping 
determinations in sunset reviews.   In this respect, Argentina c onsiders that US law consists of 
Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of the SAA relating to sunset 
reviews, and Section II.A.3 of the SPB.  In Argent ina's view, to discern the meaning and operation of 
US law regarding this alleged presumption, the re levant provisions of these three legal instruments 
should be read and analysed in conjunction with one another. 
7.135  As an initial matter, the United States submits that the SPB does not constitute a measure that 
can be challenged in WTO dispute settlement proceedings because it is not a measure that has a functional life of its own under US law.  The United  States further argues that even if the Panel 
considers the SPB as a measure, it does not mandate WTO-inconsistent action because it is not a 
mandatory measure.  We understand the United States  to argue that the SPB can not possibly violate a 
WTO obligation because it is either not a measure at all, or because in any event it is not a mandatory 
measure.  
7.136  Turning first to the US argument that the SPB is not a measure of the type that may be subject 
to dispute settlement challenge, we  note that the Appellate Body in US – Corrosion-Resistant Steel 
Sunset Review  has made it clear that the concept of a "measure" that can be subject to a WTO 
challenge is very broad.  According to the Appella te Body, "any act or omission attributable to a 
WTO Member can be a measure of that Member fo r purposes of dispute settlement proceedings"
52 
(footnote omitted).  The Appellate Body further stated that any legal instrument under a WTO 
Member's law could also be challenged as a measur e before a WTO panel irrespective of the way in 
which it operates in individual cases.53  Given that the Appellate Body in US – Corrosion-Resistant 
Steel Sunset Review  was addressing precisely the issue of the SPB, there can be no doubt that the 
Appellate Body considers the SPB to be a measure that can be subject to WTO dispute settlement, and 
we will proceed accordingly.    
7.137  We next turn to the US contention that the SPB in any event cannot be found to be 
inconsistent with the WTO Agreement because it is not a mandatory  measure.  In advancing this 
argument, the United States is relying upon a series  of GATT and WTO dispute settlement panels that 
have found that only those provisions of a Member's law that mandate GATT/WTO-inconsistent 
                                                      
52 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 81. 
53 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 82. WT/DS268/R 
Page 36  
 
action or preclude GATT/WTO-consistent action can be found to be GATT/WTO-inconsistent.
54  
Under this approach, if the challenged provision pr ovides the executive branch with discretion, rather 
than requiring it to follow a certain course of action, then that provision can not be found to be 
inconsistent as such.55  Similarly, if the challenged provision does not have legal force, it could not be 
found to require WTO-inconsistent action.  Of course, the application  of that provision could 
nevertheless be found to be inconsistent if the di scretion inherent in the provision is exercised in a 
WTO-inconsistent manner. 
7.138  We note that the Appellate Body has so far no t pronounced its views about the status of the 
mandatory/discretionary test that has been applie d by WTO panels.  To the contrary, the Appellate 
Body has to date made clear, even in cases where th e mandatory/discretionary test was at issue, that it 
was not ruling on the validity of the test.56  It has, however, reviewed the "application" of that test by 
WTO panels.  In its decision in US – Corrosion-Resistant Steel Sunset Review , the Appellate Body 
disagreed with the panel's finding that "the Sunset  Policy Bulletin is not a mandatory legal instrument 
obligating a certain course of conduct and thus can not, in and of itself, give rise to a WTO 
violation".57  In this context, although the Appellate Bo dy did not consider that the appeal in that 
dispute required it to "undertake a comprehensiv e examination" of the mandatory/discretionary 
                                                      
54 The reason mandatory legislation mandating GATT-inconsistent behaviour must be challengeable 
was first explained by the GATT panel in US – Superfund .  See, Panel Report, United States – Taxes on 
Petroleum and Certain Imported Substances  ("US – Superfund "), adopted 17 June 1987, BISD 34S/136, 
para. 5.2.2.  The mandatory/discretionary distinction continued to be applied by other GATT and WTO panels.  
Regarding the application of this distinction by other GATT panels, see,  Panel Report, European 
Economic Community – Regulation on Imports of Parts and Components  ("EEC – Parts and Components "), 
adopted 16 May 1990, BISD 37S/132, pp. 198-199; Panel Report, Thailand – Restrictions on Importation of and 
Internal Taxes on Cigarettes  ("Thailand – Cigarettes "), adopted 7 November 1990, BISD 37S/200, pp. 227-228;  
Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages  ("US – Malt Beverages "), 
adopted 19 June 1992, BISD 39S/206, pp. 281-282 and 289-290;  Panel Report,  United States – Denial of Most-
Favoured Nation Treatment as to Non-Rubber Footwear from Brazil , adopted 19 June 1992, BISD 39S/128, 
p. 152. 
Regarding the application of this test by WTO panels, see, for instance, Panel Report, United States – 
Measures Treating Exports Restraints as Subsidies ("US – Export Restraints"), WT/DS194/R and Corr. 2,  
adopted 23 August 2001, para. 8.131; Panel Report, United States – Anti-Dumping Act of 1916, Complaint by 
Japan ("US – 1916 Act (Japan) "), WT/DS162/R and Add.1, adopted 26 September 2000, as upheld by the 
Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/ R, DSR 2000:X, 4831, para. 6.192; Panel Report, 
United States – Section 129(c)(1) of the Uruguay Round Agreements Act ("US – Section 129(c)(1) URAA "), 
WT/DS221/R, adopted 30 August 2002, para. 3.28. 
55 See, for example, Panel Report, US – Export Restraints , supra,  note 54, para. 8.131. 
56 In this regard, footnote 94 of the Appellate Body report in US – Corrosion-Resistant Steel Sunset 
Review provides: 
In our Report in  US – 1916 Act , we examined the challenged legislation and found that the 
alleged "discretionary" elements of that legislation were not of a type that , even under the 
mandatory/discretionary distinction , would have led to the measure being classified as 
"discretionary" and therefore consistent with the Anti-Dumping Agreement.   In other words, we assumed that the distinction could be applied because it did not, in any event, affect the 
outcome of our analysis.  We specifically indicated that it was not necessary, in that appeal, 
for us to answer "the question of the continuing relevance of the distinction between mandatory and discretionary legislation for claims brought under the  Anti-Dumping 
Agreement".  (Appellate Body Report, US – 1916 Act , para. 99).  We also expressly declined 
to answer this question in footnote 334 to paragraph 159 of our Report in US – Countervailing 
Measures on Certain EC Products .  Furthermore, the appeal in US – Section 211 
Appropriations Act
  presented a unique set of circumstances.  In that case, in defending the 
measure challenged by the European Communities, the United States unsuccessfully argued 
that discretionary regulations, issued under a separate law, cured the discriminatory aspects of the measure at issue. 
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 93. 
57 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 100.  WT/DS268/R 
 Page 37 
 
 
distinction, it observed that the import of the di stinction could vary from case to case, and cautioned 
against the application of the distin ction in a "mechanistic fashion".58 
7.139  Having reversed the finding of the panel in US – Corrosion-Resistant Steel Sunset Review , the 
Appellate Body, in Section VI.E of its report, cons idered whether it could itself complete the analysis 
and rule on the claim in question, which was essentially the same claim now being pursued by 
Argentina.59  It explained that a panel's analysis regarding a claim aimed at a WTO Member's law as 
such must start with the text of the challenged measure.   If the text alone fails to clarify the issue, then 
the panel can look to other evidence.  In this contex t, the Appellate Body recalled its earlier finding in 
US-Carbon Steel  that in such cases evidence about the consistent application of the challenged 
measure can be taken into account by panels.60  The Appellate Body discussed in some detail the 
issues it would have to resolve and the factual findin gs by the panel that would be required in order 
for it to rule on the claim in question. The Appella te Body concluded that the panel had not examined 
the nature and meaning of the relevant section of the SPB, nor had it considered evidence submitted 
by the complainant seeking to establish the consistent  application of that section.  The Appellate Body 
concluded that it was unable to rule on that claim because of the absence of relevant factual findings by the panel.
61 
7.140  We note that the Appellate Body's findings and its underlying reasoning appear to represent a 
significant shift from the mandatory/discretionary distinction previously applied by a number of 
GATT/WTO panels.  The Appellate Body did not, however, clearly state whether this decision meant 
that the mandatory/discretionary test has from now on to be applied in a different manner.  We are 
therefore left with a certain degree of uncertainty  regarding the content and the applicability of this 
test in WTO dispute settlement proceedings.  It is , however, clear to us from Section VI.E of the 
Appellate Body's Report that we must analyse the substance of Argentina's claim on the basis of the 
provisions of the SPB cited by Argentina.  It is only  as part of our substantive analysis of the SPB that 
we may decide whether it mandates WTO-inconsistent behaviour or precludes WTO-consistent 
behaviour.  We shall refrain from applying the mandatory/discretionary test in the abstract to determine whether the SPB can give rise to a WTO violation or not.  In the words of the Appellate Body, this would amount to applying the mentioned test in a "mechanistic fashion" and would not be 
acceptable.
62 
(ii) Standard regarding presumptions 
7.141  Regarding the WTO-consistency of a legal instru ment that contains presumptions concerning 
likelihood determinations in sunset  reviews, the Appellate Body in US – Corrosion-Resistant Steel 
Sunset Review  pointed out that: 
[A] firm evidentiary foundati on is required in each case for a proper determination 
under Article 11.3 of the likelihood of continuation or recurrence of dumping.  Such a 
determination cannot be based solely  on the mechanistic application  of 
presumptions.63  (emphasis added) 
... 
                                                      
58 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 93. 
59 The complainant argued that Section II.A.3 of the SPB was inconsistent with Article 11.3 "because it 
requires USDOC to make an affirmative likelihood determination in every case in which one of three scenarios exists".  Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 164.  
Unlike the complainant in that case, however, Argentina does not challenge the consistency of the "good cause" 
requirements of US law with respect to the submission of other evidence to the USDOC in these proceedings. 
60 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 168. 
61 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 190. 
62 Supra , note 58. 
63 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 178. WT/DS268/R 
Page 38  
 
As we have found in other situations, the use of presumptions may be inconsistent
 
with an obligation to make a particular  determination in each case using positive 
evidence.  Provisions that create "irrebuttable" presumptions, or "predetermine" a 
particular result, run the risk of being found inconsistent with this type of 
obligation.64  (footnote omitted, emphasis added) 
7.142  The Appellate Body then went on and opined that legal provisions that give a determinative, 
rather than probative, value to certain factors w ould be inconsistent with Article 11.3 of the 
Agreement.65  In this regard, the Appellate Body stated: 
We therefore consider that the consistency of Sections II.A.3 and 4 of the Sunset 
Policy Bulletin with Article 11.3 of the Anti-Dumping Agreement hinges upon 
whether those provisions instruct USDOC to treat dumping margins and/or import 
volumes as determinative or conclusive , on the one hand, or merely indicative or 
probative , on the other hand, of the likelihood of future dumping.66  (emphasis added) 
7.143  The Appellate Body has made it clear that Article 11.3 requires that a likelihood 
determination in a sunset review be based on a suffic ient factual basis, taking into consideration the 
circumstances of the case at issue.  It can not be based on presumptions that contain pre-determined 
conclusions for certain factual scenarios.  In  other words, a scheme that attributes a 
determinative/conclusive value to certain factors in sunset determinations is likely to violate 
Article 11.3. 
7.144  With these considerations in mind, we will analyse the provisions of US law cited by 
Argentina to decide whether they, either individually  or in conjunction with one another, give rise to 
the presumption alleged by Argentina.  We shall commence our analysis with the legal provisions 
cited by Argentina.  If the text of the legal provisi ons cited by Argentina does not allow us to reach a 
conclusion, then we shall also evaluate eviden ce that Argentina submitted regarding the alleged 
consistent application by the USDOC of these provisions of US law. 
(iii) Examination of the Measures Cited by Argentina 
7.145  Argentina generally argues that the alleged irre futable presumption under US law consists of 
the provisions of the Tariff Act, the SAA and the SPB.  As far as the Tariff Act is concerned, 
Argentina cited Sections 751(c) and 752(c) in its first wr itten submission whereas it only cited 752(c) 
in its second submission.  We note that although Ar gentina argues that the Panel should analyse these 
three legal instruments in conjunction with one another in deciding whether this irrefutable 
presumption exists under US law, it mainly focuses on the provisions of the SAA and the SPB in 
developing its arguments.67  We nevertheless commence our analysis with the relevant provisions of 
the Tariff Act and then analyse the SAA and the SPB.  In doing so, we shall evaluate the relevant 
provisions of these three measures individually and in conjunction with one another in deciding 
whether the alleged presumption exists. 
The Statute and the Statement of Administrative Action  
7.146  The provisions of the Tariff Act that are re levant to the present claim are found in 
Section 752(c), which provid es in relevant parts: 
                                                      
64 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 191. 
65 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 178. 
66 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 178. 
67 In fact, in the "Conclusion" section of its first written submission, Argentina submits that the Panel 
should find the SAA and Section II.A.3 of the SPB are inconsistent with Article 11.3 of the Agreement with 
respect to the alleged irrefutable presumption.  Argentina has not requested that a particular provision of the 
Tariff Act be found to be WTO-inconsistent in this regard.  WT/DS268/R 
 Page 39 
 
 
(c) Determination of likelihood of co ntinuation or recurrence of dumping 
(1) In general  
In a review conducted under section 1675(c) of this title, the administering authority 
shall determine whether revocation of an antidumping duty order or termination of a 
suspended investigation under section 1673c of  this title would be likely to lead to 
continuation or recurrence of sales of the s ubject merchandise at less than fair value.  
The administering authority shall consider— 
 (A) the weighted average dumping marg ins determined in the investigation 
and subsequent reviews, and  
 (B) the volume of imports of the subject merchandise for the period before 
and the period after the issuance of the antidumping duty order or acceptance of the suspension agreement. 
(2) Consideration of other factors 
If good cause is shown, the administering authority shall also consider
 such other  
price, cost, market, or economic factors  as it deems relevant.68  (emphasis added) 
7.147  We note that the Statute provides that in determ ining whether dumping is likely to continue or 
recur in the case of revocation of the order, the USDOC has to consider two factors: "historical 
dumping margins" and "import volumes".  The Statute also states that, where good cause is shown, 
the USDOC may – and in fact "shall" – consider ot her factors.  Although these provisions seem to 
limit the factual basis of the USDOC's likelihood de terminations, in the sense that they require a 
showing of good cause in order for other information to  be considered, in our view they fall short of 
attaching a conclusive value to these two factors.69  The Statute does not stipulate that the USDOC is 
required to limit the factual scope of its analysis to these two factors in all cases.  To the contrary, it 
specifically states that if good cause is shown factors other than dumping margins and import volumes 
shall also be considered by the USDOC.   
7.148  We note that the premise of Argentina's claim is  that US law contains certain scenarios, the 
satisfaction of which would lead to an affi rmative likelihood determ ination by the USDOC per se .  
The three scenarios that Argentina cites are found in Section II.A.3 of the SPB, as we discuss below 
(infra , paras. 7.152-7.154).  We also note that these scenarios are premised on the same two factors 
that are mentioned in Section 752(c) of the Tari ff Act of 1930, i.e. "import volumes" and "dumping 
margins".  However, it is important to note that th e manner in which these two factors are being used 
in the SPB's factual scenarios diffe rs from the way Section 752(c) of the Tariff Act of 1930 treats 
them.  The Statute directs the USDOC to evaluate th ese two factors in each sunset review.  On its 
face, however, it does not require the USDOC to attach a decisive weight to them with respect to the 
likelihood determination.  In fact, apart from the fa ct that it requires the USDOC to consider these two 
factors in its likelihood determinations, the Statute does not mention any factual scenario in which 
these two factors would play a certain role such that it would ultimately lead to an affirmative 
likelihood determination.  In our view, therefore,  the Statute on its face not only does not support 
Argentina's allegations regarding an  irrefutable presumption of likelihood, but to the contrary seems 
to indicate that no such irrefutable presumption exists. 
                                                      
68 19 U.S.C. § 1675a(c) (Exhibit  ARG-1 at 1157). 
69 We do not understand Argentina to challenge the "good cause" provision of the Statute per se.  We 
therefore do not discuss the implications of these provisions in the context of Argentina's claim. WT/DS268/R 
Page 40  
 
7.149  We note that, under US law, the SAA provides an authoritative interpretation of the Statute.
70  
Therefore, in order to interpret the above statutor y provisions we shall take  into consideration the 
following relevant provisions of the SAA: 
(3) Likelihood of Dumping 
Section 221 of the bill adds section 752(c) which establishes standards for 
determining the likelihood of continuation or recurrence of dumping.  Under section 752(c)(1), Commerce will examine the relationship between dumping 
margins, or the absence of margins, and the volume of imports of the subject 
merchandise, comparing the periods before an d after the issuance of an order or the 
acceptance of a suspension agreement.  For example, declining import volumes 
accompanied by the continued existence of dumping margins after the issuance of an 
order may provide a strong indication
 that, absent the order, dumping would be likely 
to continue, because the evidence would indicate that the exporter needs to dump to 
sell at pre-order volumes.  In contrast, declining (or no) dumping margins 
accompanied by steady or increasing imports  may indicate that foreign companies do 
not have to dump to maintain market share in the United States and that dumping is less likely to continue or recu r if the order were revoked. 
The Administration believes that the existenc e of dumping margins after the order, or 
the cessation of imports after the order, is highly probative
 of the likelihood of 
continuation or recurrence of dumping.  If companies continue to dump with the 
discipline of the order in place, it is reasonable to assume that dumping would 
continue if the discipline were  removed.  If imports cease after the order is issued, it 
is reasonable to assume that the exporters could not sell in the United States without 
dumping and that, to re-enter the U.S. market, they would have to resume dumping. 
New section 752(c)(2) provides that, for good cause shown , Commerce also will 
consider other information  regarding, price, cost, market or economic factors it deems 
relevant.  Such factors might include the ma rket share of foreign producers subject to 
the antidumping proceeding; changes in exch ange rates, inventory levels, production 
capacity, and capacity utilisation; any hist ory of sales below cost of production; 
changes in manufacturing technology of the industry; and prevailing prices in 
relevant markets.  In practice, this w ill permit interested parties to provide 
information indicating that observed patte rns regarding dumping margins and import 
volumes are not necessarily indicative of the likelihood of dumping.   The list of 
factors is illustrative, and the Administration intends that Commerce will analyze 
such information on a case-by-case basis .71  (emphasis added) 
7.150  We note that the SAA also provides that certain patterns in dumping margins and import 
volumes following the imposition of the measure are "highly probative" or provide a "strong indication" of the likelihood of co ntinuation or recurrence of dumpin g in the event of revocation of 
the order.  This language suggests that these fact ors are important but not necessarily determinative.  
Further, the SAA also makes it clear that other factors can also be considered by the USDOC if good 
cause is shown by the exporters involv ed in the sunset review as to why that other factor is relevant to 
the USDOC's likelihood determination.  The SAA ev en provides an illustrati ve list of such other 
factors, which includes changes in exchange rates, inventory levels and production capacity.  The 
SAA specifically states that this will permit intere sted parties to provide information indicating that 
observed patterns regarding dumping margins and impo rt volumes "are not nece ssarily indicative" of 
likelihood, and indicates that the USDOC "will anal yze such information on a case-by-case basis".  
                                                     
 
70 The SAA (Exhibit  ARG-5 at 4040). 
71 The SAA (Exhibit ARG-5 at 4213-4214).  WT/DS268/R 
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Thus, not only does the SAA contain nothing that would cause us to disregard the plain meaning of 
the Statute, but to the contrary the SAA confirms th at the Statute does not provide for the irrefutable 
presumption alleged by Argentina.  It follows th at our analysis concerning the Statute (read in 
conjunction with the SAA) ends on the basis of its text.  We therefore do not need to go further to 
evaluate other factors, such as the alleged consistent application of the Statute, in order to complete 
our analysis regarding the Statute. 
Conclusion 7.151  The Tariff Act of 1930, interpreted in light of  the SAA, does not contain an irrefutable 
presumption of likelihood for purposes of USDOC's sunset determinations. 
The Sunset Policy Bulletin
 
Relevant provisions of the Sunset Policy Bulletin 7.152  Finally, we note the following provisions of the SPB: 
II Sunset  Reviews in Antidumping Proceedings  
A. Determination of Likelihood of Continuation or Recurrence of Dumping  ... 3. Likelihood of Continuation or Recurrence of Dumping  
… 
[T]he Department normally will determine
 that revocation of an antidumping order or 
termination of a suspended dumping investiga tion is likely to lead to continuation or 
recurrence of dumping where— 
(a) dumping continued at any level above de minimis after the issuance of the 
order or the suspension agre ement, as applicable;  
(b) imports of the subject merchandise cea sed after issuance of the order or the 
suspension agreement, as applicable; or  
(c) dumping was eliminated after the issuance of the order or the suspension 
agreement, as applicable, and import volum es for the subject merchandise declined 
significantly.  
The Department recognizes that, in the context of a sunset review of a suspended 
investigation, the data relevant to the cr iteria under paragraphs (a) through (c), above, 
may not be conclusive with respect to like lihood. Therefore, the Department may be 
more likely to entertain good cause arguments under paragraph II.C in a sunset 
review of a suspended investigation.  
4. No Likelihood of Continuation or Recurrence of Dumping  
… 
[T]he Department normally will determine  that revocation of an antidumping order or 
termination of a suspended dump ing investigation is not likely to lead to continuation WT/DS268/R 
Page 42  
 
or recurrence of dumping where dumping wa s eliminated after issuance of the order 
or the suspension agreement, as applicab le, and import volumes remained steady or 
increased. Declining margins alone no rmally would not qualify because the 
legislative history makes clear that conti nued margins at any level would lead to a 
finding of likelihood . See section II.A.3, above. In analyzing whether import volumes 
remained steady or increased, the Depart ment normally will consider companies' 
relative market share. Such information should be provided to the Department by the 
parties.  
The Department recognizes that, in the context of a sunset review of a suspended 
investigation, the elimination of dumping coupled with steady or increasing import volumes may not be conclusive with re spect to no likelihood. Therefore, the 
Department may be more likely to entert ain good cause arguments under paragraph 
II.C in a sunset review of a suspended investigation.  
... 
C. Consideration of Other Factors  
Section 752(c)(2) of the Act provides that, if the Department determines that good 
cause is shown, the Departme nt also will consider other price, cost, market or 
economic factors in determining the likelihood of continuation or recurrence of 
dumping. The SAA at 890, states that  such other factors might include, 
the market share of foreign producers subject to the antidumping proceeding; changes in 
exchange rates, inventory levels, production capacity, and capacity utilization; any history of 
sales below cost of production; changes in manufacturing technology in the industry; and 
prevailing prices in relevant markets. 
The SAA at 890, also notes that the list of factors is illustrative, and that the 
Department should analyze such information on a case-by-case basis. 
Therefore, the Department will consider other factors in AD sunset reviews if the 
Department determines that good cause to consider such other factors exists. The 
burden is on an interested party to provide information or evidence that would warrant consideration of the other factors in question. With respect to a sunset review 
of a suspended investigation, where the Department determines that good cause 
exists, the Department normally will conduct the sunset  review consistent with its 
practice of examining likelihood under section 751(a) of the Act.
72  (emphasis added) 
7.153  We note that Section II.A.3 of the SPB prov ides that the USDOC will "normally" make an 
affirmative likelihood determination in cases where one of three factual scenarios is present.  These 
factual scenarios are based on the same two factors that the Tariff Act, as interpreted by the SAA, 
directs the USDOC to consider in each sunset revi ew, i.e. "dumping margins" and "import volumes".  
We note, however, that these factors are being trea ted by the SPB in a manner that differs from the 
framework within which the Tariff Act treats them.  As we stated above, although Section 752(c) of 
the Act requires that the USDOC consider these two factors in all sunset reviews, in no way does it 
establish a presumption whereby the existence of thes e factors would lead to an affirmative likelihood 
determination per se .  The SPB, however, presents these two factors in three different factual settings, 
which will "normally" lead to an affirmative finding of likelihood. 
                                                      
72 Sunset Policy Bulletin (Exhibit ARG-35 at 18872-18874).  WT/DS268/R 
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7.154  Section II.A.3 of the SPB contains three scenarios.  First is the existence of a dumping margin 
above de minimis ; the second one relates to the case where imports cease following the imposition of 
the measure; and the third is where dumping disappears but import volumes decline following 
imposition.  On its face, Section II.A.3 seems to contain a presumption of likelihood in cases where 
one of these factual scenarios is present.   
7.155  According to the standard that we outlined above ( supra , paras. 7.141-7.144), the issue here is 
whether the SPB directs the USDOC to treat the mentioned two factors, as presented in these three 
factual scenarios, as determinative/conclusive or si mply indicative.  If we find that the SPB requires 
the USDOC to treat them as conclusive it will follow that Section II.A.3 of the SPB is inconsistent 
with Article 11.3 of the Agreement.  Alternativel y, if these factors are not conclusive but simply 
indicative we will find Section II.A.3 to be consistent with Article 11.3. 
7.156  In this context, we note that the word "normall y" in the chapeau of Section II.A.3 qualifies the 
provisions of this section.  It provides that in cases where one of these three factual scenarios is 
present the USDOC will "normally " find likelihood.  The existence of "normally" suggests that the 
SPB envisions that there may be situations where likelihood may not be found even if one of these three scenarios is present.  The United States assert s that the use of "normally" is incompatible with 
the notion of an irrefutable presumption.
73  However, we find no cl arification in the SPB which 
supports the proposition that the word "normally" provides the USDOC with such discretion.  To the 
contrary, we note that Section II.A.3 indicates that  in certain circumstances its provisions relating to 
these three factual scenarios may not be conclusive.  In this respect, Section II.A.3 provides: 
The Department recognizes that, in the context of a sunset review of a suspended 
investigation , the data relevant to the criteria unde r paragraphs (a) through (c), above, 
[dumping margins and import volumes] may not be conclusive  with respect to 
likelihood.74 (emphasis added) 
7.157  This portion of Section II.A.3 indicates that the provisions relating to the three factual 
scenarios may not be conclusive in the context of the sunset reviews of a suspended investigation, and arguably it is for this reason that the term "normally" was in Section II.A.3.  This further suggests that 
these scenarios may be conclusive in the context of the sunset reviews of final anti-dumping duties.  
Yet, in our view, the SPB is not sufficiently clear  as to whether the provisions of Section II.A.3 
relating to the three factual scenarios are determinative for purposes of the USDOC's likelihood 
determinations.
75  Given our finding above that neither the Tariff Act nor the SAA contains any 
presumption regarding the USDOC likelihood determ inations, we have not found any provision in 
these two measures that would clarify this point either. 
Consistent application of the Sunset Policy Bulletin 
7.158  Given that neither the SPB itself nor the Tariff Act or the SAA resolves the issue of whether 
Section II.A.3 of the SPB envisions that dumping margins and import volumes should be treated as 
conclusive in sunset reviews, we shall analyse evidence submitted by Argentina regarding the manner 
in which the provisions of the mentioned section have so far been implemented by the USDOC.  In 
exhibits ARG-63 and ARG-64, Argentina submitted empirical evidence regarding the USDOC's 
consistent application of Section II.A.3 of the SPB.  ARG-63 covers the sunset reviews carried out by 
the USDOC until September 2003, whereas ARG-64 covers the period Oct ober-December 2003.  
                                                      
73 First Written Submission of the United States, para. 178.  
74 Sunset Policy Bulletin (Exhibit  ARG-35 at 18872).  A similar sentence is contained in 
Section II.A.4 of the Sunset Policy Bulletin (Exhibit  ARG-35 at  18872-18873). 
75 We find support for this proposition in the Appellate Body decision in US – Corrosion-Resistant 
Steel Sunset Review.  See, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 
30, para. 179. WT/DS268/R 
Page 44  
 
Argentina asserts that these statistics demonstrat e that the USDOC has relied on one of the three 
factual scenarios set out in Section II.A.3 of th e SPB in every sunset review in which it found 
likelihood.  The United States contends that these statistics fail to demonstrat e the alleged irrefutable 
presumption.  According to the United States, if at all, only statistics relating to the sunset reviews in 
which the interested parties contested the existenc e of likelihood can provide guidance.  The United 
States argues that out of the 291 sunset reviews cited in ARG-63 only 35 were in this category.  The 
United States acknowledges that the USDOC found lik elihood in all of these 35 sunset reviews but 
contends that that fact alone does not prove the i rrefutable presumption alleged by Argentina.  More 
specifically, the United States submits: 
It may well be that in these 35 cases, the evidence presented a scenario that satisfied 
one or more of the criteria that the Suns et Policy Bulletin identifies as indicia of 
likelihood.  If so, the respondent interested parties may have been unable to 
demonstrate that the facts of their case called for a departure from the “normal” 
conclusion.  It could be the case that one or more, or maybe all, of these parties may 
have been in the situation where they were not capable of competing in the US market without dumping.  We simply do not know.
76   
7.159  Argentina disagrees with the US view that only  sunset reviews in which interested parties 
contested the existence of likelihood  can be taken into account.  Ac cording to Argentina, interested 
parties' participation is immaterial regarding th e investigating authority's  obligation to determine 
likelihood under Article 11.3.  Argen tina argues, however, that even accepting the US position in this 
respect, the fact that the USDOC found likelihood in these 35 sunset reviews on the basis of the factual scenarios of the SPB still proves Argentina's claim.
77 
7.160  We asked the United States to explain its views as to whether the statistics provided by 
Argentina in ARG-63 and ARG-64 were factually correct.  The Un ited States submitted the following 
response: 
The United States has not examined each and every sunset review cited by Argentina 
in Exhibit ARG-63 and Exhibit ARG-64.  To the extent that the United States has 
addressed these exhibits in its written submissions, the United States has no reason to 
believe  that the overall total of sunset reviews conducted and the ultimate outcomes 
in those sunset reviews as alleged by Argentina is significantly flawed .78  (emphasis 
added) 
7.161  In response to questioning from the Panel, the United States stated that these statistics were 
irrelevant to the question of whether the USDOC perceived Section II.A.3 of the SPB as conclusive in 
its sunset determinations.  According to the United  States, these statistics can at best indicate a 
repeated pattern of similar responses to a set of ci rcumstances, which, according to the United States 
and as found by a WTO panel, can not be challenged as such in WT O dispute settlement  proceedings.  
The United States also contends that the data submitted by Argentina focuses only on the results of individual sunset reviews conducted by the USDOC an d ignores the particular circumstances of each 
review.
79 
7.162  Regarding the issue of whether the consistent application of a Member's law can be taken into 
account by WTO panels in cases dealing with an alleged WTO-inconsistency of that law, we find 
support in the following finding of the Appellate Body in US-Carbon Steel : 
                                                      
76 First Written Submission of the United States, para. 186. 
77 Second Written Submission of Argentina, paras. 83-84. 
78 Response of the United States to Question 14(a) from the Panel Following the Second Meeting. 
79 Response of the United States to Question 14(b) from the Panel Following the Second Meeting.  WT/DS268/R 
 Page 45 
 
 
Thus, a responding Member's law will be treated as WTO- consistent  until proven 
otherwise.  The party asser ting that another party's mu nicipal law, as such, is 
inconsistent with relevant treaty obligati ons bears the burden of introducing evidence 
as to the scope and meaning of such law to substantiate that assertion.  Such evidence 
will typically be produced in the form of th e text of the relevant  legislation or legal 
instruments, which may be supported, as appropriate, by evidence of the consistent 
application  of such laws, the pronouncements of  domestic courts on the meaning of 
such laws, the opinions of legal experts and the writings of recogn ized scholars.  The 
nature and extent of the ev idence required to satisfy the burden of proof will vary 
from case to case.80  (footnote omitted, emphasis added) 
This finding was also cited and confirmed by the Appellate Body in US – Corrosion-Resistant Steel 
Sunset Review .81 
7.163  Therefore, given that the text of the SPB, or the other legal instruments challenged by 
Argentina, does not answer the question of whether Section II.A.3 of the SPB directs the USDOC to 
treat evidence concerning "dumping margins" and "import volumes" as conclusive in its likelihood 
determinations, we consider it appropriate to anal yse evidence submitted by Argentina regarding the 
consistent application of these provisions in deciding whether Section II.A.3 of the SPB is 
inconsistent with Article 11.3 of the Agreement. 
7.164  We note that ARG-63 and ARG-64 contain, inter alia , data on the name of the sunset review, 
the date of the USDOC's determination, whether domes tic interested parties or  exporters participated 
in the review, the type of sunset review conducted,  the outcome of the review and the legal basis of 
the determination.  In addition, Argentina also provided the texts of the individual determinations in 
these sunset reviews. 
7.165  At the outset, it should be noted that we based our analysis on the statistics regarding the 
determinations made before the date of initiation of  these panel proceedings, i.e. Argentina's request 
for consultations.82  An analysis of the statistics provided by Argentina demonstrates that the USDOC 
applied the contested provisions of the SPB in each sunset review and found likelihood of continuation or recurrence in each one of these sunset reviews on the basis of one of the three 
scenarios contained in Section II.A.3 of the SPB.  We recall that the United States neither challenged nor disproved the factual correctness of these statistics.   We therefore find that the evidence submitted 
by Argentina in exhibit ARG-63 demonstrates that the USDOC does in fact perceive the provisions of 
Section II.A.3 of the SPB as conclusive regarding th e issue of likelihood of continuation or recurrence 
of dumping in the case of revocation of an order.  As explained above, this runs counter to the 
requirement of Article 11.3 to car ry out a rigorous examination and to base its determinations on a 
sufficient factual basis. 
Conclusion 7.166  On the basis of the above considerations, we find the provisions of Section II.A.3 of the SPB 
to be inconsistent with Article 11.3 of the Agreement. 
7.167  We find it important to mention that although our finding of inconsistency is based on the 
evidence stemming from the consistent applicat ion of Section II.A.3 of the SPB, it does not 
necessarily mean that the complain ing party has to produce statistical  evidence that demonstrates a 
                                                     
 
80 Appellate Body Report, US – Carbon Steel , supra , note 15, para. 157. 
81 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 168. 
82 We note, however, that the statistics pertaining to the rest of the period, i.e. until the end of 
December 2003, follow the same pattern that we have observed on the basis of the period ending as of 
Argentina's request for consultations. WT/DS268/R 
Page 46  
 
particular pattern of behaviour in a certain number  or percentage of cases.  As the Appellate Body 
stated, "[t]he nature and extent of the evidence requ ired to satisfy the burden of proof will vary from 
case to case".
83  We find that in the circumstances of the present proceedings the evidence submitted 
by Argentina in ARG-63 is sufficient to demonstr ate that Section II.A.3 of the SPB directs the 
USDOC to treat evidence with respect to "import vo lumes" and "dumping margins" as conclusive for 
purposes of the latter's sunset determinations. 
7.168  Having found Section II.A.3 of the SPB to be inc onsistent with Article 11.3, we need not, and 
do not, consider it necessary to rule on Argentina's claim that the US practice in this respect is also 
inconsistent with Article 11.3 for the same reasons. 
7.169  Similarly, having found Section II.A.3 of the SPB to be WTO-inconsistent in this respect, we 
do not address Argentina's alternative cl aim under Article X:3( a) of the GATT 1994. 
Impact of the finding regarding the Sunset Policy  Bulletin on the consistency of the Statute 
7.170  We find it necessary to address the issue of wh ether our finding of inconsistency with respect 
to the SPB has any impact on the status of the Ta riff Act in this regard.  We recall that Argentina 
requested that the Panel analyse the provisions of the Tariff Act, the SAA a nd the SPB in conjunction 
with one another with respect to the present claim.  We also recall our finding above that Section 
752(c) of the Tariff Act, interpreted in light of the relevant provisions of the SAA, does not contain 
any presumption with regard to the USDOC's likeli hood determinations.  To  the contrary, we found 
that both the Tariff Act and the SAA state clearly that the USDOC can, and in fact "shall", take into 
account other relevant factors upon good cause shown. 
7.171  In our view, the SPB does not purport to interpret the provisions of the Tariff Act.  This is 
evidenced in the preamble of the SPB, which reads in relevant part: 
The proposed policies are intended to co mplement the applicable statutory and 
regulatory provisions  by providing guidance on methodological or analytical issues 
not explicitly addressed by the statute and regulations.84  (emphasis added) 
7.172  The preamble states that the SPB is designed to  complement, not interpret, the provisions of 
the Tariff Act.  Therefore, the provisions of the SPB in general, and those of Section II.A.3 in 
particular, can not change the meaning of the rele vant provisions of the Tariff Act, including 
Section 752(c) that we analysed and found to be co nsistent with Article 11.3 of the Agreement for 
purposes of the present claim. 
7.173  Assuming arguendo  that the SPB did purport to interpret the provisions of the Tariff Act, our 
conclusion would not change.  We found above ( supra , para. 7.148) that the relevant provision of the 
Tariff Act, i.e. Section 752(c), does not contain an y presumption and in fact explicitly provides that 
the USDOC shall consider factors other than import volumes and dumping margins in its likelihood 
determinations where good cause is shown.  This demonstrates that the Statute contains an explicit 
provision as to the factors that the USDOC has to co nsider in its likelihood determinations.  It follows 
that the SPB's provisions can not in any event change the plain meaning of the Tariff Act in this 
regard. 
                                                      
83 Appellate Body Report, US – Carbon Steel , supra , note 15, para. 157. 
84 Sunset Policy Bulletin (Exhibit  ARG-35 at 18871).  WT/DS268/R 
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3. US Law's Standard for the Likelihood of Continuation or Recurrence of Injury 
Determinations in Sunset Reviews 
(a) Arguments of parties 
(i) Argentina 
7.174  Argentina submits that Sections 752(a)(1) and (5 ) of the Tariff Act violate Articles 11.1, 11.3, 
3.1, 3.2, 3.4, 3.7 and 3.8 of the Agreement because these provisions require the USITC to determine whether there would be a likelihood of continuation or recurrence of injury "within a reasonably 
foreseeable time " and they stipulate that the effects of the revocation of the duty may not be imminent 
but may manifest themselves over a longer period of time.  According to Argentina, this standard goes 
too far into the future compared with the prop er "likely" standard set out in Article 11.3. 
(ii) United States 
7.175  The United States contends that the statutory provisions under US law regarding the standard 
by which the USITC has to determine likelihood of continuation or recurrence of injury in sunset 
reviews are consistent with Article 11.3 of th e Agreement. According to the United States, 
Article 11.3 does not impose a time-frame within wh ich likelihood determinations in a sunset review 
have to be made. 
(b) Arguments of third parties 
(i) Korea 
7.176  Korea argues that the meaning of the term "likely" under Article 11.3 is "probable".  
However, the standard established by the US St atute and the SAA fails to meet this standard. 
(ii) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
7.177  Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu contends that the 
provisions of Article 3 of the Anti-Dumping Agr eement apply in the contex t of sunset reviews. 
Although Article 11.3 is silent as to the standa rd and methodologies which Members must follow in 
sunset reviews, it was not the drafters' intention to leave this matter to the complete discretion of the 
investigating authorities. 
(c) Evaluation by the Panel 
7.178  Argentina bases its claim on the Tariff Act and the SAA.  As stated above ( supra , para. 
7.149), we shall analyze the provisions of the Tariff  Act in light of the provisions of the SAA because 
of the SAA's relevance under US la w as the authoritative tool for the interpretation of the Statute. 
7.179  Section 752(a)(1) of the Tariff Act reads, in relevant part: 
(1) In general ...The Commission shall determine whether revocation of an order, or termination of 
a suspended investigation, would be likely
 to lead to continuation or recurrence of 
material injury within a reasonably foreseeable time ...85 (emphasis added) 
7.180  Section 752(a)(5) of the Tariff Act reads, in relevant part: 
                                                      
85 19 U.S.C. § 1675a(a)(1) (Exhibit  ARG-1 at 1155). WT/DS268/R 
Page 48  
 
(5) Basis for determination 
The presence or absence of any factor which the Commission is required to consider 
under this subsection shall not  necessarily give decisive guidance with respect to the 
Commission's determination of whether material injury is likely
 to continue or recur 
within a reasonably foreseeable time  if the order is revoked or the suspended 
investigation is terminated.  In making that determination, the Commission shall 
consider that the effects of revocatio n or termination may not be imminent , but may 
manifest themselves only over a longer period of time .86  (emphasis added) 
7.181  The SAA provides, in relevant part: 
A "reasonably foreseeable time" will vary from case-to-case , but normally will 
exceed the "imminent" timeframe  applicable in a threat of injury analysis.  New 
Section 752(a)(5) expressly states that the effects of revocation or termination may 
manifest themselves only over a longer period of time.  The Commission will 
consider in this regard such factors as the fungibility or differentiation within the 
product in question, the level of substitut ability between the imported and domestic 
products, the channels of distribution used, the methods of contracting (such as spot 
sales or long-term contracts), and lead times  for delivery of goods, as well as other 
factors that may only manifest themselves in the longer term , such as planned 
investment and the shifting of production facilities.87  (emphasis added) 
7.182  At the outset, we note that on its face Sec tion 752(a)(1) of the Tariff Act provides for the 
"likely" standard for the USITC's likelihood determin ations.  However, compared with the provisions 
of Article 11.3, the Tariff Act goes one step fu rther and requires the USITC to inquire whether 
revocation of the duty would be likely to lead to th e continuation or recurrence of injury within a 
reasonably foreseeable time .  In other words, the Statute specifies the temporal aspect of the USITC's 
likelihood determinations in sunset reviews.  Sect ion 752(a)(5), read in conjunction with the above-
quoted portion of the SAA, provides that although the meaning to be given to the concept of "reasonably foreseeable time" will vary from case-to-cas e, it is clear that this standard means a longer 
period of time than the imminence standard of Article  3.7 of the Agreement, wh ich applies to threat of 
material injury determinations in investigations. 
7.183  The issue is, therefore, whether this additional  provision of US law regarding the temporal 
aspect of the USITC's sunset determinations changes the likely standard into a more flexible one, 
which renders that law inconsistent with Article 11 .3, or the other provisions of the Agreement cited 
by Argentina.   
7.184  We note that Article 11.3, the provision that co ntains the main substantive requirements that 
apply to sunset reviews, does not mention th e time-frame on which the investigating authorities 
should base their sunset review determinations.  Nor does Article 11.3 require the investigating 
authorities to specify the time-frame on which thei r likelihood determination is based.  All that 
Article 11.3 requires is that the investigating au thority determine on a sufficient factual basis that 
injury is likely to continue or recur should the duty be revoked.  We are of the view, therefore, that the 
US Statute that requires the USITC to determine whet her injury is likely to continue or recur within a 
reasonably foreseeable time do es not conflict with the "likely" standard of Article 11.3. 
7.185  That does not mean, however, that there is no limitation in terms of the temporal aspect of 
sunset determinations.  Arguably, there is at leas t a logical limitation that would make it impossible 
for an investigating authority to base its sunset de terminations on an unreasonably long period of time 
                                                     
 
86 19 U.S.C. § 1675a(a)(5) (Exhibit ARG-1 at 1156). 
87 The SAA (Exhibit ARG-5 at 4211).  WT/DS268/R 
 Page 49 
 
 
into the future.  We note in this regard that an  assessment regarding whether injury is likely to 
continue or recur that focuses too far in the future  would be highly speculative, and that it might be 
very difficult to make a properly reasoned and su pported determination in this regard.  The issue, 
however, is whether the standard provided for under US law is inconsistent with that standard, and we 
see no reason to believe that the "reasonably fores eeable time" standard adopted by the United States 
would pose such difficulties. 
7.186  Argentina submits that Article 11.3 requires an  investigating authority to determine whether 
termination of a measure would be likely to lead to the continuation or recurrence of injury upon 
expiry of the measure.  According to Argentina,  by defining the "reasonably foreseeable time" as 
longer than "imminent" the US statutory provisi ons run counter to the "likely" standard of 
Article 11.3.88  We understand Argentina to argue that the likelihood determination must be based on 
the circumstances as of the date of the proposed revocation of the measure. 
7.187  We do not agree with the proposition that Article 11.3 necessarily requires that the 
investigating authority base its likelihood of contin uation or recurrence of injury determination upon 
the expiry of the duty.  As we already stated, Artic le 11.3 does not impose a pa rticular time-frame on 
which the investigating authority has to base its li kelihood determination.  Further, in our view, the 
investigating authority does not have to base its likelihood determination on a uniform time-frame 
with respect to each injury factor that it takes into consideration.  The time-frame regarding different 
injury factors may be different from one anothe r depending on the circumstances of each sunset 
review.  For instance, in a case where the export ers have excessive inventories, the investigating 
authority's evaluation of likely volume of dumped  imports can be based on a relatively short time-
frame.  On the other hand, an analysis regarding the cash flows or productivity of the domestic 
industry may necessarily have to be based on a longer time-frame. 
7.188  Argentina also contends that the cited provisi ons of the Tariff Act are inconsistent with 
Articles 3.7 and 3.8 of the Agreement.  We unders tand Argentina to argue that because Articles 3.7 
and 3.8 of the Agreement contain provisions about fu ture injury determinations, they are relevant to 
likelihood of continuation or recurrence of injury de terminations in sunset reviews.  It follows that 
these two provisions impose additional obligations on the investigating authorities in their sunset 
determinations. 
7.189  We note that there is a certain similarity between a threat of injury analysis in an anti-
dumping investigation and a likelihood of continuatio n or recurrence of injury determination in a 
sunset review in that they both re quire prospective analysis.  Hence, it could be argued that Article 3.7 
provides context for the interpretation of Article 11 .3.  In our view, however, the textual differences 
outlined below preclude the importation of a comp letely different test from Article 3.7 into 
Article 11.3. 
7.190  Article 3 is titled "Determination of Injury".  Fo otnote 9 to Article 3 sets out three types of 
injury that can establish the basis of investigating authorities' injury determinations in anti-dumping 
investigations.89  One of these is "threat of material injury", which is governed by the provisions of 
Articles 3.7 and 3.8 of the Agreement.  Article 11 is titled "Duration and Review of Anti-Dumping 
Duties and Price Undertakings".  More specifically, Article 11.3 sets out rules that apply to likelihood 
of continuation or recurrence of injury determinatio ns in sunset reviews.  The determinations set out 
in Articles 3.7 and 11.3 are substantively different from one another.  In this regard, we also 
                                                      
88 Second Written Submission of Argentina, para. 202. 
89 Footnote 9 reads: 
Under this Agreement the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or 
material retardation of the establishment of such an industry and shall be interpreted in 
accordance with the provisions of this Article. WT/DS268/R 
Page 50  
 
incorporate our analysis regarding the appl icability of Article 3 in sunset reviews ( infra , section 
VII.E.3(c)(i)).  We therefore consider that on the basis of a textual analysis of Articles 3.7 and 3.8 on 
the one hand and Article 11.3 on the other, it becomes clear that they operate in highly distinct factual 
situations.  It follows that the provisions of Articles 3.7 and 3.8 do not apply to sunset reviews.
90 
7.191  We note that our analysis based on the text of the Agreement is supported by the Appellate 
Body's ruling in US – Corrosion-Resistant Steel Sunset Review , in which the differences between an 
anti-dumping investigation and a sunset review were highlighted.  The Appellate Body stated that 
investigations and reviews are two distin ct processes with different purposes. 91  It follows that it is 
normal that they may be subject to different rule s and disciplines where circ umstances so dictate.  
This is not to suggest that no provision of the Ag reement that applies to i nvestigations can apply to 
sunset reviews.  Indeed, the Appellate Body has decided with respect to some of the provisions of the 
Agreement that they also apply to sunset reviews.92  Similarly, in this report, we have found that 
certain provisions of Article 6 of the Agreement also apply to sunset reviews.93  However, we do not 
see any reason to reach the same conclusion with respect to Articles 3.7 and 3.8. 
7.192  The overall scheme in which threat of mate rial injury determinations are made in 
investigations is remarkably diff erent from that of a sunset review .  The focus of the inquiry in a 
sunset review is the likelihood of continuation or re currence of injury in the event of revocation of the 
order, while in the case of an original inves tigation imports are not subject to an anti-dumping 
measures at the time the analysis is performed.  In an investigation, the investigating authority 
engages in a threat of material injury analysis only if there is no present material injury.  In a sunset 
review, however, factors giving rise to material inju ry may be present as of the date of the proposed 
revocation of the measure.  In other words, in a s unset review, there is a history of injury in the 
records of the investigatin g authority.  In our view, therefore, it is entirely sensible that threat of 
material injury determinations in investigations an d likelihood of continuation or recurrence of injury 
determinations in sunset reviews be governed by different rules. 
(i) Conclusion 
7.193  On the basis of the above considerations, we find that Sections 752(a)(1) and (5) of the Tariff 
Act are not WTO-inconsistent in respect of the "wit hin a reasonably foreseeable" time-frame that they 
contain regarding the USITC's likelihood determinations in sunset reviews. 
D. CLAIMS RELATING TO THE USDOC'S  LIKELIHOOD DETERMINATION IN THE OCTG  SUNSET 
REVIEW  
1. Arguments of Parties 
(a) Argentina 
7.194  Argentina argues that the USDOC's decision to conduct an expedited sunset review and the 
application of the waiver provisions of US law in the case of OCTG from Argentina violated 
                                                      
90 We note the US statement that the obligation to determine likelihood of continuation or recurrence of 
injury under Article 11.3 is a fourth type of determination regarding injury, separate from the three other types 
of injury determinations set out in footnote 9 of the Agreement.  See, Response of the United States to 
Question 20(a) from the Panel Following the Second Meeting.  We disagree with the United States on this issue.  By concluding that Articles 3.7 and 3.8 do not apply to sunset reviews, we are by no means implying that 
Article 11.3 contains such a fourth category of injury determination. 
91 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, paras. 106-
107. 
92 See, for instance, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , 
note 30, paras. 109, 151 and 158. 
93 See, for instance, supra , paras. 7.108-7.112.  WT/DS268/R 
 Page 51 
 
 
Article 11.3 because the USDOC fail ed to conduct a review and to ma ke a likelihood determination.  
According to Argentina, the USDOC failed to base its determinations on fresh facts gathered during 
the sunset review.  Rather, inconsistently with Articles 2 and 11.3, it relied on the dumping margin 
obtained in the original investigation and reported  that margin to the USITC as the likely dumping 
margin at which dumping was found to be likely to c ontinue or recur.  The fact that this original 
dumping margin was calculated thro ugh the practice of "zeroing" also made the USDOC's reliance on 
that margin in this sunset review inconsistent with Article 11.3. 
7.195  Argentina contends that the conduct of an exped ited sunset review and the application of the 
waiver provisions violated Articles 6.1 and 6.2 be cause Siderca, the only Argentine exporter that 
submitted a substantive response to the notice of initia tion of the sunset review at issue, was denied a 
full opportunity to submit evidence and to defend its interests in this sunset review.  Argentina also 
argues that the USDOC did not take the provisions of Article 6.8 and Annex II of the Agreement into 
account in its decision to use facts available. 
7.196  Finally, Argentina submits that in this sunset  review the USDOC also violated Articles 12.2 
and 12.2.2 because it is impossible to discern the basis of the USDOC's decision to conduct an expedited review.  In particular, Argentina argues that the public notice does not contain information 
about dumping determinations in this sunset review  and that it is not clear whether the basis for the 
USDOC's decision to expedite was the “waiver” provision under Section 751(c)(4), or the “facts 
available” provision under Section 7 51(c)(3)(B) of the Tariff Act. 
(b) United States 
7.197  The United States argues that the USDOC carried  out a WTO-consistent sunset review in this 
case.  The United States submits that the USDOC did not determine that Siderca had waived its right 
to participate in the instant sunset review.  The USDOC decided to conduct an expedited sunset 
review because the respondents' share in the total imports of the subject product into the United States 
was significantly less than 50 per cent.  The United States contends that the USDOC based its 
determinations in this sunset review on the in formation from the original investigation and the 
information submitted by interested parties in their substantive responses to the notice of initiation in this sunset review. 
7.198  The United States asserts that Siderca was given notice of the information required and a full 
opportunity to submit evidence and to defend its intere sts in the sunset review at issue, but it did not 
avail itself of some of these opportunities to subm it information.  In its sunset determinations the 
USDOC considered the information Si derca submitted in its substantive re sponse to the questionnaire.  
Therefore, the USDOC did not act incons istently with Articles 6.1 and 6.2. 
7.199  The United States contends that the Final Sunset Determination and the accompanying 
Decision Memorandum explain the bases for the USDOC's sunset determinations in this sunset 
review and therefore the USDOC did not act inconsistently with Article 12.2. 
2. Arguments of Third Parties 
(a) European Communities 
7.200  The European Communities cont ends that the USDOC's decisi on to conduct an expedited 
sunset review simply because of Siderca's share in the volume of total imports of the subject product 
into the United States was inconsistent with Articl e 11.3 of the Agreement.  Since this decision also 
resulted in the exclusion of relevant evid ence it also violated Articles 6.1 and 6.2. WT/DS268/R 
Page 52  
 
3. Evaluation by the Panel 
(a) Relevant facts 
7.201  In addition to Argentina, three other countrie s were subject to the USDOC part of the OCTG 
sunset review.
94  With respect to all four countries, th e USDOC concluded that the revocation of the 
orders would likely lead to the cont inuation or recurrence of dumping. 
7.202  With regard to all of these four countries, the USDOC's likelihood determination was based 
on the existence of dumping margins and reduced import volumes following the imposition of the 
original anti-dumping duties.95  The USDOC decided that since dumping had continued over the life 
of the orders and import volumes had dropped signi ficantly as compared to the pre-order levels, 
dumping was likely to continue or recur in the event of revocation. 
7.203  There were no affirmative waivers with respect to Argentine exporters subject to this sunset 
review.  In other words, no Argentine exporter expl icitly waived participatio n.  The only Argentine 
exporter that cooperated with the USDOC and for which an individual dumping margin was 
calculated in the original investigation was Siderc a.  Following the imposition of the order Siderca 
stopped exporting OCTG to the United States.  However, the USDOC determined that other 
Argentine exporter(s) had exported the subject product to the United States during the period of 
application of the measure.  The USDOC did not iden tify these exporter(s) in its final determination, 
nor did it point to evidence in the record es tablishing the identity of these exporter(s).96 
7.204  Since these other Argentine exporter(s) did not submit a response to the notice of initiation of 
this sunset review, they were deemed to ha ve waived their right to participate under 
Section 351.218(d)(2)(iii) of the USDOC's Regulations.  It is therefore factually undisputed that 
deemed waivers provisions of US law were applied in  this sunset review with respect to one or more 
Argentine exporter(s) other than Siderca. 
7.205  Following the initiation of the sunset review at is sue, Siderca was the only Argentine exporter 
that submitted a substantive response to the notic e of initiation.  We recall that according to 
Section 351.218(e)(1)(ii)(A) of the USDOC's Regu lations, in cases where the exporters from a 
particular country that submit a complete substantiv e response to the notice of initiation of a sunset 
review altogether account for less than 50 per cent of the total exports of the subject product from that 
country during the five-year period of application of the measure concerned, that aggregate response 
is deemed to be inadequate.  An inadequate res ponse triggers the conduct of an expedited – as 
opposed to full - sunset review.  Accordingly, although Siderca's substantive response to the notice of 
initiation was complete, i.e. it contained all the info rmation the US law required, since Siderca's share 
in the total exports of OCTG from Argentina during  the five-year period of application of the measure 
at issue was below 50 per cent, the USDOC conducted an expedited sunset review.  Following the 
submission of its substantive response to the noti ce of initiation, Siderca did not make any further 
submissions to the USDOC. 
7.206  In its sunset determination with regard to Ar gentina, the USDOC considered the information 
submitted in Siderca's complete substantive response to the notice of initiation as well as some other 
evidence from other sources, such as import statistics.  Having found that dumping continued over the 
life of the measure and that import volumes declin ed significantly, in its order-wide determination 
                                                      
94 The other countries were Italy, Japan and Korea.  See, Issues and Decision Memorandum (Exhibit 
ARG-51 at 1). 
95 Issues and Decision Memorandum (Exhibit ARG-51 at 5). 
96 However, the United States stated that a company called Acindar, which was subject to an 
administrative review following the completion of the sunset review at issue, might have shipped the subject 
product to the United States during the initial period of application of the anti-dumping duty at issue.  See, 
Response of the United States to Questions 12(a) and 13(a) from the Panel Following the First Meeting.  WT/DS268/R 
 Page 53 
 
 
with respect to Argentina, the US DOC determined that dumping would be likely to continue or recur 
should the duty be revoked. 
(b) Alleged violations of Articles 11.3 and 2 of the Agreement 
7.207  As an initial matter, we note Argentina's as sertion that the application of the waiver 
provisions and the conduct of an expedited sunset review violated Article 11.3 of the Agreement 
because the USDOC did not make the requisite lik elihood determination of  Article 11.3 when 
concluding that dumping was likely to continue or recur should the duty be revoked.97 
7.208  Regarding the issue of whether or not the US DOC made a likelihood de termination in this 
sunset review, we note that the contents of the USDOC's Issues and Decision Memorandum  clearly 
reveals that such a determination was made.  Therefore, there is no doubt that the USDOC made a 
determination as such.  The question is whether that determination conformed to the provisions of the 
Agreement.  With that in mind, we now turn to the various aspects of the USDOC's sunset 
determination that are being challenged by Argentina. 
7.209  Argentina  contends that in the instant sunset review, the USDOC based its likelihood of 
continuation or recurrence of dumping determinations on past data.  It did not gather fresh evidence 
that would support a forward-looking likelihood analysis.  Instead, the USDOC merely relied on the 
dumping margin from the original investigation as  the basis of its likelihood determination in the 
instant sunset review.   
7.210  The United States submits that in its likelihood determination in the instant sunset review, the 
USDOC relied on the dumping margins found in th e original investigation, the depressed import 
volumes and the information submitted by the intere sted parties.  According to the United States, 
Article 11.3 of the Agreem ent requires nothing more. 
7.211  The issue is whether the USDOC's likelihood determ ination in this sunset review rested on a 
sufficient factual basis.98  In this respect, we recall our finding above that on its face Article 11.3 does 
not impose a particular methodology to follow in sunset determinations.  However, as we stated 
above, the Article 11.3 obligation to “determine ” the likelihood of continuation or recurrence of 
dumping requires the inve stigating authority to make a reasoned finding on the basis of positive 
evidence that dumping is likely to continue  or recur should the measure be revoked. 
7.212  With that in mind, we turn to the USDOC's Issues and Decision Memorandum  which reads in 
relevant parts: 
[T]he Department indicated that normally it will determine that revocation of an 
antidumping order is likely to lead to co ntinuation or recurrence of dumping where 
(a) dumping continued at any level  above de minimis  after the issuance  of the order, 
(b) imports of the subject merchandise ceased after the issuance of the order, (c) 
                                                      
97 First Written Submission of Argentina, paras. 148 and 155. 
98 We note that, regarding the sufficiency of the factual basis of an investigating authority's likelihood 
determination in sunset reviews, the Appellate Body in US – Corrosion-Resistant Steel Sunset Review  endorsed 
the following findings of that panel: 
In order to continue the imposition of the measure after the expiry of the five-year application 
period, it is clear that the investigating authority has to determine, on the basis of positive 
evidence , that termination of the duty is likely to lead to continuation or recurrence of 
dumping and injury.  An investigating authority must have a sufficient factual basis  to allow it 
to draw reasoned and adequate conclusions concerning the likelihood of such continuation or 
recurrence.  (footnote omitted, emphasis added) 
Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 114. WT/DS268/R 
Page 54  
 
dumping was eliminated after the issuan ce of the order and import volumes for 
subject merchandise declined significantly.
99  (emphasis added) 
... 
We note that there have been above de minimis  margins  for the investigated 
companies throughout the history of the orders, except for one company covered by 
the order on Japan.100  (emphasis added) 
... 
Based on this analysis, the Department find s that the existence of dumping margins  
after the issuance of the orders is highly pr obative of the likelihood of continuation or 
recurrence of dumping.  Therefore, given that dumping continued after the issuance 
of the orders, average imports continued at levels far below pre-order levels from 1995 through 1999, and respondent interested parties waived their right to participate 
in these reviews or failed to submit adequa te substantive responses, we determine that 
dumping is likely to continue  if the orders were revoked.
101  (emphasis added) 
... 
In the Argentine case , there has been no decline in dumping margins coupled with an 
increase in imports. Rather, absent an administrative review, the dumping margin 
from the original investigation is the only indicator available to the Department with 
respect to the level of dumping. Because 1.27  [sic] per cent is above the 0.5 per cent 
de minimis  standard applied in sunset reviews, we find that dumping has continued 
over the life of the Argentine order and is lik ely to continue if the order were revoked. 
102  (emphasis added) 
7.213  We note that the USDOC's likelihood determinati on in the instant sunset review is premised 
on two findings: (a) that dumping continued above de minimis levels over the life of the order, and 
(b) that import volumes declined following the imposition of the order. 
7.214  Argentina asserts that the USDOC's finding that  dumping had continued over the life of the 
order was devoid of factual support because Siderca had not made any consumption shipments to the United States during this period and no administrative reviews were carried out to determine whether 
shipments made by other Argentine exporters were dumped.  Therefore, the USDOC could not 
reasonably conclude that dumping continued over the life of the order.   
7.215  The United States contends that the USDOC did not use the original dumping margin as the 
basis of its sunset determination in the instant sunset review.  The USDOC made its likelihood determination on the basis of the existence of dumping during the life-span of the measure at issue.  Following that likelihood determination, the USDOC sent the original dumping margin to the USITC 
as the margin that was likely to continue or recur.   
7.216  In order to clarify the basis of the USDOC's determination that dumping had continued over 
the life of the measure, we put the following question to the United States following our first meeting with the parties: 
                                                     
 
99 Issues and Decision Memorandum (Exhibit ARG-51 at 4). 
100 Issues and Decision Memorandum (Exhibit ARG-51 at 5). 
101 Issues and Decision Memorandum (Exhibit ARG-51 at 5). 
102 Issues and Decision Memorandum (Exhibit ARG-51 at 5).  WT/DS268/R 
 Page 55 
 
 
The Panel notes that the USDOC's Issues and Decision Memorandum  in the instant 
sunset review mentions that it was determined that dumping continued over the life of 
the measure in question and that the margin of dumping did not decline in the same 
period.  Please explain the factual basis of that determination, in particular, please 
indicate whether the USDOC calculated a dumping margin for Siderca or any other 
Argentine exporter after the imposition of the original measure.103 
7.217  The United States responded as follows: 
In the sunset review, Commerce found that dumping continued to exist during the 
five years preceding the sunset review be cause there were shipments of Argentine 
OCTG during four of those five years and dumping duties were assessed on those 
same imports.104  (footnote omitted) 
7.218  We note that parties' views differ as to wh at was the basis of the USDOC's finding that 
dumping continued over the life of the measure.  Argentina argues that the USDOC's likelihood 
determination was based on the 1.36 per cent margin  of dumping from the original investigation 
whereas the United States submits that it was based on the existence of the shipments of the subject 
product to the United States and the continued collec tion of the duty, not the margin from the original 
investigation per se . 
7.219  In our view, the above-quoted parts of the USDOC's Issues and Decision Memorandum 
demonstrate that the USDOC relied on the existence of  the original dumping margin when concluding 
that dumping continued over the life of the order.  The issue therefore is whether the existence of a 
dumping margin from the original investigation can be interpreted to mean that dumping continued 
over the life of the measure.  In our view, it can not.  The original dumping margin reflects the result 
of the dumping margin calculations in the original investigation, which establish the basis for the anti-
dumping measure to be imposed in that investigatio n.  The existence of the original dumping margin 
can not be the basis of a factual determination that  dumping continued over the life of the measure.  
Exporters subject to the measure might have changed their export or home market prices, or, their cost 
of production might have changed.  Thus, if an in vestigating authority relies upon the existence of 
dumping over the life of the measure as part of its sunset determination, it has to have an adequate 
factual basis for so concluding.  This can be, inter alia , a determination made as part of a duty 
assessment process carried out under Article 9 of th e Agreement, or a review under Article 11.2.  In 
our view however, the original determination of dumping by itself cannot represent a sufficient factual 
basis for concluding that dumping continued during the life of the measure, let alone representing an 
adequate factual basis to conclude that dumping is likely to continue  or recur after the expiry of the 
order.  The purpose of a sunset review is to examine whether the facts continue to justify the 
imposition of an anti-dumping measure.  The USDOC, however, did not engage in that inquiry 
because it simply relied on the existence of the dumping margin from the original investigation. 
7.220  Assuming arguendo  that the basis of the USDOC's finding that dumping continued over the 
life of the measure was, as the United States asse rts, the continued shipments of the subject product 
and the continued collection of the duty, rather than the existence of the original dumping margin per 
se, our analysis would not change.  In our view, the fact that some imports of the subject product 
continued to be shipped from Argentina to the Unit ed States and that anti-dumping duties continued to 
be collected on these shipments over the life of the order does not represent an adequate factual basis for the proposition that dumping continued in that period.
 105   
                                                      
103 Question 23 from the Panel Following the First Meeting. 
104 Response of the United States to Question 23 from the Panel Following the First Meeting. 
105 We note that Argentine exporters subject to the anti-dumping duty at issue could request an 
administrative review in order to have their dumping margins calculated by the USDOC and have the duties WT/DS268/R 
Page 56  
 
(i) Conclusion 
7.221  We recall that the USDOC's likelihood determina tion in this sunset review was based on two 
factual findings, i.e. first dumping continued over the life of the measure and second import volumes 
declined following the imposition.  We have found that the factual basis of the first one is not proper.  
We therefore conclude that the USDOC's likelihood determination in  the instant sunset review was 
inconsistent with Article 11.3 of  the Anti-Dumping Agreement. 
7.222  We recall that in the OCTG sunset review, deemed waivers provisions of US law were 
applied to Argentine exporter(s) other than Siderca.   The implication of this is that the USDOC was 
required to make an affirmative likelihood determinat ion with respect to these exporter(s).  We recall 
that we found deemed waivers provisions to be inconsistent with the investigating authorities' 
obligation to determine likelihood of continuation or recurrence of dumping under Article 11.3.  
Although the USDOC's final determination does not refer to these company-specific determinations, 
logically these determinations must be a relevant part of the factual basi s of the USDOC's overall 
country-wide likelihood determination in the OCTG sunset review.  In our view, the application of 
deemed waivers provisions to Argentine exporters ot her than Siderca invalidated the factual basis of 
the overall country-wide determination.  Therefore, in addition to our above-stated considerations, we 
also find that the application of these provisions in the OCTG sunset review was inconsistent with 
Article 11.3 of the Agreement. 
7.223  We note that Argentina also asserts that the dumping margin from the original investigation 
was calculated through the so-called methodology of zeroing and therefore could not be relied upon 
by the USDOC in its likelihood determination in this sunset review.  It follows, in Argentina's view, 
that the USDOC violated Articles 2.4 and 11.3 of the Agreement by relying on this margin in its 
likelihood determinations.  Having found that the US DOC erred in this sunset review by relying on 
the existence of this dumping margin in its determ ination that dumping continued over the life of the 
measure, we need not, and do not, evaluate various aspects of the methodology through which that 
original dumping margin was obtained. 
(c) Alleged violations of Article 6 of the Agreement 
(i) Nature of the obligations in Articles 6.1, 6.2, 6.8 and Annex II of the Agreement and their 
applicability in sunset reviews 
7.224  Argentina contends that the application of waiv er provisions and the conduct of an expedited 
sunset review in the OCTG sunset review violated  Articles 6.1 and 6.2 of the Agreement.  According 
to Argentina, the conduct of an expedited review also violated Article 6.8 and Annex II of the 
Agreement. 
7.225  We note that Argentina's claims here are based on the assumption that Articles 6.1, 6.2 
and 6.8 and Annex II of the Agreement apply to sunset reviews.  According to Argentina, these 
provisions apply to sunset reviews by virtue of th e cross-reference in Article 11.4.  The United States, 
however, argues that this cross-reference incorporat es into sunset reviews only those provisions of 
Article 6 that deal with evidence and procedure.  According to the United States, the same holds true 
for the provisions of Annex II; they also apply to sunset reviews to the extent they concern evidence 
and procedure. 
                                                                                                                                                                    
 
paid refunded, if necessary.  In our view, however, given the low dumping margin (1.36 per cent) and the low 
volume of imports made during the period of application of the measure at issue, the fact that no Argentine 
exporter requested the initiation of an administrative review could by no means be conclusive as to whether or 
not these sales in question were dumped.  WT/DS268/R 
 Page 57 
 
 
7.226  Therefore, the initial issue that we need to resolve is whether Articles 6.1, 6.2 and 6.8 and 
Annex II apply to sunset reviews.  In this context, we recall our above observation regarding the 
nature of the obligations set out in Articles 6.1 and 6.2 of the Agreement ( supra , paras. 7.113-7.117).  
We also recall our finding that these two articles apply to sunset reviews because they contain rules 
that deal with evidence and procedure as set out in  Article 11.4 of the Agreement.  In addition to 
Articles 6.1 and 6.2, we consider that Article 6.8 and Annex II also apply to sunset reviews because 
their provisions concern "evidence and procedure".  Article 6.8 explains under what circumstances an 
investigating authority is allowed to base its determ inations on the facts available.  Annex II contains 
detailed provisions to be followed by investigating authorities when resorting to facts available under 
Article 6.8. 
(ii) Examination of the consistency of the USDOC's determination with Articles 6.1 and 6.2 of the 
Agreement 
7.227  Argentina argues that Article 6.1 was violated by the USDOC because the conduct of an 
expedited review and the applic ation of the waiver provisions prevented Siderca from submitting 
evidence to the USDOC.  According to Argentina,  the USDOC ignored the information submitted by 
Siderca.106   
7.228  We recall that in the OCTG sunset review, waiv er provisions of US law were not applied to 
Siderca.  Certainly Siderca did not explicitly waive it s right to participate.  Nor was it deemed by the 
USDOC to have waived participation because it su bmitted a complete substantive response to the 
notice of initiation.  Although Argentine exporters other than Siderca were deemed to have waived 
their right to participate, that did not, and in f act could not possibly, have an effect on Siderca's 
procedural rights under Article 6.1 in this sunset review.  Therefore, we di sagree with Argentina's 
statement that the application of waiver provisions  deprived Siderca from su bmitting evidence to the 
USDOC. 
7.229  It is factually correct that in the OCTG sunset review the USDOC carried out an expedited 
review.  The issue therefore is what effect the conduct of an expedited sunset review had on Siderca's procedural rights under Article 6.1. 
7.230  We note that the USDOC's final Issues and Decision Memorandum  clearly demonstrates that 
the information Siderca submitted in its substantive response to the notice of initiation was considered 
by the USDOC.
107  Argentina has not directed our attention to any fact which demonstrates that the 
USDOC prevented Siderca from su bmitting evidence or that the information submitted by Siderca 
was not taken into consideration by the USDOC. 
7.231  We also note that in addition to its substantive response to the notice of initiation, Siderca had 
the opportunity to submit a rebuttal brief to the USDOC, which it did not.108  Siderca could also 
                                                      
106 First Written Submission of Argentina, para. 167. 
107 In this regard, we note the following parts of the USDOC's Memorandum: 
With respect to the Argentine order, Siderca argues that revocation of the order would not result in antidumping margins above de minimis .  It states that Siderca' s margin is less than the 
WTO's standard for de minimis  in the antidumping agreement at Article 5.8, and, therefore, 
there is no basis to conclude that dumping is likely to recur under the standard in Article 11. ... 
In response to Siderca's comments in the Argentine case, the SAA and the Sunset Policy 
Bulletin provide that declining or no dumping margins accompanied by steady or increasing 
imports may indicate that a company does not have to dump in order to maintain market share... 
Issues and Decision Memorandum (Exhibit ARG-51at 4-5). 
108 In this regard, Section 351.218(d)(4) of the Regulations provides: WT/DS268/R 
Page 58  
 
submit its views to the USDOC as to the USDOC' s adequacy determination and the appropriateness 
of conducting an expedited sunset review  in this case, which it chose not to.
109  We do not know 
whether it would have been enough to satisfy the requirements of Article 6.1 had Siderca used these 
other opportunities to submit information to the USDOC.  However, the fact is that it did not. 
7.232  Argentina also submits that the application of  waiver provisions and the conduct of an 
expedited sunset review in the OCTG sunset review violated Article 6.2 of the Agreement because 
this precluded Siderca from defending its interests as set out in Article 6.2. 
7.233  We recall that Article 6.2 provides: 
Throughout the anti-dumping investigation all interested parties shall have a full 
opportunity for the defence of their interests.   To this end, the authorities shall, on 
request, provide opportunities for all intere sted parties to meet those parties with 
adverse interests , so that opposing views may be presented and rebuttal arguments 
offered.  Provision of such opportunities mu st take account of the need to preserve 
confidentiality and of the convenience to th e parties.  There shall be no obligation on 
any party to attend a meeting, and failure to  do so shall not be prejudicial to that 
party's case.  Interested parties shall also have the right, on justification, to present 
other information orally.  (emphasis added) 
7.234  Article 6.2 generally deals with th e right of interested parties to defend their interests in an 
investigation and, by operation of Article 11.4, in a sunset review.  More specifically, it provides that 
the investigating authority, if so requested, must provide interested parties an opportunity to meet 
those parties with adverse interests, so that opposing views may be presented and rebuttal arguments 
offered. 
7.235  In response to questioning from the Panel regarding the procedural rights conferred upon 
interested parties in expedited s unset reviews, the United States stated that hearings were not 
generally held in expedited sunset reviews. 110  Given the explicit provision of Article 6.2 that hearings 
have to be arranged when so requ ested by interested parties, it become s clear that in the OCTG sunset 
review Siderca was subjected to a procedure that fe ll short of the requirements of Article 6.2 of the 
Agreement in respect of hearings.  The reason why the USDOC carried out an expedited sunset 
review was Siderca's share in the total imports of th e subject product.  In other words, had exporters 
that had exported the subject product to the United Stat es in the five-year period of application of this 
measure made a complete submission in response to  the notice of initiation Siderca would have had 
the right to require that the USDOC arrange a heari ng to allow interested parties to exchange their 
views with others.  In our view, the fact that certai n exporters do not participate in a sunset review can 
not justify depriving cooperating exporters of their procedural rights under Article 6.2.   
                                                                                                                                                                     
(4)Rebuttal to substantive response to a notice of initiation .  Any interested party that files a 
substantive response to a notice of initiation under paragraph (d)(3) of this section may file a 
rebuttal to any other party's substantive response to a notice of initiation not later than five days after the date  the substantive response is filed with the Department.  (Exhibit  US-3 at 
13522). 
109 In this regard, Section 351.309(e) of the Regulations provides: 
(e) Comments on adequacy of response and appropriateness of expedited sunset review .  (i) in 
general .  Where the Secretary determines that respondent interested parties provided 
inadequate response to a Notice of Initiation ... interested parties...that submitted a complete 
substantive response to the Notice of Initiation ... may file comments on whether an expedited sunset review ... is appropriate based on the adequacy of response to the notice of initiation.  
(Exhibit  US-3 at 13524). 
110 Response of the United States to Question 2(d) from the Panel Following the First Meeting.  WT/DS268/R 
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Conclusion  
7.236  We therefore find that the USDOC acted consiste ntly with Article 6.1 of the Agreement, but 
inconsistently with Article 6.2 in the OCTG sunset review. 
(iii) Alleged violations of Article 6.8 and Annex II of the Agreement in the OCTG review 
7.237  Argentina contends that the USDOC's conduct of an expedited sunset review violated 
Article 6.8 and Annex II of the Agreement because the USDOC applied facts available to Siderca on 
the grounds that Siderca had failed the adequacy test  of US law that triggered the expedited sunset 
review.  According to Argentina, Article 6.8 doe s not permit the use of facts available on such 
grounds.  Siderca fully cooperated with the US DOC, thus the USDOC could not possibly use facts 
available against Siderca.  Argentina also asserts that the USDOC did not use facts available in the 
manner set out in Article 6.8 and Annex II. 
7.238  The United States  submits that the USDOC did not apply facts available with respect to 
Siderca.  Rather, it applied facts available in the context of its order-wide likelihood determination.  
The United States also contends that as part of  facts available the USDOC used the information 
Siderca submitted in its substantive response to the notice of initiation.  According to the United 
States, therefore, the USDOC did not act incons istently with Article 6.8 or Annex II of the 
Agreement.111  
7.239  We note that in the OCTG sunset review, because of Siderca's zero per cent share in the total 
imports of the subject product, the USDOC carried out an expedited sunset review in which it based 
its determinations on facts available.  We al so note that Section 351.308(f) of the USDOC's 
Regulations, the provision of US law regarding th e information to be used by the USDOC in an 
expedited sunset review where facts available are used, confirms the US assertion that the USDOC 
applied facts available vis-à-vis  Argentina, and not Siderca.112  It is therefore factually clear that in the 
instant sunset review the USDOC applied facts available on an order-wide basis and not vis-à-vis  
Siderca.  We have seen nothing in the record of this sunset review that would suggest the contrary.  
We finally note that the USDOC's Issues and Decision Memorandum  states that as part of facts 
available, information submitted by Siderca was considered by the USDOC in its determinations.113  
                                                      
111 First Written Submission of the United States, paras. 214 and 221. 
In this context, we note the following statement of the United States: The Final Sunset Determination , the Decision Memorandum , and the Adequacy 
Memorandum , however, each clearly state that Siderca filed a complete substantive response.  
Commerce’s Adequacy Memorandum and the Decision Memorandum  also make clear that 
Commerce’s decision to expedite the review was based on the failure of Argentine 
producers/exporters of OCTG, other than Siderca, to respond to the notice of initiation.  
Consequently, Commerce determined to expedite the sunset review and to use facts available 
in making the final sunset determination because the Article 11.3 likelihood determination is made on an order-wide basis and Siderca represented zero exports to the United States of 
OCTG during the five-year period preceding the sunset review.  (footnotes omitted) 
First Written Submission of the United States, para. 243. 
112 Section 351.308(f) of the USDOC's Regulations reads in relevant part: 
(f) Use of facts available in a sunset review . Where the Secretary determines to issue final 
results of sunset review on the basis of facts available, the Secretary will normally rely on: (1) Calculated countervailing duty rates or dumping margins, as applicable, from prior 
Department determinations ; and 
(2) Information contained in parties' substantive responses  to the Notice of Initiation filed 
under § 351.218(d)(3), consistent with section 752(b) or 752(c) of the Act, as applicable.  (emphasis added) 
19 C.F.R. § 351.308(f) (Exhibit  US-3 at 13524). 
113 See, supra , note 107. WT/DS268/R 
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7.240  Therefore, the issue is whether the USDOC viol ated Article 6.8 and therefore Annex II of the 
Agreement in its use of facts available on an orde r-wide basis in the OCTG sunset review.  In our 
view, it did not. 
7.241  We note that the USDOC used facts available in  its likelihood determination for Argentina.  
This was a determination that cove red, in addition to Siderca, othe r Argentina exporter(s) that had 
exported the subject product to the United States during the period of application of this measure.  In 
our view, the impact of facts available, if any, was on these other Argentina exporters who did not 
cooperate with the USDOC.
114  This is because by using facts available, the USDOC reached a 
likelihood determination for all Argentine exporter s.  Since these other exporters had not made 
themselves known to the USDOC, the USDOC used the information submitted by Siderca and other 
information in the record in reaching a conclusion with respect to these exporters. 
7.242  We see no harm caused to Siderca because of the USDOC's use of facts available.  The 
information submitted in Siderca's only submission to  the USDOC, i.e. its subs tantive response to the 
notice of initiation, was considered by the USDOC.  Further, as we noted above, Siderca chose not to 
use two additional opportunities that were available under US law to submit information, or make comments, to the USDOC. 
7.243  We note that as part of this claim Argentina also argues that the US DOC acted inconsistently 
with Article 6.9 of the Agreement.  The nature of Argentina's argument in connection with this article 
is not, however, entirely clear.  In its second writte n submission, Argentina asserted that the USDOC's 
determination based on facts available violated , among others, Article 6.9 of the Agreement.
115  In its 
first oral submission, Argentina submitted that the USDOC violated Article 6.9 by not disclosing the 
essential facts forming the basis of the USDOC's de cision to carry out an expedited sunset review.116 
7.244  We consider that Argentina's argumentation in this  regard has not been developed such that it 
would allow us to address and resolve it as an independent claim.  Even if it had been sufficiently 
substantiated by Argentina, resolving such a claim would not, in our view, have a significant 
contribution to the resolution of the dispute at issu e generally.  We note that we have found certain 
substantive inconsistencies in the USDOC's determinations in the OCTG  sunset review.  Having made 
these findings of inconsistency regarding the substance of the USDOC's determinations, entertaining 
another claim under Article 6.9 of the Agreement, which is purely procedural, would not have any 
significant value added with respect to the United Stat es' bringing its measure in to conformity with its 
WTO obligations.  We therefore decline to make any ruling in this regard. 
Conclusion  
7.245  Under these circumstances, therefore, we find th at the USDOC did not act inconsistently with 
Article 6.8 and Annex II of the Agreem ent in its use of facts available. 
(d) Alleged violations of Article 12 of the Agreement 
7.246  Argentina  asserts that the USDOC violated Article 12.2 of the Agreement by failing to 
explain the basis of its sunset determinations in its final determination.  Firs t, Argentina submits that 
the USDOC did not explain whether the basis of its determinations was the waiver provisions of US 
law or the provisions relating to facts available.   Second, Argentina submits that the USDOC acted 
                                                      
114 Argentina is not arguing that the USDOC's use of facts available in this sunset review violated these 
other Argentine exporters' rights under Article 6.8.  In any event, in our view, the use of facts available could 
not possibly lead to a violation of Article 6.8 with respect to these exporters given that they did not cooperate with the USDOC. 
115 Second Written Submission of Argentina, paras. 123-125. 
116 First Oral Submission of Argentina, para. 63.  WT/DS268/R 
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inconsistently with Articles 12.2.1 and 12.2.2 by failing to include in its final determination fresh 
information collected during the sunset review regarding Siderca's dumping margins. 
7.247  The United States  submits that the USDOC's final determination contains the bases for the 
USDOC's likelihood determination.  According to th e United States, Article 12.2.2 does not impose 
any substantive obligation on the investigating authorities in sunset reviews. 
7.248  We note that Article 12 is entitled "Public Notice and Explanation of Determinations".  It sets 
forth the investigating authorities' obligation to give  public notice of certain  decisions/determinations 
made at various stages of an investigation.  Paragrap h 3 of Article 12 states that the provisions of that 
Article apply mutatis mutandis to reviews under Article 11.  Ther efore, the provisions of Article 12 
apply to sunset reviews with necessary changes th at the nature of sunset reviews may necessitate. 
7.249  With that in mind, we now turn to Argentina's fi rst argument, that it is impossible to discern 
the basis for the USDOC's determination.  We not e that regarding the content of public notices, 
Article 12.2 of the Agreement th at Argentina cites in this cont ext provides in relevant part: 
Each such notice shall set forth, or othe rwise make available through a separate 
report, in sufficient detail the findings and conclusions reached on all issues of fact 
and law considered material by  the investigating authorities. 
7.250  In light of the obligation set forth in Article 12.2, we shall inquire whether the USDOC's final 
determination in the instant sunset review cont ained sufficient information as to the USDOC's 
findings and conclusions on the relevant issues of fact and law in the instant sunset review.  In this 
context, we note the following portions of the USDOC's Issues and Decision Memorandum : 
Although the Department received a substantive response on behalf of Siderca, the 
Department explained in it s August 22, 2000 adequacy determination that because, 
during the period 1995 to 1999, the average annual share of Siderca's exports of the 
subject merchandise vis-à-vis  the total Argentine exports of the subject merchandise 
during the same period was significantl y below the fifty-per cent threshold...the 
Department determined Siderca's s ubstantive response to be inadequate .117 
In the instant sunset reviews, the Departme nt did not receive an adequate response 
from respondent interested parties. Pursua nt to Section 351.218(d)(2)(iii) of the 
Sunset Regulations, this constitutes a waiver of participation .118   
Therefore, given that dumping continued after the issuance of the orders, average 
imports continued at levels far below pre- order levels from 1995 through 1999, and 
respondent interested parties waived their ri ght to participate in these review or failed 
to submit adequate substantive responses, we determine that dumping is likely to 
continue if the orders were revoked.119 
In the Argentine case, however, the Department determined to conduct an expedited 
review  because of its finding that Siderca  did not provide adequate substantive 
responses.120  (emphasis added) 
7.251  We note that the memorandum generally provides  that Argentina was treated differently from 
the other countries subject to the sunset review by stating that Siderca did not provide an adequate  
                                                      
117 Issues and Decision Memorandum (Exhibit ARG-51 at 3). 
118 Issues and Decision Memorandum (Exhibit ARG-51 at 5). 
119 Issues and Decision Memorandum (Exhibit ARG-51 at 5). 
120 Issues and Decision Memorandum (Exhibit ARG-51 at 7). WT/DS268/R 
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substantive response to the notice of initiation, wh ereas the respondents in other countries waived 
their right to participate in the sunset  review by failing to file a complete
 substantive response.  
However, in the second paragraph quoted above, the USDOC seems to state that all interested parties 
waived their right to participate in this sunset review by not su bmitting an adequate substantive 
response.  This seems to be at odds with the ab ove-outlined structure of US law regarding waivers 
(supra , para. 7.84) and the submission of an adequate response to the notice of initiation in sunset 
reviews ( supra , note 40).  In response to questioning from  the Panel, the United States pointed out 
that the phrase "this constitutes a waiver of participat ion" refers to the interested parties that failed to 
submit a substantive response to the notice of initia tion whereas Siderca, as an interested party that 
did submit such a response, was not de emed to have waived its right. 
7.252  In light of the above, we are of the view that  the existence of this inconsistent statement 
regarding the legal basis under US law on which Siderca was treated by the USDOC does not render 
this determination inconsistent with Article 12. 2 of the Agreement because when viewed in its 
entirety the memorandum states that Siderca and th e other respondents were treated differently and 
that Siderca had not waived its right to  participate in this sunset review. 
7.253  Regarding the second argument raised by Arge ntina, that the USDOC failed to comply with 
Article 12.2.2 because its final determination did no t contain fresh evidence re garding its likelihood of 
continuation or recurrence of dumping determinations, we note that Argentina is implying that 
Article 12.2 imposes certa in substantive obligations on invest igating authorities. However, neither 
Article 12.2 nor the other paragraphs of Article 12 contain substantive obligations regarding the 
conduct of sunset reviews.  The substantive requir ements of the Agreement regarding sunset reviews 
have to be found in the substantive provisions such  as Article 11.3 and the treaty interpreter should 
refrain from interpreting procedural provisions of the Agreement, such as Articles 12 and 6, in a way 
to impose additional substantive obligations on i nvestigating authorities. In this context, we find 
useful the following finding of the panel in US – Corrosion-Resistant Steel Sunset Review : 
In other words, by finding that the provisions of Article 6.10 may contain evidentiary 
and procedural obligations that are, in gene ral, applicable in sunset reviews, we do 
not (and cannot) find that Article 6.10, by virtue of the cross-reference in 
Article 11.4, operates so as to super-impose an additional  substantive requirement of 
re-calculation of the likely dumping margin in sunset reviews, a requirement that not 
even Japan argues is found in the text of Artic le 11.3, or elsewhere in the text of the 
Anti-Dumping Agreement.  We, as a treaty interpreter, are not allowed to derive 
substantive obligations out of the appli cation of the evidentiary and procedural 
provisions of Article 6.121  (footnote omitted) 
We note that the panel's view on this issue was also upheld by the Appellate Body.122   
(i) Conclusion 
7.254  We therefore decline to sustain Argentina's claim under Article 12 of the Agreement. 
                                                      
121 Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan  ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/R, 
adopted 9 January 2004, as modified by the Appe llate Body Report, WT/DS244/AB/R, para. 7.206. 
122 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 155.  WT/DS268/R 
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E. CLAIMS RELATING TO THE USITC' S LIKELIHOOD DETERMINATION IN THE OCTG  SUNSET 
REVIEW  
1. Introduction 
7.255  The USITC part of the OCTG sunset review conc erned five countries, i.e. Argentina, Italy, 
Japan, Korea and Mexico.  Because both the dome stic industry and the respondent interested party 
groups submitted adequate responses, the USITC carried out a full sunset review.123  The USITC 
carried out a cumulative analysis with respect to these five countries.124  The USITC determined that 
material injury would be likely to continue or recur in the case of revocation of the order on OCTG 
from Argentina, Italy, Japan, Korea and Mexico.125 
2. Temporal Aspect of the USIT C's Likelihood Determination 
(a) Arguments of parties 
(i) Argentina 
7.256  Argentina submits that the application of Secti ons 752(a)(1) and (5) of the Tariff Act in the 
instant sunset review was inconsistent with Artic les 11.3 and 3 of the Agreement.  According to 
Argentina, the USITC's determination merely cite s the relevant provisions of the Act and the SAA 
and does not specify what "reasonably foreseeable time" means for purposes of the instant sunset review. 
(ii) United States 
7.257  The United States argues that because Article 11.3 is silent as to the time-frame relevant to 
sunset reviews, the USITC's determination can not be inconsistent with Articles 3 and 11.3 of the 
Agreement on the grounds that it did not specify the time-frame on which it was based. 
(b) Evaluation by the Panel 
7.258  Argentina argues in the first place that the fact  that the USITC applied Sections 752(a)(1) and 
(5) of the Tariff Act in the instant sunset review  made its determinations WTO-inconsistent.  We 
recall, however, our above finding that the US stat utory provisions relating to the time-frame on the 
basis of which the USITC makes its likelihood de terminations in sunset reviews are not WTO-
inconsistent ( supra , para. 7.193).  We can not, therefore, find that their application in the OCTG 
sunset review were necessarily WTO-inconsistent. 
7.259  Argentina argues that even if the US statutory provisions containing this standard are WTO-
consistent, the USITC failed to apply these provisions properly to the evidence before it in the instant 
sunset review.  Argentina asserts that the USITC acted inconsistently with Article 11.3 of the 
Agreement by failing to explain the parameters of th e reasonably foreseeable period of time on the 
basis of which it found injury to be likely to continue or recur.
126  We recall our analysis that 
Article 11.3 does not require investigating authoriti es to specify the time-frame on which they are 
basing their likelihood of continuation or recurrence of injury determinations ( supra , para. 7.184).  
Article 11.3 provides that the investigating authority must establish on the basis of a sufficient factual 
                                                      
123 Although the USITC found that the Japanese exporters' response was not adequate, it nevertheless 
decided to conduct a full sunset review as to Japan for reasons of administrative efficiency.  USITC's Sunset 
Determination (Exhibit  ARG-54 at 2). 
124 USITC's Sunset Determination (Exhibit  ARG-54 at 14). 
125 USITC's Sunset Determination (Exhibit  ARG-54 at 16-17). 
126 First Written Submission of Argentina, paras. 277-278; Second Written Submission of Argentina, 
para. 206. WT/DS268/R 
Page 64  
 
basis that there is a likelihood of continuation or recurrence of injury.  We therefore see no WTO-
inconsistency in the USITC's failure to specify th e time period that it considered to be reasonably 
foreseeable for purposes of its likelihood dete rminations in the instant sunset review. 
(i) Conclusion 
7.260  In light of the above considerations, we declin e Argentina's claim regarding the application by 
the USITC of Sections 752(a)(1) and (5) of the Tariff Act in the OCTG sunset review. 
3. Standard Applied by the USITC 
(a) Arguments of parties 
(i) Argentina 
7.261  Argentina submits that the USITC failed to apply the "likely" standard of Article 11.3 in the 
sunset review at issue.  According to Argentina, although the relevant provision of the US Statute and the USITC's determination in the instant sunset review contains the word "likely", the USITC in fact 
applied a different standard in th e instant sunset review.  According to Argentina, "likely" means 
"probable".  In this sunset review, however, the US ITC applied a "possibility" standard instead of the 
proper likely standard of Article 11.3 in respect of its determinatio ns regarding the likely volume of 
dumped imports, the likely price effect of such imports and their likely impact on the US domestic industry.  Thus, the USITC determined that injury would be likely to continue or recur on the basis of 
facts that demonstrated that a certain outcome was possible, rather than probable.  Argentina also 
argues that regarding these three aspects, the USIT C failed to carry out an objective examination on 
the basis of positive evidence, inconsistently with  Articles 11.3, 3.1 and 3.2 of the Agreement. 
7.262  Argentina also alleges violations of Articles 3. 4 and 3.5 of the Agreement in the instant sunset 
review. 
(ii) United States 
7.263  The United States submits that in the instant sunset review the USITC applied the "likely" 
standard provided for under Article 11.3.  The Unite d States disagrees with Argentina's view that 
likely only means probable.  According to the United States, Article 11.3 of the Agreement uses the word "likely", and not "probable", hence finding a decisive synonym for likely would not shed more light on the meaning of that term. 
7.264  The United States also disputes Argentina's allegations regarding the standard applied with 
respect to the three aspects of the USITC's sunset determination in this case, the likely volume of 
dumped imports, the likely price effect of such imports and their likely impact on the US domestic 
industry.  The United States generally argues that Article 3 – including Article 3.1 – does not apply to 
sunset reviews.  According to the United States, the dictates of Article 3.1 are potentially 
incompatible with the nature of sunset determin ations under Article 11.3.  The United States 
nevertheless submits that the violations alleged by Argentina with regard to Article 3.1 are groundless 
because the USITC's determinations demonstrate that it did not act inconsistently with these 
provisions. 
7.265  The United States also disputes Argentina's claims regarding Articles 3.4 and 3.5.  WT/DS268/R 
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(b) Arguments of third parties 
(i) European Communities 
7.266  The European Communities agrees with Arge ntina that the provisions of Article 3  of the 
Anti-Dumping Agreement  apply mutatis mutandis  in the context of sunset reviews. According to the 
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit 
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Communities also agrees with 
Argentina that the required standard in sunset determinations is “likely”, not “possible”. According to 
the European Communities, the USITC did not correct ly apply the “likely” standard in the instant 
sunset review. 
(ii) Japan 
7.267  Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews 
under Article 11.3.  Therefore, the requirements of Ar ticles 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in 
such reviews. 
(c) Evaluation by the Panel 
(i) Applicability of Article 3 in sunset reviews 
7.268  We note that the majority of Argentina's claims challenging the USITC's determinations in 
the OCTG sunset review are premised  on various paragraphs of Article 3 of the Agreement, solely or 
together with Article 11.3.  Par ties' views as to the applicability of Article 3 in sunset reviews, 
however, diverge.  Argentina submits generally that  Article 3 of the Agreem ent applies to sunset 
reviews.  In this regard, Argentina relies mainly on  the provisions of footnote 9 of the Agreement that 
specifies the three types of inju ry, and on previous Appellate Body decisions.  According to the 
United States, however, Article 3 does not apply to  sunset reviews carried out under Article 11.3 
because the nature of the inquiry is different und er these two provisions.  Article 3 applies to a 
determination of "injury" whereas the focus of the i nquiry in a sunset review is a determination of the 
"likelihood of continuation or recurrence of injury". 
7.269  Given the central role of Article 3 in Argentina's arguments raised in support of its claims 
relating to the USITC's actions in the OCTG sunset review and the divergence between parties' views 
on this matter, we find it useful to outline at this juncture our views regarding the applicability of 
Article 3 in sunset reviews. 
7.270  We note that neither Article 11.3 nor any other paragraph of Article 11 contains any provision 
as to whether the provisions of Article 3 in general,  or those of certain specific paragraphs thereof in 
particular, apply to sunset reviews.  Nor does Artic le 3 contain any cross-reference to that effect.  
However, there are textual indications in Article 3 that may suggest that its provisions define the 
scope of injury determinations throughout the Agr eement.  For instance, the introductory phrase in 
Article 3.1 ("for purposes of Article  VI of GATT 1994") and the phrase "[u]nder this Agreement" in 
footnote 9 indicate that the concept of injury should be understood in the manner set out in Article 3 
throughout the Agreement.  In this context, we also incorporate our above analysis regarding the textual analysis of Articles 3 and 11.3 of the Agreement ( supra , paras. 7.184-7.191). 
7.271  We note that the panel in US – Corrosion-Resistant Steel Sunset Review
 also opined that the 
term injury should be understood in the manner described in Article 3.  However, that panel 
concluded that these phrases indicated that Artic le 3's scope of application was not limited to WT/DS268/R 
Page 66  
 
investigations, hence it also generally applied to sunset reviews.
127  That panel then went on and 
analysed whether a particular paragraph of Article 3, namely paragraph 3, was applicable in sunset 
reviews and decided that because of its text Artic le 3.3 was an exception to its general observation 
and hence it did not apply to sunset reviews. 
7.272  To the extent that that panel found that the above-cited phrases found in Article 3 and 
footnote 9 thereto make the provisions of Article 3 generally applicable to sunset reviews, we 
disagree.  We note that the nature of the inquiries in investigations and sunset reviews is significantly 
different.  Regarding the difference s between original investigations and sunset reviews, we note the 
following observation of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review : 
In considering the nature of a likelihood determination in a sunset review under 
Article 11.3, we recall our statement in US – Carbon Steel , in the context of the SCM 
Agreement , that: 
… original investigations and sunset reviews are distinct processes 
with different purposes.  The nature of the determination to be made 
in a sunset review differs in certain essential respects from the nature of the determination to be made  in an original investigation.
128 
This observation applies also to original investigations and sunset reviews under the 
Anti-Dumping Agreement.  In an original anti-dumping investigation, investigating 
authorities must determine whether dumping  exists during the period of investigation.  
In contrast, in a sunset review of an an ti-dumping duty, investigating authorities must 
determine whether the expiry of the duty that was imposed at the conclusion of an 
original investigation would be likely to lead to continuation or recurrence of 
dumping .129 
7.273  In our view, the Appellate Body's reasoning regarding the differences between original 
investigations and sunset reviews pertaining to dumping determinations equally applies to the injury 
side of investigations and sunset reviews.  The focus of the injury determinations in investigations is 
to determine the existence of injury during the pe riod of investigation whereas sunset reviews are 
about the likelihood of continuation or  recurrence of injury in the event of revocation of an order that 
                                                      
127 In this regard, we note the following statements of the panel in US – Corrosion-Resistant Steel 
Sunset Review : 
First, Article 3 is entitled "Injury".  This title is linked to footnote 9 of the Anti-Dumping 
Agreement , which indicates that: "[u]nder this Agreement the term "injury" shall, unless 
otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry 
and shall be interpreted in accordance with the provisions of this Article."  This seems to 
demonstrate that the term "injury" as it appears throughout the Anti-Dumping Agreement  – 
including Article 11 – is to be construed in accordance with this footnote, unless otherwise specified.  This would seem to support the view that the provisions of Article 3 concerning 
injury may be generally applicable throughout the Anti-Dumping Agreement  and are not 
limited in application to investigations.  Article 11 does not seem to explicitly specify otherwise in the case of sunset reviews. 
There are other textual indications that the Article 3 injury obligations may generally apply 
throughout the Agreement.  For example, the use of the language "for purposes of Article VI of GATT 1994" in Article 3.1 also suggests that, in general, the obligations in Article 3 
pertaining to injury may apply throughout the Anti-Dumping Agreement , i.e. they are not 
limited to investigations.  (footnote omitted) 
Panel Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 121, paras. 7.99-7.100. 
128 (original footnote) Appellate Body Report,  US – Carbon Steel , para. 106. 
129 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, paras. 106-
107.  WT/DS268/R 
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has already been in place for up to five years.  Just as the Appellate Body stated that an investigating 
authority is not required to make a dumping determination in a sunset review130, we consider that an 
investigating authority is not required to make an in jury determination in a sunset review.  It follows, 
then, that the obligations set out in Article 3 do not normally apply to sunset reviews. 
7.274  If, however, an investigating authority decides to conduct an injury determination in a sunset 
review, or if it uses a past injury determination as  part of its sunset dete rmination, it is under the 
obligation to make sure that its injury determinat ion or the past injury determination it is using 
conforms to the relevant provisions of Article 3.131  For instance, Article 11.3 does not mention 
whether an investigating authority is required to cal culate the price effect of  future dumped imports on 
the prices of the domestic industry.  In our view, this means that an investigating authority is not 
necessarily required to carry out that calculation in  a sunset review.  However, if the investigating 
authority decides to do such a calculation, then it would be bound by the relevant provisions of 
Article 3 of the Agreement.  Similarly, if, in its  sunset injury determinations, an investigating 
authority uses a price effect calculation made in the original investigation or in the intervening 
reviews, it has to assure th e consistency of that calculation with the existing provisions of Article 3. 
7.275  However, this does not mean that we will disreg ard the provisions of Article 3 in our analysis 
regarding the USITC's determinations in the instant review.  Just as the Appellate Body in US – 
Corrosion-Resistant Steel Sunset Review  pointed out regarding the definition of dumping set out in 
Article 2.1 of the Agreement132, we consider that throughout the Agreement – including sunset 
reviews – the term injury should be understood and interpreted as set out in Article 3 of the 
Agreement, including footnote 9 thereto.  The Agreement contains no other definition of injury made for purposes of sunset reviews.  Therefore, although we find that the provisions of various paragraphs 
of Article 3 do not necessarily apply in sunset revi ews, we shall in our analysis be mindful of the 
definition of injury set out in footnote 9 and the para meters of injury determin ations as generally set 
out in Article 3.  We shall find gu idance in Article 3 where appropriate. 
7.276  It follows from the above-outlined analysis that  we will entertain Argentina's claims under 
Article 3 only to the extent the USITC made an inju ry determination – as opposed to a likelihood of 
continuation or recurrence of injury – in the OCTG sunset review, or in cases where the USITC used 
an injury determination from the original OCTG  investigation or the intervening reviews and 
Argentina alleges that the USITC failed to make th e necessary corrections to these original injury 
determinations to make them consistent w ith the current provisions of Article 3. 
(ii) Claims relating to the USITC's determinations regarding the likely volume of dumped 
imports, their likely price effect and their likely impact on the US domestic industry 
7.277  Argentina contends that the USITC applied a standard different from the "likely" standard of 
Article 11.3 in the instant sunset review.  Accordin g to Argentina, the USITC applied a "possibility" 
standard instead of the "likely" standard of Article 11.3 of the Agreement which according to 
Argentina means "probable".  In the view of Argentina, the fact that the USITC did not apply the likely standard can be seen through an analysis of its  determinations relating to the likely volume of 
dumped imports, their likely price effect and their likely impact of the US domestic industry.  
Argentina also asserts that the USITC violated Articles 3.1 and 3.2 of the Agreement in its 
determinations relating to these three factors becaus e it failed to carry out an objective examination on 
the basis of positive evidence.  Ar gentina concedes, however, that the US Statute and the USITC's 
sunset determination contains the word "likely". 
                                                     
 
130 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 123. 
131 We find support for this proposition in the Appellate Body's findings in US – Corrosion-Resistant 
Steel Sunset Review .  See, Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 
30, paras. 126-130. 
132 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 30, para. 126. WT/DS268/R 
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7.278  We note that Argentina's claim regarding the USITC's injury analysis with respect to the 
likely volume of dumped imports, the likely price effect of such imports and their likely impact of the 
US domestic industry is two-fold.  First, Argentina asserts that with regard to each one of these three 
factors the USITC failed to apply the likely standa rd of Article 11.3.  Second, Argentina contends 
with respect to the same three aspects of the USIT C's determinations that the USITC failed to conduct 
an objective examination on the basis of positive ev idence, inconsistently with  Articles 3.1 and 3.2.  
Hence, in the context of this claim Argentina claims  violations of Article 11.3 as well as Articles 3.1 
and 3.2 of the Agreement. 
7.279  In accordance with our above-framed approach re garding the applicability of Article 3 of the 
Agreement to sunset reviews, we find it usef ul to first inquire whether the USITC made a 
determination of injury or a determination of the li kelihood of continuation or recurrence of injury in 
the instant sunset review.  We note that the USITC' s determination makes clea r that it is about the 
likelihood of continuation or recurrence of in jury, rather than a de termination of injury.
133  Nor does 
Argentina argue that what the USITC did in this case was a determination of injury.  Similarly, 
Argentina does not assert that in the OCTG review the USITC used an injury determination from the original OCTG investigation that  is now inconsistent with the provisions of Article 3 of the 
Agreement.  We will therefore only entertain Artic le 11.3 aspects of Argentina's claim and decline 
those relating to Article 3. 
7.280  However, we note that the crux of Argentina's claim is that the USITC either did not establish 
facts properly or did not evaluate them objectively or  did not base them on a sufficient factual basis.  
We recall that the above-described standard of review ( supra , paras. 7.1-7.5) applicable to the present 
proceedings provides that we should find that the USITC acted in a WTO-consistent way if it 
established the facts properly and evaluated them in an objective and unbiased manner.  It follows that 
the substance of Argentina's claim under Articles 3.1 and 3.2, the alleged failure to carry out an 
objective examination on the basis of positive eviden ce, directly overlaps with the standard of review 
that we shall apply in this case.  For the purposes  of the present claim, the fact that we will not 
consider Article 3 aspects of Argentina's claim he re will not bring about any practical difference in 
terms of the outcome of our analysis. 
7.281  We will apply, therefore, the above-described st andard of review in determining whether the 
USITC acted consistently with the Agreement regard ing these three aspects of its determinations in 
the instant sunset review.  If we find that the USITC's establishment of facts was proper and that these 
facts were evaluated in an unbiased and objective manner, we will not find an inconsistency even if 
we might have reached a different conclusion on the basis of the same facts.  Given that the issue is whether the USITC's likelihood determination was based on a proper establishment of facts and on an 
unbiased and objective evaluation thereof, in case we find that either one of these criteria is not met 
we will find a violation of Ar ticle 11.3, not 3.1 or 3.2. 
7.282  Having set out our approach with regard to Argentina's present claim, we now turn to the 
legal arguments Argentina raised in this context. 
7.283  We recall our above observation that Argentina concedes that on its face the USITC's 
determination in the OCTG suns et review contains the word "likely".  The USITC's final 
determination reads, in relevant part: 
Based on the record in these five-year revi ews, we determine under section 751(c) of 
the Tariff Act of 1930, as amended ("the Act"), that revocation of the antidumping 
duty orders on Oil Country Tubular Goods ("OCTG") other than drill pipe ("casing 
and tubing") from Argentina, Italy, Japan, Korea, and Mexico and of the 
countervailing duty order on casing and tubing from Italy would be likely to lead to 
                                                      
133 See, for instance, pages 1, 16 and 33 of the USITC's Sunset Determination (Exhibit ARG-54).  WT/DS268/R 
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continuation or recurrence  of material injury to an industry in the United States within 
a reasonably foreseeable time.134  (emphasis added) 
We note that, as Argentina agrees, on its face the USITC's determination references the likely 
standard of Article 11.3. 
7.284  However, Argentina puts forward other arguments in its effort to prove that notwithstanding 
the standard spelled out in its final determination, th e USITC did in fact use a different standard in the 
sunset review at issue.  In this respect, Argentina first asserts that the USITC's statements in different 
fora reveals the fact that it interprets "likely" to mean "possible" rather than "probable".  One such 
alleged admission relates to the US ITC's statement before a US court that "likely" does not mean 
"probable", but something else.  The second relate s to the USITC's views expressed before a NAFTA 
panel in which the USITC allegedly stated that "likely" does not necessarily mean "probable". 
7.285  We note that the standard set out in Article 11.3 of the Agreement for the investigating 
authorities' sunset determinations is "likely".  This  standard applies to the likelihood of continuation 
or recurrence of dumping as well as injury determinatio ns in sunset reviews, and this is precisely the 
standard that the USITC applied.  It seems to us th at the essence of Argentina's claim is not that the 
USITC applied the wrong standard, but that it erred in  determining that the likely standard was met.  
Our task is to reach a decision on Argentina's alle gation that the USITC erre d in the instant sunset 
review in the application of the likely standard of Article 11.3.  Hence, the USITC's statements before 
US courts or before a NAFTA pane l regarding the meaning of likely as  used in Article 11.3 of the 
Agreement are not relevant to our consideration as  to whether the USITC's determination in this 
sunset review present proceedings satisfied Article 11.3's likely standard. 
7.286  We therefore turn to the specific aspects of th e USITC's determination in the instant sunset 
review, regarding which Argentina alleges that th e USITC failed to apply Article 11.3's likely 
standard. 
Likely volume of dumped imports  
7.287  Argentina submits that the USITC's analysis of the likely volume of dumped imports was not 
based on an objective examination of the evidence in the record. 
7.288  We note that the USITC's analysis of the likely volume of dumped imports is found on pages 
17-20 of the USITC's Sunset Determination.  This  part of the determination contains a detailed 
discussion of the issues relating to the likely volume of dumped imports.  On page 17, the USITC 
starts its analysis with the relevant findings in  the original investigation and then discusses the 
developments during the period of application of the measure.  In the following pages, the USITC 
provides supporting arguments for its conclusion th at there will be a significant volume of dumped 
imports in the event of revocation.   Regarding capacity utilization,  although the USITC acknowledges 
that the exporters' capacity utilization rates were  high, it concludes that these foreign producers can 
devote more of their productive capacity from ot her types of tubular products to casing and tubing135  
because these two groups of products are produced  in the same production lines with the same 
machinery.  The USITC then explains the reasons on the basis of which it made this determination.  In 
this context, the USITC mentions five reasons. 
7.289  Argentina challenges the USITC's reasoning on three grounds and asserts therefore that the 
USITC's determination was not based on an objectiv e examination of the evidence in the record. 
                                                      
134 USITC's Sunset Determination (Exhibit  ARG-54 at 1). 
135 OCTG includes two different product sub-groups: "Casing and tubing" and "drill pipe".  The like 
product definition in the OCTG sunset review at issue included "casing and tubing", but not "drill pipe".  See, 
USITC's Sunset Determination (Exhibit ARG-54 at 1-4). WT/DS268/R 
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7.290  The main argument that Argentina raises in th is respect relates to th e USITC's finding that 
Tenaris
136 could re-orient more of its production capacity to the US market.  Argentina does not 
dispute the fact that Tenaris could shift its produc tion capacity used in the production of other types of 
pipe and tube products to casing and tubing.  Indeed , Argentina states that the only way for Tenaris to 
increase its exports of casing and tubing into the Un ited States would be through shifting more of its 
capacity to the produc tion of this product.137  Argentina asserts, however, that there was no positive 
evidence in the record of the OCTG sunset review that would support the USITC's finding that 
Tenaris had an incentive to shift its production in such a way.  Therefore, the issue is whether the 
USITC's determination that Tenaris could shift its productive capacity from other pipe and tube 
products to casing and tubing had a sufficient factual basis in the record. 
7.291  We note that the USITC identified five supporting arguments for its determination that 
subject producers, including Tenaris, could devo te more of their productive capacity to the US 
market.  The USITC's determina tion reads, in relevant part: 
The recent*** capacity utilization rates repr esent a potentially important constraint 
on the ability of these subject producers to increase shipments of casing and tubing to the United States. Nevertheless, the record indicates that these producers have incentives to devote more of their prod uctive capacity to producing and shipping 
more casing and tubing to the U.S. market. 
First, ... While the Tenaris companies seek to downplay the importance of the U.S. 
market relative to the rest of the world, th ey acknowledge that it is the largest market 
for seamless casing and tubing in the world.  Given Tenaris' global focus, it likely 
would have a strong incentive to have a significant presence in the U.S. market, 
including the supply of its global customer s' OCTG requirements in the U.S. market. 
Second, casing and tubing are among the highest valued pipe and tube products, 
generating among the highest profit margins.... 
Third, the record in these reviews indicates that prices for casing and tubing on the 
world market are significantly lower than prices in the United States...We have 
considered respondents' arguments that the domestic industry's claims of price 
differences are exaggerated, but nevertheless conclude that there is on average a 
difference sufficient to create an incentiv e for subject producers to seek to increase 
their sales of casing and tubing to the United States. 
Fourth, subject country producers also face import barriers in other countries, or on 
related products... 
Finally, we find that industries in * **of the subject countries are dependent on 
exports for the majority of their sales... 
We therefore find that, in the absence of the orders, the likely volume of cumulated 
subject imports, both in absolute terms and as a share of the U.S. market, would be 
significant.
138  (footnotes omitted) 
7.292  We note that Argentina challenges two of these five points highlighted by the USITC.  
Therefore, we shall first entertai n Argentina's arguments regarding these two points before reaching 
                                                      
136 Tenaris is the name of a group of companies including Siderca.  See, First Written Submission of 
Argentina, footnote 37.  Therefore, for purposes of our an alysis, we consider that Tenaris refers to Siderca.   
137 First Written Submission of Argentina, para. 244. 
138 USITC's Sunset Determination (Exhibit ARG-54 at 19-20).  WT/DS268/R 
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our conclusion regarding Argentina's main claim th at the USITC's determina tion regarding the likely 
volume of dumped imports was not based on an ob jective examination of the evidence in the record. 
7.293  Argentina first contends that the USITC's findin g regarding the existence of trade barriers in 
third-country markets was only based on an antidumping order imposed by Canada against Korea.  
Since the USITC could not cite any other trade barrier  against the other four c ountries subject to this 
sunset review, Argentina asserts that this finding was not based on positive evidence.   
7.294  The USITC's determination reads, in relevant part: 
Fourth, subject country producers also face import barriers in other countries, or on 
related products.  Argentine, Japanese, and Mexican producers are subject to 
antidumping duty orders in the United States on seamless standard, line, and pressure 
pipe, which are produced in the same production facilities as OCTG.  Korean 
producers are subject to import quotas on welded line pipe shipped to the United 
States and U.S. antidumping duty orders on  circular, welded, non-alloy steel pipe.  
Canada currently imposes 67 per cent antidumping duty margins on casing from 
Korea.139  (footnotes omitted) 
7.295  We note that the USITC referred to a number of trade barriers.  However, of these barriers 
only one related to the subject product, i.e. Canadian anti-dumping measure on casing and tubing 
from Korea.  Others concerned related products, i. e. products that could be produced in the same 
production lines as casing and tubing.  The issue th erefore is whether the USITC erred in considering 
that certain exporters that were subject to trade ba rriers with respect to certain product types, which 
could be produced in the same production lines as casing and tubing, might shift their production to 
casing and tubing, which could enter the US market free of the anti-dumping measure at issue in these 
proceedings.  Given that it is undisputed betwee n the parties that such shifting was technically 
possible, we see no reason why the USITC could not make such an inference in the circumstances of 
the instant sunset review.  It is only normal to expect a producer to seek to maximize its profits, 
which, in this case, would be possible through shifting production to casing and tubing in order to enter the US market free of the anti-dumping duty at issue had it been revoked.  We therefore consider 
that this aspect of the USITC's conclusion was r easoned in light of the evidence in the record. 
7.296  Next, Argentina submits that the USITC's analysis concerning the price differences between 
the US and the world markets was based on anecdotal evidence rather than independent reports.  We 
note that the USITC's report cites th e testimony of three individuals in this sector as evidence of this 
price differentiation and it cites no objection ra ised by interested parties in this respect.
140  Argentina 
is not raising any argument as to the correctness of the substance of this testimony.  Nor has it brought 
to our attention another piece of evidence that might support the opposite finding in this regard.  
Argentina's claim in this regard therefore is limi ted to the kind of evidence the USITC relied upon.  
Keeping in mind our standard of review with resp ect to factual determinations by an investigating 
authority, and conscious that there are no rules in the Anti-Dumping Agreement as to the type of evidence that can support an investigating authority 's findings, we are of the view that the USITC's 
reference to the testimonies of individuals who are knowledgeable in the relevant sector was proper. 
7.297  Argentina also argues that the fact that the producers forming Tenaris already had long-term 
contracts with their customers indicated to the USITC that Tenaris was not likely to increase its 
exports to the United States in the event of revocati on.  This is because these producers would not turn 
away their long-term customers for the sake of increasing their exports to the United States.  The 
United States asserts, and the USITC's Final Determ ination states, that given the difference between 
the US and world market prices, the United States' being the world's largest OCTG market and casing 
                                                     
 
139 USITC's Sunset Determination (Exhibit ARG-54 at 20). 
140 USITC's Sunset Determination (Exhibit ARG-54 at 21, footnote 128). WT/DS268/R 
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and tubing's being the highest valued pipe and tube product, the USITC was justified in concluding 
that Tenaris had a strong incentive to increase exports to the United States.  We find it reasonable to 
conclude from these facts that Tenaris had an ince ntive to increase its exports to the United States 
should the measure be revoked.  In our view, a dete rmination that certain producers have an incentive 
to increase their exports towards a certain market is one that can be made on the basis of an analysis 
of various factors, such as the size of the targ et market, differences betw een prices and qualities and 
other costs associated with the sh ipment of the subject product.  In  the circumstances of the instant 
sunset review, we see no element in the USIT C's Final Determination which would support the 
assertion that the USITC's determination on this matter was based on an improper establishment of 
facts or a biased or unobjective evaluation thereof. 
Conclusion 
7.298  In light of the above considerations, we conclude that Argentina has failed to prove that the 
USITC's determinations concerning the likely volume of dumped imports were WTO-inconsistent and 
therefore decline this aspect of Argentina's claim. 
Likely price effects of dumped imports
 
7.299  The USITC's discussion of the issues relating to  the likely price effect of dumped imports is 
found on pages 20 and 21 of its Final Determination.  Here too, the USITC starts its analysis by citing 
the relevant findings in the original investigation.   It then discusses the determinations made during 
the period of application of the order and mentions that price underselling continued over the life of 
the measure.  The USITC then concludes: 
Given the likely significant volume of subject imports, the high level of 
substitutability between the subject imports and domestic like product, the importance 
of price in domestic purchasing decision, th e volatile nature of U.S. demand, and the 
underselling by the subject imports in the original investigation and during the current 
review period, we find that in the absence of the orders, casing and tubing from 
Argentina, Italy, Japan, Korea and Mexico likely would compete on the basis of price 
in order to gain additional market share.  We find that such price-based competition 
by subject imports likely would have significant depressing or suppressing effects on 
the prices of the domestic like product.141  (footnote omitted) 
7.300  Argentina argues that the USITC's findings regarding the likely price effects of dumped 
imports were not based on an objec tive examination of the evidence in the record.  First, according to 
Argentina, the USITC's price underselling analys is was based on a limited set of comparisons. 
7.301  We note the following part of the US ITC's determination in this regard: 
While direct selling comparisons are limi ted because the subject producers had a 
limited presence in the U.S. market during the period of review, the few direct 
comparisons that can be made indicate that subject casing and tubing generally 
undersold the domestic like product especially in 1999 and 2000.142  ( f o o t n o t e  
omitted) 
7.302  Argentina does not dispute the fact that th e USITC did carry out some sort of price 
comparison.  According to Argentina, however, the ba se of this comparison was not adequate because 
of the limited number of comparisons involved. 
                                                      
141 USITC's Sunset Determination (Exhibit ARG-54 at 21). 
142 USITC's Sunset Determination (Exhibit ARG-54 at 21).  WT/DS268/R 
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7.303  In our view, a price comparison made as part of a sunset determination does not necessarily 
require a threshold in terms of the number of comparis ons used.  In fact, in sunset reviews, depending 
on the volume of imports following the imposition  of the measure the number of such comparisons 
may inevitably be limited.  It may even be impo ssible to do any comparison in cases where imports 
completely cease following the imposition.  In this case, the USITC carried out a number of price 
comparisons as part of its price effect analysis.  The USITC's determination explains that the reason 
for the limited number of price comparisons was the low volume of imports following the imposition 
of the measure at issue.  Argentina does not dis pute this fact.  Argentina does not contend that the 
USITC, for instance, acted selectively in making th ese comparisons or that the methodology used was 
biased or otherwise improper.  The simple fact that the number of price comparisons was limited does not make this aspect of the USITC's determination inconsistent with Article 11.3 of the Agreement.  We therefore consider that under the circumstance s of this case the USITC's calculations were 
adequate because the volume of export sales into  the US market were limited in the period of 
application of the measure. 
7.304  Argentina also argues that the USITC's determination that price was an important factor in the 
purchasing decisions in the US market was flawed because the documents in the record show that purchasers attached a similar importance to factors ot her than price.  We note that the staff report that 
accompanied the USITC's determination in the instant sunset review demonstrates that purchasers in 
the US market ranked eight factors between 1.8 and 2.0 on a scale of importance from 0 to 2.0.  Price, 
being one of such factors, was ranked 1.8.
143  In our view, the fact that other factors are also important 
does not diminish the importance of price in purchasing decisions.  The USITC did not state that price was the only
 important factor, or even the most  important factor; it just stated that it was an  important 
factor. 
7.305  In light of these circumstances, we do not consider that the USITC erred in relying on this 
fact in its determinations merely because of the fact  that some other factors were also ranked similarly 
to price.  This alone does not suffice to prove that the USITC's likely price effects analysis was not based on an objective examination of the evidence in the record, as Argentina asserts. 
Conclusion 
7.306  On the basis of the above, we are of the view that the USITC's determination regarding the 
likely price effect of dumped imports was based on an objective examination of the evidence in the 
record. 
Likely impact of dumped imports on the US industry
 
7.307  Argentina argues that the USITC's determinations regarding the likely impact of future 
imports on the US industry were not based on an ob jective examination of the evidence in the record.  
According to Argentina, the USITC's flawed dete rmination regarding the likely volume and price 
effects of dumped imports fatally affected its exam ination of the adverse impact of such imports on 
the US industry. 
7.308  In the relevant part of its determination, the USITC once again commences its analysis by 
citing its relevant findings in the original investig ation and continues with the findings made during 
the period of application of the measure.  The US ITC clearly finds that th e state of the domestic 
industry as of the date of the sunset review at issue is positive.  However, on the basis of its earlier 
findings regarding the likely volume of dumped imports and their likely price effects, it nevertheless 
concludes that these imports are likely to have an adverse impact on the US industry.  The 
determination reads, in relevant parts: 
                                                      
143 Staff Report Annexed to USITC's Sunset Determination (Exhibit ARG-54 at II-19). WT/DS268/R 
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On balance, we find that the domestic industry's condition has improved since the 
orders went into effect as reflected in most indicators over the period reviewed, and 
we do not find the industry to be currently vulnerable. 
We find, however, as discussed above, that revocation of the orders likely would lead 
to a significant increase in the volume of subject imports which likely would 
undersell the domestic like product and significantly depress or suppress the domestic 
industry's prices.  Moreover, in the original investigations
, subject imports captured 
market share and caused price effects despite a significant increase in apparent 
consumption in 1993 and 1994 as compared to 1992.  In these reviews , we find that a 
significant increase in subject imports is likely to have negative effects on both the price and volume of the domestic producers' shipments despite strong demand 
conditions in the near term.  We find that these developments
 likely would have a 
significant adverse impact on the production, shipments, sales, market share, and 
revenues of the domestic industry.  This  reduction in the domestic industry's 
production, shipments, sales, market share, and revenues would result in erosion of the domestic industry's profitability as well as its ability to raise capital and make and maintain necessary capital investments.
144  (emphasis added) 
7.309  Argentina contends that given the positive trends in the state of the domestic industry as of 
the date of the determination, the USITC should have made the opposite conclusion.  According to 
Argentina, given the positive state of the US indus try, the USITC must have made its conclusion on 
the basis of its findings in the original investigation.   
7.310  We note that the USITC's determination references the USITC's findings in the original 
investigation as well as its determinations in the in stant sunset review regarding the likely volume and 
prices effect of dumped imports and concludes that these developments would have a significant 
adverse impact on various aspects of the state of the US industry in the future.  It is therefore not 
linked solely to the findings in the original investigat ion.  Therefore, the issue here is whether, given 
its findings in the original investigation and those in the instant sunset review regarding the likely volume of dumped imports and their likely price effect, the USITC could conclude that the likely 
imports would have an adverse impact on the US industry. 
7.311  In our view, the USITC did not act inconsistently  with Article 11.3 of the Agreement in its 
determination regarding the likely impact of future  dumped imports on the US industry.  In this 
context, we recall our above analysis regarding th e nature of the inquiry under Article 11.3 of the 
Agreement ( supra , para. 7.211).  Just as on the dumping side of sunset determinations, there is 
nothing in Article 11.3 that requires an investiga ting authority to follow a particular method in the 
likelihood of continuation or recu rrence of injury determinations.  As long as the investigating 
authority's determination is based on a sufficient factual basis and it reflects an objective examination 
of these facts, it will meet the requirements of Article 11.3.  In this case, the USITC found that 
imports were likely to increase and to have a negative  effect on the prices of the US industry in the 
event of revocation of the measure at issue.  Then, the USITC found that this likely increase in 
imports and their likely price effect would have a negative impact on the US industry.  In the 
circumstances of the case at hand, we find it proper to conclude that the likely increased volume and 
negative price effect of dumped imports would also  have a negative impact on the state of the US 
industry.  Further, in our view, the USITC's observations regarding the state of the US industry as of the date of the sunset review at issue do not precl ude it from nevertheless finding that the US industry 
is likely to be affected by the increase in the volume  and the negative effect of the prices of the likely 
dumped imports. 
                                                     
 
144 USITC's Sunset Determination (Exhibit ARG-54 at 22-23).  WT/DS268/R 
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Conclusion 
7.312  On the basis of the above explanations, we find that under the circumstances of this sunset 
review, the USITC's determinations regarding the li kely consequent impact of the likely dumped 
imports on the US industry was not inconsis tent with Article 11.3 of the Agreement. 
4. Alleged violation of Article 3.4 of the Agreement 
(a) Arguments of parties 
(i) Argentina 
7.313  Argentina submits that in this sunset review the USITC violated Article 3.4 of the Agreement 
by failing to address some of the fifteen injury factors listed therein. 
(ii) United States 
7.314  Regarding Argentina's arguments under various paragraphs of Article 3, the United States 
generally argues that Article 3 does not apply to sunset reviews. The United States nevertheless 
submits that the violations alleged by Argentina with regard to Article 3.4 are groundless because the 
USITC's determinations demonstrate that it did not act inconsistently with these provisions. 
(b) Arguments of third parties 
(i) European Communities 
7.315  The European Communities agre es with Argentina that the provisions of Article 3  of the 
Anti-Dumping Agreement  apply mutatis mutandis  in the context of sunset reviews. According to the 
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit 
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Comm unities also agrees with 
Argentina that the required standard in sunset determ inations is “likely”, not “possible”.  According to 
the European Communities, in the instant sunset revi ew the USITC did not appl y the “likely” standard 
correctly. 
(ii) Japan 
7.316  Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews 
under Article 11.3. Therefore, the requirements of Artic les 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in 
such reviews. 
(c) Evaluation and conclusion by the Panel 
7.317  We note that Argentina's claim here is based sole ly on Article 3.4 of the Agreement.  In line 
with our above analysis regarding the app licability of Article 3 to sunset reviews ( supra , paras. 7.268-
7.276), we decline Argentina's claim. WT/DS268/R 
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5. Alleged violation of Article 3.5 of the Agreement 
(a) Arguments of parties 
(i) Argentina 
7.318  According to Argentina, the USITC failed to conduct the causal link analysis required under 
Article 3.5 of the Agreement because it failed to inquire whether there would be other factors that 
would also affect the domestic industry in the event of revocation of the anti-dumping duty. 
(ii) United States 
7.319  The United States generally argues that Article  3 does not apply to sunset reviews. The 
United States nevertheless submits that the violations  alleged by Argentina with regard to Article 3.5 
are groundless because the USITC's determinations de monstrate that it did not act inconsistently with 
these provisions. 
(b) Arguments of third parties 
(i) European Communities 
7.320  The European Communities agre es with Argentina that the provisions of Article 3  of the 
Anti-Dumping Agreement  apply mutatis mutandis  in the context of sunset reviews.  According to the 
European Communities, given the introductory word ing of Article 3.1, the absence of an explicit 
cross-reference in Article 11.3 to Article 3 is i rrelevant. The European Comm unities also agrees with 
Argentina that the required standard in sunset determ inations is “likely”, not “possible”.  According to 
the European Communities, in the instant sunset  review, the USITC did not correctly apply the 
“likely” standard. 
(ii) Japan 
7.321  Japan argues that the provisions of Article 3 ap ply to injury determinations in sunset reviews 
under Article 11.3. Therefore, the requirements of Artic les 3.1, 3.2, 3.4 and 3.5 have to be fulfilled in 
such reviews. 
(c) Evaluation and conclusion by the Panel 
7.322  We note that Argentina's claim here is based sole ly on Article 3.5 of the Agreement.  In line 
with our above analysis regarding the app licability of Article 3 to sunset reviews ( supra , paras. 7.268-
7.276), we decline Argentina's claim. 
6. Cumulation 
(a) Arguments of parties 
(i) Argentina 
7.323  Argentina argues that the USITC's use of the cumulation methodology in its sunset 
determinations in the instant sunset review wa s inconsistent with Articles 11.3 and 3.3 of the 
Agreement.  According to Argentina, Article 3.3 li mits the use of cumulation to investigations.  
Therefore, investigating authorities can not use cumula tion in sunset reviews.   In the alternative, 
Argentina argues that if cumulation can be used in sunset reviews, then the conditions set forth in 
Article 3.3 regarding the use of cumulation must be  fulfilled.  In this case, since the USITC used 
cumulation without respecting these conditions, it acted inconsistently with Articles 11.3 and 3.3.   WT/DS268/R 
 Page 77 
 
 
Argentina also submits that the low "possibility" standard used by the USITC in order to resort to 
cumulation also conflicted with the "likely" standard of Article 11.3.  This is because in the absence 
of cumulation, the USITC would not be able to find likelihood of continuation or recurrence of injury 
with respect to Argentina.  By using a low stan dard to resort to cumulation, the USITC also 
disregarded the more general "lik ely" standard of Article 11.3. 
(ii) United States 
7.324  The United States submits that there is no provis ion in the Agreement that prohibits the use of 
cumulation in sunset reviews.  Therefore, WTO Members are generally free to use this methodology 
in such reviews.  According to the United States, the texts of Articles 3.3 and 5.8 of the Agreement 
confirm that the numerical criteria set out in Article 3.3 of the Agreement regarding the use of 
cumulation are limited to investigations and do not ex tend to sunset reviews.  Thus, the United States 
argues that the USITC did not act inconsistently with the Agreement by using cumulation in the 
instant sunset review without taking into co nsideration the requireme nts of Article 3.3. 
(b) Evaluation by the Panel 
7.325  Argentina asserts in the first place that cumulation can not be used at all in sunset reviews.  In 
the alternative, Argentina submits that if the Ag reement does not disallow the use of cumulation in 
sunset reviews, then the investigating authorities in  sunset reviews have to take into account the 
requirements of Article 3.3 where they decide to use cumulation. 
7.326  Argentina argues that according to Article 3.3 cumulation can only be used in investigations.  
Argentina bases its argument on the text of the Ag reement and submits that th ere is no cross-reference 
either in Article 11 or in Article 3.3 that would allow the use of cumulation in sunset reviews.  
According to Argentina, the object and purpose of Article 11 or the other provisions of the Agreement 
can not support the view that cumulation can be used in sunset reviews either. 
7.327  We note that Article 31.1 of the Vienna Convention  provides that a treaty should be 
interpreted on the basis of its text, read in cont ext and in the light of its object and purpose.145  With 
that in mind, we turn once again to the text of Article 11.3, which provides: 
Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not late r than five years from its imposition (or 
from the date of the most r ecent review under paragraph 2 if that review has covered 
both dumping and injury, or under this pa ragraph), unless the authorities determine, 
in a review initiated before that date  on their own initiative or upon a duly 
substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.
22  The duty may remain 
in force pending the outcome of such a review. 
___________ 
22 When the amount of the anti-dumping duty is assessed on a retrospective basis, a 
finding in the most recent assessment pr oceeding under subparagraph 3.1 of Article 9 
                                                      
145 Article 31.1 of the Vienna Convention on the Law of Treaties  ('Vienna Convention '), which is 
generally accepted as reflecting a customary rule of interpretation of public international law referred to in 
Article 3.2 of the DSU , reads as follows: 
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be 
given to the terms of the treaty in their context and in the light of its object and purpose." 
(1969) 8 International Legal Materials  679. WT/DS268/R 
Page 78  
 
that no duty is to be levied shall not by itself require the authorities to terminate the 
definitive duty. 
7.328  The text of Article 11.3 does not mention whether cumulation can or can not be used in sunset 
reviews.  Nor can one find any direct guidance on this matter in the other provisions of the 
Agreement.  Unlike the cross-references in Article s 11.4 and 12.3 that make certain provisions of 
Articles 6 and 12, respectively, applicable in the c ontext of sunset reviews, no such cross-reference 
can be found to shed light on the issue of whether or not cumulation can be used in sunset reviews. 
7.329  Article 3.3 of the Agreement provides: 
Where imports of a product from more than one country are simultaneously subject to 
anti-dumping investigations, the investigatin g authorities may cumulatively assess the 
effects of such imports only if they determine that (a) the margin of dumping 
established in relation to  the imports from each country is more than de minimis  as 
defined in paragraph 8 of Article 5 and the volume of imports from each country is 
not negligible and (b) a cumulative assessment of the effects of the imports is 
appropriate in light of the conditions of competition between the imported products 
and the conditions of competition between the imported products and the like 
domestic product. 
7.330  We note that Article 3.3 does not answer th e question of whether cumulation is allowed 
generally throughout the Anti-Dumping Agreement.  It sets forth certain conditions for the use of 
cumulation.  Parties, however, disagree as to whet her these conditions are limited to investigations, or 
whether they also apply to sunset reviews. 
7.331  The first issue therefore is whether the lack of clear language specifically allowing the use of 
cumulation in sunset reviews means that it can not be used in such reviews.  Put differently, the issue 
is whether Article 3.3 is an authorization for cu mulation or whether it establishes conditions for the 
use of cumulation in investigations.  If Article 3.3 were considered as authorizing cumulation, it might 
be concluded that it is only allowed under the circumstances described therein, i.e. it can not be used 
in sunset reviews.  If, however, Article 3.3 were considered as a provision that establishes conditions 
for the use of cumulation in inves tigations, then it might be conclu ded that cumulation is generally 
permitted, including in sunset reviews, but is subject to  certain restraints in investigations, as set out in 
Article 3.3.  In this case, cumula tion in sunset reviews would not be inconsistent with the Agreement. 
7.332  We interpret the lack of a clear provision in  the Agreement as to whether cumulation is 
generally allowed to mean that cumulation is permitted in sunset reviews. 
7.333  We note, in addition, that all paragraphs of Ar ticle 3 of the Agreement, except paragraph 3, 
contain the term "dumped imports".
146  The same term can also be found in other instances such as in 
Articles 4.1, 5.2, 5.8, 8.5, 10.2 and 10.6 of the Agreement.  In our view, the use of "dumped imports" 
without any specification of the country in which these imports originate, such as "dumped imports 
originating in an exporting country" or a similar limiting language, suggests that the drafters foresaw 
that the investigating authorities would generally ba se their injury determinations on dumped imports 
from all countries subject to the investigation.  It  follows that the Agreement generally allows the use 
of cumulation and that Article 3.3 is not an auth orization for cumulation.  Rather, it sets out the 
conditions that must be fulfilled when cu mulation is used in investigations. 
                                                      
146 Paragraph 3 of Article 3 contains the phrase "imports of a product from more than one country".  In 
our view, the reason why Article 3.3, unlike other paragraphs of Article 3, does not mention "dumped imports" 
is because it is designed to set out what needs to be done before cumulation can be used in investigations.  It is 
therefore bound to mention imports from more than one country.  WT/DS268/R 
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7.334  Argentina argues that the use of the word "duty" in the singular, as opposed to the plural, in 
Articles 11.1 and 11.3 indicates the drafters' inte ntion not to allow cumulation in sunset reviews.147  
Argentina has not, however, specified precisely why the use of "duty" in the singular had to be 
interpreted as precluding cumulation in sunset revi ews.  We understand Argentina to argue that had 
drafters intended to allow cumulation in sunset reviews, they would have used the word "duties" 
instead of "duty".  We find it difficult to agree  with  a view that attempts to derive such a far-reaching 
substantive meaning from the use of a word in  the singular rather than the plural, or vice versa .  We 
note, for instance, that the title of Article 11 contai ns the word "duties" and not "duty".  This, in our 
view, further indicates that the drafters did not intend to convey their message as to the use of 
cumulation in sunset reviews by the use of the word "duty" in the singular or the plural.  Had they had such an intention they would have done it clearly.  We therefore decline to accept Argentina's argument in this regard. 
7.335  Having concluded that cumulation is generally allowed throughout the Agreement, including 
sunset reviews, the next issue we have to addre ss is whether the conditions for the use of cumulation 
set out in Article 3.3 also apply to  sunset reviews.  Argentina conte nds that if the Panel finds that 
cumulation is allowed in sunset reviews, then it s hould also find that the conditions of Article 3.3 
regarding the use of cumulation apply to sunset reviews.  We disagree. 
7.336  We note that paragraph 3 of Article 3 is the only paragraph that contains the word 
"investigation" under Article 3.  In our view, therefor e, by its own terms Article 3.3 limits its scope of 
application to investigations.  In this respect, we no te that this particular issue was also raised in US – 
Corrosion-Resistant Steel Sunset Review  and that panel opined: 
As stated above, even if the provisions of Article 3, including the definition of injury 
in footnote 9, are generall y applicable throughout the Anti-Dumping Agreement , 
paragraph 3 of Article 3 is ex ceptional, in that it alone explicitly refers to the term 
"investigations". Nowhere else in the text of any other paragraph of Article 3 is the 
word "investigation" mentioned. Therefore we are of the view that Article 3.3, by its 
own terms, is limited in application to investigations and does not apply to sunset reviews. It follows that the cross-reference in Article 3.3 to the negligibility standard 
in Article 5.8 does not apply to sunset reviews.
148 
We agree with this view, and therefore find that th e conditions set forth in Article 3.3 do not apply in 
sunset reviews. 
7.337  Finally, we note Argentina's argument that the low standard applied by the USITC in its 
recourse to cumulation in this sunset review also co nflicted with the "likely" standard of Article 11.3.  
We note that Argentina challenged the standard applie d by the USITC in the instant sunset review as a 
separate claim under which it raised detailed argument s.  In our view, therefore, it is not proper to 
interpret Article 3.3 of the Agreement in a manner that would create extra substantive obligations for 
investigating authorities in terms of  the standard they apply in thei r substantive determinations in 
sunset reviews. 
(i) Conclusion 
7.338  We therefore reject Argentina's claim that th e USITC acted inconsistently with Articles 3.3 
and 11.3 of the Agreement in its use of cumulation in the instant sunset review. 
                                                      
147 First Written Submission of Argentina, para. 282; Second Written Submission of Argentina, 
para. 189. 
148 Panel Report, US – Corrosion-Resistant Steel Sunset Review , supra , note 121, para. 7.102. WT/DS268/R 
Page 80  
 
F. C
ONSEQUENTIAL CLAIMS UNDER THE ANTI-DUMPING AGREEMENT , THE WTO  AGREEMENT 
AND THE GATT 
1. Arguments of Parties 
(a) Argentina 
7.339  Argentina submits that US law as such and as applied in this sunset review also violated 
Articles 1, 18.1 and 18.4 of the Anti-Dumping Ag reement, Article XVI:4 of  the WTO Agreement and 
Article VI of the GATT 1994. 
7.340  Argentina is submitting these clai ms as consequential claims.  In  other words, in Argentina's 
view, any violation of the Agreement would also lead to the violation of one or more of these 
provisions.149 
(b) United States 
7.341  The United States argues that since the measures  identified by Argentina with regard to its 
substantive claims are not WTO-inconsistent, there may be no consequential violations of the kind 
alleged by Argentina. 
2. Evaluation and conclusion by the Panel 
7.342  We note that the only basis for Argentina's cons equential claims flows out of a violation with 
regard to Argentina's substantive claims raised in  these proceedings.  Therefore, addressing these 
consequential claims will provide no  further guidance in terms of the implementation of our findings.  
We therefore exercise judicial economy with respect to Argentina's consequential claims and do not 
make any ruling on them. 
VIII.  CONCLUSIONS AND RECOMMENDATIONS 
8.1 In conclusion, we find that: 
(a) In respect of waiver provisions of US law: 
(i) The provisions of Section 751(c)(4)(B) of the Tariff Act relating to 
affirmative waivers are inconsistent  with the investigating authorities' 
obligation to determine likelihood of continuation or recurrence of dumping 
under Article 11.3 of the Anti-Dumping Agreement, 
(ii) The provisions of Section 351.218(d )(2)(iii) of the USDOC's Regulations 
relating to deemed waivers are inconsistent  with the investigating authorities' 
obligation to determine likelihood of continuation or recurrence of dumping 
under Article 11.3 of the Anti-Dumping Agreement, 
(iii) The provisions of Section 351.218(d )(2)(iii) of the USDOC's Regulations 
relating to deemed waivers are inconsistent  with Articles 6.1 and 6.2 of the 
Anti-Dumping Agreement, 
(b) In respect of the alleged irrefutable pr esumption of likelihood under US law, the 
provisions of Section II.A.3 of the SPB are as such inconsistent  with the investigating 
                                                      
149 We note that the title of Section V in which Argentina presented these claims in its second written 
submission reads "Consequential Violations Under Article VI of the GATT 1994, Articles 1 and 18 of the 
Antidumping Agreement, and Article XVI:4 of the WTO Agreement".  WT/DS268/R 
 Page 81 
 
 
authorities' obligation to determine likelih ood of continuation or recurrence of 
dumping under Article 11.3 of the Agreement, 
(c) In respect of US law's standard for the likelihood of continuation or recurrence of 
injury determinations in sunset reviews, Sections 752(a)(1) and (5) of the Tariff Act 
are not inconsistent with Article 11 .3 of the Anti-Dumping Agreement, 
(d) In respect of the USDOC's determina tions in the OCTG sunset review: 
(i) The USDOC acted inconsistently  with Articles 11.3 and 6.2 of the Anti-
Dumping Agreement, 
(ii) The USDOC did not act inconsistently w ith Articles 12, 6.1, 6.8 and Annex II 
of the Anti-Dumping Agreement, 
(e) In respect of the USITC's determinations in the OCTG sunset review: 
(i) The USITC did not act inconsistently w ith Article 11.3 of the Anti-Dumping 
Agreement in its application of Sections  752(a)(1) and (5) of the Tariff Act, 
(ii) The USITC did not act inconsistently w ith Article 11.3 of the Anti-Dumping 
Agreement in respect of its determinations relating to the likely volume of dumped imports, their likely price effect and their likely impact on the US domestic industry, 
(iii) The USITC did not act inconsistently with Articles 11.3 and 3.3 of the Anti-
Dumping Agreement in its  use of cumulation. 
8.2 Under Article 3.8 of the DSU , in cases where there is an infringement of the obligations 
assumed under a covered agreemen t, the action is considered prima facie  to constitute a case of 
nullification or impairment of benefits under that ag reement.  Accordingly, we conclude that, to the 
extent the United States has acted inconsistently with the provisions of the Anti-Dumping Agreement, 
it has nullified or impaired benefits accruing to Argentina under that agre ement.  We therefore 
recommend that the Dispute Settlement Body reque st the United States to bring its measures 
mentioned in paragraph 8. 1(a)(i), (ii), (iii), 8.1(b) and 8.1(d) (i) above into conformity with its 
obligations under the WTO Agreement. 
8.3 Argentina requests that the Panel suggest that the United States bring its measures into 
conformity with its WTO obligations by revoking the anti-dumping order and repealing or amending the laws and regulations at issue. 
8.4 The United States has not made a specific argu ment regarding this claim of Argentina.  The 
United States requests the Panel to reject  Argentina's claims in their totality. WT/DS268/R 
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8.5 We note that Article 19.1 of the DSU  states that WTO panels may suggest ways the Member 
concerned could implement their recommendations.
150  In the circumstances of the present 
proceedings, however, we see no particular reason to make such a suggestion and therefore decline 
Argentina's request.  
 
_______________  
                                                      
150 Article 19.1 of the DSU reads: 
Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered 
agreement, it shall recommend that the Member concerned bring the measure into conformity with that agreement.  In addition to its recommendations, the panel or Appellate Body may 
suggest ways in which the Member concerned could implement the recommendations. 
(footnotes omitted).