WT/DS268/R 
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ANNEX C 
 
 
SECOND WRITTEN SUBMIS SIONS BY TH E 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 
 WT/DS268/R 
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ANNEX C-1 
 
SECOND WRITTEN SUBMISSION OF ARGENTINA 
 
8 January 2004 
 
 
TABLE OF CONTENTS 
Page  
I. INTRODUCTION ................................................................................................................ ....5 
II. THE SUBSTANTIVE WTO OBLIGATIONS AT I SSUE IN THIS DISPUTE .................6  
A. THE PRIMARY OBLIGATION OF ARTICLE 11.3  OF THE ANTI-DUMPING AGREEMENT IS 
TERMINATION OF THE ANTI-DUMPING MEASURE ......................................................................6  
B. THE OBLIGATIONS IN ARTICLES 2, 3, 6, AND 12 OF THE ANTI-DUMPING AGREEMENT 
ARE APPLICABLE TO REVIEWS CONDUCTED UNDER ARTICLE 11.3.............................................9  
1. Article 2 of the Anti-Dumping Agreemen t applies to sunset reviews conducted 
under Article 11.3............................................................................................................. .........9  
2. Article 3 of the Anti-Dumping Agreemen t applies to sunset reviews conducted 
under Article 11.3............................................................................................................. .......11  
3. Articles 6, 12, and 18 of the Anti-Dumping Agreement apply to sunset reviews 
conducted under Article 11.3 ................. ............................. .................. ................. ................12  
III. THE DEPARTMENT’S SUNSET DETERMINATION....... ..............................................13  
A. THE US SUNSET REVIEW WAIVER PROVISIONS , 19 USC.  § 1675( C)(4) AND 19 C.F.R.  
§ 351.218( D)(2)( III), ARE INCONSISTENT AS SUCH WITH THE ANTI-DUMPING 
AGREEMENT ..............................................................................................................................1 3 
1. US arguments that waiver is applied on a company-specific basis are unavailing 
and do not alter the conclusion that the Waiver Provisions violate Articles 11.3, 
11.4, 6.1, and 6.2 ............................................................................................................. .........13  
2. The US arguments that the Waiver Provisions merely serve as an efficiency 
mechanism are without merit ................................................................................................14  
B. 19 USC.  § 1675 A(C)(1),  THE STATEMENT OF ADMINISTRATIVE ACTION , AND SECTION 
II.A.3  OF THE SUNSET POLICY BULLETIN  ESTABLISH AN IRREFUTABLE PRESUMPTION 
OF LIKELY DUMPING IN DEPARTMENT OF COMMERCE SUNSET REVIEWS THAT 
VIOLATES AS SUCH ARTICLE 11.3 .............................................................................................16  
1. 19 USC. § 1675a(c)(1), the Statement of Administrative Action, and the Sunset 
Policy Bulletin  are measures that can be challenged as such ..............................................17  
2. 19 USC. § 1675a(c)(1), the Statement of  Administrative Action, and Section 
II.A.3 of the Sunset Policy Bulletin  require decisive reliance by the Department 
on historical dumping margins and declines  in import volume and thus establish 
an irrefutable presumption of likely dumping in Department of Commerce 
sunset reviews in violation of Article 11.3 as such ...............................................................18  
3. Argentina established a prima facie  case as set forth in ARG-63 and ARG-64 and 
the United States has not rebutted the existence of the irrefutable presumption .............23  
4. The Department’s consistent practice in sunset reviews both demonstrates the irrefutable presumption of likely dumping in US law and itself violates as such 
Article 11.3 of the Anti-Dumping Agreement ......................................................................23
  WT/DS268/R 
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5. Assuming a rguendo  that US law and practice establishing the irrefutable 
presumption are not inconsistent as such  with Article 11.3, then the United 
States has not administered its law with respect to the Article 11.3 Likelihood of 
Dumping Determination in an impartial and reasonable manner in violation of 
Article X:3(a) of the GATT 1994...........................................................................................25  
C. THE DEPARTMENT ’S SUNSET REVIEW OF OCTG  FROM ARGENTINA WAS 
INCONSISTENT WITH THE ANTI-DUMPING AGREEMENT ...........................................................26  
1. The Department’s determinations indicate that it applied the Waiver Provisions 
to Siderca; Application of the Waiver Provisions in the Sunset Review of OCTG 
from Argentina was inconsistent with Ar ticles 11.3 and 6 of the Anti-Dumping 
Agreement...................................................................................................................... ..........26  
(a) The US Position in Its First Submission Is Inconsistent with Both the Department’s 
Sunset Determination and the Factua l Record Before the Department ....................................26  
(b) Even Accepting the US Explanation in Its First Submission, the Effect of the 
Application of the Waiver Provisions in the Sunset Review of OCTG from Argentina Is the Same Under Either Scenario ...........................................................................................28
 
2. Assuming arguendo  that waiver was only applied to the non-responding 
respondents, the Department’s conduct of an expedited review on the basis of 
the facts available was inconsistent with Articles 11.3, 6.8, and Annex II of the 
Anti-Dumping Agreement..................... ................ ...................... ................. ..........................29  
(a) Under This Scenario, Argentina Was Limited To an Expedited Review and a 
Decision Based on Facts Available...........................................................................................29  
(b) The Department Violated Articles 6.1 and 6.2 of the Anti-Dumping Agreement....................30  
(c) The Department Violated Article 6.8, 6.9, and Annex II Because the “Facts 
Available” Analysis Was Necessarily Li mited To the Dumping Margin in the 
Original Investigation and the Information in the Substantive Response.................................32  
3. The Department’s Determination that termination of the duty would be likely to 
lead to continuation of dumping was incons istent with Articles 11.3 and 2 of the 
Anti-Dumping Agreement..................... ................ ...................... ................. ..........................32  
(a) There Was No Evidence Before the Depart ment That Dumping Continued During the 
Sunset Review Period ........................................................................................................... ....32  
(b) Decisive Reliance by the Department on a WTO-Inconsistent Margin (Because It 
Was Calculated Using the Practice of Ze roing) as the Basis for the Likelihood 
Determination Is Inconsistent with Article 11.3 .......................................................................35  
4. The “likely margin” reported by th e Department to the Commission was 
inconsistent with Articles 2 and 11.3 .....................................................................................38  
IV. THE COMMISSION’S SUNSET DETERMINATION......................................................39  
A. THE COMMISSION DID NOT APPLY THE CORRECT STANDARD FOR DETERMINING 
WHETHER TERMINATION OF THE ANTI-DUMPING DUTY ORDER WOULD BE LIKELY TO 
LEAD TO CONTINUATION OR RECURRENCE OF INJURY AND VIOLATED ARTICLES 11.3  
AND 3.1 OF THE ANTI-DUMPING AGREEMENT ..........................................................................39  
B. THE COMMISSION ’S SUNSET DETERMINATION WAS INCONSISTENT WITH ARTICLE 
11.3  AND 3 OF THE ANTI-DUMPING AGREEMENT .....................................................................41  
1. The Commission’s Sunset Determination was inconsistent with Article 3.1 of the 
Anti-Dumping Agreement..................... ................ ...................... ................. ..........................41  WT/DS268/R 
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2.
 The Commission’s Determination was inconsistent with Article 3.4 of the Anti-
Dumping Agreement.............................................................................................................. .44 
3. The Commission’s Determination was inconsistent with Article 3.5 of the Anti-
Dumping Agreement.............................................................................................................. .45 
C. THE COMMISSION ’S APPLICATION OF A CUMULATIVE INJURY ANALYSIS IN THE 
SUNSET REVIEW OF OCTG  FROM ARGENTINA WAS INCONSISTENT WITH ARTICLES 
11.3  AND 3.3 OF THE ANTI-DUMPING AGREEMENT ..................................................................45  
1. The text of Article 11.3 prohibits cumu lation.  Under Article 3.3 of the Anti-
Dumping Agreement, the use of cu mulation is only permitted in 
“investigations,” and even then only where cert ain conditions are met ............................46  
2. Assuming arguendo that Articles 11.3 and 3.3 do not preclude cumulation, then 
the terms of Article 3.3 must be applied to any cumulative analysis in a sunset 
review ......................................................................................................................... ..............47  
D. THE TIME FRAME WITHIN WHICH INJURY WOULD BE LIKELY TO CONTINUE OR RECUR 
UNDER ARTICLE 11.3  OF THE ANTI-DUMPING AGREEMENT ....................................................49  
1. The US Statutory Provisions as to the time frame within which injury would be 
likely to continue or recur are as such inconsistent with Articles 11.3 and 3 of the 
Anti-Dumping Agreement..................... ................ ...................... ................. ..........................49  
2. The Commission’s application of the Statutory Provisions as to the time frame 
within which injury would be likely to co ntinue or recur was inconsistent with 
Articles 11.3 and 3 of the Anti-Dumping Agreement .... ......................................................50  
V. CONSEQUENTIAL VIOLATIONS UNDER ARTICLE VI OF THE GATT 
1994, ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT, AND 
ARTICLE XVI:4 OF THE WTO AGREEMENT...............................................................50  
VI. US REQUEST FOR PRELIMINARY RULINGS...............................................................51  
A. ARGENTINA ’S PANEL REQUEST COMPLIED FULLY WITH DSU  ARTICLE 6.2 ............................51  
1. Introduction................................................................................................................... ..........51  
2. Argentina’s “Page Four” claims are within the Panel’s Terms of Reference ...................52  
3. Sections B.1, B.2 And B.3 of Argentina’s claims are within the Panel’s Terms of 
Reference ...................................................................................................................... ...........53  
B. THE SO -CALLED “CERTAIN MATTERS ” REFERRED TO BY THE UNITED STATES ARE ALL 
WITHIN THE PANEL ’S TERMS OF REFERENCE ...........................................................................55  
C. THE UNITED STATES HAS IN NO WAY BEEN PREJUDICED DURING THE COURSE OF THE 
PANEL PROCEEDINGS ................................................................................................................56  
D. CONCLUSIONS ...........................................................................................................................60  
VII. CONCLUSION ..................................................................................................................... ..60 
  WT/DS268/R 
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I. INTRODUCTION 
1. On 15 December 2003, the Appellate Body confirmed in Sunset Review of Steel from Japan  
that Article 11.3 of the Anti-Dumping Agreement mandates termination of anti-dumping duties five 
years after their imposition.  Continuation of an anti-dumping measure is an exception, and is only 
justified where the authority “determine[s]” in a “r eview” that termination of the measure would be 
likely to lead to continuation or r ecurrence of “dumping” and “injury.”1 
2. The consequence for failing to satisfy the conditio ns are clear:  termination of the measure.  
To invoke the exception and continue an anti-dumping measure beyond five years requires a 
“rigorous examination” of whether the continuation or recurrence of dumping and injury would be 
“probable.”2  Further, the likelihood determination must be based on positive evidence3 and is subject 
to the substantive standards estab lished in the Anti-Dumping Agreement.4 
3. The United States takes a very different view in its first submission and its oral statement.  
According to the United States, Article 11.3 is pr actically devoid of obligations and constitutes a 
single bare-bones commitment.5  Under this view,  anti-dumping measures can be continued 
indefinitely, on almost any basis.  Indeed, the United States indicated during the Panel’s First Substantive Meeting with the Parties that, if a comp any dumped in the past, it is reasonable to assume 
that that company would dump in the future. 
4. With respect to the likelihood of dumping determination, although the United States has a 
complicated scheme of procedural rules, a routine inspection reveals that the US Department of 
Commerce (the “Department”) never makes the meani ngful “determination” required by Article 11.3.  
This is true whether the Department applies the wa iver provisions or simply resorts to the three 
“checklist” criteria established by the statute, th e Statement of Administrative Action (“SAA”), and 
the Sunset Policy Bulletin .  There is only one factor that matters for the likelihood of dumping 
determination:  whether the US i ndustry participated in the sunset review.  The evidence speaks for 
itself:  In the 223 cases (as of December 2003) in which the US industry has expressed an interest in 
continuing the anti-dumping meas ure, the Department has found a likelihood of continuation or 
recurrence of dumping in each case.  The US industry has 223 wins and 0 losses on the issue of likely dumping.
6 
5. In this particular case, after concluding that respondent interested parties had “waived” their 
participation (which results in a statutorily mand ated finding of likelihood of dumping), and after 
invoking the “expedited review” procedures, the Department identified only two facts in its 
determination that dumping was “likely” to contin ue:  (1) a five-year old margin, calculated on the 
basis of “zeroing;” and (2) a decline in import volume.  The Appellate Body in Sunset Review of Steel 
from Japan  spoke to both issues, and found that neither (independently or together) could support a 
                                                      
1 See Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, circulated 15 December 2003, para. 104 
(“Sunset Review of Steel from Japan ”). 
2 Id. at paras. 111, 113. 
3 See Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan , WT/DS244/R, circulated 14 August 2003, para. 7.177 (“ Sunset Review 
of Steel from Japan ”). 
4 See Appellate Body Report, Sunset Review of Steel from Japan , para. 128. 
5 According to the United States, Article 11.3 is “very limited” and sets virtually no restraints or 
limitations on a Member’s ability to maintain anti-dumping measures.  See US First Submission, para. 3.  The 
United States stated during the Panel’s First Substantiv e Meeting with the Parties that “Article 11.3 does not 
prescribe how a Member should go about making a likelihood determination in a sunset review.”  Opening Statement of the United States at the First Meeting of the Panel with the Parties, WT/DS268, 9 December 2003, 
para. 6 (“US First Oral Statement”). 
6 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). WT/DS268/R 
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determination under Article 11.3 that  dumping is likely to continue.
7  And when the dumping margin 
is extremely low – such as the 1.36 per cent margin in this case – the reliability of such margin is 
diminished further.  
6. With respect to the likelihood of injury determ ination, the analysis by the US International 
Trade Commission (the “Commission”) is equally pr oblematic.  The Commission has insisted “likely” 
does not mean probable, and is now faced with the Appellate Body statement that likely does mean 
probable.8  The Commission’s analysis of the volume, price, and impact factors in this case vividly 
demonstrates that the Commission certainly was not determining what wa s probable, as it often 
simply asserted that the conditions that existed at the time of the original injury investigation 
supported the view that injury was “likely” to contin ue or recur.  Also, the cumulated analysis of the 
likelihood of injury diminishes the rights of indi vidual WTO Members who have the misfortune of 
being included in the aggregate de termination, and the US statutory provisions fail to satisfy the 
“likely” standard by extending the period of time outward (with no limitations) within which the 
Commission must consider whether domestic producers might be injured. 
7. The plain wording of the US sunset determinatio ns challenged by Argentina  often contradict 
the arguments advanced by the United States in its First Submission.9  In addition, the US First 
Submission suffers from a number of irreconcilable in ternal contradictions.  These contradictions cast 
serious doubts regarding the US arguments in defenc e of the sunset determinations.  The Panel must 
examine Argentina’s claims based on the words used in the US sunset determinations and not on the 
subsequent post hoc  rationalizations of those decisions in the US written submissions. 
8. The principal obligation and corresponding right created by Article 11.3 – termination of anti-
dumping measures after five years – must not be diminished.  Otherwise, the limited exception for 
maintaining an anti-dumping measure will supersed e the principal obligation of Article 11.3.  
Therefore, Argentina respectfully re quests that the Panel, in addition to making specific findings of 
WTO violations, suggest pursuant to DSU Article 19.1 that the United States terminate the anti-
dumping duties on oil country tubular goods (“OC TG”) from Argentina and repeal or amend WTO-
inconsistent laws, regulations, procedures, and administrative provisions. 
II. THE SUBSTANTIVE WTO OBLIGATIONS AT ISSUE IN THIS DISPUTE 
A. THE PRIMARY OBLIGATION OF ARTICLE 11.3  OF THE ANTI-DUMPING AGREEMENT IS 
TERMINATION OF THE ANTI-DUMPING MEASURE  
9. The primary obligation of Article 11.3 of the Anti-Dumping Agreement is termination of anti-
dumping duties after five years.  The Appellate Body in Sunset Review of Steel from Japan  reaffirmed 
the principle it first articulated in Steel from Germany .   Continuation of the measure is the exception, 
and is only permissible if the au thorities conduct a “review,” undert ake a “rigorous examination” of 
the facts, and “determine” that termination of the anti-dumping measure would be likely to lead to 
continuation or recurrence of injurious dumping.10  The Appellate Body also reaffirmed that, “[i]f any 
one of these conditions is not satisfied, the duty must be terminated.”11 
                                                      
7 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 127-128, 130, 177. 
8 See id. at paras. 110-111. 
9See Argentina’s Oral Statement in the Panel’s First Substantive Meeting with the Parties, DS268, 
9 December 2003, para.7 (“Argentina’s First Oral Statement”). 
10 Appellate Body Report, Sunset Review of Steel from Japan , paras. 104, 113.  
11 Id. at para. 104; s ee also  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion – Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R, adopted 
19 December 2002, para. 88 (“ Steel from Germany”)  (interpreting Article 21.3 of the SCM Agreement).  The 
Appellate Body in Sunset Review of Steel from Japan  concluded that, “[g]iven the parallel wording of these two 
articles, we believe that the explanation, in our Report in [ Steel from Germany ], of the nature of the sunset  WT/DS268/R 
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10. In interpreting the meaning of the words “review” and “determine” in Article 11.3, the 
Appellate Body noted the “investigatory and adj udicatory aspects” of Article 11.3 reviews: 
This language in Article 11.3 makes clea r that it envisages a process combining both 
investigatory and adjudicatory aspects.  In other words, Article 11.3 assigns an active 
rather than a passive decision-making role to the authorities. The words “review” and 
“determine” in Article 11.3 suggest that authorities conducting a sunset review must 
act with an appropriate degree of diligence and arrive at a reasoned conclusion on the 
basis of information gathered as part of a process of reconsideration and 
examination.12 
11. With respect to the evidentiary basis for the likelihood determination, the Appellate Body 
affirmed the Panel’s statement that the authority must  ground its determination on a “sufficient factual 
basis” to allow it to “draw reasoned and adequate conclusions concerning the likelihood” of 
continuation or recurrence.13  Moreover, the Appellate Body stated that its discussion in Steel from 
Germany of the sunset review provision in the SC M Agreement, Article 21.3, was an “apt 
description” of the Article 11.3 sunset review.14  In Steel from Germany , the Appellate Body held that 
the authority must make a “fresh determination” in a sunset review that is forward-looking and “based 
on credible evidence.”15  The Appellate Body in Steel from Germany thus affirmed the Panel’s 
statement in that dispute that the authority’s lik elihood determination cannot be based solely on 
outdated information, but rather “should rest on the evaluation of the evidence that it has gathered 
during the original investigation, the intervening reviews and finally the sunset review .”16 
12. Ultimately, the Appellate Body in Sunset Review of Steel from Japan  made clear that the 
conduct of a review and the determination of the li kelihood of dumping and injury in order to invoke 
the exception requires a “rigorous examination” that comports with the “exacting nature” of 
obligations imposed by Article 11.3: 
Article 11.3 states that, notwithstanding the provisions of Articles 11.1 and 11.2, 
Members “shall” terminate an anti-dumping duty “unless” the authorities make an affirmative likelihood determination in a sunset review.  This confirms that the mandatory rule in Article 11.3 applies in addition to, and irrespective of, the 
obligations set out in the first two paragraphs of Article 11.  This also suggests to us that authorities must conduct a rigorous examination  in a sunset review before the 
exception (namely, the continuation of the duty) can apply.  In addition, our view of 
the exacting nature of the obligations  imposed on authorities under Article 11.3 is 
supported by a consideration of the implications of initiating a sunset review.  The 
last sentence of Article 11.3 allows the rele vant duty to continue while the review is 
underway, and Article 11.4 contemplates that the review process may take up to one 
year.  These provisions create an additional exception to the requirement that anti-
dumping duties will be terminated after fi ve years, permitting a Member to maintain 
the duty for the period during which the review is ongoing, regardless of the outcome of that review.  This, too, suggests that the drafters of the Anti-Dumping 
Agreement  saw the sunset review as a rigorous  process that can take up to one year, 
                                                                                                                                                                    
 
review provision in the SCM Agreement [(Article 2.3)] also serves, mutatis mutandis , as an apt description of 
Article 11.3 of the Anti-Dumping Agreement .” Appellate Body Report, Sunset Review of Steel from Japan , 
n.114 (citing Appellate Body Report, Steel from Germany , paras. 63 and 88.). 
12 Appellate Body Report, Sunset Review of Steel from Japan , para. 111. 
13 Id. at paras. 114-115 (citing Panel Report, Sunset Review of Steel from Japan , para. 7.271). 
14 See id. at n.114.  
15 Appellate Body Report, Steel from Germany , para. 88. 
16 Panel Report,  United States – Countervailing Duties on Certain Corrosion–Resistant Carbon Steel 
Flat Products from Germany, WT/DS213/R, adopted 19 December 2002, para. 8.95 (“ Steel from Germany ”) 
(emphasis added). WT/DS268/R 
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involving a number of procedural steps, and requiring an appropriate degree of 
diligence  on the part of the national authorities.
17 
13. Finally, the Appellate Body in Sunset Review of Steel from Japan  plainly stated the 
consequences where a WTO Member fails to conduct a sunset review or fails to make the required 
likelihood determination under Article  11.3:  “If any one of these conditions is not satisfied, the duty 
must be terminated.”18 
14. There is a WTO-inconsistent presumption built into the system estab lished by the United 
States to implement its Article 11.3 obligation.  The US waiver provisions mandate a finding of likely 
dumping without a review,19 without any analysis, and without the requisite determination required by 
Article 11.3.  The basis for the waiver mechanism itself presumably stems from the presumption that 
non-participation in sunset reviews (whether voluntaril y or non-voluntarily) means that in the event of 
termination dumping would be likely to continue.  Then, even if the Department does conduct a 
“review” (whether “expedited” or “full”), the irrefutable presumption prescribed by the statute, the 
SAA, and the Sunset Policy Bulletin  operates to preclude the Department from conducting the type of 
“review” and from making the kind of “d etermination” required by Article 11.3.20  In defending the 
US waiver provisions and denying the existence of the irrefutable presumption in its first submission, 
the United States attempts to diminish the import  of Article 11.3’s use of the terms “review” and 
“determination.”  According to the United States, as  used in Article 11.3, “the words ‘review’ and 
‘determine’ do not contain the broad substantive rules suggested by Argentina.”21 
15. The US position is not tenable.  The use of defined terms such as “dumping” and “injury” in 
Article 11.3 makes clear that the substantive provisions of other articles of the Anti-Dumping 
Agreement apply to the likelihood determination.  Further, an authority’s likelihood determination 
must be grounded on a “sufficient factual basis”22 that rests “on the evaluation of evidence that it has 
gathered during the original inve stigation, the intervening reviews and finally the sunset review .”23 
16. The United States argues that “‘current information’ is not the issue in a sunset review 
conducted pursuant to Article 11.3.”24  “Rather,” the United States submits, “the issue under Article 
11.3 is whether dumping and injury are likely to con tinue or recur in the event of the expiry of the 
duty, an inherently forward-looking inquiry.”25  Thus, the United States suggests that current 
information is not relevant to the prospective analysis of the likelihood of dumping and injury required by Article 11.3. 
17. Consequently, under the US approach, the authorities do not conduct the kind of  “rigorous 
examination” required by Article 11 .3 in order to invoke the excep tion and to justify the continuation 
of an anti-dumping measure beyond five years.
26  As the Panel stated in Sunset Review of Steel from 
Japan : 
We recall that one of the fundamental goals of the Anti-Dumping Agreement as a 
whole is to ensure that objective determinations are made based, to the extent possible, on facts.  Thus, to the extent that  it will rest upon a factual foundation, the 
prospective likelihood determination will inevitably rest on a factual foundation 
                                                     
 
17 Appellate Body Report, Sunset Review of Steel from Japan , para. 113 (emphasis added). 
18 Id. at para. 104. 
19 See Argentina’s First Submission, Section VII.A.1 
20 See id. at Section VII.B.2. 
21 US First Submission, para. 154. 
22 Panel Report, Sunset Review of Steel from Japan , para. 7.177. 
23 Panel Report, Steel from Germany , para. 8.95 (emphasis added). 
24 US First Submission, para. 265. 
25 Id. 
26 Appellate Body Report, Sunset Review of Steel from Japan , para. 113.  WT/DS268/R 
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relating to the past and present .  The investigating authority must  evaluate this factual 
foundation and come to a reasoned conclusi on about likely future developments.27 
18. Accordingly, contrary to the US position, the authority must examine current information in 
order to support the prospective likelihood determina tion with a sufficient factual basis.  A body of 
evidence consisting solely of past information for an affirmative likelihood determination is deficient 
and inconsistent with Article 11.3 and cannot cons titute positive evidence that dumping would be 
likely to continue. 
B. THE OBLIGATIONS IN ARTICLES 2, 3, 6, AND 12 OF THE ANTI-DUMPING AGREEMENT ARE 
APPLICABLE TO REVIEWS CONDUCTED UNDER ARTICLE 11.3 
19. As Argentina set out in its first submission,28 the Article 11.3 obligation requires compliance 
with other provisions of the Anti-Dumping Agreement, including Article 2 (Determination of 
Dumping), Article 3 (Determination of Injury), Artic le 6 (Evidence), Article 12 (Notice), and Article 
18 (Final Provisions).  The United States argues that the substantive obligations contained in other 
provisions of the Anti-Dumping Agreement do not ap ply to Article 11.3, particularly Articles 2 and 
3.29 
20. The WTO jurisprudence soundly refutes the US view on this point.30 
1. Article 2 of the Anti-Dumping Agreement a pplies to sunset reviews conducted under 
Article 11.3 
21. As confirmed by the Appellate Body in Sunset Review of Steel from Japan , Article 2 of the 
Anti-Dumping Agreement defines “dumping” “for the purposes of the Anti-Dumping Agreement,” 
including sunset reviews under Article 11.3.31  The Appellate Body explained, 
[T]he words “[f]or the purpose of this Agre ement” in Article 2.1 indicate that this 
provision describes the circumstances in which a product is to be considered as being 
dumped for purposes of the entire Anti-Dump ing Agreement, including Article 11.3.  
This interpretation is supported by the fact that Article 11.3 does not indicate, either 
expressly or by implication, that “dumping” has a different meaning in the context of 
sunset reviews than in the rest of the An ti-Dumping Agreement.  Therefore, Article 
2.1 of the Anti-Dumping Agreement  and Article VI:1 of the GATT 1994 suggest that 
the question for investigating authorities, in making a likelihood determination in a 
sunset review pursuant to Article 11.3, is  whether the expiry of the duty would be 
likely to lead to continuation or recurren ce of dumping of the product subject to the 
duty (that is, to the introduction of that product into the commerce of the importing 
country at less than its normal value).  Th e Panel also appeared to reach a similar 
conclusion.32 
                                                      
27 Panel Report, Sunset Review of Steel from Japan , para. 7.279 (emphasis added). 
28 Argentina’s First Submission, Section VI.C.3. 
29 US First Submission, paras. 141-142. 
30 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 109, 127, 128, 130; Appellate 
Body Report, Steel from Germany , paras. 69 n.59, 79-81; Panel Report, United States – Anti-Dumping Duty on 
Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Kore a, 
WT/DS99/R, adopted 19 March 1999, para. 6.59 n.501 (“ DRAMS from Korea ”); Panel Report, Sunset Review of 
Steel from Japan , paras. 7.99-7.100, 7.176. 
31 See Appellate Body Report , Sunset Review of Steel from Japan , paras. 126-128. 
32 Id. at para. 109. WT/DS268/R 
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22. The United States argues that only Article 2.1 ap plies to Article 11.3 insofar as it provides the 
general meaning for the term “dumping.”
33  The United States further contends that the remaining 
provisions of Article 2 do not apply to Article  11.3, because “Article 11.3 does not require a 
determination that a particular amount of dumping  is likely to continue or recur in the future . . . .”34  
According to the United States, such a determinatio n of likely dumping would be impossible as there 
is no way to measure likely future values for pric es, costs, and profits in order to calculate the 
dumping margin pursuant to Article 2.35  Therefore, the United States argues, the requirements of 
Article 2 do not apply to sunset reviews. 
23.  The Appellate Body expressly ruled that all the provisions of Article 2 – and not just 
Article 2.1 – apply to sunset reviews under Article 11.3.36  In doing so, the Appellate Body reversed 
the Panel’s finding that “the substantive disciplines  in Article 2 governing the calculation of dumping 
margins in making a determination of dumping [do not] apply in making a determination of likelihood 
of continuation or recurrence of  dumping under Article 11.3.”37  The Appellate Body stated, 
Article 2 sets out the agreed disciplines in the Anti-Dumping Agreement   for 
calculating dumping margins.  As observed earlier, we see no obligation under Article 11.3 for investigating authorities to  calculate or rely on dumping margins in 
determining the likelihood of continuation or recurrence of dumping.  However, 
should investigating authorities choose to rely upon dumping margins in making their 
likelihood determination, th e calculation of these margins must conform to the 
disciplines of Article 2.4.  We see no other provisions in the Anti-Dumping 
Agreement   according to which Members may calculate dumping margins. 
. . . 
It follows that we disagree with the Panel’ s view that the disciplines in Article 2 
regarding the calculation of dumping margins do not apply to the likelihood 
determination to be made in a sunset review under Article 11.3.
38 
24. Therefore, under Article 11.3, where the auth ority relies on dumping margins calculated in 
previous determinations in making the likelihood determination, it must ensure that those dumping 
margins are consistent with the requirements of Article 2. 
25. Further, if the authority calculates a new dump ing margin for the Article 11.3 review, then 
such a margin must satisfy the requirements of Arti cle 2.  In order to make the prospective analysis 
required by Article 11.3, the authority must base its  likelihood determination on both past and current 
information.39  To know whether dumping would likely “continue” or “recur” under Article 11.3, an 
authority must have current information about dumping.40  In other words, it becomes necessary to 
determine if dumping exists in order to assess it s probable continuation.  Alternatively, it becomes 
necessary to determine the absence of dumping in  order to assess prospectively the probability of 
recurrence.  Therefore, to the extent the authority calculates a dumping margin in order to evaluate whether dumping is currently present or absent in  order to make the likelihood determination under 
Article 11.3, that dumping margin must co mport with the disciplines of Article 2. 
                                                     
 
33 US First Submission, para. 254. 
34 Id.  
35 Id. at para. 255. 
36 See Appellate Body Report, Sunset Review of Steel from Japan , para. 128. 
37 Panel Report, Sunset Review of Steel from Japan , para. 7.168. 
38 Appellate Body Report, Sunset Review of Steel from Japan , paras. 127-128. 
39 See Panel Report, Sunset Review of Steel from Japan , para. 7.279 (“[T]he prospective likelihood 
determination will inevitably rest on a factual foundation relating to the past and present.”). 
40 See also  Third Party Submission of the European Communities, para. 12.   WT/DS268/R 
 Page C-11 
 
 
26. Contrary to the US assertion, the substantiv e requirements of Article 2 apply to sunset 
reviews under Article 11.3. 
2. Article 3 of the Anti-Dumping Agreement a pplies to sunset reviews conducted under 
Article 11.3 
27. Article 3 defines “injury” as that term is used throughout the Anti- Dumping Agreement.  
Thus, an authority’s determination under Article 11.3 of whether “injury” would be likely to continue 
or recur must satisfy the requiremen ts of Article 3.  For the United States, injury in Article 11.3 is 
undefined. 
28. The logic behind the Appellate Body’s ruling in Sunset Review of Steel from Japan  that 
“dumping” for purposes of Article 11.3 is subject to  the disciplines of Article 2 requires the parallel 
finding that “injury” for purposes of Article 11.3 is subject to the disciplines of Article 3.41 
29. Footnote 9 states:  “Under this Agreement  the term ‘injury ’ shall, unless otherwise specified, 
be taken to mean material injury to a domestic in dustry, threat of material injury to a domestic 
industry or material retardation of the establishmen t of such an industry and shall be interpreted in 
accordance with the provisions of this Article .”  (Emphasis added.)  Th e Appellate Body used the 
SCM Agreement’s equivalent of this very footnote as an illustration of how the injury concept applies 
throughout the Agreement, including in sunset reviews.42 
30. The US contention that Footnote 9 is a mere “drafting device” designed to avoid the need to 
recite each of the three distinct forms of injury throughout the agreement is unpersuasive.43  The Panel 
in DRAMS  from Korea noted “that, by virtue of note 9 of the [Anti-Dumping] Agreement, the term 
‘injury’ in Article 11.2 ‘shall be  interpreted in accordance with  the provisions’ of Article 3.”44  There 
is no reason why injury in Article 11.2 should be  treated differently than injury for purposes of 
Article 11.3. 
31. Nor does the United States attempt to explain how injury in Article 11.1 could possibly be 
different from injury in Article 3.  Article 11.1 states that “[a]n anti-dumping duty shall remain in 
force only as long as and to the extent necessary to counteract dumping which is causing injury.”  
There is no suggestion that the drafters of the Agre ement intended in Article 11.1 anything other than 
injury as defined in Article 3 and specified in Foot note 9.  And there can be no question that the 
overarching principles of Article 11.1 provide the immediate context of Article 11.3. 
32. The Panel in Sunset Review of Steel from Japan  interpreted Footnote 9 as follows: 
[T]he 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 su pport the view that the provisions of 
Article 3 concerning injury may be generally applicable throughout the Anti-
Dumping Agreement  and are not limited in applicatio n to investigations. Article 11 
does not seem to explicitly specify otherwise in the case of sunset reviews.45 
33. The US also raises the distinction between th e “determination of injury” in an original 
investigation and a “determination of the likely cont inuation or recurrence of injury” in a sunset 
                                                      
41 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 126-128. 
42 See Appellate Body Report, Steel from Germany , para. 69 n.59. 
43 US First Submission, para. 291. 
44 Panel Report, DRAMS from Korea , para. 6.59 n.501; see also Panel Report, Sunset Review of Steel 
from Japan , para. 7.99. 
45 Panel Report, Sunset Review of Steel from Japan , para. 7.99. WT/DS268/R 
Page C-12  
 
review.
46  But this distinction does not alter the paramount legal requirement under the Anti-Dumping 
Agreement that the core focus of each determinatio n – “injury” – must be interpreted in accordance 
with the provisions of Article 3. 
34. Moreover, that Articles 3 and 11.3 do not refere nce each other does not indicate, as the United 
States argues,47 that the provisions of Article 3 do not appl y to Article 11.3 suns et reviews.  Rather, 
explicit cross-referencing is not necessary, becaus e the terms of Article 3 (through Footnote 9 and 
Article 3.1) apply throughout the Anti-Dumping Agreement, including in Article 11.3.48 
35. In sum, Argentina views the issue as one of  the fundamental disagreements between the 
United States and other WTO Members involved in this proceeding.  Does “injury” as used in 
Article 11.3 differ from the meaning of “injury” as  defined under the Agreement in Footnote 9, and do 
the substantive and procedural standards for eval uating injury contained in Article 3 apply to 
determinations made under Article 11.3?  Under the Agreement, the clear answer to both of these 
questions is “yes.”  Moreover, this is not merely Argentina’s view – all of the Third Parties similarly 
agree that this interpretation is mandated by the Agreement.49 
3. Articles 6, 12, and 18 of the Anti-Dumping Agreement apply to sunset reviews 
conducted under Article 11.3 
36. Article 6 of the Anti-Dumping Agreement applie s to reviews conducted under Article 11 by 
virtue of the cross-reference contained in Artic le 11.4: “The provisions of Article 6 regarding 
evidence and procedure shall apply to any review carried out under this Article.”  In particular, 
Article 6.1 requires that “[a]ll inte rested parties in an anti-dumping investigation shall be given . . . 
ample opportunity to present . . . evidence . . . .”  And Article 6.2 requires that the authority provide 
all interested parties “a full opportuni ty for the defence of  their interests.” 
37. The Appellate Body in Sunset Review of Steel from Japan  recognized that the cross-reference 
in Article 12.3 to Article 11 reviews indicates that the drafters of th e Anti-Dumping Agreement 
intended for interested parties in Article 11.3 sunset  reviews to have “the right to receive notice of the 
process and reasons fo r the determination.”50  The United States does not dispute that the provisions 
of Article 12 apply mutatis mutandis  to sunset reviews under Article 11.3.51 
38. Article 18.3 of the Anti-Dumping Agreement expres sly provides that “the provisions of this 
Agreement shall apply to investigations, and reviews of existing measures , initiated pursuant to 
applications which have been made on or after the date of entry into force of the WTO Agreement.”  
(Emphasis added.)  Thus, the Anti-Dumping Agreement applies to sunset reviews of anti-dumping 
measures imposed prior to the entry into force for a Member of the WTO Agreement.  The United 
States does not dispute this. 
                                                      
46 US First Submission, paras.  289, 297-301. 
47 See id. at para. 296. 
48 Article 3.1 states that “[a] determination of injury for purposes of Article VI of GATT 1994  shall be 
based on positive evidence and involve an objective examination . . . .” (Emphasis added.)  The Anti-Dumping 
Agreement clarifies Article VI of GATT 1994.  Therefore, the text of Article 3.1 unambiguously provides that all
 determinations of injury under the Anti-Dumping Agreement – whether a determination of injury in an 
original investigation or a determination of the likelihood  of injury in a sunset review – are subject to the 
requirements of that article. 
49 See Third Party Submissions of European Communities, paras. 123-127; Japan, paras. 9-15; Korea, 
paras. 19-24, and Chinese Taipei, para. 7. 
50 Appellate Body Report, Sunset Review of Steel from Japan , para. 112. 
51 See US First Submission, para. 239.  WT/DS268/R 
 Page C-13 
 
 
III. THE DEPARTMENT’S SUNSET DETERMINATION 
A. THE US SUNSET REVIEW WAIVER PROVISIONS , 19 USC.  § 1675( C)(4) AND 19 C.F.R.  § 
351.218( D)(2)( III), ARE INCONSISTENT AS SUCH  WITH THE ANTI-DUMPING AGREEMENT  
1. US arguments that waiver is applied on a company-specific basis are unavailing and do 
not alter the conclusion that the Waiver Provisions violate Articles 11.3, 11.4, 6.1, and 
6.2 
39. The US waiver provisions, 19 USC. § 1675 (c)(4)(B) and 19 C.F.R.  § 351.218(d)(2)(iii), 
violate Article 11.3 because they mandate a finding of likely dumping.52  Under Article 11.3, if the 
WTO Member wishes to invoke the exception and continue the measure, it must meet specified 
requirements.  The Panel in Sunset Review of Steel from Japan  confirmed that Article 11.3 “precludes 
an investigating authority from simply assuming” that dumping and injury would likely continue or 
recur.53  The Panel further recognized that “one of the fundamental goals of the Anti-Dumping 
Agreement as a whole is to ensu re that objective determinations are made based, to the extent 
possible, on facts.”54  Article 11.3 requires that the authority  take action and ground its determination 
on a “sufficient factual basis” to allow it to “draw reasoned and adequate conclusions concerning the likelihood” of continuation or recurrence. 
55  The Appellate Body confirmed that the authority “must 
conduct a rigorous examination in a sunset review before the exception (namely, the continuation of 
the duty) can apply.”56   The authority must make a “fresh determination” that is forward-looking and 
“based on credible evidence.”57 
40. The United States does not dispute that the application of the waiver provisions mandates a 
finding of likely dumping.  The United States argues, however, that the waiver provisions do not 
preclude the Department from conducting a sunset review as required by Article 11.3, because the 
mandatory likelihood determination under section 167 5(c)(4)(B) “is limited to the party that failed to 
respond.”58  According to the United States, “regardless of whether a respondent interested party 
affirmatively waives participation or Commerce find s that the failure of the respondent interested 
party to file a substantive response or a comp lete substantive response constitutes a waiver, 
Commerce is still required by US law and its ow n regulations to initiate and conduct the required 
sunset review.”59 
41. First, as explained in detail below, this is no t how the waiver provisions were applied in this 
case.  Siderca submitted a complete  substantive response, but the De partment nevertheless determined 
that it “did not receive an adequate response from re spondent interested parties.  Pursuant to section 
351.218(d)(2)(iii) of the Sunset Regulations, th is constitutes a waiver of participation.”60  
42. The US argument fails because it relies on an over ly narrow interpretation of “review.”  As is 
clear from the Appellate Body, Article  11.3 requires a “rigorous examinat ion” of evidence that results 
                                                      
52 See Argentina’s First Submission, Sec. VII.A.1. 
53 See Panel Report, Sunset Review of Steel from Japan , para. 7.177. 
54 Id. at  para. 7.279. 
55 Id. at para. 7.177. 
56 Appellate Body Report, Sunset Review of Steel from Japan , para. 113. 
57 Appellate Body Report, Steel from Germany , para. 88. 
58 US First Submission, para. 146. 
59 Id. at para. 148. 
60 Issues and Decision Memorandum for the Sunset Reviews of the AD Orders on Oil Country Tubular 
Goods from Argentina, Italy, Japan, and Korea ( Dep’t Comm., 31 Oct. 2000) (final results) at 5 (“ Issues and 
Decision Memorandum ”) (ARG-51); see also Oil Country Tubular Goods from Argentina: Adequacy of 
Respondent Interested Party Resp onse to the Notice of Initiation , A – 357-810  (Dep’t Comm., 22 August 2000) 
at 1 (Siderca filed a “complete substantive response”) and at 2 (the Department determined Siderca’s response 
to be “inadequate”) (“ Determination to Expedite ”) (ARG-50). WT/DS268/R 
Page C-14  
 
in a meaningful review.  The authority must activel y evaluate a sufficient body of positive evidence 
and ultimately render a determination that is ba sed on that evidence.  The review required by 
Article 11.3 cannot be a mere fo rmality and lack substance.  By mandating a determination of likely 
dumping without an evaluation of evidence where a respondent interested party waives – or is deemed 
by the Department to have waived – participation in  the sunset proceeding, the US waiver provisions 
violate Article 11.3.  Indeed, even where only one out of multiple respondents subject to the order 
waives participation in a sunset review, the US waiver provisions violate Article 11.3.  As the 
Appellate Body confirmed, Article 11.3’s requir ement to determine in a review whether the 
continuation or recurrence of dumping would be likely does not permit the Department to 
automatically conclude – without an evaluation of facts – that dumping would be likely.  The problem is even more pronounced when multiple respondent inte rested parties are deemed to have waived their 
participation. 
43. For example, in this case, the ultimate effect  is the same whether waiver is applied on a 
company-specific or order-wide basis.  In this case, the Department deemed the Argentine exporters 
to have waived, and thus issued a determination that  dumping was likely to continue or recur pursuant 
to the waiver provisions.  Therefore, waiver on th e company level was equivalent to waiver on an 
order-wide basis because the Department deemed the companies accounting for 100 per cent of the 
alleged exports to have waived participation. 
2. The US arguments that the Waiver Provisions merely serve as an efficiency mechanism 
are without merit 
44. The United States also attempts to cast the waiver provisions as an efficiency mechanism that 
enables the Department to save resources where respo ndent interested parties choose not to participate 
in the Department’s sunset review.
61   According to the United States, “[n]othing in Article 11.3 
specifically or the AD Agreement generally require s authorities to engage in such a waste of their 
own resources and the resources of private parties.”62 
45.   Casting the function of the waiver provisions as a vehicle for saving resources is not 
persuasive.  Purported efforts to save administrative resources cannot be used to diminish a Member’s 
substantive rights or to re-define obligations.63  
46. The point is that Article 11.3 imposes an obligation to the Member maintaining an anti-
dumping measure to conduct a “rigorous” review and make a determination of both likely dumping 
and likely injury in order for it to maintain that meas ure.  If the national authorities are not willing to 
expend the resources necessary to satisfy their ob ligation to make a WTO-consistent “determination,” 
then they must terminate the measure.  Also , Article 6.8 and Annex II of the Anti-Dumping 
Agreement provide the only mechanis m for the treatment of respondents who do not participate or 
who are not cooperative:  a decision based on facts ava ilable for such parties.  Article 11.3 (as well as 
the Anti-Dumping Agreement as a whole) does no t permit an additional, so-called efficiency 
mechanism, that statutorily mandates a finding of a likelihood of a continuation or recurrence of dumping. 
47. The United States has applied the waiver provision in 173 of its 297 sunset reviews of anti-
dumping duty orders – and in 78 per cent of the sunset reviews in which the domestic industry 
participated.
64  In all of these cases, the Department issued a finding that dumping would likely 
continue or recur pursuant to the statutory mandate.65  In Argentina’s view, this is something other 
                                                      
61 US First Submission, paras. 148-49. 
62 Id. at para. 149. 
63 See Argentina’s First Oral Statement, paras. 49-51. 
64 US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).  
65 Id.  WT/DS268/R 
 Page C-15 
 
 
than efficiency.  The sunset review of antifrictio n bearings from Sweden illustrates the “efficient” use 
of the waiver provisions and highlights the direct  conflict with Article 11 .3 – where there is no 
review, no analysis, and no determination by the De partment.  In that case the Department stated, 
“given that . . . respondent interested parties have  waived their right to participate in this review 
before the Department, we determine that dumping is  likely to continue if th e orders were revoked.”66 
48. Finally, in its first submission, the United States  does not even address the issue of  “deemed 
waivers,” where respondents attempted to participate,  but the Department rejected their responses and 
deemed their inadequate responses to constitute a “w aiver of participation.”  The United States did 
concede, however, during questioning from the Pa nel at the First Substantive Meeting With the 
Parties on 9 December that, pursuant to the waiv er regulation, 19 USC. § 351.218(d)(2(iii), the 
Department will apply a deemed waiver for both incomplete substantive responses and for non-
responses.  However, according to the US First Submission, a party which submits a response to a 
notice of initiation is never cons idered to have “waived” its participation in a sunset review.67  Sunset 
cases included in Exhibit ARG-63, however, contradict the US explanation and cast doubt on the US 
response to Argentina’s argument.68 
49. The United States also argues that the waiver  provisions do not violate Article 6.1, because 
US sunset laws and regulations afford interested parties “ample opportunity to present evidence in 
writing all evidence which they consider relevant.”69  According to the United States, the US waiver 
provisions only “operate when a respondent intere sted party has chosen not to avail itself of the 
Article 6.1 rights that other provisions of the regulations guarantee.”70 
50. Under the Department’s sunset regulations, th e Department “will consider the failure by a 
respondent interested pa rty to file a complete  substantive response . . . as a waiver of participation in a 
sunset review before the Department.”71  Applying this provision, the Department has deemed a 
respondent to have waived its participation wh ere the Department considered the respondent’s 
response to the notice of initiation to be “inadequ ate” under 19 USC. § 351.218(e)(1)(ii)(A) – both 
                                                      
66 Antifriction Bearings from Sweden, 64  Fed. Reg. 60,282, 60,284 (Dep’t Comm. 1999)(final results 
sunset review) (ARG-63, Tab 6). 
67 See US First Submission, para. 166, (“[The US waiver provisions] are relevant only when a 
respondent interested party has not responded to the notice of initiation of the sunset review by making the required first submission, the substantive response.”). 
68 See, e.g.,  Cut-to-Length Carbon Steel Plate from Belgium , 65 Fed. Reg. 18,292 (Dep’t Comm. 
2000)(final results sunset review)(ARG- 63, Tab 82).  The Department receiv ed incomplete responses from two 
respondents, and therefore considered their responses to be “inadequate” under 19 C.F.R. § 351.218(e)(1)(ii)(A).  
See Issues and Decision Memo for the Expedited Sunset Review of the AD Order on Cut-to-Length Carbon Steel 
Plate from Belgium at 2-3 (ARG-63, Tab 82).  In addition, the domestic interested parties urged the Department 
to deem the respondents’ failure to file complete responses as waivers of participation in the review.  See id. at 
2.  In concluding that dumping was likely to continue or recur, the Department stated:  “In the instant review, 
the Department did not receive an adequate response from any respondent interested party.  Pursuant to section 
351.218(d)(2)(iii) of the Sunset Regulations, th is constitutes a waiver of participation.”  See id. at 5.  See also 
Seamless Pipe from Argentina, Brazil, Germany, and Italy , 65 Fed. Reg. 66,708 (Dep’t Comm. 2000)(final 
results sunset review)(ARG-63, Tab 212). For the sunset review of the order against Italian seamless pipe, the 
Department received a complete substantive response from a respondent interested party, but considered the response to be “inadequate” by virtue of the 50 per cent rule under 19 C.F.R. § 351.218(e)(1)(ii)(A).  See Issues 
and Decision Memo for the Expedited Sunset Reviews of the AD Orders on Seamless Pipe from Argentina, 
Brazil, Germany, and Italy at 3 (ARG-63, Tab 212) .  In concluding that dumping was likely to continue or 
recur, the Department stated:  “In the instant reviews, the Department did not receive adequate response from 
any
 respondent interested party for the Argentinean, Brazilian, and Italian  cases.  Pursuant to section 
351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation.”  See id.  at 5 (emphasis 
added). 
69 See US First Submission, para. 164. 
70 See id. at para. 166. 
71 19 C.F.R. § 351.218(d)(2)(iii) (emphasis added). WT/DS268/R 
Page C-16  
 
because the response was incomplete and because the respondent failed to satisfy the 50 per cent 
threshold test.
72  Indeed, the Department deemed Siderca’s complete substantive response to 
constitute a waiver of participation.73 
51. The Department’s regulations regarding the “deemed waiver” thus deny respondent interested 
parties the opportunity to present evidence in viola tion of Article 6.1.  Although the Department’s 
regulations afford respondents the opportunity to submit evidence, these provisions are meaningless in 
the context of a deemed waiver where the Departme nt issues a mandatory determination of likely 
dumping pursuant to the statute, despite a responde nt’s attempts to participate in the sunset 
proceeding. 
52. Similarly, the US waiver provisions violate Article 6.2.  In response to this argument, the 
United States again fails to address the consequences  of a deemed waiver.  By deeming a respondent 
interested party’s inadequate response to constitute  a waiver under 19 C.F.R. § 351.218(d)(2)(iii), the 
Department denies the respondent “a full opportunity  for the defence of [its] interests.”  Indeed, a 
respondent hardly can be said to have a full oppor tunity to defend its interests where the Department 
issues a mandatory determination of likelihood without considering information and argument 
submitted by that respondent. 
B. 19 USC.  § 1675 A(C)(1),  THE STATEMENT OF ADMINISTRATIVE ACTION , AND SECTION II.A.3  
OF THE SUNSET POLICY BULLETIN  ESTABLISH AN IRREFUTABLE PRESUMPTION OF LIKELY 
DUMPING IN DEPARTMENT OF COMMERCE SUNSET REVIEWS THAT VIOLATES AS SUCH  
ARTICLE 11.3 
53. In Sunset Review of Steel from Japan , the Appellate Body confirmed that the likelihood 
determination required under Article 11.3 could no t be based on a presumption that dumping would 
be likely to continue or recur.74 
54. In its first submission, Argentina presented thr ee independent claims that demonstrate that the 
United States has established and/or employs an  irrefutable presumption of likely dumping in 
violation of its WTO obligations.75  F i rs t , the SAA and Sunset Policy Bulletin  cannot be separated 
from the US statute and, taken together, the statute, SAA, and Sunset Policy Bulletin  establish an 
irrefutable presumption of likely dumping in vi olation of Article 11.3 of the Anti-Dumping 
Agreement as such.  Second , the consistent practice of the United States demonstrates that it always 
applies an irrefutable presumption of likely dumping  in violation of Article  11.3 as such.  Third , in the 
alternative ( i.e., in the event that the Panel were  to find that the SAA and the Sunset Policy Bulletin  
could not be challenged as “measures,” or that, individually or taken together with the statute, they 
were not inconsistent with Article 11.3), Argen tina’s first submission demonstrates that the United 
States has not administered its law with respect to the likelihood of dumping determination in an 
impartial and reasonable manner as required by Article X:3(a) of the GATT 1994. 
55. The implications of not finding a violation pursuant to at least one of these claims would be 
significant for the WTO as a rules-based system.  If countries can avoid treaty obligations by copying 
the text of treaty commitments into domestic legislation, and then publishing “administrative 
guidance” that either undermines the substantive oblig ations or results in consistent practice that is 
inconsistent with WTO obligations, then WT O obligations would become meaningless. 
                                                      
72 See, e.g.,  Seamless Pipe from Argentina, Brazil, Germany, and Italy , 65 Fed. Reg. 66,708 (Dep’t 
Comm. 2000)(final results sunset review)(ARG-63, Tab 212); Cut-to-Length Carbon Steel Plate from Belgium, 
65 Fed. Reg. 18,292 (Dep’t Comm. 2000) (final results sunset review) (ARG-63, Tab 82). 
73 See Issues and Decision Memorandum  at 5 (ARG-51) (“In the instant reviews, the Department did 
not receive an adequate response from respondent interested parties.  Pursuant to section 351.218(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of participation.”). 
74 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 178, 191. 
75 See Argentina’s First Submission, Sections VII.B. and VII.E.  WT/DS268/R 
 Page C-17 
 
 
1. 19 USC. § 1675a(c)(1), the Statement of Administrative Action, and the Sunset Policy 
Bulletin  are measures that can be challenged as such 
56. In its first submission, Argentina set forth its argument that the statute, the SAA, and the 
Sunset Policy Bulletin  – taken together – are inconsistent w ith Article 11.3 as such, because they 
establish an irrefutable presumption of likely dumping.76 
57. The likelihood of dumping standard under US law is “multi-layered” in the sense that the US 
Congress has delegated the likelihood determination to the Department, which has, in turn, issued 
rules – codified in the Sunset Policy Bulletin  – governing the likelihood determination according to 
criteria prescribed by Congress in the statute and SAA.  Therefore, in discerning the likelihood of 
dumping standard under US law, the statute, SAA, and Sunset Policy Bulletin  are “inseparable and 
should not be read independently from each other when evaluating the overall conformity of the law 
with WTO obligations.”77 
58. The statutory provision, 19 USC. § 1675a(c)(1), provides the starting point for the 
Department’s likelihood determination.  Section 1675a(c)(1) instructs that, in determining whether 
revocation of an anti-dumping order would be likely to  lead to continuation or recurrence of dumping, 
the Department “shall consider—(A) the weighted  average dumping margins 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 i ssuance of the anti-dumping duty order . . . .” 
59. As with the relevant statutory provision in US – Export Restraints , however, the statute 
cannot be read isolation.78  While the statute prescribes the two factors (i.e., previously calculated 
dumping margins and import volumes ) that the Department must consider in making the likelihood 
determination, the statute does not articulate how the Department must interpret these in deciding 
whether dumping would be likely to continue or recur.  In other words, the statutory provisions alone 
do not articulate the likelihood of dumping standard under US law. 
60. In order to discern the likelihood of dumping standard under US law, the statute cannot be 
read independently fr om the SAA and the Sunset Policy Bulletin .  As a matter of US law, the SAA has 
a unique status as the authoritative interpretive tool for the statute.79  The SAA outlines the three 
criteria that Congress believes are “highly probative” of likely dumping: (1) continued dumping 
margins, (2) the cessation of imports, and/or (3) declining import volumes accompanied by the 
continued existence of dumping margins.80 
61. The Sunset Policy Bulletin  is an administrative instrument that, as with the issuance of 
regulations, the Department published in the Federal Register , and was subject to public comment 
prior to the initiation of the first US sunset review.  The policies concerning s unset reviews set forth in 
the Sunset Policy Bulletin  “are intended to complement the ap plicable statutory and regulatory 
provisions by providing guidance on methodological or analytical issues not  explicitly addressed by 
the statute and regulations.”81  With respect to the likelihood of dumping determination, Section II.A.3 
of the Sunset Policy Bulletin  further instructs that the Department “normally will” determine that the 
                                                      
76 See id. at Section VII.B.2. 
77 Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted  
27 January 2000, para. 7.27 ( “US – Sections 301-310 ”). 
78 See Panel Report, United States – Measures Treating Exports Restraints as Subsidies, WT/DS194/R, 
adopted 23 August 2001, paras. 8.92, 8.100 – 8.101, 8.130 (“ US – Export Restraints ”). 
79 See id.  at paras. 8.97-8.98. 
80 SAA at 889-890 (ARG-5). 
81 Policies Regarding the Conduct of Five-year (“Sunset”) Reviews of Anti-Dumping and 
Countervailing Duty Orders, 63 Fed. Reg. 18,871, 18,871 (Dep’t Comm. 1998)(“ Sunset Policy Bulletin ”) 
(ARG-35)(emphasis added); see also  Appellate Body Report, Sunset Review of Steel from Japan , para. 95. WT/DS268/R 
Page C-18  
 
continuation or recurrence of dumping would be like ly where at least one of the three criteria set forth 
in the SAA is satisfied, with no further analysis.
82 
62. Thus, in the end, the US likelihood standa rd is expressed in Section II.A.3 of the Sunset 
Policy Bulletin .  Part of an overall framework with the statute and the SAA, the Sunset Policy Bulletin  
sets forth the presumption of likelihood of dumping that no respondent has ever been able to 
overcome.  Argentina submits that the irrefutabl e presumption of likely dumping prescribed by 
Section II.A.3 of the Sunset Policy Bulletin  is inconsistent with Article 11.3 as such. 
63. In rebuttal, the United States argues that the Sunset Policy Bulletin  has “no independent legal 
status,” and for that reason cannot be challenged as a WTO-inconsistent measure.83  In doing so, the 
United States cites the Panel’s ruling in Sunset Review of Steel from Japan  that the Sunset Policy 
Bulletin  does not constitute a measure for purposes of a WTO challenge.84 
64. The Appellate Body, however, has over ruled the Panel’s finding that the Sunset Policy 
Bulletin  is not a measure that is challengeab le, as such, with the WTO Agreement.85  The Appellate 
Body held that “measure” for purposes of WTO challenge is cast broadly, and includes administrative 
instruments such as the Sunset Policy Bulletin .86  Accordingly, the Panel has the authority to decide 
whether Section II.A.3 of the Sunset Policy Bulletin , which is a distillation of 19 USC. § 1675a(c)(1) 
and the SAA, is inconsistent with Article 11.3 as such. 
2. 19 USC. § 1675a(c)(1), the Statement of Admini strative Action, and Section II.A.3 of the 
Sunset Policy Bulletin  require decisive reliance by the Department on historical dumping 
margins and declines in import volume and thus establish an irrefutable presumption of 
likely dumping in Department of Commerce suns et reviews in violation of Article 11.3 
as such 
65. In Sunset Review of Steel from Japan , the Appellate Body evaluate d whether Section II.A.3 of 
the Sunset Policy Bulletin  is inconsistent with Article 11.3 as such.  In addressing this issue, the 
Appellate Body stated, 
We believe that a firm evidentiary foundation  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 .  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 [the Department] 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.87 
66. Thus, the Appellate Body determined that, if the Sunset Policy Bulletin  is interpreted by the 
Department as directing it to consider cont inued dumping margins and declining volumes ( i.e., 
satisfaction of any of the three criteria prescribed by Section II.A.3) as conclusive of likely dumping, 
then the Sunset Policy Bulletin  would be inconsistent with Article 11.3 as such.  The likelihood 
                                                      
82 Sunset Policy Bulletin  at 18,872 (ARG-35). 
83 US First Submission, para. 195. 
84 See id.  at para. 196 (citing Panel Report, Sunset Review of Steel from Japan , paras. 7.125-7.126). 
85 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 94-100. 
86 See id. at paras. 84-88. 
87 Id. at para. 178 (emphasis added).  WT/DS268/R 
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determination required by Article 11.3 must be based on “all relevant evidence,” not on “the 
mechanistic application of presumptions.”88 
67. Ultimately, however, the Appellate Body did not decide whether the Sunset Policy Bulletin  is 
inconsistent with Article 11.3 as such.  The Appe llate Body concluded that, because the Panel had not 
made any factual findings as to the “consistent application” of Section II.A.3, it could not fully 
discern that provision’s “meaning.”89  Consequently, it could not determine whether Section II.A.3 
directs the Department to consider the three criteria to be conclusive of likely dumping. 
68. Here, however, Argentina has submitted extensiv e evidence of the Department’s “consistent 
application” of Section II.A.3.  Thus, under th e guidance provided by the Appellate Body in Sunset 
Review of Steel from Japan , the Panel has the evidence before it to discern the meaning of Section 
II.A.3 and to make the proper ruling that the three cr iteria are inconsistent with Article 11.3 as such.90  
Argentina’s Exhibits ARG-63 and ARG-6491 demonstrate that the Department follows the instruction 
of Section II.A.3 in every sunset review, and every time  it finds that at least one of the three criteria is 
satisfied, the Department makes an affirmative finding of likely dumping without considering 
additional factors.  The Department ’s consistent application of Sec tion II.A.3 thus demonstrates its 
meaning:  Section II.A.3 directs the Department to  attach decisive weight to historical dumping 
margins and declining import volumes (or the cessation of imports altogether) in every case .  
Therefore, because Section II.A.3 of the Sunset Policy Bulletin  instructs the Department to treat 
satisfaction of any one of the three criteria as conclusive of likely dumping, the measure is 
inconsistent with the Article 11.3 obligation to dete rmine on the basis of all relevant evidence whether 
termination of the anti-dumping duty would be like ly to lead to continuation or recurrence of 
dumping.92 
69. The Department’s 10 December 2003 final dete rmination in the sunset review of the anti-
dumping order on stainless steel wire rod from  Spain provides a telling illustration of how the 
Department mechanistically treats the Section II.A.3 criteria as d ecisive without considering other 
relevant evidence.93  As in all sunset reviews, the Department followed the instruction of Section 
II.A.3 and considered only historical dumping marg ins and import volumes.  The dumping margin for 
the only identified respondent interested party had declined since the imposition of the order, from 
4.73 per cent in the original investigation to 0.80 per cent in the only completed administrative 
review.94  Meanwhile, the volume of the subject imports declined significantly the year the order was 
imposed, but thereafter import volume to the United States resumed to pre-order levels.95  This 
evidence should have required a finding that cont inuation or recurrence of dumping would not be 
likely, as even the SAA recognizes that “declining (or no) dumping margins accompanied by steady 
                                                      
88 Id. at paras. 178, 191 (“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.”). 
89 See id. at paras. 184, 190;  see also Appellate Body Report, Steel from Germany , paras. 148, 157. 
90 Indeed, Argentina submits that the Panel must make factual findings as to the meaning of Section 
II.A.3, as evidenced by the Department’s consistent applic ation of the measure, if only to preserve Argentina’s 
rights for appeal. 
91 Argentina introduces Exhibit ARG-64 in this second submission.  ARG-64 consists of Argentina’s 
review of the Department’s sunset proceedings conducted since September 2003, and thus supplements ARG-
63. 
92 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 178, 191. 
93 See Issues and Decision Memorandum for the Expedited Sunset Review of the Anti-Dumping Order 
on Stainless Steel Wire Rod from Spain , (10 December 2003)(ARG-64, Tab 4).  The final results of this review 
were published on December 10, 2003, during the Panel’s First Substantive Meeting with the Parties in the instant dispute. 
94 See id. at 4. 
95 See id.  at 6. WT/DS268/R 
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or increasing imports may indicate that foreign co mpanies do not have to dump to maintain market 
share in the United States and that dumping is less likely  to continue or recur if the order were 
revoked.”
96  Nevertheless, the Department rigidly applie d the Section II.A.3 criteria and concluded, 
“We find that revocation of the order on SSWR from Spain is likely to continue or recur if the order 
were revoked, because of the existence of dumpi ng margins above de minimis level and the decrease 
of import levels following the imposition of the order.”97 
70. The United States cannot dispute that, in follo wing Section II.A.3, the Department always 
treats satisfaction of any one of the three criteria as conclusive. 
71. Further, by requiring the Department to treat sa tisfaction of any one of the three criteria as 
conclusive of likely dumping, Section II.A.3 establishes an irrefutable presumption of likely dumping.  
Here, again, Argentina’s extensive evidence of th e Department’s consistent  application of Section 
II.A.3 demonstrates the invariable consequence – and thus the meaning – of that provision.  In 100 
per cent of the sunset reviews in which the dome stic industry participated, the Department followed 
the instructions of Section II.A.3, and in each case, the Department rendered an affirmative likelihood 
determination.98  Therefore, because Section II.A.3 requires the Department to apply a mechanistic 
presumption of likely dumping, Section II.A.3 is inconsistent with the Article 11.3 obligation to determine on the basis of all relevant evidence 
whether termination of the anti-dumping duty would 
be likely  to lead to continuation or recurrence of dumping.99 
72. The United States takes the position that there is  no irrefutable presumption of likely dumping 
under US law.100  First, the United States asserts that  permissive language in the SAA (“[f]or 
example,” “may provide strong indication,” and “highly probative”) and Section II.A.3 of the Sunset 
Policy Bulletin  (“normally”) indicates that these provisions do not establish an irrefutable 
presumption.101 
73. In Sunset Review of Steel from Japan , however, the Appellate Body examined this very 
language in evaluating whether Section II.A.3 is inconsistent with Article 11.3 and found that it did 
not resolve the issue.102  Indeed, the Appellate Body found th at other language in Section II.A.3 
contradicted the notion that the intent behind use of the word “normally” was permissive.103  
Specifically, the Appellate Body noted that the follo wing statement in Section II.A.3 suggested “by 
negative implication, that data relevant to the tw o factors mentioned in Section II.A.3(a)-(c) (namely, 
import volumes and historical dumping margins) will be regarded as conclusive in sunset reviews of 
final anti-dumping duties (as opposed to review s of suspended investigations . . . )[:]” 
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, 
[dumping margins and import volumes] may not be conclusive  with respect to 
likelihood. 104 
                                                      
96 SAA at 889-90 (ARG-5) (emphasis added.). 
97 Issues and Decision Memorandum for the Expedited Sunset Review of the Anti-Dumping Order on 
Stainless Steel Wire Rod from Spain  at 6 (10 December 2003)(ARG-64, Tab 4). 
98 See US Department of Commerce Sunset Reviews, ARG-63 (showing that, in the 217 sunset reviews 
in which the domestic industry participated as of September 2003, the Department found that dumping would be 
likely in each case); ARG-64 (showing that, in the six sunset reviews conducted by the Department since September 2003, the Department followed Section II.A.3 and found that dumping would be likely in each case). 
99 Appellate Body Report, Sunset Review of Steel from Japan , paras. 178, 191. 
100 See US First Submission, para. 173. 
101 See id. at paras. 176, 178. 
102 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 179-181. 
103 Id. at  para. 179. 
104 Id. (citing Sunset Policy Bulletin at 18,872 (ARG-35)).  WT/DS268/R 
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Therefore, the Appellate Body determined that  evidence of the consistent application of 
Section II.A.3 was necessary to discern its meaning.105 
74. As discussed above, Argentina has produced extensive evidence demonstrating the 
Department’s consistent application of Section II.A .3, and thereby, its meaning.  The facts of the 
Department’s sunset reviews speak for themselves:  In 100 per cent of the sunset reviews in which a 
domestic interested party participated in the pro ceeding, the Department determined that dumping was 
likely to continue or recur; and in 100 per cent  of the sunset reviews for which the Department 
determined that dumping was likely to continue or recur, the Department cited the authority of 
Section II.A.3 of the Sunset Policy Bulletin .106  The Department thus treats Section II.A.3 as binding 
in all  sunset reviews. 
75. In addition, the United States asserts that the following statement in the Sunset Policy Bulletin  
disproves the existence of an irrefutable presumption: 
[T]he Department normally will determine th at revocation of an anti-dumping order 
or termination of a suspended dumping investigation is not likely to lead to 
continuation or recurrence of dumping where dumping was eliminated after issuance of the order or the suspension agreement, as applicable, and import volumes remained 
steady or decreased.
107 
76. The United States claims that this passage “completely undermines Argentina’s case and 
rather spoils Argentina’s story.”108  Argentina disagrees.  Rather, this passage further supports 
Argentina’s compelling story of US WTO violations in sunset reviews.  Out of the 223 sunset reviews 
in which the domestic industry participated as of  December 2003 (the 217 cases in ARG-63 plus the 
six cases in ARG-64), the Department c ited this provision only four times.109  More importantly, in 
each of those four cases, the Department fo und “good cause” to consider other factors110 and found 
alternative grounds for its determination that dumping would be likely to continue or recur.111  So this 
passage, which the United States consid ers its “silver bullet,” is in fact a dead letter that has only been 
used against respondents to justify resorting to the “good cause” provision” in order to otherwise find that dumping would be likely to continue, as reflecte d in the four cases in which neither the waiver 
provisions nor the three checklists items we re used for the likelihood determination. 
77. How are respondents ever going to be able to refute or disprove the presumption of likely 
dumping prescribed by US law if the Department will always find likely dumping, even in the one 
rare circumstance in which it is supposedly permitted  to determine that dumping would not be likely 
to continue or recur?  Moreover, the Department’s use of the “good cause” provision demonstrates its 
true application – as a tool to justify an affirma tive likelihood determination in the rare instance where 
the Section II.A.3 criteria are not met. 
                                                     
 
105 See id. at para. 184. 
106 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). 
107 Sunset Policy Bulletin  at 18,872 (ARG-35). 
108 US First Submission, para. 181. 
109 US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). 
110 Pursuant to 19 USC. § 1675 a(c)(2) (ARG-1), 19 C.F.R. § 351.218(e)(2)(iii) (ARG-3), and 
Section II.C of the Sunset Policy Bulletin  (ARG-35). 
111 See Sugar and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363-64 (Dep’t Comm. 1999)(final 
results sunset reviews)(ARG-40); Issues and Decision Memorandum for the Sunset Review of Gray Portland 
Cement and Cement Clinker from Venezuela (Dep’t Comm., 18 Feb. 2000)(pre lim. results) at 3-5 (ARG-47); 
Issues and Decision Memorandum for the Sunset Review of Uranium from Russia  (Dep’t Comm., 
27 June 2000)(final results) at 15-17 (ARG-48); Issues and Decision Memorandum for the Sunset Review of 
Uranium from Uzbekistan  (Dep’t Comm., 27 June 2000)(final results) at 9-11 (ARG-49). WT/DS268/R 
Page C-22  
 
78. Of these four cases, the full sunset review of  the anti-dumping order on sugar and syrups from 
Canada is particularly illustrative of the great le ngths the Department will go in order to render a 
determination of likely dumping, even where the evidence clearly commands a negative 
determination.  In that case, the Department app lied the Section II.A.3 cr iteria and preliminarily 
determined that dumping was not likely to continue or  recur, finding that “the continued absence of a 
dumping margin for [the foreign respondent] and the continued existence of imports from [the 
respondent] in substantial quantities demonstrate[d] that [the respondent was] capable of selling the 
subject merchandise in the United States without dumping.”
112  The Department, however, reversed 
its preliminary results and issued an affirmative likelihood determination in its final results.  The 
Department based its final determination on an “abb reviated cost test with the limited data on the 
record.”113  The Department acknowledged that it was not its normal practice to examine costs and 
pricing during a sunset review, but it nevertheless found that the information on record amounted to 
“good cause” sufficient to “warrant consideration of such [other] factors.”114 
79. The Department first compared the foreign resp ondent’s cost of production with sales prices 
in the Canadian home market.  The Department did not, however, compare costs and sales prices for 
the same year; rather, it “compared a weighted-average home market price, based on 1997  price data 
supplied by [the respondent], with a COP based on 1998  costs derived from [the respondent’s] 
data.”115  Based on this comparison, the Department co ncluded that the respondent had sold sugar in 
the Canadian home market at below its cost of pr oduction and that it thus “made below cost sales 
within an extended period of time in substantial qu antities at prices which did not permit recovery of 
all costs within a reasonable period of time.”116  Because the respondent’s home market sales failed 
the Department’s cost test, the Department determ ined that it would not be appropriate to compare 
home market sales prices to US export prices to assess dumping.  Consequently, the Department 
compared the respondent’s constructed value with its  verified average US export selling price.  Based 
on this comparison, the Department “conclude[d] that at least some  of [the respondent’s] sales to the 
United States [were] at prices below CV.”117  The Department concluded that this information 
provided a sufficient basis for determining that dump ing was likely to continue or recur if the order 
were revoked, despite the non-existence of dumping margins and a significant volume of imports.118 
80. Based on all of the foregoing, Argentina submits that Section II.A.3 of the Sunset Policy 
Bulletin  is inconsistent with the Anti-Dumping Agreement as such because it (1) instructs the 
Department to treat historical dumping margins and import volumes as decisive and conclusive of 
likely dumping, and (2) establishes a presumption of likely dumping that no respondent has been able to overcome. 
81. Argentina respectfully urges the Panel to analyze Argentina’s claim.  The Appellate Body’s 
report in Sunset Review of Steel from Japan  shows the importance of the Panel deciding the issues that 
are properly placed before the Panel.  In that case , despite the fact that the Government of Japan had 
presented evidence that the Sunset Policy Bulletin  violated Article 11.3, the Panel stopped short of 
ruling on the claim because it erroneously considered that the Sunset Policy Bulletin  could not be 
challenged.  Because the Panel stopped short of a substantive analysis, the Appellate Body could not 
“complete the analysis” even though it recognized that  the claim could have me rit and that Japan had 
presented evidence.  Argentina respectfully asks that the Panel not repeat this here, and that it 
                                                     
 
112 Sugar and Syrups from Canada , 64 Fed. Reg. 20,253, 20,257 (Dep’t Comm. 1999)(prelim. results 
sunset review)(ARG-63, Tab 261). 
113 Sugar and Syrups from Canada , 64 Fed. Reg. 48,362, 48,363 (Dep’t Comm. 1999)(final results 
sunset review)(ARG-63, Tab 261). 
114 Id. 
115 Id. at 48,364 (emphasis added). 
116 Id. 
117 Id. 
118 See id.  WT/DS268/R 
 Page C-23 
 
 
consider the claims put before it by Argentina, and the supporting evidence of Exhibits ARG-63 and 
ARG-64.  
3. Argentina established a prima facie  case as set forth in AR G-63 and ARG-64 and the 
United States has not rebutted the existence of the irrefutable presumption 
82. Through Exhibits ARG-63 and ARG-64, Argentin a has demonstrated that the presumption of 
likely dumping established by the Sunset Policy Bulletin  has never been overcome.  The facts are 
unequivocal:  in 100 per cent of the sunset reviews in which the domestic industry participated 
(223/223), the Department has followed the directive of Section II.A.3, and in every case the 
Department rendered an affirmative determination of  likely dumping.  Argentina has thus satisfied its 
burden of establishing a prima facie  case demonstrating the irrefutabl e presumption employed by the 
Department in sunset reviews. 
83. The United States attempts to diminish the clear importance of the data by contending that 
there were only 35 cases in which the lik elihood of dumping issue was “contested.”119  The United 
States again fails to appreciate the nature of th e obligation to determine the likelihood of dumping 
under Article 11.3.  Lack of respondent party particip ation does not release the United States from its 
obligation under Article 11.3 to conduct a review a nd to make a determination that termination of the 
duty would be likely to lead to continuation or recurrence of injury.  Wh ile respondent interested 
parties can be a “primary source of information” in anti-dumping proceedings, the United States still 
has “a duty to seek out relevant information”120 and to ensure that its likelihood of dumping 
determination is supported by a “sufficient factual basis.”121  Otherwise, it cannot invoke the 
exception of Article 11.3 (continuation of the measure). 
84. In any event, even using the US figures, 35 out of 35 still proves Argentina’s claim.  The 
United States simply cannot point to a single suns et review in which the presumption that dumping 
would likely continue was overcome.  Therefore, the United States has failed to rebut Argentina’s 
prima facie case. 
85. Further, ARG-63 and ARG-64 demonstrate that the Department always  treats the satisfaction 
of any one of the three criteria prescribed by Section II.A.3 of the Sunset Policy Bulletin  as conclusive 
of likely dumping.  This evidence is indisputable. 
4. The Department’s consistent practice in sunset reviews both demonstrates the 
irrefutable presumption of likely dumping in  US law and itself violates as such 
Article 11.3 of the Anti-Dumping Agreement 
86. Independent from its challenge  of Section II.A.3 of the Sunset Policy Bulletin , Argentina 
challenges the Department’s consistent practice as such. 
87. After the Appellate Body’s decision in Sunset Review of Steel from Japan , there can be no 
doubt that agency practice is challengeable as such  in WTO dispute settlement  proceedings.  In that 
case, the Appellate Body evaluated whether “the type  of instrument itself – be it a law, regulation, 
procedure , practice , or something else – govern[s] whether it may be subject to WTO dispute 
                                                      
119 See US First Submission, para. 185.  In any event, there were actually 43 cases in which the 
likelihood of dumping determination was – using the US term – “contested.”  Argentina’s Exhibit ARG-63 shows that the response from foreign interested parties was deemed adequate in 28 cases and inadequate (based 
on a foreign party’s attempt to participate) in 17 cases.  Thus, foreign interested parties attempted to participate 
in 45 Department sunset reviews.  In 2 of these cases, however, the domestic industry withdrew from the 
proceeding.  Thus, the foreign and domestic parties “contested” the likelihood determination in 43 sunset reviews. 
120 Appellate Body Report, Sunset Review of Steel from Japan , para. 199. 
121 Panel Report, Sunset Review of Steel from Japan , paras. 7.177, 7.279.  WT/DS268/R 
Page C-24  
 
settlement[.]”
122  After reviewing the relevant WTO jurisprudence and agreement provisions,123 the 
Appellate Body concluded “that there is no basis,  either in the practice of the GATT and the WTO 
generally or in the provisions of  the Anti-Dumping Agreement, for finding that only certain types of 
measure can, as such, be cha llenged in dispute settlement proc eedings under the Anti-Dumping 
Agreement.”124  The Appellate Body’s reasoning thus requires the conclusion that agency practice 
may be challenged as such. 
88. As set forth above, Argentina submits that the consistent practice of the United States 
demonstrates that it always treats satisfaction of at least one of the three criteria ((1) continued 
dumping margins; (2) cessation of imports; and (3) declining volumes) as conclusive of likely 
dumping, and thus applies an irrefutable presumption of likely dumping in violation of Article 11.3.125  
There are no exceptions; the Department applies this likelihood standard in every sunset review in 
which the domestic industry participates. 
89. Citing several panel decisions, the United Stat es argues that, because  the Department may 
depart from its practice as long as it explains its reasons for doing so, the Department’s consistent 
practice of employing the US likelihood standard in  sunset reviews may not be challenged as such.126  
In light of the Appellate  Body’s decision in Sunset Review of Steel from Japan , however, it is clear 
that US agency practice can be challenged as such in WTO disputes.127 
90. The United States further argues that, even if the Department’s practice could be challenged 
as such, it could not be considered WTO-inconsistent, because the Department’s practice neither 
mandates action that is WTO-inconsistent, nor precludes action that is WTO-consistent.128  According 
to the United States, the Department’s likelihood of dumping practice is not mandatory, because the 
Department may depart from it as long as it explai ns its reasons for doing so.  In this regard, the 
United States asserts that, “[i]n accordance with the normal WTO rules on the allocation of the burden 
of proof, it is up to the complaining party to demonstrate that any challenged measure mandates 
WTO-inconsistent action or prec ludes WTO-consistent action.”129 
91. Argentina submits that it has satisfied its burden.  Again, Argentina has demonstrated that the 
Department employs the US likelihood standard in every  sunset review in which the domestic 
industry participates.130  Thus, Argentina has made its prima facie case establishing that the US 
likelihood standard is mandatory under the Department ’s practice.  Accordingly, the burden shifts to 
the United States to show that the Department can depart from its likelihood practice.  Because the 
United States cannot point to a single sunset review  in which the Department has done so, the United 
States has failed to rebut Argentina’s claim. 
                                                      
122 Appellate Body Report, Sunset Review of Steel from Japan , para. 78 (emphasis added).  See also 
Appellate Body Report, United States – Countervailing Measures Concerning Certain Products from the 
European Communities  (“US – CVDs on EC Products ”) WT/DS212/AB/R, adopted 8 January 2003, paras. 50, 
151, 162; United States – CVDs on EC Products: Status Report by the United States , WT/DS212/13 
(28 Oct. 2003)(stating that the United States/Department changed a methodology to comply with its WTO 
obligations). 
123 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 85-87. 
124 Id. at para. 88. 
125 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). 
126 See US First Submission, para. 198 (citing Panel Report, Sunset Review of Steel from Japan , 
para. 7.131; Panel Report, United States – Anti-Dumping and Countervailing Measures on Steel Plate from 
India, WT/DS260/R, adopted 29 July 2002, para. 7.22 (“ India Steel Plate ”)). 
127 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 85-88. 
128 See US First Submission, para. 199.   
129 Id. 
130 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).  See also  Appellate 
Body Report, Steel from Germany , para. 148.  WT/DS268/R 
 Page C-25 
 
 
5. Assuming a rguendo  that US law and practice establishing the irrefutable presumption 
are not inconsistent as such with Article 11.3, then the United States has not 
administered its law with respect to the Article 11.3 Likelihood of Dumping 
Determination in an impartial and reasonable manner in violation of Article X:3(a) of 
the GATT 1994 
92. The GATT Article X:3(a) argument raised in Ar gentina’s First Submission is an alternative 
claim.131  This claim applies only if the Panel finds that US law is consistent with Article 11.3, or that 
the offending provisions are not “measures” that ca n violate US WTO obligations.  In this event, the 
Department’s sunset practice demonstrates that th e United States has not administered its law with 
respect to the likelihood of dumping determination in an impartial and reasonable manner as required 
by Article X:3(a) of the GATT 1994. 
93. Through its comprehensive analysis of the De partment’s sunset reviews, Argentina has 
established a clear and undeniable pattern of biased and unreasonable decision making by the 
Department in its administration of the laws, regulations, decisions, and rulings pertaining to sunset review.
132  It is simply not credible to believe that a review based on positive evidence could lead to 
an affirmative finding of likely dumping in each of  the 223 cases in which the US industry requests 
continuation of the anti-dumping measure.  A record of 223 wins and 0 losses  (or even 35 wins and 0 
losses to use the US figures of so-called “contested” cases) for the US industry demonstrates a lack of 
impartiality, and the unreasonable administration of national laws, regulations, decisions, and rulings. 
94. On this issue the United States is unable to even muster a true rebuttal.  The United States 
first argues that Argentina failed to demonstrate that the Department violated the Article X:3(a) 
requirement to administer the sunset review laws, regulations, decisions, and rulings in a “uniform” 
manner.133  In fact, Argentina never challenged the unif ormity of the Department’s administration of 
sunset reviews in the first place.  To the contrary , Argentina submits that the Department’s uniform 
administration of sunset reviews demonstrates a clear pattern of biased and unreasonable decision making, because the only determinat ive factor in the Department’s sunset review is US industry 
participation. 
95. Second, the United States again attempts to deconstruct the clear import of Argentina’s 
Exhibit ARG-63 by arguing that only the so-called “contested” cases are relevant for the purposes of 
Article X:3(a).
134  Under Article 11.3, however, the lack of respondents’ participation does not relieve 
the authority from the obligation to make a determination based on positive evidence that dumping 
would likely continue or recur in order to invoke the exception and continue the anti-dumping 
measure.  In any event, even using the erroneous US figures, 35 out of 35 still proves Argentina’s 
claim.  At a minimum, Argentina has satisfied its burden of establishing a prima facie violation of 
Article X:3(a), and the United States has failed to rebut that claim. 
                                                      
131 See Argentina’s First Submission, Sec. VII.E. 
132 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64). 
133 See US First Submission, para. 274. 
134 See id. at para. 275.  On this point, Argentina again notes that there were actually 43 cases in which 
the likelihood of dumping determination was – using the US term – “contested.” WT/DS268/R 
Page C-26  
 
C. T
HE DEPARTMENT ’S SUNSET REVIEW OF OCTG  FROM ARGENTINA WAS INCONSISTENT WITH 
THE ANTI-DUMPING AGREEMENT  
1. The Department’s determinations indicate that it applied the Waiver Provisions to 
Siderca; Application of the Waiver Provis ions in the Sunset Review of OCTG from 
Argentina was inconsistent with Articles 11.3 and 6 of the Anti-Dumping Agreement 
96. The Department determined that because Side rca’s response was “inadequate” the company 
had “waived” its right to participate in the suns et review.  This is clear from the Department’s Issues 
and Decision Memorandum :  “In the instant reviews, the Depa rtment did not receive an adequate 
response from respondent interested  parties.  Pursuant to section 351.218(d)(2)(iii) of the Sunset 
Regulations, this constitutes a waiver of participation.”135 
97. As explained above, the US waiver provisions violate Article 11.3 because they mandate a 
finding of likely dumping.  Article 11.3’s requirements to conduct a “review” (which necessarily 
entails a “rigorous examination” of the facts) and to make a “determination”  precludes the authority 
from mandating statutorily an affirmative finding of  likely dumping.  If the WTO Member wishes to 
invoke the exception and continue the measure, it simply does not have the choice of doing nothing, or of passively assuming that dumping and injury would likely continue or recur.
136  The authority 
must take action and ground its determination on a “sufficient factual basis” to allow it to “draw 
reasoned and adequate conclusions concerning the likelihood” of continuation or recurrence. 137  The 
authority must make a “fresh determination” th at is forward-looking and “based on credible 
evidence.”138  
98. The application of the waiver provisions in the Argentine case violated Article 6.1 because it 
prevented the only known Argentine exporter, Si derca, from presenting evidence for meaningful 
consideration.  Siderca had notified the Department of its desire to participate in the sunset review and 
its willingness to cooperate fully by filing a complete substantive response to the Department’s notice 
of initiation.  Nevertheless, the De partment deemed Siderca to have waived its participation and thus 
issued a determination that dumping was likely pursuant to the statutory mandate of 19 USC. § 1675(c)(4)(B).  Accordingly, application of th e waiver provisions resulted in a mandatory 
determination of likely dumping without any analysis in violation of Article 6.1. 
(a) The US Position in Its First Submission Is Inconsistent with Both the Department’s Sunset 
Determination and the Factual Record Before the Department 
99. The United States argues that the Department did not deem Siderca to have waived its 
participation in the sunset re view of OCTG from Argentina.
139  Buried in footnote 216 of its first 
submission, however, the United States does conced e ambiguity, stating that “[a]lthough based on this 
language it may appear that Commerce deemed all re spondent interested parties to have waived their 
participation in the OCTG sunset review . . . .”  The United States says instead that there were other  
Argentine exporters who did not respond at all to th e notice of initiation.  Also, at the Panel’s First 
Substantive Meeting With the Parties, the United Stat es conceded that with respect to this point the 
Department’s sunset determination ma y have been “inartfully drafted.” 
100. Thus, under the theory expressed in the US Fi rst Submission, the expo rters considered to 
account for all exports of Argentine OCTG to the United States waived their participation by failing 
                                                      
135  Issues and Decision Memorandum at 5 (ARG-51). 
136 See Appellate Body Report, Sunset Review of Steel from Japan, paras. 113-115; Panel Report, 
Sunset Review of Steel from Japan , paras. 7.177, 7.271. 
137 See Panel Report, Sunset Review of Steel from Japan , para. 7.177.  
138 Appellate Body Report, Steel from Germany , para. 88. 
139 See US First Submission, paras. 211- 213.  WT/DS268/R 
 Page C-27 
 
 
to respond to the notice of initiation, and the Depa rtment therefore had no choice but to follow the 
statutory mandate to make an affirmative finding of likely dumping in this case.  If this is true, how 
can the United States now contend that the waiver provi sion did not affect Siderca, or that it did not 
diminish Argentina’s rights under Article 11.3? 
101. Initially, of course, there is the unambiguous language  of the Department.  The Department 
determined that Siderca’s response was inadequate,140 and that the Department did not receive “an 
adequate response from respondent interested pa rties” and that “this constitutes a waiver of 
participation.”141  Based on the statements in the Department’s determinations there can be no serious 
dispute that the Department:  (1) determined Sider ca’s response to be inadequate; and (2) applied the 
waiver provisions to Argentina. 
102. With respect to the facts, there was no reasonable basis for the Department to have considered 
that there were other Argentine producers/exporters  who failed to respond to  the notice of initiation 
and who were thus the true subjects of the app lication of the waiver provisions.  Nor has the 
Department ever explained these decisions in any of the documents related to its sunset review 
determination. 
103. First, Siderca was the only Argentine produ cer/exporter investigated in the original 
investigation, and it was the only producer/exporter named in the subsequent reviews requested by the 
US industry.  During the five-year period after imposition of the order, the domestic industry 
requested four administrative reviews, naming Siderca as the only exporter each time.142  In at least 
one case, the representatives of the US industry iden tified Siderca as “the only know[n] producer” of 
the subject merchandise.143  The Department initiated an admi nistrative review in each year, but 
ultimately rescinded the reviews because  there were no shipments to evaluate.144  In all of these 
instances, however, Siderca’s “no shipment certif ications” led to additional questions from the 
Department and additional comments from the US indu stry.  In all cases, Siderca explained that it was 
shipping to the United States, but that all of its shipments were either non-subject merchandise, or 
were not entering the United States  for consumption in the United States.  In all cases, the Department 
ultimately agreed with Siderca’s certification that  it made no shipments for consumption in the United 
States of subject merchandise, and therefore rescinded the annual reviews. 
104. Further, the record developed in the Department ’s sunset review indicated that Siderca was 
the only producer/exporter of the subject merchandise.  In its substantive response, Siderca indicated 
that it was the only producer of seamless OCTG, and, to its knowledge, it was the only 
producer/exporter of Argentine OCTG.145  The Department acknowledged these statements (while 
                                                      
140 See Issues and Decision Memorandum at 3 (“the Department determined Siderca’s substantive 
response to be inadequate”) and 7 (“ the Department determined to conduct an expedited review because of its 
finding that Siderca did not provide adequate substantive responses”) (ARG-51). 
141 Id. at 5. 
142 Initiation of Anti-Dumping and Countervailing Duty Administrative Reviews, 61 Fed. Reg. 48,882, 
48,883 (Dep’t Comm. 1996) (ARG-28);  Initiation of Anti-Dumping and Countervailing Duty Reviews, 62 Fed. 
Reg. 50,292, 50,292 (Dep’t Comm. 1997) (ARG-32); Initiation of Anti-Dumping and Countervailing Duty 
Reviews, 63 Fed. Reg. 51,893, 51,894 (Dep’t Comm. 1998) (ARG-37);  Initiation of Anti-Dumping and 
Countervailing Duty Reviews, 64 Fed. Reg. 53,318, 53,318 (Dep’t Comm. 1999) (ARG-41). 
143 Letter from Schagrin Associates to the Honourable William M. Daley of 29 Aug. 1997 (“Oil 
Country Tubular Goods from Argentina: Request for Administrative Review”) at 2 (ARG-58). 
144 Oil Country Tubular Goods from Argentina, 62 Fed. Reg. 18,747, 18,748 (Dep’t Comm. 1997) 
(rescinded admin. review) (ARG-29); Oil Country Tubular Goods from Argentina, 63 Fed. Reg. 49,089, 49,090 
(Dep’t  Comm 1998) (rescinde d admin. review) (ARG-36); Oil Country Tubular Goods from Argentina, 64 Fed. 
Reg. 4,069, 4,070 (Dep’t Comm. 1999)  (rescinded admin. review) (ARG-37); Oil Country Tubular Goods from 
Argentina, 65 Fed. Reg. 8,948, 8,949 (Dep’t Comm. 2000) (rescinded admin. review) (ARG-43). 
145 Substantive Response of Siderca to the Department’s Initiation of Sunset Review of the AD Order 
on OCTG from Argentina (2 August 2000), para. 6  (“Siderca’s Substantive Response”) (ARG-57). WT/DS268/R 
Page C-28  
 
misstating them slightly) by stating that “Siderca asserts that it is the only producer of OCTG in 
Argentina, and to its knowledge, there is no  other producer of OCTG in Argentina.”
146  Thus, at the 
very least, the record developed by the Department casts doubt on the statistics relied upon by the 
Department for the adequacy determination.  It is not clear why the Department chose to believe the 
statistics, instead of its understanding of Siderca’s position. 
105. Finally, the Department had reason to doubt its data.  On previous occasions, the Department 
concluded that the official statistics contained errors, in one case incorrectly classifying non-
consumption entries as consumption entries,147 and in another case misclassifying mechanical pipe as 
OCTG.148  
106. From this record, it is not reasonable for the Department to have assumed that there were 
other Argentine producers/exporter s who should have responded to the initiation notice, and whose 
failure would have such consequences for Argentina’s rights under Article 11.3.  This unfounded 
assumption had dire consequences for Argentina as it resulted in the deemed waiver of Siderca and a 
statutorily mandated finding of likely dumping. 
(b) Even Accepting the US Explanation in Its First Submission, the Effect of the Application of 
the Waiver Provisions in the Sunset Review of OCTG from Argentina Is the Same Under 
Either Scenario 
107. In the sunset review of OCTG from Argentina,  according to the US First Submission, it was 
the producers accounting for 100 per cent of the Arge ntine exports who were deemed to have waived 
their participation.149  Therefore the statute mandated a determination that termination would be likely 
to lead to a continuation of dumping for the Argentine producers representing all exports to the United 
States. 
108. Thus, whether waiver was applied to all “respond ent interested parties” (as indicated in the 
Department’s Issues and Decision Memorandum) or whether waiver was applied only to the non-
responding respondents, the result is equivalent to  waiver on an order-wide level because the 
Department assumed that companies accounting for 100 per cent of the exports had waived 
participation.  In this case there can be no doubt that the waiver provisions precluded the Department 
from conducting a “review” and making the “deter mination” required by Article 11.3.  Siderca was 
viewed as irrelevant to the sunset determination, desp ite the fact that the record established that it was, 
at that time, the only known producer and exporter from Argentina.  Under the statutory and 
regulatory rules applied in this case, Siderca, w ith no exports, had no chance to influence the 
Department because the Department considered th at the exporters accounting for 100 per cent of the 
exports “waived” their participation.  As the Appellate Body stated, “The words ‘review’ and 
‘determine’ in Article 11.3 suggest that authorities conducting a sunset review must act with an 
appropriate degree of diligence and arrive at a reasoned conclusion on the basis of information 
gathered as part of a process of reconsideration and examination.”150   
                                                      
146 Determination to Expedite at 2 (ARG-50) 
147 Oil Country Tubular Goods from Argentina, 63 Fed. Reg. 49,089, 49,090 (Dep’t  Comm. 1998) 
(rescinded admin. review) (ARG-36). 
148 Oil Country Tubular Goods from Argentina, 65 Fed. Reg. 8,948, 8,949 (Dep’t Comm. 2000) 
(rescinded admin. review) (ARG-43).  
149 US First Submission, para. 216. 
150 Appellate Body Report, Sunset Review of Steel from Japan , para. 111.  WT/DS268/R 
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2. Assuming arguendo  that waiver was only applied to the non-responding respondents, 
the Department’s conduct of an expedited revi ew on the basis of the facts available was 
inconsistent with Articles 11.3, 6.8, an d Annex II of the An ti-Dumping Agreement  
(a) Under This Scenario, Argentina Was Limited To an Expedited Review and a Decision Based 
on Facts Available 
109. In the sunset review of OCTG from Argentin a, the Department cites both the “waiver” 
provision, 19 USC. § 1675(c)(4)(B) and the “facts available” provision, 19 USC. § 1675(c)(3)(B), and 
therefore purports to rely on both provisions.151  However, there is no basis under US law for the 
simultaneous application of these provisions to a single respondent.  Indeed, these provisions are 
mutually exclusive with respect to a single respondent.152 
110. The Department stated unambiguously that Side rca’s response was “inadequate” and that “the 
Department did not receive an adequate response fr om respondent interested parties” and that “this 
constitutes a waiver of participation.”153  There is also reference in the Department’s determinations 
regarding the decision to conduct an expedited revi ew, with citations to the Department’s regulation 
related to determinations based on facts available.154  Notwithstanding these statements, the United 
States asserts in its first submission that the De partment did not apply facts available to Siderca.155  
Again, the answer that the United States provides in  its first submission relates to the so-called “non-
responding respondent interested parties” that is , Argentine companies other than Siderca who never 
responded to the invitation to file a substantive response.156 
111. Here, the United States enters into a series of contradictions.  In the Department’s 
determination to conduct an expedited review, it noted  that “[d]uring the five-year period from 1995 
to 1999, the combined-average annual percentage of Siderca’s exports of OCTG to the United States 
with respect to the total of exports of the subject merchandise to the United States was significantly 
below 50 per cent.”157  Based on this finding, the Department determined Siderca’s substantive 
response to be “inadequate” under 19 C.F.R. § 35 1.218(e)(1)(ii)(A) and thus conducted an expedited 
review pursuant to 19 C.F.R. § 351.218(e)(1)(ii)(C).158 
112. According to the Department’s sunset regulati ons, if respondent interested parties have 
provided an inadequate response, the Department will normally conduct an expedited review and 
issue its final results “based on the facts avai lable[.]”  (19 C.F.R. § 351.218(e)(1)(ii)(C); see also  19 
USC. § 1675(c)(3)(B).)  Section 351.208(f)(2) provid es that the “facts available” consist of dumping 
margins from prior determinations  and information contained in parties’ substantive responses.  
Assuming arguendo  that the waiver provisions were not the basis of the Department’s sunset 
determination,159 then the Department’s citation to 19 USC. § 351.218(e)(1)(ii)(C) in the 
                                                      
151 See, e.g., Issues and Decisions Memorandum at  4 (ARG-51) (citing section 1675(c)(4)(B)), and 
Determination to Expedite at 2 (ARG-50) (citing section 1675(c)(3)(B)). 
152 See Argentina’s First Submission, paras. 100-101. 
153 Issues and Decision Memorandum at 5 (ARG-51). 
154 Determination to Expedite  at 2 (ARG-50); Issues and Decision Memorandum  at 3 (ARG-51). 
155 See US First Submission, paras. 214, 221, 234-36. 
156 See id.  at para. 214. 
157 Determination to Expedite  at 2 (ARG-50). 
158Issues and Decision Memorandum  at 3 (ARG-51); Adequacy  Determination at 2 (ARG-50)(“we 
recommend that you determine Siderca’s response to be inadequate”). 
159 Despite the statement in the Department’s Issues and Decision Memorandum  (ARG-51) at 4-5 that 
“respondent interested parties” waived their participation in the sunset review, the United States contends that it 
did not apply the waiver provisions to Siderca.  See US First Submission, para. 211.  The United States is also 
ambivalent as to whether it applied waiver to the non-responding respondents.  In its First Submission, the 
United States indicates that the Department deemed the non-responding respondents to have waived their 
participation in the sunset review ( see paras. 216, 155, and n.216) and, elsewhere, that it did not apply the WT/DS268/R 
Page C-30  
 
Department’s Determination to Expedite and in its  Issues and Decisions Memorandum  demonstrates 
that the Department’s sunset determination was based, at best, on “facts available.”
160 
(b) The Department Violated Articles 6.1 and 6.2 of the Anti-Dumping Agreement 
113. The conduct of the expedited review and the appli cation of the waiver provisions in the sunset 
review of OCTG from Argentina violated Article 6. 1 because they effectively prevented Siderca from 
presenting evidence for meaningful consideration by the Department regarding the likelihood of 
continuation or recurrence of dumping in order to inform its determination under Article 11.3.  The 
Department acknowledged that Siderca both filed a complete substantive response to the notice to 
initiate a sunset review, and notifie d its willingness to participate fully in the instant sunset review.161  
Nevertheless, the Department’s application of the wa iver provisions to the so-called non-responding 
respondents dictated the result for Argentina as a whole.  Thus, Siderca did not have an “ample 
opportunity to present . . . evidence which [it] c onsider[ed] relevant” when the Department deemed 
the respondents accounting for 100 per cent of th e imports to have waived participation, which 
determination resulted in an automatic likelihoo d determination in violation of Article 6.1. 
114. The conduct of the expedited review and the application of the waiver provisions to Siderca in 
the sunset review of OCTG from Argentina also violated Article 6.2, because Siderca did not have a 
full opportunity to defend its interests.  Siderca co uld not defend its interests because the result was 
effectively foreclosed, given that the Departme nt deemed the non-responding respondents accounting 
for 100 per cent of the imports to have waived participation, which determination resulted in an 
automatic likelihood determination. 
115. The United States argues that, by limiting its su bstantive response to a “mere” four pages in 
length and not taking advantage of other opportunities to submit comments, Siderca failed to fully 
avail itself of the opportunities granted by the suns et regulations for the presentation of evidence.162  
In addition to the substantive response to the notice of initiation, the United States explains, Siderca 
could have submitted comments on the Departme nt’s adequacy determination (19 C.F.R. § 
351.309(e)) and rebuttal comments to any other party’s substantive response (19 C.F.R. § 351.218(d)(4)).  Therefore, the Unite d States concludes, the Department’s sunset review of Argentine 
OCTG was not inconsistent with Articles 6.1 and 6.2. 
116. The US argument fails for several reasons.  First, contrary to the US assertion, Siderca did not 
fail to take the opportunity to present evidence.  As the United States repeatedly recognizes in its First 
Submission, Siderca’s response to the notice of in itiation was a “complete substantive response” that 
met all of the Department’s regulatory requirements.
163  Nevertheless, despite its submission of a 
complete substantive response, the Department deem ed Siderca’s response to be inadequate.  This 
determination resulted in Siderca being deemed to ha ve waived its participatio n in the sunset review, 
which in turn resulted in a mandatory likelihood dete rmination.  Consequently, with the determination 
that Siderca’s response was inadequate, the case ef fectively ended, with the outcome preordained. 
117. At the same time, under Article 6.1 and Anne x II, it was the Department’s obligation to 
“specify in detail the information required” from Si derca in order for the Department to undertake a 
review and make the required determination under Arti cle 11.3.  Siderca provided information that the 
United States characterizes as a “complete substantive response,” and Siderca also offered to 
                                                                                                                                                                     
waiver provisions to the non-responding respondents because the Department applied facts available to them 
(see para. 214).  
160 See Determination to Expedite at 2 (ARG-50) and Issues and Deci sion Memorandum  at 3 (ARG-
51). 
161 See Determination to Expedite  at 1-2 (ARG-50). 
162 See US First Submission, paras. 228-29, 237. 
163 See id.  at paras. 211, 213, 214, and 216.  WT/DS268/R 
 Page C-31 
 
 
cooperate fully in the review.  The US statements now that the information was insufficient because it 
was limited to a “mere” four pages contradicts its statements that Siderca’s submission was a 
complete substantive response.  The only way to reconcile the contradicti on in the Department’s 
statements is for it to admit that, despite being a “complete substantive response,” Siderca’s response 
was either irrelevant to the Department’s determin ation, or Siderca’s response did not include the 
information that the Department wa s hoping to receive.  Neither explanation, however, is acceptable 
under Articles 11.3, 6.1, 6.8, and Annex II.   
118. Second, regarding the Department’s adequacy determination, the regulation provides that 
submitted “comments may not include any new factual information or evidence  (such as 
supplementation of a substantive response to the notice of initiation) and are limited to five pages.”164  
Thus, the regulation precluded Siderca from subm itting any new evidence with respect to the 
Department’s determination that Si derca’s response was inadequate. 
119. Finally, by the time that the Argentine sunset  review began, the Department had completed 
approximately 160 sunset reviews of anti-dumping measures, and it was well-known that the 
Department had designed and implemented a syst em which avoided any type of substantive 
determination.  Hence, respondent  participation was widely considered to be futile, and would in no 
way change the substantive outcome of the proceeding. 
120. Commentators writing at the time  of the Argentine sunset determination described  the 
institutional bias of the Department in the conduct of its sunset reviews: 
The relative treatment by Commerce of do mestic and respondent interested parties, 
although in part consistent with the Statute and the legislative history, may provide 
some basis for the criticism often heard among outside observers that Commerce’s 
procedures are sometimes biased in favour of  the domestic industry.  It is not clear 
that respondent interested parties gain very much by participation in Commerce 
reviews and avoiding automatic judgments.  The statute, the legislative history, and 
Commerce rules make it highly likely that Commerce will find a likelihood of dumping and will simply rely on the results of the original investigation.  Commerce 
will probably arrive at the same conclusions regardless of foreign participation.  In 
light of this and the high information burden on respondent interested parties, there is a clear incentive for respondent interested parties to forego participation at 
Commerce.  In fact, most respondent interest ed parties have simply not responded in 
the majority of reviews initiated to date.  As can be seen in Table 1, only nine 
responses from respondent interested parties have been received to date.
165 
121. The author of this article also interv iewed several practitioners.  Based on these 
conversations, he noted that: “[o]ne practitioner stated there is a very clear perception among 
respondents of an institutional bias at Commerce against respondents, and therefore there is a great 
reluctance to expend resources toward presenting their [sunset] case at Commerce.”166   
122. The analysis done by Argentina for the purposes of this panel proceeding confirms the 
widely-held perceptions at the time:  in every sunset review in which the domestic industry 
participated and in which the waiver provisions were not applied, the Department limited its 
                                                      
164  19 C.F.R. § 351.309(e) (emphasis added). 
165 See Peter A. Dohlman, Determinations of Adequacy in Sunset Reviews of Anti-Dumping Orders in 
the United States ,  14 AM. U. INT’L L. REV. 1281, 1331-32 (footnotes omitted) (1998-1999) (ARG-65) (at the 
time of writing this article, the author (who stated that the views expressed in the article were his personal views and not representative of the Commission) served as the Senior Economist to Commissioner Carol T. Crawford 
of the International Trade Commission). 
166 See id. at 1300 n.64 (ARG-65). WT/DS268/R 
Page C-32  
 
“analysis” to the SAA and Sunset Policy Bulletin  criteria and found a likelihood of dumping.
167  By 
relying exclusively on the checklist criteria from the SAA and Sunset Policy Bulletin , the Department 
denies foreign interested parties an ample opportu nity to present evidence and fully defend their 
interests, contrary to the oblig ations established by Articles 6. 1, 6.2, and 11.3.  Despite US 
protestations to the contrary, the United States is well aware of the fact that even if Siderca availed 
itself of other opportunities to submit comments, the outcome would have been the same.  The United 
States cannot credibly argue that a more active intervention by Siderca would suddenly have tilted the 
record from 223/0 to 222/1. 
(c) The Department Violated Article 6.8, 6.9, and Annex II Because the “Facts Available” 
Analysis Was Necessarily Limited To the Dumpin g Margin in the Original Investigation and 
the Information in the Substantive Response 
123. Again Argentina contends that the Department’s  determination was based on the application 
of the waiver provisions in this case, which violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II of 
the Anti-Dumping Agreement.  Even if the Pane l accepts the United States’ argument that the 
determination was instead based on facts available, the substantive analysis of the WTO obligations does not change.  A decision based on facts available also violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II. 
124. “Facts available” can be used only as a last resort when investiga ting authorities are faced 
with recalcitrant and uncooperativ e parties.  Accordingly, Artic le 6.8 and Annex II permit an 
investigating authority to make determinations base d on “facts available” only when an interested 
party “refuses access to, or otherwise does not provide, necessary information within a reasonable 
period or significantly impedes the investigation . . . .”  In this case, however, Siderca provided all 
information required by the Department’s sunset re gulations in its substan tive response to the notice 
of initiation, and it agreed to cooperate fully in  the investigation.  Thus, Siderca was not an 
uncooperative party.  Nevertheless, the Departme nt considered Siderca’s complete substantive 
response to be inadequate based on the 50 per cent threshold test and thus determined to conduct an expedited review.  Even worse, there was no determ ination that Siderca failed to cooperate.  The 
Department thus violated Articles 6.8, 6.9, and Annex II. 
125. As for the argument in the US First Submission that the Department used facts available only 
for the non-responding Argentine respondents, there is no support for this statement in the sunset 
determination.  The concept of non-responding Argentine respondents is never even mentioned 
directly in the sunset determination.  Even if it had been mentioned, as explained in detail above, it 
was not a reasonable and objective assessment of the f acts to consider that such parties existed, and to 
condition Argentina’s rights in this way without furthe r investigation.  Limiting  the analysis in this 
way violates Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II. 
3. The Department’s Determination that terminatio n of the duty would be likely to lead to 
continuation of dumping was inconsistent with Articles 11.3 and 2 of the Anti-Dumping Agreement 
(a) There Was No Evidence Before the Department  That Dumping Continued During the Sunset 
Review Period 
126. Assuming arguendo  that the likelihood determination was not based on the application of the 
waiver provisions, then the record before the Department reflects that the sole bases for the 
Department’s likelihood determin ation were:  (1) the 1.36 per cent margin from the original 
investigation that was calculated using the practice of zeroing negative margins; and (2) the decline in 
                                                     
 
167 See US Department of Commerce Sunset Reviews (ARG-63 and ARG-64).  WT/DS268/R 
 Page C-33 
 
 
volume of Argentine OCTG imports.  These pieces of information – with nothing more – are 
insufficient to continue an anti- dumping measure under Article 11.3. 
127. Following the imposition of the US anti-dump ing measure on Argentine OCTG, Siderca 
chose to stop exporting to the US market.  As the Appellate Body has explained, declines in import 
volumes following the imposition of anti-dumping du ties can result from many factors apart from the 
duties.168  The lack of shipments from Siderca was demonstrated through a series of annual reviews 
initiated by the Department.  Each August from 1996- 1999 (covering the five-year period relevant to 
the sunset review that forms the basis of this dispute), representatives of the US industry requested an 
annual review of shipments by Siderca.  Under US  law and practice, the petitioners are required to 
identify the exporter for which it requests a review, an d each time during this period, the US industry 
requested a review only of Siderca.  For example, the US industry’s letter requesting the second 
review states:  “Review is requested of Siderca be cause it is the only known producer of oil country 
tubular goods in Argentina . . . .”169  As a result of such requests, the Department initiated a review in 
each of the four years following the issuance of the anti-dumping order on OCTG from Argentina, 
publishing an “initiation notice” naming Siderca as th e exporter to be reviewed.  In certain of the 
reviews, the Department also i ssued an anti-dumping questionnaire.170 
128. In each of the four reviews requested of Siderca, Siderca replied by stating that it did not 
export OCTG to the United States for consumption in  the United States during the review period, and 
as a result asked that the review be rescinded.  In  all cases, this “no shipment certification” led to 
additional questions from the Department and additional comments from the US industry.  In all 
cases, the Department ultimately agreed with Si derca’s certification that it made no shipments and 
therefore rescinded the annual reviews beca use there were no shipments to review. 
129. Hence, given that Siderca did not ship to the United States following the imposition of the 
order, the only evidence before the Department was that Siderca had not continued to dump during the 
sunset review period.  In addition, the alleged Argentine OCTG imports from the so-called non-
responding respondents were of a very small quantity,  and were not subject to  administrative reviews 
to determine whether they were dumped.  The Depa rtment could not simply presume that they were 
dumped, and use this as “evidence” that dumping was likely to continue in the future.   
130. The Department did not gather or evaluate add itional facts at the time of the sunset review, 
but instead based its decision that dumping would likely continue or recur only on the dumping 
margin of 1.36 per cent from the original investigation, and the fact that Siderca had stopped 
exporting OCTG to the United States.171  This is the sum total of what the European Community aptly 
characterized as the “meagre crumb” of eviden ce supporting this likely dumping determination.172 
131. The Department’s reliance on the 1.36 per cent dumping margin established in the original 
investigation in 1995 cannot serve as a basis for the Department’s determin ation that dumping would 
be likely to continue or recur.   
                                                      
168 Appellate Body Report, Sunset Review of Steel from Japan , para. 177. 
169 Letter from Schagrin Associates to the Honourable William M. Daley of 29 Aug. 1997 (“Oil 
Country Tubular Goods from Argentina:  Request for Administrative Review”) at 2 (ARG-58). 
170 Initiation of Anti-Dumping and Countervailing Duty Reviews , 61 Fed. Reg. 48,882 (Dep’t Comm. 
1996)(initiating review for the period 11 Aug. 1995, through 31 July 1996)(ARG-28); Initiation of Anti-
Dumping and Countervailing Duty Reviews , 62 Fed. Reg. 50,292 (Dep’t Comm. 1997)(initiating review for the 
period 1 Aug. 1996, through 31 July 1997)(ARG-32); Initiation of Anti-Dumping and Countervailing Duty 
Reviews , 63 Fed. Reg. 51,893 (Dep’t Comm. 1998)(initiating review for the period 1 Aug. 1997, through 
31 July 1998)(ARG-37); Initiation of Anti-Dumping and Countervailing Duty Reviews , 64 Fed. Reg. 53,318 
(Dep’t Comm. 1999)(initiating review for the period 1 Aug. 1998, through 31 July 1999)(ARG-41). 
171 See Issues and Decision Memorandum  at 5 (ARG-51). 
172 Third Party Submission of European Communities, para. 42. WT/DS268/R 
Page C-34  
 
• First, the rate is historic, with no relationship  whatsoever to the forward-looking determination 
required to invoke the exception of Article 11.3 and continue the measure.  The United States 
still has never offered a logical explanation of wh at this rate says abou t future dumping, let 
alone the likelihood of future dumping.  
• Second, as explained in detail below in subs ection b, in the original investigation the 
Department calculated the 1.36 per cent margin based on the practice of zeroing negative 
margins.  In fact without the zeroing practice,  there would have been no dumping margin at 
all, and there would have been no measure to review.
173 
 
132. To know whether dumping would likely “continue” or “recur” under Article 11.3, an 
authority must have current information about dumping.174  In other words, it becomes necessary to 
determine if dumping exists in order to assess it s probable continuation.  Alternatively, it becomes 
necessary to determine the absence of dumping in  order to assess prospectively the probability of 
recurrence. 
133. As the Appellate Body explained, satisfying these obligations does not necessarily require the 
same type of calculation as may be performed in an Article 5 investigation, but the authorities have an 
obligation to act diligently and to collect evidence that can form the basis for the requisite 
determination.175  The Department’s reliance on the 1.36 margin from the original investigation 
cannot satisfy either possibility.  The United States  argues that the Department determined that 
“dumping continued to exist throughout the history of the order . . . .”176  The Department, however, 
had rescinded each of the four administrative review s of Siderca following the order, and thus did not 
have evidence of dumping margins throughout the hi story of the order.  The Department’s reliance on 
such flawed and dated information necessarily resulted in speculation as to whether or not dumping 
would be likely to continue or recur were the order to be terminated, rather than a determination based 
on sufficient positive evidence. 
134. Indeed, particularly in the facts of this case where the Department relied on Siderca’s small 
dumping margin of only 1.36 per cent, the Department had an obligation to gather and evaluate 
“persuasive evidence” in order to ju stify its determination of likelihood of dumping.  As the Appellate 
Body has ruled, “mere reliance” on the determination made in th e original investigation is not 
enough.177 This reinforces Argentina’s view  of the extreme and unfair situation presented in this case. 
135. With respect to import volumes, the Appellate Body in Sunset Review of Steel from Japan , 
stated that: 
[T]he second and third scenarios in Section II.A.3 relate to the situation where there 
is no dumping   (either because imports ceased or because dumping was eliminated 
after the duty was imposed).  The cessation of imports in the second scenario and the 
decline in import volumes in the third scenario could well have been caused or 
reinforced by changes in the competitive cond itions of the market-place or strategies 
of exporters, rather than by the imposition of the duty alone.  Therefore, a case-
specific analysis of the factors behind a cessation of imports or a decline in import 
volumes (when dumping is eliminated) will be necessary to dete rmine that dumping 
will recur if the duty is terminated.178 
                                                      
173See, on that issue, the Third Party Submissions of European Communities, paras. 79-89, and Japan 
paras. 22-28. 
174 See also  Third Party Submission of European Communities, para. 12.  
175 See Appellate Body Report, Sunset Review of Steel from Japan , para. 111. 
176 US First Submission, para. 218. 
177See Appellate Body Report, Steel from Germany , para. 88. 
178 Appellate Body Report, Sunset Review of Steel from Japan , para. 177.  WT/DS268/R 
 Page C-35 
 
 
136. The Department engaged in no such analysis in this case.  Nor did it request additional 
information from Siderca who had pledged to cooperate  fully.  Instead, the Department relied solely 
on the 1.36 per cent dumping margin and the low import volumes.  This does not constitute the 
“sufficient factual basis” for the substantive and mean ingful determination required by Article 11.3.   
(b) Decisive Reliance by the Department on a WTO-Inconsistent Margin (Because It Was 
Calculated Using the Practice of Zeroing) as the Basis for the Likelihood Determination Is 
Inconsistent with Article 11.3 
137. There can be no doubt that the 1.36 per cent margin is based on a calculation method that is 
inconsistent with Article 2.4.  To calculate the 1. 36 per cent margin, the Department applied “zeroing” 
by setting all negative margins to zero, and summed th e remaining positive margins.  The effect is to 
disregard the existence and magnitude of the ne gative margins in determining the amount of 
“dumping” arising from the sales under review. 
138. This can be seen clearly in Exhibit ARG-52 to Argentina’s First Submission.  The comparison 
beginning on line 25 indicates “.” in the column “MRGOBS,” meaning that none of the transactions 
involving this particular product generated pos itive dumping margins, and the “Total Potential 
Uncollected Dumping Duties” (“TOTPUDD”) column for those same transactions similarly is blank.  
After setting all the “negative margins” to zero in this manner, the Department summed all of the 
positive margins (represented by th e products listed in lines 1-24 of ARG-52), and divided the 
resulting figure by the total net US value to calcul ate the overall dumping margin for Siderca.  As 
shown on the second page of ARG-52, dividing the “TOTPUDD” total ($125,478.93, which, because 
of zeroing, does not reflect the “negative margins” generated on many sales) by the “TOTVAL” total 
($9,240,392.64) yields the 1.36 per cent margin relied on by the Department in the sunset review.   
139. This method overestimated the overall dumping margin by ignoring the US sales that were 
not “dumped;”  that is, in the words of Article  2.1 of the Anti-Dumping Agreement, were not 
“introduced into the commerce of another country at less than its normal value . . . .”  This can be seen 
in greater detail in Exhibit ARG-66A, Results of the Department’s Margin Calculation for Siderca’s 
Sales (Without “Zeroing”), whic h reproduces the results of the Department’s analysis on a 
transaction-specific basis.  As shown in Exhibit ARG-66A, the Department analyzed 385 individual 
sales transactions of Siderca in the original investigation.179  Unlike the Department’s calculation, the 
output in Exhibit ARG-66A does not  set the negative margins to zero in fields UMARGIN or PUDD; 
that is it does not zero.  Instead, if the US price of  the sale exceeds the weighted-average normal value 
for the comparison product (that is, if there was no dumping as defined in Article 2.1), the 
UMARGIN column reports a negative dumping margin on a per unit basis, the PUDD column shows 
the extended value of the negative dumping by multip lying the negative unit margin by the QTY, and 
the PCTEMARG column shows the percentage ne gative margin for each US transaction. 
140. The results are clear and dramatic.  Of the 385 US sales transacti ons examined by the 
Department, only 97 were “dumped” within the mean ing of Article 2.1, while more than three times 
                                                      
179 Exhibit ARG-66A, Results of the Department’s Margin Calculation for Siderca’s Sales (Without 
“Zeroing”), reports the output from the Department’s co mputer program, showing for each transaction, in order 
from left to right, the sequential line, or “observation” number on the output report (“OBS”), the invoice number 
(“INVOICU”), the sale date (“SALEDTU”), the quantity sold (“TOTQTY”), the “control number” or products 
involved in the US sales transaction (“CONNUMU”), the “control number” or products involved in the comparison market sale (“CONNUMT”), the “foreign unit price in dollars” (“FUPDOL,” which is the weighted-
average normal value for the comparison market product), the United States price (“USPR,” which is the net US 
sales price for each transaction), the unit margin (“UMARGIN,” which results from subtracting the USPR from 
the FUPDOL), the extended margin or “potentially uncollected dumping margin” (“PUDD,” which results from multiplying the UMARGIN by the QTY), the value of th e US sale (“TOTVAL,” which results from multiplying 
the USPR by the QTY), and the percentage dumping margin for each transaction (“PCTEMARG,” which results 
from dividing the EMARGIN by the VALUE). WT/DS268/R 
Page C-36  
 
as many sales (288) were not dumped.  Further, th e total value of dumping on the dumped sales was 
$125,478.93 (as indicated in ARG-52, second page), while the total value of negative dumping on the 
non-dumped sales was more than 4 times higher, or $527,638.38.  When the PUDD field is summed 
without the practice of zeroing, an d the total dumping considered by the Department ($125,478.93) is 
offset by the total negative dumping ($527,638 .38), the result is a total negative dumping
 of 
$402,159.45, which, divided by the total value of US sales of $9,240,342.64, converts the 1.36 margin 
used by the Department to a negative 4.35 per cent margin .  Clearly, this is not evidence of dumping 
as defined by Article 2.1. 
141. This effect can also be seen on a product-specific  basis, with results that are equally clear and 
dramatic.  During the period of investigation, Siderca made four US sales of CONNUMU 1 (which 
can be verified by the “TOTOBS” column on ARG-52 for line 13, and which can be seen individually 
on lines 25, 42, 234, and 369 of Exhibit ARG-66A).  The net US price, US quantity, average normal 
value, unit margin, extended margin, and net US value for each of the US sales of CONNUMU 1 are 
shown below. 
 
OBS 
Number 
ARG-66A Net US 
Price US 
Quantity Normal 
Value Unit 
Margin Extended 
Margin US Value 
 US$ per 
Ton Ton US$ per 
Ton US$ per 
Ton (“PUDD”) 
US$ US$ 
 (A) (B) (C) (D = C – A) (E = B * D) (F = A * B) 
25 $489.015 100.95 $504.234 $15.219 $1,536.40 $49,366.06
42 $491.312 41.35 $504.234 $12.923 $534.36 $20,315.73
369 $583.961 67.09 $504.234 ($79.727) ($5,348.85) $39,177.94
234 $590.391 13.36 $504.234 ($86.157) ($1,151.05) $7,887.62
 
142. The total net US value for CONNUMU 1 was $116,747.35.  The corresponding total 
extended margin or “PUDD” was $2,070.76 with  zeroing and was negative $4,429.14 without 
zeroing .  The overall margin for CONNUMU 1 was 1.77 per cent with zeroing.  Without zeroing, the 
overall dumping margin for CONNUMU 1 was negative 3.79 per cent .  Ignoring the fact, and the 
extent to which, the third and fourth US sales we re not dumped converted the negative margin to a 
positive margin for this product, just as it did on an overall basis, as demonstrated above. 
143. Exhibit ARG-66B, Excerpt from the Department’s Margin Calculation Program 
Demonstrating “Zeroing,” shows the portion of the pr ogram that the Department used to calculate the 
overall dumping with zeroing for Si derca in the investigation.  Lines 1 thru 4 of the program 
calculated the total quantity and value for all of US prod ucts sold by Siderca.  This step is the same as 
the sum of F of the example above.  Lines 12 thru 16 calculated the amount of dumping, total quantity 
and value of all US products that contributed to dumping.  This is wher e zeroing is applied.  
Specifically line 13 of the program (“WHERE EMARGIN GT 0”) instructed the computer to 
calculate the total amount of dumping, quantity and value only  for those transactions generating 
positive extended margins.  This step is the same as the sum of only the positive values in column E in the example above.  Line 22 of the program calculates the overall margin by dividing the sum of all positive extended margins by the total net US value. 
144. As shown in the example above, zeroing inflates  the overall margin significantly, and, in this 
case, without zeroing there would have been no dumping margin.  To avoid the overestimation of 
dumping margin, the Department simply needs to delete line 13 of the computer program and rerun 
the program.  When this is done, using the same
 computer program the Department used in the 
original investigation and the same  database that Siderca provided, the margin is a negative 
4.35 per cent  on an order-wide basis.  This is, in fact, what is shown in Exhibit ARG-66A.   WT/DS268/R 
 Page C-37 
 
 
145. The Appellate Body recognized in Sunset Review of Steel from Japan  that zeroing is not 
consistent with Article 2.4.180  It does not yield a “fair comparison,” and it does not accurately reflect 
whether the product, as a whole, is being sold at less than normal value. 
146. The Appellate Body ruled that when a Member relies on a dumping margin in making a 
determination in an Article  11.3 review, that margin must be WTO-consistent.181  The Appellate Body 
explained that: 
Article 2 sets out the agreed disciplines in the Anti-Dumping Agreement   for 
calculating dumping margins.  As observed earlier, we see no obligation under 
Article 11.3 for investigating authorities to  calculate or rely on dumping margins in 
determining the likelihood of continuation or recurrence of dumping.  However, 
should investigating authorities choose to rely upon dumping margins in making their 
likelihood determination, th e calculation of these margins must conform to the 
disciplines of Article 2.4.  We see no other provisions in the Anti-Dumping 
Agreement   according to which Members may calculate dumping margins.  In the 
CRS sunset review, USDOC chose to base its  affirmative likelihood determination on 
positive dumping margins that had been pr eviously calculated in two particular 
administrative reviews.  If these margins were legally flawed because they were 
calculated in a manner inconsistent with Ar ticle 2.4, this could give rise to an 
inconsistency not only with Article 2.4, but also with Article 11.3 of the Anti-
Dumping Agreement.182 
147. Accordingly, the Appellate Body “reverse[d ] the Panel's consequential finding, in 
paragraph 8.1(d)(iii) of the Panel Report, that th e United States did not act inconsistently with 
Article 2.4 of the Anti-Dumping Agreement  in the CRS sunset review by relying on dumping margins 
alleged by Japan to have been calculated in  a manner inconsistent with Article 2.4.”183 
148. The Appellate Body reiterated that relying on  a WTO-inconsistent margin can “taint the 
likelihood determination” under Article  11.3, and that such a margin need not have been challenged in 
the underlying administrative proceeding or in a WTO Challenge: 
As explained above, if a likelihood determination is based on a dumping margin 
calculated using a methodology inconsistent wi th Article 2.4, then this defect taints 
the likelihood determination too.  Thus, the consistency with Article 2.4 of the 
methodology that  USDOC used to calculate the dumping margins in the 
administrative reviews bears on the consis tency with Article 11.3 of USDOC's 
likelihood determination in the CRS sunset  review.  In the CRS sunset review, 
USDOC based its determination that “dumpi ng is likely to continue if the [CRS] 
order were revoked” on the “existence of  dumping margins” calculated in the 
administrative reviews.  If these margins were indeed calculated using a methodology 
that is inconsistent with Ar ticle 2.4 – an issue that we examine below – the USDOC's 
likelihood determination could not constitute  a proper foundation for the continuation 
of anti-dumping duties under Article 11.3.  Moreover, a legal defect of this kind 
cannot be cured by NSC's failure to take issu e with it in the CRS sunset review or the 
administrative reviews.  It follows that we cannot agree with the United States' 
suggestion that Japan's appeal on this issue must fail because:  (i)  NSC did not object, in either the CRS sunset review or the administrative reviews, to the 
methodology USDOC used to calculate the dumping margins in question;  and (ii) 
                                                     
 
180 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 134-135. 
181 See id.  at paras. 126-132. 
182 Id. at para. 127 (footnotes omitted). 
183 Id. at para. 128. WT/DS268/R 
Page C-38  
 
Japan did not initiate dispute settlement proceedings in the WTO regarding USDOC's 
calculation of those margins in the co ntext of the administrative reviews.
184 
149. The Appellate Body explained that zeroing (whether in the original investigation or 
otherwise) not only distorts the magnitude of the dumping margin, but may also result in a positive 
margin that otherwise would not exist:   
When investigating authorities use a zeroing methodology such as that examined in 
EC – Bed Linen  to calculate a dumping margin, whether in an original investigation 
or otherwise, that methodology will tend to inflate the margins calculated.  Apart 
from inflating the margins, such a methodology could, in some instances, turn a 
negative margin of dumping into a positive margin of dumping.  As the Panel itself 
recognized in the present dispute, “zeroing . . . . may lead to an affirmative 
determination that dumping exists where no dumping would have been established in 
the absence of zeroing.”  Thus, the inherent  bias in a zeroing methodology of this 
kind may distort not only the magnitude of a dumping margin, but also a finding of 
the very existence of dumping.185 
150. That is precisely the case with Siderca.  Ther e would have been no margin in the original 
investigation in the absence of zeroing.  Conseque ntly, the 1.36 per cent margin (calculated on the 
basis of zeroing negative margins) cannot constitute evidence that termination of the measure would 
be likely to lead to a continuation or recurrence of dumping.  To be clear, Argentina is not claiming 
that the original dumping determination violated US  WTO obligations because it was calculated based 
on the practice of zeroing negative margins.  Rath er, Argentina challenges the Department’s reliance 
on that margin as the basis for its determinatio n that dumping would be likely to continue under 
Article 11.3.  The Appellate Body has clarified that the Department may not rely on a dumping 
margin which is inconsistent with the substantive st andard of Article 2.4 as the basis for its likelihood 
determination under Article 11.3.   
4. The “likely margin” reported by the Department to the Commission was inconsistent 
with Articles 2 and 11.3 
151. The Department determined that if the orde r were revoked, the likely dumping margin to 
prevail would be 1.36 per cent.  The Department reported this margin to the Commission for purposes 
of the Commission’s sunset review and its likeli hood of injury determination.  Because the 1.36 
per cent margin was inconsistent with Article 2 (because it was based on the WTO-inconsistent 
practice of zeroing negative margins), and additionally because it was constructed on the basis of the 
Department’s “circumstance of sale” adjustment,186 the Department’s determination that this margin 
constituted the likely margin to prevail violated Articles 11.3 and 2. 
152. The United States notes that the Department ’s reporting of the likely margin to the 
Commission in a sunset review is a construct of US  law, rather than a requirement of Article 11.3.187  
Consequently, the United States argues, the Department ’s reporting of the 1.36 per cent margin to the 
Commission was not inconsistent with Article 11.3.   This argument cannot be accepted.  As the 
Appellate Body makes clear, once a Member undertakes either to calculate a dumping margin or to 
rely on a dumping margin, however, that margin mu st be consistent with the requirements of 
Article 2.  In the case at hand, because th e United States did not make a WTO-consistent 
determination that dumping would be likely to cont inue or recur, it was required to have terminated 
the measure. 
                                                      
184 Id. at para. 130. 
185 Id. at para. 135 (footnotes omitted). 
186 See Argentina’s First Submission, n.14. 
187See US First Submission, para. 267.  WT/DS268/R 
 Page C-39 
 
 
IV. THE COMMISSION’S SUNSET DETERMINATION 
153. Much of what is wrong with the Commission’s dete rmination of whether injury is likely to 
continue or recur in this case invo lves the question of proper standard.  That is, what kind of analysis 
does Article 11.3 require when it states that the authorities must terminate the measure unless they 
find that injury is “likely” to continue or recu r?  In a typical case, such a challenge might be 
complicated by the fact that, unless the authorities ex plain precisely what standard they are applying, 
the standard itself may not be discernible from the ag ency’s decision.  Also, in this case, the United 
States correctly states, and Argentina acknowledges, that both Article 11.3 and the US statute use the 
same word, that is “likely.” 
154. The Panel’s review of Argentina’s claim on this issue, however, is facilitated by two striking 
facts.  First, the Appellate Body recently confir med Argentina’s position that  the term “likely” in 
Article 11.3 means “probable.”188  Second, the US First Submission, and its oral statement at the first 
substantive meeting, continues to ta ke the position that “likely” does not  mean “probable.”  Not only 
is this the United States’ position before the Pa nel, but the United States has taken the position 
repeatedly before the US courts, and before a NAFTA panel reviewing the same Commission 
determination  in this dispute. 
155. As a result, the issue, as presented to this Panel,  is very clear.  The Appellate Body has stated 
what the standard is, and the United States has stated that it does not apply that standard.  These 
statements regarding the applicable standard are revi ewed briefly in Section A below.  In addition, the 
Commission’s determination, and the US First Submission, contain several glaring examples that the 
United States means what it says:  it certainly does not apply a “probable” standard.  These examples, 
and the conflict with the positive evidence standard of  Article 3.1, are reviewed in Section B below.  
The rebuttal of the United States’ position with respect to cumulation and the proper timeframe for 
determining whether “likely” injury will recur ar e reviewed in Sections C and D, respectively. 
A. THE COMMISSION DID NOT APPLY THE CORRECT STANDARD FOR DETERMINING WHETHER 
TERMINATION OF THE ANTI-DUMPING DUTY ORDER WOULD BE LIKELY TO LEAD TO 
CONTINUATION OR RECURRENCE OF INJURY AND VIOLATED ARTICLES 11.3  AND 3.1 OF THE 
ANTI-DUMPING AGREEMENT  
156. Argentina argued in its First Submission that the term “likely” as used in Article 11.3 has its 
common and ordinary meaning of “probable.”  The United States, in its First Submission, argues that 
“likely” simply means “likely,” and that it does not mean “probable.”  The United States offers 
several other, secondary definitions of “likely” in  support of its view  that “likely” has no common 
and ordinary meaning, and that  it does not mean “probable.” 
157. Any remaining doubt as to the meaning of “likely” was removed by the Appellate Body’s 
decision in Sunset Review of Steel from Japan .  The Appellate Body confirmed in that case that the 
ordinary meaning of “likely,” as used in Article 11.3, is “probable.”189   The Appellate Body then 
observed that, “[i]n view of the use of the word ‘l ikely’ in Article 11.3, an affirmative likelihood 
determination may be made only if the evidence de monstrates that dumping would be probable if the 
duty were terminated – and not simply if the eviden ce suggests that such a result might be possible or 
plausible.”190 
                                                      
188 See Appellate Body Report, Sunset Review of Steel from Japan , para. 111. 
189 See Appellate Body Report, Sunset Review of Steel from Japan , para. 111; see also Panel Report, 
DRAMS  from Korea , para. 6.48 n.494 (stating in the context of interpreting Article 11.2 “that ‘likelihood’ or 
‘likely’ carries with it the ordinary meaning of ‘probable’”); Nippon Steel Corp. v. United States , No. 01-00103, 
slip op. 02-153 at 7-8 (Ct. Int’l Trade Dec. 24, 2002)(ARG-17); Usinor Industeel, S.A. v. United States , No. 01-
00006, slip op. 02-152 at 2 (Ct. Int’l Trade Dec. 20, 2002)(ARG-16). 
190 Appellate Body Report, Sunset Review of Steel from Japan , para. 111. WT/DS268/R 
Page C-40  
 
158. As explained in Argentina’s First Submission , and not rebutted by the United States, the 
Commission has argued repeatedly before US courts that “likely” does not carry its ordinary meaning 
of “probable,” but instead means something else.  In its more recent declarations, the Commission 
stated that “likely” “captures a concept that falls in between ‘probable’ and ‘possible’ on a continuum 
of relative certainty.”
191  The US First Submission tells the Panel not to worry about these changing 
standards and the litigation in the US courts beca use, ultimately, the reviewing court upheld the 
Commission’s re-determination on remand, and th at determination was the same as its initial 
determination, which the parties had disputed as being inconsistent with the “likely” standard.192 
159. Argentina respectfully submits that the Panel should  pay attention to the US litigation and the 
Commission’s changing views as to the meaning of the term “likely.”  They are directly relevant to the standard that the agency applied during numerous sunset determinations, including the sunset 
determination in this case.  In fact, the Commiss ion has expressly taken the position before a NAFTA 
panel reviewing this very same OCTG sunset determ ination that “likely” does not, and cannot, mean 
“probable.”
193  Before the NAFTA Panel, the Mexican company, TAMSA, argued that the 
Commission applied the improper standard, and that the Commission should have given the term “likely” its common and ordinary meaning, which is “probable” or “more probable than not.”  In responding to this argument, the United States in cluded the following point heading in its brief: 
The Statement of Administrative Action’s Explanation of the Likelihood 
Standard Excludes TAMSA’s Theory  That “Likely” Means “Probable”
194 
160. In this section of its brief, the Commission relies on the SAA and claims: 
The SAA explains, unambiguously, that after the revocation “[t]here may be more 
than one  likely outcome.”  SAA at 883.  The possibility of “more than one likely 
outcome” shows that Congress did not intend “likely” to mean “probable” or “more 
probable than not.”195 
161. The statements could not be clearer that the Co mmission in the underlying investigation did 
not consider “likely” to mean “probable.”  In fact, it considered the SAA to control the interpretation 
of the term “likely” and to preclude  any notion that “likely” could mean “probable.”  As will be seen 
in Section B below, there is ample evidence from the review to demonstrate that the Commission did 
not apply a “probable” standard. 
162. As for the United States’ argument in its Fi rst Submission that the court upheld the 
Commission’s decision in the underlying Usinor Remand, the argument misses the point.  The point is 
that the court found that the Commi ssion did not apply the correct sta ndard initially, and it directed 
the Commission to apply the ordinary and common m eaning of “likely,” which is “probable.”  It is 
only after  the Commission adjusted its analysis and applie d a different standard that the court affirmed 
the Commission’s remand determination.  Thus, the Usinor litigation is yet another proof that the 
Commission initially applied the wrong standard. 
                                                      
191 Int’l Trade Comm’n Remand Determ. Pursuant to Usinor Industeel S.A., el al v. United States , 
No. 01-00006 (July 2002) at 6 (non-pr oprietary version) (ARG-56 bis). 
192 US First Submission, para. 283. 
193 The NAFTA appeal in question was filed by the Mexican company, TAMSA.  While this obviously 
was not a review requested by Argentina, it is, without question, a review of the same ITC determination that is before this Panel.  As the United States reminded the Panel and Argentina in its First Submission and during the 
oral statement, it conducted this determination on a cumulated basis.  Therefore, the arguments that it made 
regarding the likely standard before the NAFTA panel are directly relevant to this Panel’s consideration of 
whether the Commission applied the correct standard. 
194 ITC Brief, Oil Country Tubular Goods from Mexico, Results of Five-Year Review , USA-MEX-201-
1904-06 (8 Feb. 2002) (non-proprietary version) at 43 (excerpts included as Exhibit ARG-67). 
195Id.  WT/DS268/R 
 Page C-41 
 
 
B. THE COMMISSION ’S SUNSET DETERMINATION WAS INCONSISTENT WITH ARTICLE 11.3  AND 3 
OF THE ANTI-DUMPING AGREEMENT  
1. The Commission’s Sunset Determination was inconsistent with Article 3.1 of the Anti-
Dumping Agreement 
163. Article 3.1 provides that, “[a] determination of  injury for purposes of Article VI of GATT 
1994  shall be based on positive evidence and involve an objective examination of both (a) the volume 
of the dumped imports and the effect of the dumped imports on prices in the domestic market for like 
products, and (b) the consequent impact of these imports on domestic producers of such products.”  
(Emphasis added.) 
164. The United States argues that Article 3.1 does not  apply to sunset reviews.  According to the 
United States, the requirements of Article 3.1 are “potentially incompatible” with Article 11.3 
reviews, because “[i]mports may not even be present in the market at the time of the sunset review, 
and they may not be sold at dumped prices.”196  The US argument fails for several reasons.  First, as 
previously established,197 the provisions of Article 3 – including paragraph 1 thereof – apply to 
Article 11.3.  Moreover, the United States ignores th e language “for purposes of Article VI of GATT 
1994[.]”  The Anti-Dumping Agreement as a whole clarifies Article VI of GATT 1994.  Thus, 
Article 3.1 makes clear that all  determinations of injury – whether a determination of injury in an 
original investigation or a determination of the likelih ood of injury in a sunset review – are subject to 
the requirements of Article 3.  Finally, the Unite d States ignores the fundamental requirement of 
Article 3.1: that a determination of injury sha ll be based on positive evidence and an objective 
examination of the facts.  Article 3.1 makes clear  that these fundamental principles apply to a 
likelihood of injury determination under Article 11.3. 
165. Therefore, in evaluating whether the Commission’ s likelihood of injury determination in the 
sunset review of OCTG from Argentina was consis tent with Article 11.3, the panel must consider 
whether the Commission based its determination on positive evidence and examined the facts 
objectively. 
166. In its oral statement at the first panel meetin g of 9 December 2003, the United States argued 
that the Commission’s sunset determination was based on positive evidence and an objective 
evaluation of the facts.198  Pointing to the Commission’s determination, the United States asserted that 
“the [Commission] carefully reviewed an extensive ar ray of factors and evidence relative to the likely 
volume, price effect and impact of imports on the domestic industry.”199 
167. Mere citation to a voluminous record of information does not satisfy the requirement to 
examine the record objectively and to base conclusions on positive evidence.  In evaluating whether 
the Commission’s establishment of th e facts was proper and its assessment objective, it is important to 
keep in mind that the Commission failed to apply the correct “likely” standard under Article 11.3 and 
conducted a cumulative injury analysis.  As a result, the Commission simply did not support its determination that injury would lik ely continue or recur upon termination of the order on Argentine 
OCTG with a sufficient factual basis. 
168. That the Commission failed to base its conc lusions on positive evidence and objectively 
evaluate the facts is evident from its findings with  respect to volume, price, and impact.  Argentina 
has already discussed the Commission’s findings in  detail in the first written submission and oral 
                                                     
 
196 US First Submission, para. 305. 
197 As established above in Section II.C.2, an authority’s determination under Article 11.3 of whether 
“injury” would be likely to continue or recur must satisfy the requirements of Article 3. 
198 See US First Oral Statement, para. 23. 
199 Id. at para. 24. WT/DS268/R 
Page C-42  
 
statement at the first panel meeting, and will not recount all of the evidence here.
200  Argentina will, 
however, comment briefly on the Commission’s approach with respect to each factor, as it illustrates 
the fundamental problem with the Commission’s analysis:  The Commission speculated that certain 
outcomes were possible, instead of relying on positiv e evidence that certain events were probable. 
169. With respect to the volume of imports, the United States claims that “the [Commission] found 
that producers in the five countries involved had both the capacity and the incentive to increase their 
exports to the United States.”201  This assertion is somewhat misleading.  With respect to the subject 
producers in Argentina, Italy, and Mexico (as well as  the only Japanese producer to participate in the 
sunset review), the Commission actually found that “[t]he recent . . . capacity utilization rates 
represent[ed] a potentially important constraint on  the ability of [the] subject producers to increase 
shipments of casing and tubing to the United States.”202  Thus, the Commission recognized positive 
evidence indicating that the volume of imports was not  likely to increase significantly in the event of 
revocation of the orders.  
170. Despite this positive evidence of capacity co nstraints, however, the Commission determined 
that the subject producers had “incentives” to sh ift “their productive cap acity to producing and 
shipping more casing and tubing to the US market.”203  The Commission based its conclusion that the 
subject producers had “incentives” to ship more  OCTG to the United States on five findings.204  As 
demonstrated by Argentina in its first submission an d at the first panel meeting, however, each one of 
these findings was based on speculation,  rather than on positive evidence.205  Further, in making these 
findings, the Commission freque ntly disregarded positive ev idence supporting the opposite 
conclusion.206  As a result, the Commission failed to dete rmine, based on positive evidence, that the 
recurrence of injury upon revocation of the orders on OCTG was probable. 
171. In sum, in the face of positive evidence indicating that the recurrence of injury was not likely 
based on the volume analysis,207 the Commission invented “incentives” – based on conjecture and 
speculation – in order to render an affirmative likelihood determination.  The Commission’s approach 
to the volume factor demonstrates that it failed to support its determination w ith positive evidence and 
to objectively examine the record.  The Commission’s sunset determination was therefore inconsistent with Articles 3.1 and 11.3.  Further, the Commission ’s evaluation of the volume factor demonstrates 
its failure to apply the “likely” standard of Article 11.3. 
172. The US First Submission also reveals similar reliance on conjecture with respect to the price 
effects of the “likely” imports.  In response to Argentina’s claim that the Commission cited paltry 
evidence of likely underselling by imports and potent ial price effects of the imports, the United States 
makes the following statement in its brief:   
As for underselling by imports, Argentina’s complaints relate solely to the ITC’s 
discussion of underselling during the current review period.  But the ITC itself placed 
little weight on this point, as it recognized  that the orders had significantly reduced 
the volume of subject imports.  What was much more significant to the ITC – and 
                                                     
 
200 See Argentina’s First Submission, Sec. VIII.B.2; Argentina’s First Oral Statement, paras. 115-126. 
201 US First Oral Statement, para. 26. 
202 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434, 
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) at 19 (“ Commission’s Suns et Determination ”) 
(ARG-54). 
203 Id. 
204 See id.  at 19-20. 
205 See Argentina’s First Submission, paras. 244-246; Arge ntina’s First Oral Statement, paras. 119-123. 
206 See id. 
207 The evidence included the testimony of German Cura, President of Siderca, at the Commission’s 
sunset hearing.  See ITC Hearing Tr., Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and 
Mexico  (8 May 2001) (Mr. German Cura) at 200-208 (ARG-68).  WT/DS268/R 
 Page C-43 
 
 
what Argentina completely ignores in its subm ission – is the fact that underselling by 
subject imports during the original investigations drove down US prices.208 
173. This statement regarding price effects speaks volumes.  In other words, the Commission 
admits that it had very little evidence of likely underse lling by the likely imports.  In fact, it says that 
it placed “little weight” on any such evidence.  In stead, it gave greater weight to the information 
developed five years earlier in the original investigation.  This admission runs completely contrary to 
the requirements of Article 11.3 and the rigorous examination required by the Appellate Body in 
Sunset Review of Steel from Japan .  It is simply not acceptable for the reviewing authorities to rely on 
information from the original investigation that led to the measure as the same basis for continuing the 
measure for an additional five years.  If the auth orities cannot develop a sufficient factual basis to 
support the notion that imports are likely to have detrimental price effects on the domestic industry, 
then they cannot presume that those price effects will occur. 
174. A similar admission appears in the very next pa ragraph of the US First Submission, where the 
United States attempts to refute Argentina’s arguments that it gave undue weight to the fact that 
domestic prices were increasing at the end of th e period examined.   The United States claims: 
Second, evidence from the original investigation strongly supports a finding that 
imports can  drive down domestic prices even during a period of strong demand.  
Thus, it was completely logical for the ITC to  conclude that whatever current prices 
may be, imports would  drive down or suppress the price of the domestic like product 
if the orders were revoked.209 
175. These two sentences accurately portray the re ality of the Commission’s analysis.  From a 
finding in the original investigation that imports “can” drive down domestic prices, the Commission 
concludes that imports “would” drive down or supp ress the price of domes tic like products if the 
order were revoked.  In other words, because it is possible (as demonstrated five years earlier), then it 
must be “likely” to occur if the orders are revoked.   Again, this type of reasoning is unacceptable 
under Article 11.3, and it demonstrates that the Comm ission is not applying a “likely” standard and 
that the decision in this case is not base d on positive evidence of likely price effects. 
176. The United States’ defence of the Commission’s “impact” analysis suffers from the same 
problem.  Despite the fact that the Commission found that the domestic industry’s condition had 
improved and that its current condition was “positive,” the Commission nonetheless found that 
“revocation of the orders likely would lead to a si gnificant 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, leading to a significa nt adverse impact on the domestic industry.”210  In its 
only defence against Argentina’s argument with re spect to the impact analysis, the United States 
offers the following sentence: 
The ITC noted that in the original investiga tion, a significant increase in demand had 
not precluded subject imports from gainin g market share and having adverse price 
effects.211 
177. Once again, the conclusion of what is likely to occur in the future depends wholly on the fact 
that it occurred in the original inve stigation, five years in the past.  In this particular instance, the 
problem is compounded because th e Commission is reduced to saying  that increased demand in the 
past had not precluded  subject imports from gaining market share and having adverse price effects, 
                                                      
208US First Submission, para. 338 (footnotes omitted). 
209 Id. at para. 339 (emphasis added, footnotes omitted). 
210 Id. at para. 342. 
211 Id. WT/DS268/R 
Page C-44  
 
and drawing the inference from this observation th at likely imports were likely to have the same 
impact.  One is left to imagine how an exporter could ever meet this standard given that, by definition, 
most anti-dumping measures in place in the United States had some evidence of adverse impact 
supporting the initial decision. 
178. Article 11.3 demands a rigorous analysis of the likely consequences of revocation.  With 
respect to injury, Article 3.1 and Artic le 11.3 require positive evidence that injury is likely to continue 
or recur in order for the measure to be continued.   The Commission’s conclusions with respect to 
volume, price, and impact in this case fall short of meeting the substantive and evidentiary standard. 
2. The Commission’s Determination was inconsiste nt with Article 3.4 of the Anti-Dumping 
Agreement 
179. Article 3.4 of the Anti-Dumping Agreement requ ires the authority to evaluate the following 
“relevant economic factors and indices having a bearing” on the domestic industry: actual and 
potential decline in sales, profits, output, market  share, productivity, return on investments, or 
utilization of capacity, factors affe cting domestic prices, the magnitu de of the margin of dumping, 
actual and potential negative effects on cash flow , inventories, employment, wages, growth, and 
ability to raise capital or investments.
212    I n  i t s  s u n s e t  d e t e r m i n a t ion of OCTG from Argentina, 
however, the Commission failed to address several of the mandatory factors, and provided a mere 
mechanical recitation of several others.  The Co mmission’s determination was therefore inconsistent 
with Article 3.4. 
180. The United States argues that, because there may not be an impact from dumped imports to 
evaluate at the time of the sunset review, “the ob ligations described in Article 3.4 cannot practicably 
be applied to all sunset reviews.”213  Even if a particular factor turns out not to be germane to the 
authority’s analysis, however, the authority still has an obligation under Artic le 3.4 to address each 
factor.  As stated by the Panel in H-Beams from Poland , the authority must provide “a persuasive 
explanation as to how the evaluation of releva nt factors led to the determination of injury.”214 
181. The United States also argues in its First Submission that the Commission in fact considered 
all of the elements identified in Article 3.4.215  The United states includes on page 109 a table 
indicating the “location in ITC Report” of statistics re lated to the relevant factors.  The US rebuttal is 
not effective and reflects a misunderstanding of the kind of analysis required by Article 3.4.  In Egypt 
– Steel Rebar , the panel held that the mere presentation of tables of data concerning the economic 
factors and indices listed in Article  3.4, without more, does not constitute an “evaluation” in the sense 
of Article 3.4.216  Accordingly, the panel ruled, in order to “rebut a prima facie case that its 
‘evaluation’ under Article 3.4 was inadequate or did not take place at all[,]” a Member must produce a 
“written record – whether in the di sclosure documents, in the published determination, or in other 
internal documents – of how [the] factors [had] been  interpreted or appreciate d by [the] investigating 
authority during the course of the investigation . . . .”217  The Commission did not do this in its 
determination, and the United States has failed to  demonstrate otherwise in its First Submission. 
                                                      
212 Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy 
Steel and H-Beams from Poland,  WT/DS122/R, adopted 5 April 2001, para. 7.236 (“ H-Beams from Poland ”). 
The Appellate Body agreed with the panel report in entirety.  See Appellate Body Report, Thailand – Anti-
Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland ,WT/DS122/AB/R, adopted April 5, 2001,  para. 125 ( “H-Beams from Poland” ). 
213 US First Submission, para. 346. 
214 Panel Report, H-Beams from Poland , para. 7.236. 
215 US First Submission, para. 347.  
216 Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey , 
WT/DS211/R, adopted 1 October 2002, para. 7.42 ( “Egypt – Steel Rebar” ). 
217 Id. at para. 7.49.  WT/DS268/R 
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3. The Commission’s Determination was inconsiste nt with Article 3.5 of the Anti-Dumping 
Agreement 
182. With regard to the required causation analysis , Article 3.5 directs the authority to “examine 
any known factors other than the dumped imports which at the same time are injuring the domestic 
industry, and the injuries caused by these other factors must not be attributed to the dumped imports.”  
In the sunset review of OCTG from Argentina,  however, the Commission failed to separate and 
distinguish the potential injurious effects of othe r causal factors from the potential effects of the 
dumped imports.  Thus, the Commission’s dete rmination was inconsistent with Article 3.5. 
183. The United States argues that “textual indication s in Article 3.5” show that “it specifically is 
not applicable to sunset reviews.”218  The United States attempts to demonstrate that each and every 
word of Article 3.5 cannot practicably apply to sunset reviews.  For example, the United States points 
out that Article 3.5 refers to existing “injury,” but “in a sunset review, with an anti-dumping order in 
place, there may be no current injury or causal link . . . .”219  In addition, the United States refers to the 
Article 3.5 requirement not to attribute the injurious  effects from other known sources of injury to the 
dumped imports.  With respect to this provision, the United States argues, “In a sunset review, where 
the focus is on evaluating the likely effect of imports upon expiry of the duty ( i.e., at some point in the 
future), other factors ‘which at the same time ar e injuring the domestic industry’ will not be ‘known’ 
to the investigating authority.”220 
184. As demonstrated previously, however, according to Footnote 9 of the Anti-Dumping 
Agreement, “injury” for purposes of Article 11.3  “shall be interpreted in accordance with the 
provisions of [Article 3].”  The fundamental requirement of Article 3.5 that the authority establish a 
causal link between the dump ed imports and injury to the domestic  industry is relevant to sunset 
reviews under Article 11.3.  In the context of a sunset review, in order to render an affirmative 
likelihood of injury determination, Article 3.5 re quires the authority to demonstrate that, upon 
termination of the anti-dumping measure, the subject imports – through either the continuation or 
recurrence of dumping – would be likely to cause in jury to the domestic industry.  In addition, 
Article 3.5 requires the authority  not to ascribe the effects from other known potential sources of 
injury to the subject imports. 
185. In the sunset review of OCTG from Argent ina, the Commission failed to separate and 
distinguish the potential injurious effects of othe r causal factors from the potential effects of the 
dumped imports.  The United States has been unable  to demonstrate that the Commission satisfied the 
non-attribution requirement of Article 3.5. 
C. THE COMMISSION ’S APPLICATION OF A CUMULATIVE INJURY ANALYSIS IN THE SUNSET 
REVIEW OF OCTG  FROM ARGENTINA WAS INCONSISTENT WITH ARTICLES 11.3  AND 3.3 OF 
THE ANTI-DUMPING AGREEMENT  
186. As set out in the first submission and oral statement, Argentina submits that the 
Commission’s application of a cumulative injury analysis in the sunset review of OCTG from 
Argentina was inconsistent w ith Articles 11.3 and 3.3 of the Anti-Dumping Agreement.221  Argentina 
raised three independent arguments as to why the conduct of a cumulative analysis was WTO-
inconsistent: 
                                                      
218 US First Submission, para. 350. 
219 Id. at para. 352. 
220 Id. at para. 353. 
221 See Argentina’s First Submission, VIII.D-F; Argentina’s First Oral Statement, paras. 104-112. WT/DS268/R 
Page C-46  
 
• The text of Article 11.3 (and use of the singular “duty”) prohibits cumulation.  This is further 
confirmed by the text of Article 3.3 of the Anti-Dumping Agreement, which limits cumulation 
to “investigations” and even then only where certain conditions are met; 
• Assuming arguendo that Articles 11.3 and 3.3 do not prec lude cumulation in sunset reviews, 
then the terms of Article 3.3 must be applied to any cumulative analysis in a sunset review.  
Application of either the de minimis  or negligibility requirements (both of which must be 
satisfied) would have prevented cumulation in th e sunset review of OCTG from Argentina; 
and 
• The Commission’s use of a cumulative injury analysis in the sunset review of OCTG from 
Argentina was also inconsistent with Article 11.3, because it prevented the Commission from 
applying the correct “likely” standard. 
 
187. Rather than recast these arguments in full, for purposes of this second submission, Argentina 
will focus this discussion on the US counterarguments.  It is important to recognize at the outset that 
the Panel’s decision with respect to cumulation in Sunset Review of Steel from Japan  rested on very 
narrow grounds, and that the issue of whether cumulation is pe rmitted in Article 11.3 sunset reviews 
is still a matter of first impression under the Anti-Dumping Agreement.
222 
1. The text of Article 11.3 prohibits cumulati on.  Under Article 3.3 of the Anti-Dumping 
Agreement, the use of cumulation is only p ermitted in “investigations,” and even then 
only where certain conditions are met 
188. According to the United States, "Argentina argue s that because cumulation is not expressly 
permitted in Article 11.3, the ITC is prohibited from engaging in a cumulative analysis in a sunset 
review."223  The United States misconstrues Argentina’ s argument.  Argentina does not argue that 
Article 11.3 is silent with respect  to cumulation.  Argentina asserts th at Article 11.3 – both pursuant to 
its terms and as interpreted in its c ontext – expressly prohibits cumulation. 
189. Pursuant to its terms, Article 11.3 applies to  “any definitive anti-dumping duty” and requires 
the “expiry of the duty.”  In each reference, the draf ters chose the singular and avoided the plural.  In 
addition, the context of Article 11.3 reinforces the clear text that Article 11.3 prohibits cumulation.  
Article 11.3 is an implementing provision of Artic le 11.  Article 11.1, the umbrella provision of 
Article 11.3, directs that “[a]n anti-dumping duty  shall remain in force only as long as and to the 
extent necessary to counteract du mping which is causing injury.”  (Emphasis added.)  Again, the 
drafters have used the singular.  Thus, on its face and interpreted within its context, Article 11.3 does 
not permit a cumulative analysis of the likely in jurious effects of multiple anti-dumping orders. 
190. The United States contends that Article 11.3’s  reference to the “duty” is not conclusive.224  
Yet, in Sunset Review of Steel from Japan , “[t]he United States argue[d] that the meaning of the word 
                                                      
222 The Panel addressed the narrow issue of “whether the obligation relating to the negligibility 
standard under Article 5.8 for the purposes of a cumulative injury assessment under Article 3.3 in investigations 
also applies to sunset reviews under Article 11.3.”  Panel Report, Sunset Review of Steel from Japan, para. 7.93.  
The Panel explicitly stated that it was not addressing the issue of whether Article 11.3 permits cumulation in the likelihood of injury determination:  “For this reason, we do not address the more general issue of whether or not 
cumulation is permitted in sunset reviews.”  Id. at 7.104 (emphasis added).  In summarizing the Panel’s findings 
in Sunset Review of Steel from Japan, the Appellate Body stated, “The Panel also found (and Japan does not 
appeal these findings) no inconsistency with the United States’ WTO obligations in respect of . . . cumulation in sunset reviews . . . .”  Appellate Body Report, Sunset Review of Steel from Japan, para. 6.  Hence, the Appellate 
Body’s statement regarding what Japan had not appealed necessarily is limited to the narrow issue addressed by 
the Panel, and does not speak to the broader and still unresolved question of whether cumulation is permitted in sunset reviews.
 
223 US First Submission, para. 363. 
224 See id. at para. 366.  WT/DS268/R 
 Page C-47 
 
 
‘duty’ in Article 11.3 is explained in Article 9. 2 of the Anti-Dumping Agreement, which ‘makes clear 
that the definitive duty is imposed on a product-specific ( i.e., order-wide ) basis, not a company-
specific basis.”225  The Appellate Body agreed with the Unit ed States “that this reference in Article 
9.2 informs the interpretation of Article 11.3.”226  Thus, the Appellate Body’s decision in Sunset 
Review of Steel from Japan  confirms that the use of “duty” in the singular means that the authority 
must determine whether the termination of a si ngle anti-dumping order – and not multiple anti-
dumping orders – would be likely to lead to injury. 
191. The Appellate Body’s decision in Steel from Germany  suggests that it understands that the 
injury analysis in a sunset review is not conduc ted on a cumulated basis:  “Thus, in our view, the 
terms ‘subsidization’ and ‘injury’ each have an independent meaning in the SCM Agreement  which is 
not derived by reference to the other.  It is unlikely  that very low levels of subsidization could be 
demonstrated to cause  ‘material’ injury.”227  The Appellate Body’s statement would be true only 
where the injury analysis in a sunset review is not conducted on a cumulated basis. 
192. Finally, the United States asserts that “cum ulation in anti-dumping investigations was a 
widespread practice among GATT c ontracting parties prior to the adoption of Article 3.3 in the 
Uruguay Round, even though the Tokyo Round Anti-Dumping Code was silent on the subject.”228  
The fact that cumulation was not regulated by the Tokyo Round, however, weakens, rather than helps, 
the US argument.  Prior to the Uruguay Round, th e use of cumulation in injury determinations 
generated several conflicts. Consequently, the dr afters of the Uruguay Round anti-dumping code – 
through Article 3.3. – limited the use of cumulation to “investigations,” and even then only where 
certain conditions are met. 
193. Accordingly, by conducting a cumulative injury analysis in the sunset review of OCTG from 
Argentina, the Commission violated Articles 11.3 and 3.3. 
2. Assuming arguendo that Articles 11.3 and 3.3 do not preclude cumulation, then the 
terms of Article 3.3 must be applied to any cumulative analysis in a sunset review 
194. In the alternative, Argentina argues that, even assuming that Articles 3.3 and 11.3 do not 
preclude cumulation in Article 11.3 reviews, then the terms of Article 3.3 must be applied to any such 
cumulative analysis in a sunset review.229  The application of either the de minimis  or negligibility 
requirements under Article 3.3 (by virtue of the cros s-reference to Article 5.8) would have prevented 
cumulation in the Commission’s sunset determination of Argentine OCTG. 
195. The US rebuttal to Argentina’s alternative argum ent relies on the premise that Article 3 does 
not apply to sunset reviews under Article 11.3.230  As Argentina has demonstrated, however, the 
disciplines of Article 3 apply to Article 11.3. 
196. In addition, the US relies on the Panel’s decision in Sunset Review of Steel from Japan .231  In 
that decision, the Panel held that, because Article 3.3 is limited by its own terms to “investigations,” 
“the cross-reference in Article 3.3 to the negligibility  standard in Article 5.8 does not apply to sunset 
reviews.”232  Japan did not appeal this ruling. 
                                                      
225 Appellate Body Report, Sunset Review of Steel from Japan , para. 150 (emphasis added). 
226 Id. 
227 Appellate Body Report, Steel from Germany, para. 81. 
228 US First Submission, para. 370. 
229 See Argentina’s First Submission, Sec. VIII.E; Argentina’s First Oral Statement, para.108. 
230 See US First Submission, para. 373. 
231 See id.  at paras. 374-378. 
232 Panel Report, Sunset Review of Steel from Japan , para. 7.102. WT/DS268/R 
Page C-48  
 
197. In response, Argentina first notes that the Panel’s ruling in Sunset Review of Steel from Japan  
is not inconsistent with Argentin a’s assertion above that, because Article 3.3 restricts the use of 
cumulation to “investigations,” Article 3.3 precludes the use of cumulation in sunset reviews.  
However, in the event that the Panel finds that cu mulation is not prohibited by  Articles 11.3 and 3.3, 
then the authorities must respect the substantiv e standards for cumulation in Article 3.3.  The 
authorities may not cumulate in a manner that diminishes the rights of individual countries under 
Article 11.3.  In this case, with negligible import volumes and a de minimis  dumping margin, 
Argentina had a right to expect that its export performance would be taken into account in the 
likelihood of injury analysis, and not rendered irrele vant by an analysis that focused on the export 
practices of producers from other countries. 
198. The United States also argues that “the appli cation of Article 5.8’s negligibility thresholds 
would be unworkable in the context of sunset reviews.”
233  The United States suggests that it would 
not be practicable for the authority to assess whet her the likely – as opposed to the current – volume 
of imports would be negligible.  Article 5.8, how ever, explicitly directs the authority to consider 
whether the “actual or potential ” volume of imports is negligible.  Consequently, it is clear that 
Article 5.8 contemplates that in certain injury determ inations the authority will need to estimate future 
import volumes. 
199. Finally, as set out in Argentina’s First Submission and oral statement,234 the Commission’s 
use of a cumulated injury analysis in the sunset review of OCTG from Argentina was also 
inconsistent with Article 11.3, because it prev ented the Commission from applying the correct 
“likely” standard.  In reaching its decision to cumulate in this case, the Commission considered 
whether imports from each subject source had any possible  discernible adverse impact on the 
domestic industry.235    As part of its analysis, the Commission did not  find that the Argentine imports 
would have no  discernible adverse impact on the domestic industry.  In other words, the Commission 
reasoned that the Argentine imports could have a possible  adverse impact on the domestic industry.  
This low standard, cast in a double-negative, runs dir ectly counter to the “likely” standard established 
by Article 11.3.  The United States does not re spond to this argument in its First Submission. 
200. This use of a double negative formulation is contrary to the panel’s decision in DRAMS from 
Korea .236  A “not unlikely” standard does not set the same  standard as “likely.”  Worse still, the “no” 
discernible adverse impact test used by the Commission  establishes a standard that is directly contrary 
to a “likely” standard.  Under this formulation, finding any discernible impact leads to cumulation, 
which as in this case can lead to a finding of “likely” injury without regard to any “positive evidence” relating to probable imports from individual countries. 
                                                     
 
233 US First Submission, para. 379. 
234 See Argentina’s First Submission, Sec. VIII.F; Arge ntina’s First Oral Statement, paras. 109-111. 
235 Commission’s Sunset Determination  at 6, 10-16.  Pursuant to 19 USC. § 1675a(a)(7) “[t]he 
Commission shall not cumulatively assess the volume and effects of imports of the subject merchandise in a 
case in which it determines that such imports are likely to have no discernible adverse impact on the domestic industry.” 
236 Panel Report, DRAMS from Korea , para. 6.45 (“We consider that a failure to find that an event is 
‘not likely’ is not equivalent to a finding that the event is ‘likely.’”)  WT/DS268/R 
 Page C-49 
 
 
D. THE TIME FRAME WITHIN WHICH INJURY WOULD BE LIKELY TO CONTINUE OR RECUR UNDER 
ARTICLE 11.3  OF THE ANTI-DUMPING AGREEMENT  
1. The US Statutory Provisions as to the time fr ame within which injury would be likely to 
continue or recur are as such inconsistent with Articles 11.3 and 3 of the Anti-Dumping 
Agreement 
201. In its first written submission, Argentina demons trated that 19 USC. §§ 1675a(a)(1) and (5) 
are inconsistent as such with Articles 11.3 and 3 of the Anti-Dumping Agreement.237  
Section 1675(a)(1) directs the Commission to determine whether injury would be likely to continue or 
recur “within a reasonably foreseeable time.”  The SA A explains that  “‘reasonably foreseeable time’ 
... normally will exceed the ‘imminent’ timeframe applicable in a threat of injury analysis.”238  
Moreover, section 1675(a)(5) mandates that the Co mmission “shall consider that the effects of 
revocation or termination may not be imminent, but may manifest themselves only over a longer 
period of time.” 
202. Article 11.3, however, requires the authority to determine whether termination of an anti-
dumping measure would be likely to lead to the continuation or recurrence of injury upon termination 
of the measure .  Thus, the authority’s likelihood of inju ry determination must not be based on 
speculation about possible market conditions several years into the future, but rather must be based 
upon the likelihood of injury upon “expiry” of the measure.  By defining a “reasonably foreseeable 
time” as longer than an “imminent” time, the US statutory provisions are inconsistent with Article 
11.3, which requires the determination to be based upon injury upon “expiry” of the duty. 
203. The United States argues that Article 11.3 is silent on the question of the relevant time frame 
in which injury would be likely to continue or recur, and thus WTO Members “remain free to 
determine under their own laws and procedures the time frame relevant in sunset inquiries.”239  There 
are two problems with this argument.  First, the United States ignores the immediate context of 
Article 11.3.  WTO Members adopted Article 11.3 to  enforce the underlying principle of Article 11:  
that anti-dumping measures “shall remain in force on ly as long as and to the extent necessary to 
counteract dumping which is causing injury.”  Accordingly, when read together with its umbrella provision, Article 11.1, it is eviden t that the time frame in which injury would be likely to continue or 
recur under Article 11.3 must be as curtailed as po ssible to ensure that anti-dumping measures are 
maintained only as long as necessary
 to counteract injurious dumping.  Second, unbridled discretion 
in defining the relevant time frame is not consistent  with the “likely” standard of Article 11.3, and 
even less so when considered in light of 11.1.  
204. Sections 1675(a)(1) and (5) are also inconsis tent with Articles 3.7 of the Anti-Dumping 
Agreement.  Article 3.7 requires injury determinations to be “based on facts and not merely on 
allegation, conjecture or remote possibility,” and that the circumstances under which injury would 
occur be “imminent.”  The US provisions provide that the likelihood of injury determination need not 
be based on “imminent” injury, thereby fostering speculation. 
205. The United States narrowly reads Articles 3.7 a nd 3.8 to be limited to threat determinations.  
Pursuant to Footnote 9 of the Anti-Dumping Agreement, however, “injury” under Article 11.3 must 
“be interpreted in accordance with the provisions of [Article 3,]” which include s Articles 3.7 and 3.8.  
Although Articles 3.7 and 3.8 only reference thre at determinations specifically, both threat 
determinations and likely injury de terminations require an assessment of future injury.  Accordingly, 
the requirements of Articles 3.7 and 3.8 are relevant to sunset reviews under Article 11.3.  Article 3.7 
                                                      
237 See Argentina’s First Submission, Sec. VIII.C.1. 
238SAA at 887 (ARG-5). 
239 US First Oral Statement, para. 33. WT/DS268/R 
Page C-50  
 
requires that the circumstances under which injury will occur be “imminent” (such as upon expiry of 
the duty) and Article 3.8 requires that authorities decide future injury cases with “special care.” 
2. The Commission’s application of the Statutory Provisions as to the time frame within 
which injury would be likely to continue or recur was inconsis tent with Articles 11.3 and 
3 of the Anti-Dumping Agreement 
206. The Commission applied 19 USC. §§ 1675a(a)(1) and (5) in the sunset review of OCTG from 
Argentina; therefore, its sunset determination wa s inconsistent with Articles 11.3 and 3.  The 
Commission provides no indication at all as to the time period it considered to be a “reasonably 
foreseeable time” in the sunset review of OCTG from Argentina.  The only known information was 
that the US industry was doing well at the time of th e review.  So Argentina is left to wonder when it 
was that the Commission believed that things would go bad.  Not upon expiry of the duty says the 
United States.
240  Is the time period one year?  Three years?  Five years?  In the end, are these periods 
the same?  Are they all equally consistent with Article  11.3?  In this case, there is no way to determine 
because the Commission did not indicate the time fra me.  Hence, these provis ions were applied in a 
manner inconsistent with Article 11.3. 
V. CONSEQUENTIAL VIOLATIONS UNDER ARTICLE VI OF THE GATT 1994, 
ARTICLES 1 AND 18 OF THE ANTI-DUMPING AGREEMENT, AND ARTICLE 
XVI:4 OF THE WTO AGREEMENT 
207. In Section IX of Argentina’s First Submission , Argentina argued that the measures identified 
in the panel request, including the Department’s de termination to conduct an expedited review, the 
Department’s Sunset Determination, the Commission ’s Sunset Determination, and the Department’s 
determination to continue the orde r, and the relevant US laws, regulations, policies, and procedures, 
are inconsistent with the obligations of the Un ited States under Article VI of the GATT 1994, 
Articles 1, 18.1, and 18.4 of the Anti-Dumping Ag reement, as well as Article XVI:4 of the WTO 
Agreement. 
208. In rebuttal, the United States submits that none of the measures identified by Argentina are 
inconsistent with provisions of the Anti-Dumpi ng Agreement, and therefore, there can be no 
consequential violations.241  For the reasons previously set out, however, Argentina believes that it has 
persuasively demonstrated that the identified US measures, both as such and as applied, violate the 
Anti-Dumping Agreement and GATT 1994.  Acco rdingly, Argentina has also proven its 
consequential claims. 
209. In addition, the United States argues that th e Department’s Determination to Expedite does 
not constitute a “separately challengeable measure[.]”242  The United States describes the 
Department’s Determination to Expedite as an “i nterlocutory decision” and lumps it into a vast 
category of “[h]undreds, perhaps thousands, of discrete preliminary decisions [that] went into what 
eventually became an anti-dumping measure.”243  The United States unconvincingly seeks to diminish 
the significance of the Department’s Determinatio n to Expedite.  The Department’s inadequacy 
determination was the sole basis for either the deemed waiver or the application of facts available.  
Either way, the Department’s affirmative likelihood determina tion flowed directly from its 
                                                      
240 US First Submission at para. 357. 
241 US First Submission, para. 382.  The United States also contends that Argentina’s panel request did 
not properly identify its dependent claims.  See id. at 381.  Argentina addresses this argument in Section VI, 
below. 
242 Id. at 384. 
243 Id.  WT/DS268/R 
 Page C-51 
 
 
inadequacy determination.  The Department’s Dete rmination to Expedite thus constitutes a measure 
for purposes of WTO challenge.244 
210. Even if the Determination to Expedite does not constitute a separate, challengeable measure, 
however, it is still necessarily before  the panel.  Because the inadequa cy determination was integral to 
the Department’s finding of likely dumping in the su nset determination, the inadequacy determination 
cannot be divorced from the Department’s Sunset Determination.  Therefore, whether it is considered 
a measure or not, the panel must evaluate the WTO- consistency of the Department’s Determination to 
Expedite.  Indeed, despite its argument that the De termination to Expedite does not constitute an 
independent measure, the United States itself recognizes that this determination may still be 
“challenged in WTO dispute settlement as part of a challenge to a bona fide  measure[,]” such as the 
Department’s Sunset Determination.245 
VI. US REQUEST FOR PRELIMINARY RULINGS 
A. ARGENTINA ’S PANEL REQUEST COMPLIED FULLY WITH DSU  ARTICLE 6.2 
1. Introduction 
211. In its opening statement to the Panel on 9 December 2003, the United States said that 
“[n]owhere” in the US First Submission is there an  allegation that Argentina’s Panel Request failed to 
“identify the specific measures at issue.”246  As Argentina stated in its closing statement to the Panel 
on 10 December 2003, this is a welcome admission, for two reasons. 
212. First, it confirms that the US measures that Ar gentina is challenging are limited, specific, and 
have been identified with precision in its Panel reque st.  Second, this concession by the United States 
means that there now remains only a single Article 6.2 issue before the Panel:  did Argentina fail to “present the problem clearly,” such that the United States has suffered actual prejudice during the course of the panel proceedings?  It is a wonder that the United States tries to advance such a claim 
given its assertion in its opening statement that: 
[M]ost of the issues in this dispute shoul d sound very familiar.  Indeed, Argentina’s 
‘as such’ claims largely raise issues that have either been already addressed in other 
disputes or that are closely related to those addressed in other disputes.
247 
If this is true, how can the United States claim that it has suffered prejudice in this case?248 
213. Argentina stands fully by all of the arguments it set out in its Submission on the US Request 
for Preliminary Rulings.  While there is no need to repeat all of these arguments here, Argentina 
                                                      
244 Further, the Appellate Body’s discussion of what constitutes a measure for purposes of a WTO 
challenge makes clear that this determination can be challenged by Argentina.  See Appellate Body Report, 
Sunset Review of Steel from Japan , paras. 85-88. 
245 Id. 
246 US First Oral Statement, para. 35. 
247 Id. at para. 4. 
248 The Appellate Body has repeatedly made clear that “[t]he procedural rules of WTO dispute 
settlement are designed to promote, not the development of litigation techniques, but simply the fair, prompt and effective resolution of trade disputes.”  Appellate Body Report, United States – Tax Treatment For "Foreign 
Sales Corporations", WT/DS108/AB/R, adopted 20 March 2000, para. 166.  This was affirmed by the Appellate 
Body in H-Beams from Poland and High Fructose Corn Syrup :   see Appellate Body Report, H-Beams from 
Poland , para. 97 and Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU by the United States , 
WT/DS132/AB/RW, adopted 21 November 2001, n.45. 
 WT/DS268/R 
Page C-52  
 
reiterates that its Panel Request complied fully wi th all of the requirements of DSU Article 6.2, 
including the requirement to “present the problem clearly.” 
214. In considering US allegations that Argentina did not “present the problem clearly,” it is 
important to keep one, overarching principle in mind.   The United States seems to believe that Article 
6.2 imposes some kind of abstract, overarching re quirement of “clarity.”  The United States never 
defines what this standard of “cla rity” is, or why Argentina’s request allegedly falls short.  However, 
the Appellate Body has stated that assessing claims under DSU Article 6.2 is by no means an abstract 
exercise, or that a Panel Request must satisfy what the responding party considers to be “clear.” 
215. Instead, the jurisprudence has stressed repeat edly that whether a Panel request can be 
considered to “present the problem clearly” must  be assessed against th e due process objective
 
embodied by Article 6.2.  This is explained further below. 
2. Argentina’s “Page Four” claims are within the Panel’s Terms of Reference 
216. Argentina welcomes the belated US recognition of  the well-established pr inciple that a Panel 
Request must be read as a whole.  Unfortunately , however, the positions advanced by the United 
States in the present proceedings show anything but a holistic approach.  The US arguments related to 
“Page Four” of Argentina’s claims focus almost exclusively on a single word – “also.”  This is exactly 
the kind of narrow approach the Appellate Body has instructed Panels not  to take. 
217. The United States is asking this Panel to parse the text of the Panel request.  It hopes that the 
Panel will agree to: 
• isolate and focus narrowly on the word “also”; and 
• isolate and focus narrowly on Page Four. 
 
218. Yet the jurisprudence demonstrates, quite unambi guously, that Panels considering their terms 
of reference cannot sever and isolate text  in this way.  Instead, the Appellate Body has enjoined 
Panels to take a broader approach. 
219. Contrary to the assertions of the United States  at the First Meeting of  the Panel, Argentina’s 
arguments have not “switched.”  Indeed, Argentina has explained the structure of the Request 
repeatedly to the United States, both at the DSB meeting of May 19, and in Argentina’s Submission 
on the US Request for Preliminary Rulings.  To reiterate:  Argentina used the word “also” on Page Four to indicate that it was elaborating on the previous pages.  When the Panel Request is read as a 
whole, this is quite obvious. 
220. Even assuming arguendo  that the word “also” has to be se gregated and interp reted separately 
from the rest of the text, the dictionary treats the word “also”  as synonymous with the term 
“moreover.” 
221. It is also important to emphasize the contex t in which the word “also” appeared.  As 
Argentina stated in Argentina’s Submission on th e US Request for Preliminary Rulings, the request 
said “Argentina also considers
” that certain US laws are WTO-inconsistent, and not  that Argentina 
considers that “certain US laws are also WTO-inconsistent. ”  The United States made no response to 
this point during the First Meeting of the Panel. 
222. Another important contextual point ignored by th e United States is that Argentina’s reference 
to US measures in that sentence was immediately qua lified by the term “related  to the determinations 
of the Department and the Commission.”  The “determinations of the Department and the 
Commission” were described in detail earlier in the Panel request.    For this reason, it is simply not  WT/DS268/R 
 Page C-53 
 
 
credible for the United States to argue that it is “impossible to discern the nature of Argentina’s 
problems.”249 
223. The United States argued at the First Meeting of the Panel that “Argentina claims to have 
provided a narrative description in the first part of the panel request that remedies the deficiencies that 
otherwise exist with respect to Page 4.”250  It also stated that “this narrative is little more than a 
chronology of events.”251 Argentina would make two points in response to this US assertion. 
224. First, Argentina did not claim that its “narrative description . . . remedies the deficiencies” of 
Page Four.  Indeed, there are no “deficiencies” to “remedy.”  Rather, Argentina argued that although a 
narrative description is not required, panels have in some cases “considered [a narrative] description 
to be relevant in determining whether a compla ining party has met the obligations covered by 
Article 6.2.”252  Argentina recalled that the High Fructose Corn Syrup Panel noted that the request in 
that case set forth “facts and circumstances describing the substance of the dispute,” which led the 
Panel conclude that it was “sufficiently detailed to se t forth the legal basis of the complaint so as to 
inform the defending Member . . . and potential third parties of the claims made by the United 
States.”253  Argentina then argued, and continues to maintain, that its Panel Request similarly “set 
forth facts and circumstances describing the substance of the dispute.”254  It provided considerable 
detail about the US measures being challenged, incl uding the WTO-inconsistent determinations of the 
Department and the Commission. 
225. Second, with respect to the US assertion that the detailed factual information set out in 
Argentina’s Panel Request was “little  more than a chronology of events,” Argentina would note that a 
“chronology of events” is synonymous with, and serves the purpose of, “setting forth the facts and 
circumstances” describing the substance of the disput e.  In any event, Argentina’s Panel Request was 
not, in fact, limited to a “chronology,” but rather provided full details of the entire factual and legal 
background giving rise to the current dispute. 
226. In any event, the United States has in no way suffered prejudice during the course of the 
Panel proceedings as a result of Argentina’s drafting of Page Four.  This issue is discussed below, in section VI.C. 
3. Sections B.1, B.2 And B.3 of Argentina’s claims are within the Panel’s Terms of 
Reference 
227. Argentina similarly provided extensive argu mentation on this is sue in Argentina’s 
Submission on the US Request for Preliminary Rulings, and it stands by those arguments. 
228. At the First Meeting of the Panel, the United States claimed that “Argentina does not take 
issue with the findings of prior panels that citati ons to entire articles of the AD Agreement – including 
Article 6 – can fail to satisfy the requirements of Article 6.2.”
255  Argentina fully recognizes that some 
prior panels have made such rulings.  However, it is of no particular relevance that prior panels have 
decided that citations to entire articles “can” fail to sa tisfy Article 6.2.  Indeed, this US statement, read 
in isolation, does not convey an accurate picture of the state of WTO jurisprudence. 
229. An accurate presentation of the state of the la w was set out in Argentina’s Submission on the 
US Request for Preliminary Rulings, partic ularly paragraph 67, which noted that: 
                                                      
249 US First Submission, para. 87. 
250 US First Oral Statement, para. 40. 
251 Id. 
252 Argentina’s Submission on the US Request for Preliminary Rulings, para. 30. 
253 Id. at para. 31. 
254 Id. at para. 45. 
255 US First Oral Statement, para. 41. WT/DS268/R 
Page C-54  
 
• a request for the establishment of a panel must set out claims
, but not the arguments  in support 
of those claims; 
• the listing of the articles of the agreements cl aimed to have been violated satisfied the 
minimum  requirements of Article 6.2 of the DSU; 
• in assessing the consistency of the panel reques t with Article 6.2, the Panel must take into 
account whether the ability of the respondent to defend itself was prejudiced, given the actual 
course of the panel proceedings, by the fact th at the panel request simply listed the provisions 
claimed to have been violated; and 
• as a related point, even if the Article cited in  the panel request contains multiple obligations, 
the mere listing of such an Article will still meet  the requirements of Artic le 6.2, absent actual 
prejudice.  
 
230. Argentina also demonstrated in its Submission on the US Request for Preliminary Rulings 
that: 
• its request for the establishment of a panel set ou t its claims with respect to Article 3 and 6 of 
the Anti-Dumping Agreement, but not the arguments in support of those claims; 
• the listing by Argentina of Articles 3 and 6 sa tisfied the minimum requirements of Article 6.2 
of the DSU, in that both Articles were listed; 
• in assessing the consistency of the Argentina’s Panel Request with  Article 6.2, the Panel must 
take into account whether the ability of the United  States to defend itself was prejudiced, given 
the actual course of the panel proceedings, by the fact that the Panel Request “simply listed” 
Articles 3 and 6; and  
• again, as a related point, even though Articles 3 and 6 of the Anti-Dumping Agreement contain 
multiple obligations, the mere listing of these Ar ticles still meets the requirements of Article 
6.2, absent actual prejudice suffered by the United States during the course of the panel 
proceedings. 
 
The latter point was demonstrated clearly by the Appellate Body decision in Korea Dairy.  As 
Argentina noted in its Submission on the US Request for Preliminary Rulings, in that case the 
Appellate Body recognized that “Article XIX of the GATT 1994 has three sections and a total of five 
paragraphs, each of which has at least one distinct obligation. Articles 2, 4, 5 and 12 of the Agreement 
on Safeguards also have multiple paragraphs, most of which have at least one distinct obligation.”256   
However, the Article 6.2 request wa s nevertheless dismissed because “Korea failed to demonstrate to 
us that the mere listing of the articles asserted to have been violated has prejudiced its ability to 
defend itself in the course of the Panel proceedings.”257 
231. Therefore, the US assertion that “entire articles of the AD Agreement . . . can fail to satisfy 
the requirements of Article 6.2” simply misses the point.  The fact that “entire articles” have been 
cited in a panel request is by no means determina tive.  What is determinative is whether actual 
prejudice has been suffered by the responding party. 
232. Argentina would also note that in H-Beams from Poland , references to “entir e articles” of the 
Anti-Dumping Agreement – in that case, Articles 2, 3 and 5 – were nevertheless found to be 
consistent with DSU Article 6.2.  Thailand argued that “the Panel should have dismissed Poland’s 
claims relating to Articles 2, 3 and 5 because eac h of these articles of the Anti-Dumping Agreement 
contains numerous, distinct obliga tions, and the request for the esta blishment of a panel submitted by 
                                                      
256 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy 
Products , WT/DS98/AB/R, adopted 12 January 2000, para. 129 (" Korea Dairy "). 
257 Id. at para. 131.  WT/DS268/R 
 Page C-55 
 
 
Poland did not meet the standard of clarity demand ed by Article 6.2 of the DSU with respect to the 
precise claims of Poland under these Articles.”258 
233. In other words, Thailand advanced virtually th e same argument in that case that the United 
States is advancing in the present case with respect to Argentina’s references to Articles 3 and 6 in the 
present case.  It is important to note that the Ap pellate Body dismissed Thailand’s request, further 
demonstrating the irrelevancy of the US argument that citations to “entire claims” somehow fail the 
Article 6.2 standard.  Decisions such as Korea Dairy and H-Beam s from Poland provide a definitive 
refutation of this argument. 
234. During the First Meeting of the Panel, the United States also asserted that “Argentina’s main 
argument” is that “the United States someho w knew from the consultati ons what Argentina’s 
problems were.”259 
235. First, this is not “Argentina’s main argument.”   As indicated above, Argentina has advanced a 
range of arguments to demonstrate that its refe rences to Articles 3 and 6 meet the minimum 
requirements of DSU Article 6.2.  These were set ou t in section IV of Argentina’s Submission on the 
US Request for Preliminary Rulings. 
236. Second, the characterization of Argentina’s po sition by the United States (i.e., that “the 
United States somehow knew from the consultations what Argentina’s proble ms were”) is equally 
misleading.  Argentina’s Submission on the US Reque st for Preliminary Rulings raised a number of 
more comprehensive points, which may be summarized briefly as follows: 
• Argentina’s claims were first raised formally with the United States in the WTO context in 
October 2002, when Argentina issued its consultations request; 
• the United States expressed no concerns about the nature or scope of the Argentina’s claims 
prior to, during, or after the consultations, even though all issues were canvassed thoroughly 
during two sets of consultations; 
• Argentina’s Panel Request used very similar – and,  in some cases, virtua lly identical language 
to that used in the consultations request; 
• the United States, when faced with a Panel re quest, suddenly professed not to understand 
Argentina’s claims; and 
• this case is only one of a series of WTO “sunset ” cases which raise the same or similar issues, 
in which the United States has put considerable resources into defending – claim by claim, 
argument by argument, and which, as the United States has already observed, “should sound very familiar."
260 
 
237. All of these factors go to a broader issue:  the credibility – or lack thereof - of US assertions 
that it did not “understand” Argentina’s claims under Articles 3 and 6. 
B. THE SO -CALLED “CERTAIN MATTERS ” REFERRED TO BY THE UNITED STATES ARE ALL WITHIN 
THE PANEL ’S TERMS OF REFERENCE  
238. Argentina’s Submission on the US Request for Preliminary Rulings provided a full rebuttal of 
all of the US allegations regarding what the Unite d States considers to be “new claims.”  As 
Argentina demonstrated in that submission, none of  these claims are “new.”  All are found in the 
Panel request. 
                                                      
258 Appellate Body Report, H-Beams from Poland , para. 82. 
259 US First Oral Statement, para. 42. 
260 US First Oral Statement, para. 35. WT/DS268/R 
Page C-56  
 
239. At the First Meeting of the Panel, the Unit ed States left unchallenged all but one of 
Argentina’s arguments – ostensibly “in the interests of time.”  The US delegation stated its hope that 
limiting itself to “one example,” that would “suffi ce to demonstrate the fatal flaws in Argentina’s 
arguments.”
261  However, in an Article 6.2 claim, arguing by “example” will not “suffice.”  The 
United States must prove all of its claims, including each of the five putative “new” claims.  The 
United States was simply silent in response to four of the full refutations provided by Argentina in its 
Submission on the US Request for Preliminary Ru lings.  The Panel can now conclude that for the 
first, second, third, and fifth of  the supposedly “new” claims, the United States has simply failed to 
discharge the burden to prove such claims. 
240. As for the fourth “new” claim, the United States  did manage to muster a couple of paragraphs 
in its statement in an attempt to support its position that the “as applied” claim regarding the time 
period considered by the Commission was not in Argentina’s panel request.  But these arguments are 
simply unconvincing. 
241. As stressed repeatedly in Argentina’s Submi ssion on the US Request for Preliminary Rulings, 
the Panel Request must be read as a whole.  In this  specific context, this means recognizing that the 
language used by Argentina in Section B.3 of its Pa nel Request is part of the broader context of panel 
request, particularly the heading under which it appears . 
242. The specific language in  Section B.3 referred to certain st atutory requirements related to the 
time period within which the Commission will assess whether injury would be likely to continue or 
recur.  The heading  to section B is “The Commission’s Sunset Determination was inconsistent with 
the Anti-Dumping Agreement and the GATT 1994. ”  Read together – the spec ific language of Section 
B.3 together with the more genera l heading of Section B – the United States was clearly put on notice 
that Argentina would be raising both an “as such” and “as applied” claim. 
C. THE UNITED STATES HAS IN NO WAY BEEN PREJUDICED DURING THE COURSE OF THE PANEL 
PROCEEDINGS  
243. The issue of prejudice is critical to the Panel’s determinations on the Article 6.2 issues.  The 
law of the WTO is clear:  any defending party adva ncing a claim under Article 6.2 must prove actual 
prejudice during the course of the Panel proceedings. 
244. If the United States fails to demonstrate actual prejudice during the course of the Panel 
proceedings, then its Article 6.2 claims must fail.  It is as simple as that. 
245. Moreover, the United States cannot argue prejudice in a global, abstract way.  Instead, it must 
demonstrate to the Panel the prejudice it has allegedly suffered during the course of the Panel proceedings for each
 of its Article 6.2 claims.  This is the a pproach taken by other Panels such as that 
in Egypt – Steel Rebar : 
[W]e requested Egypt to provide us, in resp ect of each claim that it requests us to 
dismiss , the two-part analysis referred to in Korea – Dairy and EC – Bed Linen , that 
is, the asserted lack of clarity in the Request for Establishment of a Panel, and 
evidence of any resulting prejudice to Egypt's ability to defend its interest in this 
dispute due to such lack of clarity.262 
246. Evidently, the United States wishes that it did not have to prove prejudice.  Indeed, during the 
US closing statement on 10 December, the US delega tion stated that it did “not agree that a prejudice 
                                                      
261 Id. at para. 45. 
262 Panel Report, Egypt – Steel Rebar , para. 7.25 (emphasis added, footnotes omitted).  WT/DS268/R 
 Page C-57 
 
 
requirement applies.”  Nevertheless, the Panel must apply the law as it currently exists, not as the US 
delegation would prefer it to be. 
247. The relevant cases on prejudice have been disc ussed in Argentina’s Submission on the US 
Request for Preliminary Rulings, but perhaps the state of the jurisprudence was put most succinctly by 
the EC-Bed Linen panel:  “an allegation that the  requiremen ts of Article 6.2 of the DSU are not met 
will not prevail where no prejudice is established .”263 
248. Indeed, the United States itself argued this position before the Canada Wheat Board panel.  
As cited earlier by Argentina, the United States argued before the Wheat Board  panel that: 
[E]ven if a panel request is insufficiently detaile d “to present the problem clearly,” the 
panel is not automatically deprived of juri sdiction over the matter.  Rather, the panel 
must examine, based on the “particular circumstances of the case,” whether the defect 
has prejudiced the ability of the responding party to defend itself.264 
249. How has the United States “demonstrated” prejudice in this case?  The answer:  it has not.  It 
has asserted, but has not proven, prejudice. 
250. US arguments of “prejudice” essentially boil down to complaints about having to wait until 
receipt of Argentina’s submission.  This demonstrably  does not rise to the level of a violation of the 
due process rights of the United States.  Indeed, in  previous cases, similar assertions by defending 
parties were rejected by panels as insufficient  for the purposes of demonstrating prejudice under 
Article 6.2 .  This is illustrated below. 
251. A recent demonstration of this was provided by the panel in EC – Pipe Fittings : 
[T]he European Communities has failed in any event to demonstrate to us any 
prejudice to its interests throughout the course of these Panel proceedings by the way these "claims" appeared in the Panel reque st. We asked the European Communities to 
indicate any prejudice that it had sustained.  The European Communities responded 
as follows: 
The EC takes the view that in all the cases in which it has raised this 
objection its interests have been prejudiced by the lack of adequate notice of the issues.  The scope of the claims that are explicitly made 
in Brazil’s panel request is already exceptionally broad. The EC is 
entitled to the period that elapses between the establishment of the 
panel and the presentation of the complainant’s first written 
Submission to prepare its defence. Such preparation is only possible 
if the complainant adequately specifies its claims in its panel request for incorporation into the terms of reference. 
However, it was evident to us from the pa rticipation of the Eu ropean Communities in 
asserting its views in various phases of thes e Panel proceedings, including in its first 
written submission and in the first Panel meeting and in the exchanges between the 
parties preceding the first Panel meeting on preliminary issues, that the EC's ability to 
defend its elf had not been prejudiced over the course of these Panel proceedings. 
                                                     
 
263 Panel Report, European Communities - Anti-Dumping Duties on Imports Of Cotton-Type Bed Linen 
from India , WT/DS141/R, adopted 12 March 2001, para. 6.25 (emphasis added). 
264 Oral Statement of the United States at the First Panel Meeting, Canada – Measures Relating to 
Exports of Wheat and Treatment of Imported Grain , WT/DS276 (6 June 2003), paras. 6-8. WT/DS268/R 
Page C-58  
 
We therefore consider that the text of th e Panel request adequately indicates the 
nature of the problem addressed  by Brazil's claims and deny the EC request to 
dismiss these allegations made by Brazil .
265 
252. Similar complaints about “having to wait” were equally unavailing in High Fructose Corn 
Syrup : 
Mexico asserts that it had to wait until the first written submission of the United 
States, more than four months after the request for establishment, to have a clear idea 
of what the United States' arguments in support of its assertions were.  Mexico argues 
that as a result of the failure of the United States to present the problem clearly and 
specify the factual and legal basis for the request, it was obliged to spend that time 
working "in the dark".  In its comments on interim review, Mexico asserts that this 
resulted in the expenditure or squandering of resources that could otherwise have 
been devoted to preparing a timely defence.266 
253. At the First Meeting of the Panel, the Panel similarly found that this assertion did not rise to 
the level of prejudice required under DSU Article 6.2:   “We find that Mexico has not demonstrated to 
us that it was prejudiced in its ability to defend its interests in the course of the proceedings in this 
dispute. ”267 
254. The US assertions of “prejudice” in this case  are strikingly similar to those found to be 
insufficient in cases such as EC – Pipe Fittings  and High Fructose Corn Syrup .  As noted in 
Argentina’s Submission on the US Request for Prel iminary Rulings, for the “Page Four” claims, the 
United States argued only that its “ability . . . to begin preparing it s defence was delayed  because, due 
to Argentina’s failure to comply w ith Article 6.2, the United States did not ‘know what case it has to 
answer.’”268  For its challenge to Sections B.1, B.2 and B.3, the US First Submission stated that:  “As 
in the case of Page 4 of Argentina’s panel reques t, the United States’ ability to begin preparing its 
defence has been impaired because, as a result of Ar gentina’s failure to comply with Article 6.2, the 
United States did not ‘know what case it has to answer. ’”269 
255. This is an exceedingly thin argument.  It by  no means constitutes a proven violation of “due 
process rights.”  The Panels in EC - Pipe Fittings  and High Fructose Corn Syrup  did not take 
seriously such unsubstantiated assertions of “prejudice,” and dismissed the Article 6.2 requests.  This 
Panel should follow the prudent course set by these ea rlier panels and similarly reject the US request. 
256. It is also highly relevant to note that earlier Panels, in determining whether the wording of the 
Panel Request caused “prejudice,” have assessed whether there was any prejudice to the interests of 
Third Parties.  This was set out in paragraphs 61 and 62 of Argentina’s Submission on the US Request 
for Preliminary Rulings. 
257. In the present case, none of the Third Parties expressed any concerns about the alleged “lack 
of clarity” of Argentina’s Panel Request – not in the DSB, and not before the Panel. 
258. To the contrary, many of the Third Parties specifically disavowed any difficulties with 
Argentina’s Panel Request: 
                                                      
265 Panel Report, European Communities –  Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe 
Fittings from Brazil, WT/DS219/R, adopted 18 August 2003, paras. 7.22-7.24 (“ EC - Pipe Fittings ”).  The EC 
did not appeal this issue. 
266 Panel Report,  Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the 
United States , WT/DS132/R, adopted 24 February 2000, para 7.16 ( “High Fructose Corn Syrup” ). 
267 Id. (emphasis added). 
268 US First Submission, paras. 97 and 110 (emphasis added). 
269 Id. at para. 110 (emphasis added).  WT/DS268/R 
 Page C-59 
 
 
• the EC stated that the “Panel should not follow the United States suggestion to consider page 4 
. . . in isolation from the rest of the reques t.  Rather, in order to establish whether the 
conditions of Article 6.2 DSU are met, the Pane l should consider the request as a whole.”270  
At the Third Party session, the EC reaffirmed th at “the Panel should assess Argentina’s Panel 
Request as a whole, and not one specific  part of it in isolation from the rest.”271 
• Japan informed the Panel that it “had no pa rticular problem with the panel request of 
Argentina when drafting our third party submission.”272 
• The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu stated that “we did not 
encounter any difficulties related to DSU Article  6.2 in preparing our third party submission 
and oral statement.”273 
• Mexico used even stronger language, advising th e Panel that “el gobierno de Mexico considera 
que dicha solicitud cumple cabalmente con el artículo 6.2 de ESD y que se trata de una táctica 
dilatoria del gobierno de Estados Unidos para retr asar el análisis de este Grupo Especial del 
fondo del asunto.  En caso de que el Grupo Es pecial determine llevar a cabo un procedimiento 
adicional para atender a dichas objeciones, México solicita respetuosamente que se respeten 
sus derechos como tercera parte en esta controversia.”274 
 
259. This leaves the United States alone among WTO Members which ostensibly could not 
“understand” the nature of Argentina’s complaints be cause of the alleged “lack of clarity.”  With no 
support among the Third Parties, the United States wa s reduced to arguing at the First Meeting of the 
Panel that the wording of Argentina’s Panel Reques t prejudiced “potential” third parties.  The Panel 
need not detain itself on this line of argumentati on.  No other Panel in the history of the WTO has 
ever considered anything as remote as prejudice to “potentia l” third parties. 
260. Moreover, the US assertions of “prejudice” have  been amply contradicted by the conduct of 
the United States to date in these proceedings.  The United States submitted a full, substantive (albeit 
unconvincing) submission responding to Argentina’s clai ms and it participated actively in the hearing.  
It will, no doubt, file a similarly detailed second submission, along with responses to the Panel’s 
questions.  Indeed, this kind of active participation at all stages of the panel process was the basis for 
the rejection of similar Article 6.2 requests in Panels such as EC – Bed Linens  (quoted above) and US 
– Lamb Safeguards .275 
261. Finally, to reiterate a point Argentina has made earlier, and as the Canada Aircraft Panel 
made clear, it is not possible to assess the supposed  prejudice to the United States “during the panel 
process” until the end of the panel process.276 
                                                      
270 Third Party Submission of the European Communities, Section 2. 
271 Third Participant’s Oral Statement by the European Communities, WT/DS268, 10 December 2003, 
para. 3. 
272 First Third Party Oral  Statement by Japan , WT/DS268, 10 December 2003, para. 2. 
273 First Third Party Oral Statement by the Separate Customs Territory of Taiwan, Penghu, Kinmen and 
Matsu, WT/DS268, 10 December 2003, page 3. 
274 First Third Party Oral Statement by Mexico, WT/DS268, 10 December 2003, at 2.  The English 
translation of this quotation is as follows:  “The Government of Mexico considers that the referenced panel 
request complies completely with DSU Article 6.2, and that [the Preliminary Objections] represent a delaying 
tactic by the Government of the United States to delay the substantive analysis by this Panel.  In the event that the Panel decides to carry out an additional proceeding to consider the referenced objections, Mexico 
respectfully requests that its rights as a Third Party in this case be respected.” 
275 Panel Report, United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb 
Meat from New Zealand and Australia, WT/DS177, 178/R, adopted 16 May 2001, paras. 5.51-5.53.  
276 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, adopted 
20 August 1999, para. 9.33 (emphasis added). WT/DS268/R 
Page C-60  
 
D. C
ONCLUSIONS  
262. Successful applications under DSU Article 6. 2 are very rare in WTO dispute settlement.  
There is good reason for this:  the Appellate Body has set the standard very high for a request under 
DSU Article 6.2 to be granted. 
263. As noted above, there is no ab stract standard of “clarity” under DSU Article 6.2.  A Panel 
cannot strike claims from a Panel Request because the language used somehow displeases the responding party, or the responding party would have preferred different wording.  A Panel can strike 
claims from a Panel Request only where it concludes that the due process rights
 of the respondent 
have been violated. 
264. The respondent party must prove  that it has suffered actual prejudice  during the course of the 
Panel proceedings as a result of the wording of the panel requests.  Vague assertions by the 
responding party that it had to wait for the complainan t’s first submission clearly will not suffice, and 
have been emphatically rejected by prior panels. 
265. This is particularly the case where, as here, th e United States has filed a full reply to all of 
Argentina’s claims.  Assertions of “prejudice” by the United States are simply not credible. 
266. However, Argentina would emphasize that its defe nce to the Article 6.2 claims of the United 
States by no means rests on the “no prejudice” point alone.  To the contrary, Argentina has 
demonstrated, both in its Submission on the US Request for Preliminary Rulings and in this 
Submission, that the wording of its claims were entirely clear – a point on which the Third Parties 
agree. 
267. To apply what the Appellate Body said in Korea Dairy , it is unquestionable that the United 
States “had not been misled as to what claims were in fact being asserted against it as respondent.”277 
268. Argentina therefore respectfully requests the Pane l to dismiss the US preliminary requests and 
to adjudicate Argentina’s substantive claims entirely on the merits. 
VII. CONCLUSION 
269. Argentina refers the Panel to the specific requ ests it made of the Panel as set forth in 
paragraphs 314-323 of Argentina’s First Submission.  Argentina incorporates those requests in full.  
In sum, Argentina respectf ully requests the Panel: 
• to find that in this case the US measures identified by Argentina, as such and as applied, 
violate US WTO obligations; 
• to recommend that the United States brings its measures found to be inconsistent with the 
covered agreements into conformity with its WTO obligations; and 
• to suggest, pursuant to DSU Article 19.1, that  the only way for the United States to comply 
with these recommendations is through the immediate termination of the anti-dumping measure on OCTG from Argentina. 
 
270. As Argentina’s First and Second Submissions  demonstrate, the Department’s and the 
Commission’s sunset determinations viol ate US obligations under Article 11.3. 
271. In December, the Appellate Body reaffirmed th at termination of an anti-dumping duty is the 
primary obligation of Article 11.3, that it is a “ma ndatory rule,” that continuation of the duty is the 
exception to this rule, and that this exception may be invoked only when the specified conditions for 
                                                     
 
277 Appellate Body Report, Korea Dairy , para. 123 (" Korea Dairy ").  WT/DS268/R 
 Page C-61 
 
 
continuing the duty are satis fied, and that “[i]f any one of these conditions is not satisfied, the duty 
must be terminated.”278 
272. With respect to the likelihood of dumping determination, the United States has developed 
three different procedures to impl ement its Article 11.3 obligation, each depending on the perceived 
level of participation in the process.  In the end, it does not matter  which procedure the United States 
uses.  Regardless of the procedural route, the De partment applies mandatory criteria which prevent 
precisely the type of factual and legal review th at Article 11.3 requires in order to invoke the 
exception to termination.  The Appellate Body leaves no doubt that “authorities must conduct a 
rigorous examination in a sunset review before the exception (namely, the continuation of the duty) 
can apply.” 279  The Appellate Body emphasized “the exacting nature of the obligations imposed on 
authorities under Article 11.3 . . . .” 280 
273. Rather than satisfy the “exacting” obligations of Article 11.3, the Department gives decisive 
and preponderant weight to the existence of dump ing margins and to declin es in import volume.  
Indeed, in discussing these very factors from the Sunset Policy Bulletin , the Appellate Body stated 
that the issue was “whether Section II.A.3 goes further and instructs USDOC to attach decisive or preponderant weight to these two factors in every case.”
 281  Argentina’s Exhibits ARG-63 and ARG-
64 demonstrate that, in fact, the Department give s “decisive and preponderant” weight to these two 
factors in every single case in which the domestic  industry participated.  Indeed, the US authorities’ 
failure to satisfy Article 11.3 obliga tions can be seen plainly in this case, and in all the other cases in 
which the US industry has expressed an interest.  There is no substantive analysis with respect to the 
likelihood of dumping determination – let alone a “rigorous examination.”  There is no positive 
evidence from which to infer likely behaviour.  In the end, there is neither the “review” nor 
“determination” required by Article 11.3.  As the Ap pellate Body explained, “[p]rovisions that create 
‘irrebuttable’ presumptions, or ‘predetermine’ a particular resu lt, run the risk of being found 
inconsistent with this type of obligation.”282 
274. The 1.36 per cent margin from the original investigation – calculated on the basis of zeroing – 
and the decline in import volumes are an insufficient basis for the Department’s determination that dumping would be likely to continue.  The Appella te Body spoke directly to reliance on zeroing and 
explained that such reliance would “taint” the like lihood determination under Article 11.3, and could 
not constitute the proper foundation for the likelihood determination.
283  
275. With respect to the likelihood of injury dete rmination, the Commission fails to apply the 
correct legal standard – a “likely” standard.  The Commission’s determination in this case rests on the 
notion that, because there was a finding of injury in th e original investigation, so it must be that injury 
is “likely” to continue or recur in the event of term ination.  This case is a clear example of the varied 
uses of “possible” scenarios to support a finding of “likely” injury. 
276. In its closing statement at the First Substantive Meeting, the United States warned of the 
dangers of creating additional obli gations through dispute settlement.  Such an approach, the United 
States admonished, would violate the rule in DSU Article 3.2 that panel rulings cannot add to the Members’ obligations.  Argentina does not disagree, but notes that the United States focuses on only 
half of the story.  The very same sentence refe rred to by the United States also stands for the 
proposition that “rulings of the DSB cannot . . . diminish the rights . . . provided in the covered 
                                                     
 
278 Appellate Body Report, Sunset Review of Steel from Japan , para. 104. 
279 Id. at para. 113. 
280 Id. 
281 Id. at para. 176. 
282 Id. at para. 191. 
283 Id. at para. 130. WT/DS268/R 
Page C-62  
 
agreements.”
284  The Appellate Body has contributed importantly to clarifying the meaning of the 
rights and obligations comprised in Article 11.3.  Ar gentina submits that it had a right to termination 
of this measure and that the United States could continue the measure only by making findings 
consistent with Articles 11.3, 2, 3, 6, and 12 of the Anti-Dumping Agreement.  This, the United States 
did not do, and as a result, the DSB must restore the right conferred to Argentina under Article 11.3, 
which is termination of the measure. 
 
 
 
 
                                                      
284 See Argentina’s First Submission, para. 8.   WT/DS268/R 
 Page C-63 
 
 
ANNEX C-2 
 
SECOND WRITTEN SUBMISSION OF THE UNITED STATES 
 
8 January 2004 
  
TABLE OF CONTENTS 
Page
 
I. INTRODUCTION ..................................................................................................................6 4 
II. REVIEW OF KEY APPELLATE BODY FINDINGS IN JAPAN SUNSET ....................65  
III. OVERVIEW OF COMMERCE'S EXPEDITED SUNSET PROCEDURES ...................66  
A. THE AVAILABILITY OF REVOCATION PROCEDURES PRIOR TO INITIATION OF A SUNSET 
REVIEW ............................................................................................................................... .......66  
B. THE DECISION TO EXPEDITE ......................................................................................................66  
1. Solicitation and evaluation of substantive responses ...........................................................67  
2. Assessment of adequacy ......................................................................................................... 68 
C. RECORD EVIDENCE IN AN EXPEDITED SUNSET REVIEW ............................................................68  
IV. ARGENTINA HAS NOT MET ITS BURDEN OF DEMONSTRATING THAT 
COMMERCE'S SUNSET REVIEW PROCEDURES ARE INCONSISTENT 
WITH ARTICLE 11.3 AND ARTICLE 6 ............................................................................69  
V. ARGENTINE RESPONDENT INTERESTED PARTIES DID NOT TAKE ADVANTAGE OF THE FULL OPPORTUNITY TO DEFEND THEIR 
INTERESTS...................................................................................................................... ......70
 
A. REVIEW OF RESPONDENT INTERESTED PARTIES ' OPPORTUNITIES TO SUBMIT FACT AND 
ARGUMENT IN THESE PROCEEDINGS .........................................................................................70  
B. ARGENTINA 'S CLAIMS REGARDING THE ANTI-DUMPING AGREEMENT ....................................71  
VI. ARGENTINA HAS NOT DEMONSTRATED THAT THE ITC'S SUNSET 
REVIEW PROCEDURES ARE INCONSISTENT WITH THE ANTI-
DUMPING AGREEMENT....................................................................................................72  
A. THE "LIKELY " STANDARD OF ARTICLE 11.3 .............................................................................72  
B. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT DOES NOT APPLY TO SUNSET 
REVIEWS ............................................................................................................................... .....73  
C. CUMULATION IN SUNSET REVIEWS ...........................................................................................75  
D. CONTRARY TO ARGENTINA 'S ASSERTIONS , THE ITC  PROPERLY ESTABLISHED THE 
RELEVANT FACTS AND ITS ASSESSMENT  OF THOSE FACTS WAS OBJECTIVE .............................76  
VII. CONCLUSION ..................................................................................................................... ..80 
 WT/DS268/R 
Page C-64  
 
I. INTRODUCTION 
1. Given the comprehensive nature of the Pa nel’s questions regarding the Department of 
Commerce’s ("Commerce") sunset review procedures, the United States will use this submission to 
place Argentina’s claims regarding those proce dures (1) within the perspective of the WTO 
agreements regarding sunset reviews; (2) in the co ntext in which sunset reviews are conducted in the 
United States; (3) in terms of the actual sunset revi ew procedures, in particular, the decision whether 
to expedite; and (4) in terms of this particular s unset review.  In so doing, the United States will 
reconfirm that, no matter how they are analyzed, Argentina’s as such
 and as applied  claims regarding 
those procedures are baseless. 
 2. Because these claims are baseless, Argentina has sought to colour the proceedings by alleging 
a series of "irrefutable presumpti ons" in US sunset review law.  As this submission will make clear, 
Commerce provides ample opportunity for parties to "refute" evidence on the record and findings 
made in the course of the sunset review.  A party’s failure to attempt to refute a finding does not make 
that finding irrefutable; it simply means the party ha s not availed itself of the opportunity to present 
facts and arguments.  Article 11.3 of the Agreement on Implementation of  Article VI of the General 
Agreement on Tariffs and Trade 1994  ("Anti-Dumping Agreement") do es not prescribe specific 
methodologies with respect to sunset reviews; instea d, it requires Members to afford interested parties 
the full opportunity for a defence of their interests.
1  US sunset review law complies with this 
requirement. 
 3. The general tenor of Argentina’s position with  respect to Commerce’s determination in this 
particular sunset review is that the review was conducted unfairly because Siderca was the "only 
exporter" of OCTG during the original investigatio n, yet Commerce found that Siderca did not meet 
the 50 per cent threshold normally used to assess whether to conduct an expedited or full  sunset 
review.
2  Notwithstanding the significant fact that Siderca ignored more than one opportunity to 
suggest a different outcome, the United States notes that there is  a second Argentine exporter of 
OCTG to the United States; this exporter did not respond to the notice of initiation.3  
 
4. The United States is concerned that if the Panel adopts Argentina’s arguments, it will create 
an incentive for respondent interested parties to pa rticipate minimally, if at all, in sunset review 
proceedings.  According to Argen tina’s arguments, respondent interested parties should be permitted 
to refuse to participate fully in a sunset review, an d then later have a WTO panel find that the results 
of that review are not consistent with WTO obligations.  The United States does not believe that the 
Anti-Dumping Agreement permits respondent interest ed parties to bootstrap investigating authorities 
into revoking orders by participating minimally, if at all, in the proceedings.  Indeed, the Appellate 
Body in Japan Sunset has made specific reference to the "pro minent role" of interested parties in 
sunset reviews because they often have the "best evidence" of their likely future pricing behaviour.4 
 
                                                      
 1 See e.g., United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel 
Flat Products from Japan , WT/DS244/AB/R, Report of the Appellate Body, circulated 15 December 2003 
("Japan Sunset"),  para. 123. 
 2 First Written Submission of Argentina, para. 151. 
 3 The United States notes the care with which Siderca described itself in its substantive response to the 
initiation of the sunset proceedings: "Siderca is the only producer of seamless OCTG in Argentina.  To Siderca’s 
knowledge , there is no other producer of OCTG in Argentina."  Substantive Response of Siderca to the 
Department’s Initiation of Sunset Review of the AD Order on OCTG from Argentina (2 August 2000) at 3 (emphasis added).  (Exhibit ARG-57.)  Siderca carefully qualified the latter statement, and only the latter 
statement.  The United States understands Acindar, the other Argentine producer, to manufacture welded 
OCTG, rather than seamless OCTG. 
 4 Japan Sunset, para. 199.  WT/DS268/R 
 Page C-65 
 
 
5. The United States believes that the facts and argument presented in this proceeding confirm 
that Commerce makes appropriate procedures available to respondent interested parties so that they 
may defend their interests in sunset  review proceedings.  This submission will provide the following 
in support thereof:  A review of the Appellate Body’s pertinent findings in Japan Sunset ; an overview 
of US law governing Commerce’s conduct of sunset  reviews; a demonstration that the law is 
consistent with the Anti-Dumping Agreement; and a discussion of respondent interested parties’ 
participation in the part of the review relating to the determination of likelihood of dumping. 
 
6. This submission also addresses the determina tion by the US International Trade Commission 
("ITC") that revocation of the duties would be likely to  lead to continuation or recurrence of injury.  
Specifically, the submission responds to arguments ma de by Argentina in its oral statement at the 
Panel’s first meeting and to certain points raised by  third parties in their written submission and oral 
statements regarding the ITC’s injury determination. 
 
II. REVIEW OF KEY APPELLATE BODY FINDINGS IN JAPAN SUNSET  
7. In Japan Sunset , various aspects of the US sunset review regime were challenged, requiring 
the Appellate Body to examine the nature of the obligations arising from Article 11.3 of the Anti-
Dumping Agreement.  By closely reviewing the language of Article 11.3 and comparing it with 
language in other provisions of the Agreement, in cluding Article 11.2, the Appellate Body concluded 
that "Article 11.3 does not prescribe any partic ular methodology to be used by investigating 
authorities in making a likelihood de termination in a sunset review;"5  "WTO Members are free to 
structure their anti-dumping systems as they chose, provided that those systems do not conflict with 
the provisions of the Anti-Dumping Agreement."6  Furthermore: 
 
Article 11.3 does not expressly state that i nvestigating authorities must determine that 
the expiry of the duty would be likely to lead to dumping by each known exporter or 
producer concerned.  In fact, Article 11.3 contains no express reference to individual 
exporters, producers, or interested parties . . . .  We also note that Article 11.3 does 
not contain the word ‘margins’ . . . .7 
The Appellate Body thus confirmed that a sunset review is fundamentally different from both 
an original investigation and an administrative review. 
 
8. Based on this assessment, the Appellate Body al so concluded that in a sunset review there is 
no "obligation for investigating authorities to make their likelihood determination on a 
company-specific basis."8  The Appellate Body therefore upheld  the right of the United States to 
conduct sunset reviews on an order-wide basis. 
 
9. The Appellate Body further confirmed the signifi cant role that respondent interested parties 
play in sunset review proceedings, an issue that is at the heart of this particular dispute.  Indeed,  
 
the Anti-Dumping Agreement assigns a promin ent role to interested parties as well 
and contemplates that they will be a primar y source of information in all proceedings 
conducted under the Agreement.  Company-sp ecific data relevant to a likelihood 
determination under Article 11.3 can often only be provided only by the companies themselves.  For example, as the United States points out, it is the exporters or 
                                                     
 
 5 Japan Sunset,  para. 149. 
 6 Japan Sunset,  para. 158. 
 7 Japan Sunset,  para. 149. 
 8 Japan Sunset,  para. 155. WT/DS268/R 
Page C-66  
 
producers themselves who often possess the best evidence of their likely future 
pricing behaviour – a key element in the likelihood of future dumping.
9 
10. Similarly, the Appellate Body recognized the importance of the administrative review 
process, which provides parties with the opportunity to request revocation of an anti-dumping duty 
order with respect to a particular exporter or producer.10  
 
11. Because of a direct reference in Article 11.4, the Appellate Body concluded that the 
provisions of Article 6 regarding evidence and procedure apply to sunset review proceedings, a 
position with which the United States has agreed.  Accordingly, "Article 6 requires all interested 
parties to have a full opportun ity to defend their interests."11  Bearing in mind that it is Argentina’s 
burden to prove that the US sunset review proceedings do not  comply with Article 6, the United 
States will nevertheless demonstrate that its sunset  review proceedings provide a full opportunity for 
interested parties to defend their interests. 
 III. OVERVIEW OF COMMERCE'S EXPEDITED SUNSET PROCEDURES 
12. Prior to delving into the specific sunset re view procedures of the United States, it bears 
repeating that a sunset review occurs only after affirmative determinations  of dumping and injury 
have been made.  Moreover, individual companies are provided the opportunity to have orders 
revoked in part, i.e., with respect to that individual company, prior to the initiation of a sunset 
proceeding.  
 A. T
HE AVAILABILITY OF REVOCATION PROCEDURES PRIOR TO INITIATION OF A SUNSET REVIEW  
13. Specifically, revocation for a particular company from an anti-dumping duty order is possible 
by two methods under US law (revocations of anti-du mping duty orders, in part , are generally termed  
"company-specific" revocations in US parlance).   The first and most common method is for a 
producer or exporter to seek revocation pursuant to section 351.222(b)(2) of  Commerce’s 
Regulations, i.e.,  after three annual administrative reviews wh erein Commerce has calculated, in each 
review, a dumping margin of zero or de minimis  for the producer or exporter seeking revocation.   
 
14. The second method for a producer or exporter seeking revocation is the "changed 
circumstances" review.12  Under this method, a producer or e xporter may request a review at any time 
after providing information that changed circum stances warrant a review for the purposes of 
revocation of an anti-dumping duty order.   
15. Thus, a producer or exporter may seek revocation for itself from an anti-dumping duty order prior to the initiation of a sunset review.  The Appellate Body in Japan Sunset  recognized the 
importance of the availability of these procedures in  ensuring that an anti-dumping duty remain in 
force only so long as and to the extent necessary to counteract dumping which is causing injury.
13  In 
this context, the United States co nducts its sunset reviews on an order-wide, rather than company-
specific, basis. 
 
B. THE DECISION TO EXPEDITE  
16. With regard to sunset reviews themselves, Co mmerce will conduct either an expedited or a 
full review.  The decision whether to conduct an expe dited or full sunset review is based on a two-part 
                                                      
 9 Japan Sunset, para. 199. 
 10  Japan Sunset , para. 158. 
 11 Japan Sunset , para. 152. 
 12 Section 751(b) of the Tariff Act of 1930 (Exhibit ARG-1), codified at 19 C.F.R. § 351.216.  
 13 Japan Sunset , para. 199.  WT/DS268/R 
 Page C-67 
 
 
procedure:  (1) Solicitation and evaluation of indi vidual substantive responses (including waivers); 
and (2) Assessment of the adequacy of the aggregate response. 
 1. Solicitation and evaluation of substantive responses 
17. In its notice of initiation, Commerce solicits su bstantive responses from respondent interested 
parties.  These responses are due not later than 30 days after publication of the notice of initiation.
14 
 
18. Commerce examines each substantive response submitted by a domestic or respondent 
interested party to assess whether it is complete, i.e.,  whether it contains the information specified in 
the regulations.15  A "complete" substantive response normally must contain the limited information 
required by section 351(d)(3)(ii) of the Sunset Regulations .  
 
19. In terms of responses, section 751(c)(4)(A) of the Tariff Act of 1930 ("the Act") specifically 
provides a respondent interested party with an op portunity to affirmatively "waive" participation in 
the Commerce proceeding thereby affording the re spondent interested party the opportunity to 
concentrate its resources on addressing the ITC’s determination of likelihood of the continuation or 
recurrence of injury.16  In addition, section 351.218(d)(2)(iii) of the Sunset Regulations provides that 
Commerce will consider a failure by a respondent in terested party to submit a complete substantive 
response, whether based on no submission or submissi on of an incomplete response, as a waiver of 
that party’s participation in Commerce’s sunset review.17  
 20. Consequently, each Commerce determination co ncerning the completeness of the substantive 
response filed by the respondent interested party would be based on one of three sets of 
circumstances: (1) no submission of a substantive response based on an affirmative "waiver" 
statement by the respondent interested party that it did not wish to participate in Commerce’s sunset 
proceeding; (2) a finding that the respondent interested party is "deemed" to have waived its right to 
participate based on the submission of an incomplete substantive response or th e failure of the party to 
submit any substantive response; and (3) a finding that the respondent interested party submitted a complete substantive response. 
 
21. In the first two circumstances, Commerce would make a finding that the failure to submit any 
substantive response or to submit an incomplete substantive response constitutes an incomplete 
substantive response from the particular respondent interested party who faile d to submit a substantive 
response or who submitted an incomplete substant ive response.  When Commerce determines that a 
respondent interested party has waived its right to participate, Commerce is directed by 
section 751(c)(4)(B) of the Act to make an affi rmative finding of likelihood of continuation or 
recurrence of dumping for that respondent interested party.
18  This is not  a determination of likelihood 
for the entire order. 
 
                                                      
 14 19 C.F.R. 351.218(d)(3)(i) (Exhibit ARG-3). 
 15 See 19 C.F.R. 351.218(e) (Exhibit ARG-3) and Preamble, 63 Fed. Reg. at 13518 (Exhibit US-3).   
 16 See 19 U.S.C. 1677(c)(4)(A) & (B); SAA at 880 (E xhibit US-11); and 19 C.F.R. 351.218(d)(2)(i) & 
(ii) (requirements for notice of waiver) (Exhibit ARG-3).   
 17 19 C.F.R. 351.218(d)(2)(iii) ("de emed waiver") (Exhibit ARG-3). 
 18 See section 751(c)(4)(B) of the Act, providing that the affirmative likelihood determination resulting 
from the waiver described in section 751(c)(4)(A) only applies "with respect to that party."  19 U.S.C. §  
1675(c)(4)(B) (Exhibit ARG-1); see also, SAA at 881 ("If Commerce receives such a waiver, Commerce will 
conclude that revocation or termination would be likely to lead to continuation or recurrence of dumping or 
countervailable subsidies with respect to that submitter.") (emphasis added) (Exhibit US-11). WT/DS268/R 
Page C-68  
 
2. Assessment of adequacy 
22. Once Commerce has determined which responde nt interested parties have filed complete 
substantive responses, Commerce will then normally evaluate whether the aggregate response to the 
notice of initiation, by the respond ent interested parties who filed co mplete substantive responses, is 
"adequate."
19  The so-called 50 per cent threshold, provided in section 351.218(e)(1)(ii)(A) of the 
Sunset Regulations , is normally used to make this aggregate adequacy determination.20 
 
23. In order to determine the adequacy of the aggregate response to the notice of initiation, 
Commerce sums, for the five years preceding the s unset review, the export volumes of the subject 
merchandise of all the respondent interested partie s who filed complete subs tantive responses to the 
notice of initiation.  If the export volumes represen ted by the respondent inte rested parties, in the 
aggregate, are more than 50 per cent of the total exports of the subject merchandise during the five 
year period, Commerce will normally find that the aggregate response to the notice of initiation is 
"adequate" and will conduct a full sunset review.  If the export volumes represented by the respondent 
interested parties, in the aggregat e, are not more than 50 per cent of the total exports of the subject 
merchandise during the five year period, Commerce will normally find that the aggregate response to the notice of initiation is "inadequate" and will conduct an expedited sunset review (although 
Commerce has made exceptions, as discussed in the US response to question 1 of the Panel). 
 
C. R
ECORD EVIDENCE IN AN EXPEDITED SUNSET REVIEW  
24. Section 751(c)(3)(B) of the Act states that where interested parties collectively provide an 
inadequate response to a notice of initiation, Commer ce may issue, without further investigation, a 
final determination based on the facts available.21  It should be noted that in this context, the facts 
available include information provided in complete  and incomplete substantive responses, as well as 
prior determinations.22  Contrary to Argentina’s assertion, facts available in this context is not  a 
"euphemism for adverse inferences"23 under section 351.308(f), applicable to sunset reviews.  
Interested parties who submitted complete substant ive responses are afford ed an opportunity to 
submit comments on Commerce’s adequacy determination pursuant to section 351.309(e) of the 
Sunset Regulations .  After consideration of these intere sted party comments on the adequacy 
determination, if Commerce still finds that the aggr egate response to the notice of initiation is not 
more than 50 per cent of the total imports, then Commerce normally will conduct an expedited sunset 
                                                      
 19 See Sunset Policy Bulletin, 63 Fed. Reg. at 18872 (Exhibit ARG-35).  An "adequate" number of 
substantive responses normally is required, because Commerce makes its likelihood determination on an 
order-wide basis. 
 20 Section 751(c)(3) of the Act leaves to Commerce’s discretion the choice of methodology for 
determining when the response from interested parties to the notice of initiation is "adequate" for the purposes of conducting a full sunset review.  See SAA at 880 (in many cases, some but not all parties will respond; nevertheless, where parties demonstrate a "sufficient willingness to participate," the agency will conduct a full 
sunset review) (Exhibit US-11).  Consequently, Comm erce promulgated section 351.218(e)(1)(ii) of the Sunset 
Regulations to codify the 50 per cent threshold test and to give effect to section 751(c)(3) of the Act.  See 
Preamble, 63 Fed. Reg. at 13518. (Exhibit US-3).   
 
21 The SAA in discussing section 751(c)(3) states that this provision "is intended to eliminate needless 
reviews. This section will promote administrative efficiency and ease the burden on agencies by eliminating 
needless reviews while meeting the requirements of the [Anti-Dumping and SCM] Agreements.  If parties provide no or inadequate information in response to a notice of initiation, it is reasonable to conclude that they 
would not provide adequate information if the agencies conducted a full-fledged review.  However, where there 
is sufficient willingness to participate and adequate indication that parties will submit information requested throughout the proceeding, the agencies will conduct a full review."  SAA, at 880 (Exhibit US-11). 
 
22 Section 351.308(f)(2)( Exhibit US-27 ). 
 23 Argentina's Oral Statement, para. 7.  WT/DS268/R 
 Page C-69 
 
 
review and base the final sunset determination on the facts available in accordance with section 
751(c)(3)(B) of the Act.24 
 
25. In making the order-wide final sunset de termination in an expedited sunset review, 
Commerce will rely on all information on the admi nistrative record of the sunset proceeding, 
including information in the substantive responses and rebuttal responses of the domestic interested 
parties, prior agency determinati ons, as well as the information su bmitted by respondent interested 
parties in their substan tive and rebuttal responses.25  Commerce normally  will not accept additional 
submissions from any interested party, whether dome stic or respondent, after that interested party’s 
substantive submission is found to be in complete.  Neverthele ss, any information  submitted by an 
interested party in its substantive response is considered by Commerce when Commerce makes the 
final determination in an expedited sunset review, even in a case where the particular substantive 
response was found to be incomplete.26 
 
26. At the conclusion of the sunset review, Commerce publishes the Final Sunset Determination , 
announcing the final likelihood determination, and issues a Decision Memorandum  explaining the 
issues decided in the sunset review (including the likelihood determination), the methodologies 
employed, and factual bases supporting the final determination. 
 
IV. ARGENTINA HAS NOT MET ITS BURDEN OF DEMONSTRATING THAT 
COMMERCE'S SUNSET REVIEW PROCEDURES ARE INCONSISTENT WITH ARTICLE 11.3 AND ARTICLE 6 
27. WTO Members are free to structure their sunset reviews as they choose, provided the reviews 
do not conflict with the Anti-Dumping Agreement.
27  Argentina bears the burden of proving that 
Commerce’s sunset review procedures conflict with the Anti-Dumping Agreement.   
 
28. In this dispute, Argentina claims that Co mmerce’s expedited "waiver" procedures violate 
Article 11.3 because a "waiver" mandates a finding of dumping through the application of "facts available."
28  Not only does Article 11.3 state nothing about findings and facts available, but 
Argentina’s claim is essentially a simple mischaracterization of the procedures themselves.  In 
addition, Argentina has not demonstrated that Comm erce’s expedited procedures mandate a finding of 
likely dumping simply because section 751(c)(3)(B) of the Act and section 351.308 of the Sunset 
Regulations provide that Commerce normally may rely on the "facts available" when making the final 
sunset determination in cases where the respondent interested parties do not demonstrate sufficient 
interest in participating in the sunset review.  Sec tion 351.308(f) clearly defines "the facts available" 
as prior agency determinations, the information subm itted by the interested parties (notwithstanding 
whether their submissions were "complete"), and an y other information on the administrative record.  
As demonstrated above, there is no negative inference to be associated with the use of the term "facts 
available" in this context.  It simply defines all the  information on the record and provides that the 
                                                      
 24 Section 351.218(e)(1)(ii)(C)(2) of the Sunset Regulations provides that Commerce may base its final 
sunset determination on "the facts available" without further investigation in a case where the aggregate 
respondent interested parties is inadequate or Commerce may exercise its discretion and conduct further investigation.  The decision whether to conduct further investigation in an expedited sunset review is left to 
Commerce’s discretion.  See SAA at 879-880 (Exhibit US-11).  
 25  See section 351.308(f)(1) of the  Sunset Regulations (definition of "the fa cts available") (Exhibit 
US-27).  If a respondent interested party submitted a statement of waiver or was deemed to have waived due to 
its failure to submit any substantive response to the notice of initiation, then, obviously, there would be no 
information from that respondent interested party for Commerce to consider in making the final sunset determination. 
 26 See section 351.308(f)(2) of the Sunset Regulations  (Exhibit US-27). 
 27 Japan Sunset,  para. 158. 
 28 Argentina's Oral Statement, para. 47. WT/DS268/R 
Page C-70  
 
final sunset determination in an expedited review wi ll be made on the basis of all the information on 
the administrative record of that review.  Section 751(c)(3)(B) of the Act and section 351.218 of the 
Sunset Regulations require that the sunset de termination be made using all the information on the 
administrative record.   
 
29. Argentina has also claimed that the expedited sunset procedures violate the obligations in  
Articles 6.1 and 6.2 of the Anti- Dumping Agreement.  In this regard, Argentina has made no 
demonstration that the expedited procedures, as such, preclude interested parties from submitting 
evidence or having a full opportunity to defend their interests.
29  Instead, as illustrated above, the 
expedited sunset procedures provide interested parties with the opportunity to submit a substantive response containing any information the party wishes  Commerce to consider, to submit a rebuttal 
substantive response, to submit comments on Commerce’s adequacy determination, and to request 
extension of deadlines for the submission of factual information.  Consequently, Argentina has not 
shown how the expedited sunset procedures preclu de any interested party from having a full 
opportunity to defend its interests.  The United States  notes that Members are merely required to offer 
respondent interested parties the opportunity to defe nd their interests; the United States is not required 
to ensure that respondent interested part ies take advantage of that opportunity. 
 
30. Simply put, Argentina has not met its burden of demonstrating how the expedited sunset 
procedures, as such, preclude WTO-consistent action or mandate WTO-inconsistent action. 
 
V. ARGENTINE RESPONDENT INTERESTED PARTIES DID NOT TAKE 
ADVANTAGE OF THE FULL OPPORTUNITY TO DEFEND THEIR INTERESTS 
31. Because Article 11.3 does not prescribe detailed criteria for conducting sunset reviews, but 
rather sets forth minimal obligations with respect to evidence and procedure, the question in this 
dispute essentially is whether Arg entina has demonstrated that Commerce did not provide respondent 
interested parties the opportunity to participate in the review and present evidence.  A review of the 
proceedings will reveal that the re spondent interested parties simply  failed to take advantage of the 
opportunities available to them. 
 
A. R
EVIEW OF RESPONDENT INTERESTED PARTIES ' OPPORTUNITIES TO SUBMIT FACT AND 
ARGUMENT IN THESE PROCEEDINGS  
32. On 3 July 2000, Commerce published its notice of initiation of the sunset review of the anti-
dumping duty order on certain OCTG from Argentina.30  In the notice, Commerce, as is its normal 
practice, highlighted the deadline for filing a s ubstantive response in the sunset review and the 
information that was required to be contained in the response.31  Commerce also explicitly referred 
parties to the applicable regulation concerni ng requests for an extension of filing deadlines.32  On 
2 August 2000, a domestic interested party filed a response to the notice of initiation providing, inter 
alia, statistics indicating imports of Argentine OCTG during the period of review.  That same day, 
Siderca filed a substantive response in which it stated that it had "no share of total exports of subject 
                                                      
 29 See, e.g. , Argentina's Oral Statement, para. 48. 
 30 Initiation of Five-Year ("Sunset") Reviews of Anti-Dumping and Countervailing Duty Orders or 
Investigations of Oil Country Tubular Goods ("Sunset Initiation "), 65 FR 41053, 41054  (3 July 2000) (Exhibit 
ARG-44). 
 31 Sunset Initiation .  The information requirements concerning substantive responses to notices of 
initiation of sunset reviews are set forth at 19 C.F.R. 351.218(d)(3) (Exhibit ARG-3).  
 32 Sunset Initiation .  19 C.F.R. 351.302(c) provides that a party may request an extension of a specific 
time limit.  19 C.F.R. 351.302(b) provides that unless expressly precluded by statute, Commerce may, for good 
cause, extend any time limit established by its regulations.  The US anti-dumping duty statute does not contain 
deadlines for submission of information in a sunset review (Exhibit US-3).  WT/DS268/R 
 Page C-71 
 
 
merchandise" during the period of review.33  Siderca did not file a rebuttal submission, as it was 
entitled to do.34  Therefore, Siderca permitted the record to indicate that there were imports of subject 
merchandise, for which cash deposits were paid purs uant to the anti-dumping order, and that Siderca, 
the lone respondent interested party that filed a su bmission, did not account for 50 per cent of those 
imports.  Siderca did so even though the regulations  clearly provide that under such circumstances, 
Commerce will "normally"  expedite the review. 
 
33. Siderca’s failure to seize its opportunities continued.  On 22 August 2000, Commerce issued 
an Adequacy Memorandum, in whic h it recited the facts received t hus far in the proceeding (i.e.,  
imports of subject merchandise together with an ad mission by the sole respondent interested party to 
file a submission that it was not responsible for any  of the imports) and concluded that Siderca did not 
account for 50 per cent of imports of the subject me rchandise.  Siderca did not file a response to the 
Adequacy Memorandum, as it was entitled to do pursua nt to section 351.309(e). Not having received 
a response to its Adequacy Memorandum, Commerce then proceeded with an expedited review, as 
contemplated by the regulations to which Siderca was privy.  
 34. The facts on the record – as Siderca allowed them to stand – therefore supported a finding of 
dumping during the life of the order.  Commerce found that dumping duties were levied and collected, 
at the dumping margins assigned in the original inve stigation, against Argentine OCTG imported into 
the United States during the five-year period preceding the sunset review.  Commerce also examined 
import data from several sources, including the Cens us Bureau Statistics and the ITC Trade Database, 
and found that US imports of Argentine OCTG had declined substantially immediately after the order 
was imposed and remained at depressed levels for the entire five-year period prior to the sunset 
review.  Based on these findings and absent any ev idence or argument from Siderca to the contrary, 
Commerce concluded that dumping by Argentine e xporters was likely to continue or recur in the 
event of revocation of the order.
35 
 
35. In this regard, Argentina’s allegation that its "treatment in the sunset review depended entirely 
on the assumption that the US statistics were correc t, that there were other exports from Argentina, 
and that these alleged other exports were releva nt enough to trigger a waiver and/or expedited 
review"36 is wrong.  Argentina’s "treatment in the suns et review" is the direct result of the meagre 
participation of its foreign exporters.  Moreover, the United States notes that as the government of the 
country in which subject merchandise was produced, Argentina was an interested party and could 
have participated in the proceedings, had it chosen to do so.37  
 
B. ARGENTINA 'S CLAIMS REGARDING THE ANTI-DUMPING AGREEMENT  
36. Argentina claims that Commerce’s sunset determination in OCTG from Argentina is not 
consistent with Article 11.3 because a sufficient factual basis does not exist to support the final 
affirmative determination.38  As noted above, Commerce created a factual record, including 
substantive responses from interested  parties and prior proceedings.   
 
37. Argentina relies heavily on the argument th at the 1.36 per cent margin from the original 
investigation is flawed because it was calculated in  1995 (it is "old") and the margin was calculated 
using an allegedly WTO-inconsistent methodology.  However, the Appellate Body in Japan Sunset  
has concluded that Members are not obligated to calculate "new" dumping margins.39  They are 
                                                      
 33 Page 4, (Exhibit ARG-57). 
 34 19 C.F.R. 351.218(d)(4) (Exhibit ARG-3). 
 35 Decision Memorandum  at 4-5 (Exhibit ARG-51).  
 36 Argentina's Oral Statement, para. 43. 
 37 Section 771(9) of the Tariff Act of 1930. 
 38 Argentina's Oral Statement, paras. 69-70.  
 39 Japan Sunset,  para. 149. WT/DS268/R 
Page C-72  
 
merely obligated to provide respondent interested parties opportunities to offer evidence in support of 
negative likelihood determination.  Therefore, the magnitude
 of dumping is not pertinent to making a 
determination with re gard to likelihood  of dumping.40  
 
38. Argentina also maintains that Commerce violated Article 6 because the expedited review 
procedures deprived Siderca of th e opportunities for evidence submission and the defence of its rights 
under Article 6.1 and Article 6.2 of the Anti-Dumping Agreement.  Argentina alleges, in particular, 
that the nature of Commerce’s expedited sunset review in OCTG from Argentina denied Siderca a 
meaningful opportunity to submit evidence and impermissibly limited its ability to submit additional 
argument or factual information in defence of its interests.41  As discussed above, Siderca had more 
than one meaningful opportunity to defend its intere sts.  In its substantive submission, Siderca could 
have included any  information to indicate to Commerce th at there were no aggregate consumption 
imports of OCTG during the period of review, or that Commerce should not use the 50 per cent 
threshold in this particular case.  Instead, Side rca simply focused on the magnitude of the dumping 
margin.  Similarly, Siderca could have filed a rebu ttal response to dispute or explain the statistics 
provided by the domestic interested party, whic h showed imports of subject merchandise; at that 
point, Siderca knew that, based on the record evid ence, it would not satisfy the 50 per cent threshold 
normally used, based on Siderca’s own lack of shipment s.  Further, Siderca failed to response to the 
Adequacy Memorandum, which it was entitled to do.  Again, the fact that respondent interested 
parties (again recalling that there are two Argentine exporters of OCTG) failed to take advantage of 
their opportunities does not mean that th e United States failed to provide them. 
 39. In sum, there is no basis for Argentina’s claim that Commerce’s expedited sunset review 
procedures impermissibly limited an interested party’ s ability to present its case or defend its interests, 
and Argentina has not demonstrated that Siderca’s ability to present its case  or submit evidence was 
impaired in any way in th e instant sunset review. 
 
VI. ARGENTINA HAS NOT DEMONSTRATED THAT THE ITC'S SUNSET REVIEW 
PROCEDURES ARE INCONSISTENT WI TH THE ANTI-DUMPING AGREEMENT 
40. Argentina bears the burden of proving that the ITC’s sunset review determination is 
inconsistent with the Anti-Dumping Agreemen t.  Argentina has not met this burden. 
 41. Indeed, Argentina advanced arguments at the Panel meeting that are simply not accurate.  
These concern in particular the "likely"  standard of Article 11.3, cumulation , and whether the ITC 
properly established the relevant facts and assessed thos e facts objectively.  Each argument will be 
addressed in turn.  
 
A. T
HE "LIKELY " STANDARD OF ARTICLE 11.3 
42. Argentina erroneously argues that decisions by US courts in other cases are relevant to this 
dispute.  They are not.  But even if they were, th ese US court decisions are not ultimately helpful to 
Argentina’s argument that "likely" entails a high degree of probability.  In the one case that has 
completed the first stage of judicial review, the court ultimately explained that it did not interpret 
"‘likely’ to imply any degree of ‘certainty’."42 
 
                                                      
 40 It should be noted that Argentina’s challenge in this dispute is to Commerce’s reporting  of the 
1.36 per cent margin to the ITC for its use in making the determination of the likelihood of continuation or 
recurrence of injury.  See Argentina First Written Subm ission, paras. 189 & 193. 
 41 Argentina's  First Written Submission, paras. 121-122.  
 42 Usinor Industeel v. United States , Slip Op. 02-152 at 6 (CIT 20 December 2002) (Exhibit US-18).   WT/DS268/R 
 Page C-73 
 
 
B. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT DOES NOT APPLY TO SUNSET REVIEWS  
43. Argentina argues that because the term "injury" has the same meaning in Article 11.1 as in 
Article 3, and because "the overarching principles of Article 11.1 provide the immediate context of 
Article 11.3," the term "injury" must have the same meaning in Article 11.3 as it does in Article 3.43  
The United States is not of the view that "injury" has the same meaning in Articles 3 and 11.1, on the 
one hand, and in Article 11.3, on the other.  The analysis required by Articles 3 and 11.1, and by 
Article 11.3 is fundamentally differ ent.  Articles 3 and 11.1 speak of existing "injury."  Article 11.3 
on the other hand speaks of the likelihood of the "continuation or recurrence of . . . injury."  These 
provisions have a different focus and involve entirel y different determinations, as the Appellate Body 
has recognized on more than one occasion.44 
 
44. Argentina questions whether the injury referred  to in Article 11.3 can be any different than 
that referred to in Article 11.1.45  The United States is of the view that Article 11.1 is best viewed as a 
statement of general principle as to the duration of anti-dumping duty measures, but not as providing 
specific content to Members’ obl igations under Article 11.3 w ith respect to sunset reviews.46  This 
becomes clear if one considers the consequences of a literal interpre tation of the two provisions.  
Article 11.1 would appear to requir e the revocation of an anti-dumping duty order as soon as it is no 
longer causing injury ("[a]n anti-dumping duty shall remain in force only as long as . . . necessary to 
counteract dumping which is causing injury").  Ar ticle 11.3 (and Article 11.2 for that matter), 
however, contemplates that an anti-dumping measure may be continued even if there is no current 
injury, if it is likely that injury will recur.  Put another way, if Article 11.1 is read as providing 
specific content to Members’ obligations under Arti cle 11.3, it would make a nullity of that part of 
Article 11.3 that permits the continuation of a dut y when injury is likely to recur.  Such an 
interpretation flies in the face of the fundamental pr inciple of treaty interpretation that treaties should 
not be interpreted in such a way as to  make any of their provisions inutile.47 
 
45. It is significant that neither Argentina nor any of the third parties have responded to the 
United States’ observation that applyi ng the definition of "injury" in footnote 9 to the determination of 
"recurrence of injury" in Article 11.3 would lead to ab surd results.  It would mean that the inquiry in a 
sunset review would become whether expiry of the duty would be likely to lead to continuation or 
recurrence of  material injury to a domestic industry, threat  of material injury to a domestic industry or 
material retardation of the establishment  of such an industry.  Continuation or recurrence of a threat of 
material injury would involve a very attenuated no tion of future injury and would set an extremely 
low threshold in sunset reviews for continuing anti-dumping duty measures.  The United States is of 
the view that this is not what was intended by Me mbers when Article 11.3 was negotiated.  Moreover, 
it is hard to see how many of the obligations of Article 3 would be relevant to an inquiry of whether 
expiry of the duty would be likely to lead to cont inuation or recurrence of material retardation of the 
establishment of an industry.  The United States can  see no basis for selectively applying parts of the 
definition of "injury" in footnote 9 to sunset reviews, but not applying others.  Either the definition 
applies to Article 11.3 in its entirety or it does not apply at all. 
 
46. The fallacy of Argentina’s position that Article 3 applies to sunset determinations is apparent 
by considering an analogy (albeit an imperfect one).  Suppose that there are two distinct inquiries: 
(1) whether at least one meter of snow is lying on the ground; and (2) whether it is likely that at least 
one meter of snow will fall within a month.  Although both of these inquiries refer to "at least one 
                                                      
 43 Argentina's Oral Statement, paras. 98 and 101. 
 44 US – German Steel , AB Report, para. 87, US - Japan Sunset , AB Report, para. 106 
 45 Argentina's Oral Statement, para. 98.  
 46 The text of Article 11.1 existed in its present form in the Tokyo Round Anti-Dumping Code (as 
Article 9.1 in that code), prior to the adoption of the provision for sunset reviews.  
 47 See United States – Standards for Reformulated and Conventional Gasoline , WT/DS2/AB/R, Report 
of the Appellate Body adopted 20 May 1996, page 23 (footnote omitted). WT/DS268/R 
Page C-74  
 
meter of snow" (in the same way that footnote 9 a nd Article 11.3 both use the word "injury"), the 
steps that would be appropriate to pursue each inquiry are quite different.  The first inquiry might be 
pursued by measuring the depth of the snow at certa in spots; the second inquiry might be pursued by 
certain meteorological analysis.  However, it woul d be inappropriate to pursue the second inquiry 
using methods appropriate for the first ( i.e., by measuring the amount of snow currently on the 
ground). 
 
47. Argentina misconstrues the Appellate Body’s report in Steel from Germany , when it asserts 
that "[t]he Appellate Body used the SCM equivalent  of [footnote 9] as an illustration of how the 
injury concept applies throughout the Agreement, including in sunset reviews."
48  In the section of the 
Steel from Germany  report referred to by Argentina, the Appellate Body was merely listing 
"provisions of the SCM Agreement that apply independently of cross-references in that they contain 
explicit statements of their scope of application."  Contrary to Ar gentina’s suggestion, the Appellate 
Body made no finding that Article 15, note 45 of the SCM Agreement applies in sunset reviews.  
Argentina’s reliance on the panel report in DRAMs from Korea  also is unpersuasive.49  The panel in 
that dispute was not considering the applicabilit y of Article 3 to reviews under Article 11.2. 
 
48. We next address arguments contained in the subm issions and oral statements of third parties.  
The EC maintains that the reference in Article 3.1 to "a determination of injury for purposes of 
Article VI of GATT 1994" lends supp ort to the conclusion that Article 3 obligations apply to sunset 
reviews.50  This argument is unpersuasive.  Article VI of GATT 1994 does not mention sunset 
reviews, and a sunset review does not entail a "determination of injury."  
49. The EC also argues that Article 3 must be applicable to sunset reviews because otherwise 
members would have "completely unfettered discreti on" in determining the lik elihood of continuation 
or recurrence or injury.
51  The EC’s concerns are unfounded.  First, sunset reviews are subject to the 
provisions regarding evidence and procedure in Article 6 (by virtue of the explicit provision to this 
effect in Article 11.4).  Furthermore, sunset review s, if subject to dispute settlement, must satisfy the 
provisions of Article 17.6(i) of the Anti-Dumping Agreement, i.e., the establishment of the facts must 
be found to have been "proper" and the evaluati on of those facts to have been "unbiased and 
objective."  Finally, as the Appellate Body has explained, "[t]he words ‘review’ and ‘determine’ in 
Article 11.3 suggest that authorities conducting a suns et review must act with an appropriate degree of 
diligence and arrive at a reasoned co nclusion on the basis of information gathered as part of the 
process of reconsideration and examination."52  
 
50. Japan’s discussion of how selected provisions of Article 3 supposedly apply to sunset reviews 
in fact demonstrates just the oppos ite.  Japan notes that Article 3.1 requires that authorities base their 
injury determination on an objective examination of "the volume of the dumped imports" and "the 
effect of dumped imports on prices."53  But in a sunset review ther e may be no current imports, or 
they may not currently be dumped.  Japan then explains that Article 3.2 sets forth further rules on how 
authorities shall consider the volume of dumped imports and price effects.54  Again, these rules are 
inapplicable in sunset reviews because of the possible absence of dumped imports.  Japan goes on to 
characterize Article 3.4 as providing the "detailed requirements for the examination of the impact of 
dumped imports under Article 3.1, and, therefore, for a determination of injury."55  But, as explained 
                                                      
 48 Argentina's Oral Statement, para.96. 
 49 Argentina's Oral Statement, para. 97.  
 50 Third Participant’s Submission by the European Communities, paras. 124-125. 
 51 Third Participant’s Submission by the European Communities, para. 126. 
 52 Japan Sunset , para. 111. 
 53 Third Party Submission of Japan, para. 11. 
 54 Third Party Submission of Japan, para. 11. 
 55 Third Party Submission of Japan, para. 12.  WT/DS268/R 
 Page C-75 
 
 
in the United States’ first submission, there are also numerous textual indication s in Article 3.4 that it 
is not applicable to sunset reviews.56   
 
51. Next, Japan asserts that the causation and non-a ttribution requirements of Article 3.5 apply to 
sunset reviews because of the use of the phrase "within the meaning of this Agreement" in that 
article.57  The simple answer to this is that a dete rmination of the likelihood of continuation or 
recurrence of injury in a sunset review is not a determination of injury.  As explained in the United 
States’ first written submission, the obligations under Article 3.5 are incompatible with the nature of 
sunset reviews.58   
 52. In connection with its argument regarding the applicability of Article 3.5 to sunset reviews, 
Japan points to the likely margin of dumpin g for OCTG from Argentina, 1.36 per cent.
59  The United 
States notes that this is not the only margin that is relevant to these sunset reviews.  The likely 
dumping margins applicable to the other four coun tries considered cumulatively with Argentina in 
these reviews were: Italy – 49.78 per cent, Japan – 44.20 per cent, Korea – 12.17 per cent, and Mexico 
– 21.70 per cent.60 
 
53. Japan argues that the ITC failed to observe th e non-attribution requirement of Article 3.5 to 
the extent that it did not separate and distinguish th e effects of dumping on the domestic industry from 
the effects of several other specific factors.61  As explained in the United States’ first submission 
(paras. 348-354), the non-attribution analysis of Ar ticle 3.5 cannot be conducted in the context of 
sunset reviews.  Japan also misrepresents the ITC Report when it states that: "[t]he ITC also noted that  ‘[o]il and natural gas prices, the ultimate drivers of OCTG demand’ and ‘a slowdown in the US and/or 
world economy’ would be factors contributing to li kely injury to the domestic industry."  The ITC 
Report (p. II-13)  identified these as factors relevant  to demand trends, but not as factors contributing 
to likely injury to the domestic industry. 
 
54. Japan and Korea suggest that in a sunset revi ew the ITC must first establish whether there is 
current injury, before considering lik elihood of continuation or recurrence.
62  However, there is 
simply no textual basis in Article 11.3 for impo sing a requirement that authorities first make a 
"present injury" determination before considering whether expiry of the duty is likely to lead to 
continuation or recurrence of injury. 
 
55. Korea argues that investigating authoritie s should not be permitted to use "different 
substantive definitions and standards to determine whether initially to impose a measure (in an anti-
dumping investigation) and whether to terminate or continue that measure (in a sunset review)."63  
Korea’s position, like that advanced by the EC and Japan, fails to account for the fundamentally 
"different nature and purpose of original investig ations, on the one hand, and sunset reviews, on the 
other hand."64  A  determination of injury and a determ ination of the likelihood of continuation or 
recurrence of injury involve fundamentally different inquiries.  
 
C. CUMULATION IN SUNSET REVIEWS  
56. The only textual basis that Argentina offers for its argument that cumulation is not permitted 
in sunset reviews is that Article 11.3 refers to "a ny definitive anti-dumping duty" and to "the duty," 
                                                      
 56 US First Submission, para. 346. 
 57 Third Party Submission of Japan, para. 13. 
 58 US First Submission, para. 350-353. 
 61 Third Party Submission of Japan, para. 40.  
 62 Third Party Submission of Japan, para. 14; Third Party Submission of the Republic of Korea, 
para. 11. 
 63 Third Party Submission of the Republic of Korea, para. 9. 
 64 Japan Sunset , para. 124 WT/DS268/R 
Page C-76  
 
and that Article 11.1 refers to "an anti-dumping duty. "  Argentina’s position that the drafters of the 
Anti-Dumping Agreement deliberately "have chosen  the singular and have avoided the plural"
65 is 
unconvincing.  The reference to "any definitive anti- dumping duty" is not necessarily to the singular.66  
Moreover, the reference in Article 11. 3 to "the duty" is merely descriptive and is hardly evidence that 
the drafters intended to prohibit cumulation.  (As noted in the United States’ first submission,67 
cumulation in anti-dumping investigations was a widespread practice among GATT contracting 
parties prior to the adoption of Articles 3.3 and 11.3 in the Uruguay Round.)   
 
57. Argentina seeks to bolster its argument by referring to "the object and purpose" of 
Article 11.3.  As the United States pointed out in its first submission (para. 367), the relevant principle 
of treaty interpretation speaks of the object and purpose of the treaty , and not particular treaty 
provisions.68  The United States does not agree with Argentina’s suggestion that Article 11.3 merely 
rescinds anti-dumping duties.  Article 11.3 is clear th at expiry of such duties is only appropriate where 
it is not likely that this would lead to the con tinuation or recurrence of dumping and injury. 
 
58. Argentina’s claim that the United States has violated Article 11.3 by cumulating because "Argentina, and each WTO Member, negotiated for the right to have an anti-dumping measure 
affecting its exports removed after five years"
69 is similarly unpersuasive.  The negotiating objective 
of the United States and certain other Members wa s to retain anti-dumping duties where warranted.  
The negotiating objectives of Argentina and perhaps other Members cannot be used to read into the 
Anti-Dumping Agreement obligations that do not exist in the treaty as reflected by its text.  Indeed, it 
is the text reflects "the delicate balance of rights and obligations attained by the parties to the [Uruguay Round] negotiations."
70   
 
59. Argentina’s suggestion that, if cumulation is permitted in sunset reviews, the limitations on 
cumulation in Article 3.3 must also apply is direc tly at odds with the Appellate Body’s finding in US 
– German Steel 71 and therefore Argentina’s argument should be rejected. 
 
60. Argentina argues that the standards that the ITC applies in deciding whether to cumulate run 
"directly counter to the ‘ likely’ standard established by Article 11.3."72  Argentina is confusing the 
standards for (i) deciding whether cumulation in a sunset review is appropriate with (ii) the standard 
for determining whether expiry of the duty would be likely to lead to continuation or recurrence of 
injury.  The Anti-Dumping Agreement is silent on th e former question, and thus the standards that the 
ITC applied in deciding whether to cumulate cannot violate Article 11.3. 
 
D. CONTRARY TO ARGENTINA 'S ASSERTIONS , THE ITC  PROPERLY ESTABLISHED THE RELEVANT 
FACTS AND ITS ASSESSMENT OF THOSE FACTS WAS OBJECTIVE  
61. Article 17.6 provides that "in its assessment  of the facts of the 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."  Notw ithstanding Argentina’s misstatements and selective 
analysis about the factual record, the ITC did in fact  properly establish facts and evaluate them in an 
unbiased and objective manner. 
 
                                                      
 65 Argentina's Oral Statement, para. 105. 
 66 The New Shorter Oxford English Dictionary  (p. 91) defines "any" as having singular or plural 
meanings.  (Exhibit US-28). 
 67 US First Submission, para. 370. 
 68 Vienna Convention on the Law of Treaties , Art. 31(1). 
 69 Argentina's Oral Statement, para. 107. 
 70 US – German Steel , AB Report, para. 91. 
 71 US – German Steel , AB Report, paras. 58-97.  
 72 Argentina's Oral Statement, para. 109.  WT/DS268/R 
 Page C-77 
 
 
62. In its oral statement, Argentina seeks to cast doubt on the ITC’s finding that the likely volume 
of subject imports would be significant if the anti- dumping duty orders were revoked.    Argentina 
incorrectly states that the ITC found that "subject producers’ capacity utilization rates represent a 
potentially important constraint on the ability of these subject producers to increase shipments of 
casing and tubing to the United States."73  The ITC was not referring to all of the subject producers 
(i.e., the casing and tubing producers in the five countries subject to the sunset reviews) when it stated 
producers were "operating at capac ity utilization rates that represent a potentially important constraint 
on [their] ability . . . to increase shipments of casing and tubing to the United States."  This is clear 
from a review of pages 18-19 of the ITC Report.  
 63. On page 18 the ITC first reviewed the capacity of subject producers in Japan.  It stated: "[i]n 
addition to the reported capacity of NKK [the only Japanese producer to have provided data to the 
ITC], we find that there is significant availa ble capacity among the other Japanese producers."
74  
Then, at the top of page 19 of the ITC Report the ITC reviewed the capacity of subject producers in 
Korea, and referred to "Korea’s unused capacity for all pipe and tube products."75 
 64. Only after having considered available capac ity in Japan and Korea did the ITC discuss the 
capacity utilization rates of "[p]roducers in the other subject countries (and NKK in Japan)" 
(emphasis added), and it was in connection with these producers that the ITC made the observation 
about capacity utilization rates representing a pote ntially important constraint on their ability to 
increase exports to the United States.
76  In short, the ITC’s finding of potential capacity constraints on 
exports applies only to producers in Argentina, It aly and Mexico – and not to producers in Japan 
(except for NKK) and Korea.  
 
65. This is especially significant because of the si ze of the casing and tubing industry in Japan.  
The ITC noted that "[i]n the original investigations, the import volume, market share, and production 
capacity of casing and tubing from Japan were  the largest of the subject countries."77  Because all but 
one of the Japanese producers declin ed to participate in this sunset  review, the precise size of the 
Japanese industry was not known.  However, accordi ng to the ITC Report, US producers stated that 
non-responding Japanese producers had the potential to supply 3.5 million tons of OCTG78 – an 
amount that exceeded the to tal capacity of the US casin g and tubing industry in 2000.79  (Data on the 
capacity of those Korean producers that responded to the ITC’s questionnaire is confidential.)   In 
light of the foregoing, Argentina’ s argument that the ITC’s volume finding was contradicted by the 
fact of capacity restraints is simply erroneous. 
 
66. In addition to its conclusions about excess cap acity in Japan and Korea, the ITC found that 
producers in Argentina, Italy, and Mexico, and NKK in Japan, would have incentives to devote more 
of their productive capacity to producing and shipping casing and tubing to the US market, despite 
their apparently high capacity utilization rates.  Th e ITC gave a number of reasons for reaching this 
conclusion.  Argentina’s attempts in its oral statement to discredit the ITC’s reasoning are 
unpersuasive. 
 
                                                      
 73 Argentina's Oral Statement, para. 117. 
 74 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico,  USITC Pub. 3434, 
Inv. Nos. 701-TA-364, 731-TA-711, and 713-716 (Jun e 2001) ("ITC Report") (Exhibit ARG-54) at 18. 
 75 ITC Report at 19.  The ITC’s more specific findings as to unused capacity among Korean producers 
are redacted from the ITC Report because they reflect business proprietary information. 
 76 ITC Report at 19. 
 77 ITC Report at 18. 
 78 ITC Report at II-8.  
 79 The US casing and tubing industry’s capacity in 2000 was 3.3 million tons.  ITC Report at III-1, 
table III-1.   WT/DS268/R 
Page C-78  
 
67. First, with respect to the ITC’s finding that  Tenaris would have a strong incentive to expand 
its presence in the US market, Argentina maintain s that "the Commission only examines ‘half’ the 
story" and that "some of the companies forming the so-called Tenaris Alliance were outside the anti-
dumping duty orders under review."
80  This assertion is incorrect.  In  fact, only one of the five Tenaris 
companies, Algoma in Canada, was not subject to the anti-dumping duty orders involved in these 
sunset reviews.81   
 
68. Argentina argues that if Tenaris had really been interested in shipping to the United States, it 
could have done so through Algoma in Canada.82  Argentina neglects to mention, however, that in 
2000 – only one year before the reviews at issue he re - counsel for Siderca assured the ITC, during a 
five-year review involving OCTG from Canada, that  DST (the predecessor organization to Tenaris) 
had no intention of using the Algoma facility to ship OCTG to the United States.83  Based at least in 
part on this assurance, the ITC lifted a longstan ding anti-dumping order on OCTG from Canada.  
Tenaris’ commitment not to ship OCTG from Cana da completely undermines Argentina’s argument 
that Tenaris could use Algoma to serve this market.  
 69. Also, in connection with the incentive for Te naris to ship to the United States, Argentina 
suggests that this was not likely to occur because of long-term contractual commitments by Siderca 
and other affiliated prod ucers to sell elsewhere.
84  The suggestion by Argentina that all of Tenaris’ 
production was devoted to long-term contracts is at  odds with Tenaris’ own testimony in the sunset 
reviews.  Siderca ’s President (who testified that he was responsible for exports of OCTG from all of 
the Tenaris companies) testified that its long-term ag reements account for only a bout 55 per cent of its 
sales of OCTG.85  In other words, Tenaris’ commitments under long-term contracts would not present 
a significant impediment to expanding shipments to the United States. 
 
70. The United States pointed out (in para. 328 of  its first written submission) that Argentina’s 
claim that Siderca’s ability to ship to the United States was limited by long-term contractual 
commitments was also undermined by the fact that many of these contracts were with global oil and 
gas companies that would be eager to buy from Si derca in the United States.  Argentina now asserts 
that the United States ignored evidence that the global companies with which Tenaris had contracts 
represented only 12-14 per ce nt of US oil and gas rigs.86  In fact, the ITC did not ignore this evidence.  
As the ITC explained in its report (p. 19, n. 124), the evidence on the US market share of these 
companies was mixed: Tenaris claimed it was only 12-14 percent; the domestic industry claimed it 
was significantly greater.  The ITC found that th e US presence of these global companies to be 
significant under either estimate.87 
 71. Argentina contends that the evidence that global oil and gas companies already buying from 
Tenaris would also want to do so in the United States if the anti-dumping orders were revoked is 
                                                     
 
 80  Argentina's Oral Statement, para. 119. 
 81 ITC Report at 16. 
 82 Argentina's Oral Statement, para. 119, first subparagraph. 
 83 See, Certain Pipe and Tube from Argentina, Brazil, Canada, India, Korea, Mexico, Singapore, 
Taiwan, Thailand, Turkey, and Venezuela , Inv. Nos. 701-TA-253 (Review) and 731-TA-132, 252, 271, 273, 
276, 277, 296, 409, 410, 532-534, 536, and 537 (Review), USITC Pub. 3316 (July 2000) at 51 n. 310, and 
OCTG-IV-5 (Exhibit US-29). 
 84 Argentina's Oral Statement, para. 119. 
 85 Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico,  Inv. Nos. 
701-TA-364, 731-TA-711, and 713-716, ITC Hearing Tr anscript, ("ITC Hearing Tr."), pp. 200 and 205 
(German Cura, Siderca) (Exhibit US-30).  Argentina cites to this very testimony in its oral statement (para. 119, third subparagraph). 
 86 Argentina's Oral Statement, para. 119, fourth and fifth subparagraphs. 
 87 ITC Report, p. 19 n.124.  WT/DS268/R 
 Page C-79 
 
 
supported only by "a second-hand statement that one customer had expressed such a desire."88  This is 
incorrect.  This was not only the testimony of the president and chief executive officer of one of the 
largest distributors of OCTG in the United States;89 the director of another large OCTG distributor 
told the ITC: 
  
Most of the major end users already pu rchase from these subject producers 
internationally and the end users are unwavering in their desire to see the extremely 
low priced OCTG that they get internationall y extended to the US market.  They have 
said as much to me quite openly and I think you would hear the same thing from most 
of my colleagues up here today.90 
72. The second reason that the ITC found that the subject producers would have an incentive to 
devote more of their capacity to shipping casing and tubing to the US market is that casing and tubing 
were among the highest valued pipe and tube pr oducts, generating among the highest profit margins.91  
Argentina characterizes this factor as "a ge neral assumption rather than positive evidence."92  
Argentina is mistaken.  The relatively high value (and profit margins) of casing and tubing was established during the ITC’s sunset reviews,
93 and Argentina does not dispute this fact.  It stands to 
reason that pipe and tube producers – as profit- maximizing entities – would seek to maximize their 
production of products with higher profit margins.  Argentina’s attempts to dismiss this factor as 
"conjecture and speculation"94 is unpersuasive. 
 
73. The third factor that the ITC relied on in dete rmining that producers in Argentina, Italy, and 
Mexico, and NKK in Japan, would have incentives to increase their shipments of casing and tubing to the United States, is that prices for casing and t ubing on the world market were significantly lower 
than prices in the United States.
95  Argentina’s characterization of this evidence as "anecdotal" is 
misleading.  As its report makes clear, the ITC relie d on the testimony of three executives from firms 
that produce or distribute OCTG, who each testified that prices for casing and tubing in the United 
States were significantly higher than international prices.96  Argentina also attempts to downplay this 
factor by noting that the ITC recognized that there was contradictory evidence as to the magnitude of 
the price differential.97  The fact that Argentina does not dispute the existence of a price differential, 
but rather questions its magnitude, speaks for itself. 
 
74. The fourth factor that the ITC relied on is that foreign casing and tubing producers also faced import barriers in other countries or  on related products that were pr oduced in the same facilities as 
OCTG.  Import barriers in other countries existed in the form of a 67 per cent anti-dumping duty in 
Canada on casing from Korea.  The import barriers on related products that the ITC identified were: 
(i) US anti-dumping duties on seamless standard pipe from Argentina, Japan, and Mexico; (ii) US 
import quotas on welded line pipe shipped from Ko rea; and (iii) US anti-dumping duties on circular, 
welded, non-alloy steel pipes from Korea. 
 
75. Argentina seeks to downplay the Canadian anti-dumping duty on casing from Korea of 
67 per cent.
98  However, it was reasonable for the ITC to ta ke this factor into account, especially since 
                                                      
 88 Argentina's Oral Statement, para. 119, fifth subparagraph. 
 89 ITC Hearing Tr. at 59 (Mr. Ketchum, Red Man Pipe and Supply) (Exhibit US-20). 
 90 ITC Hearing Tr. at 55 (Mr. Stewart, Hunting Vinson) (Exhibit US-20). 
 91 ITC Report, p. 19. 
 92 Argentina's Oral Statement, para. 120, first subparagraph. 
 93 ITC Report, p.16. 
 94 Argentina's Oral Statement, para. 120, fourth subparagraph. 
 95 ITC Report at 19-20. 
 96 ITC Report at 19 n.128. 
 97 Argentina's Oral Statement, para. 121, second subparagraph. 
 98 Argentina's Oral Statement, para. 122, first subparagraph. WT/DS268/R 
Page C-80  
 
the Korean industry is heavily export-dependent, Ca nada is the second largest regional market for 
OCTG in the world,
99 and the Canadian duty was relatively high.   
 
76. In connection with anti-dumping measures on related products, Argentina claims that there 
was no evidence that pipe and tube producers would ever shift production from other products to 
OCTG.  This is simply false.  In sworn testimon y before the ITC, domestic producers specifically 
testified that there is a hierarchy of pipe and tube  products, and that OCTG is at the top of that 
hierarchy.100  These same producers also testified that  their companies did switch production to 
higher-value products like OCTG as market conditions warranted.101  This evidence directly supports 
the ITC's finding that if the orders on OCTG were revoked, Tenaris would have a strong incentive to 
shift products in order to increase its output of OCTG.  
77. Finally, the ITC explained that industries in at least some of the subject countries were 
heavily export-dependent.  The ITC noted that Japa n and Korea in particular had very small home 
markets and depended nearly exclusively on exports.
102  Argentina seeks to minimize the significance 
of this factor by arguing that the ITC inferred that just because "certain companies have been 
successful in exporting," they would increase thei r exports to the United States by certain amounts.103  
Argentina misconstrues the ITC’s finding in two respec ts.  First, the ITC did not conclude merely that 
certain companies "have been successful in exporting; " rather, it found that the industries in at least 
some of the countries involved (and pa rticularly in Japan and Korea) were dependent  on exports 
because of very small home markets for their products.  Second, the ITC did not infer from this export-orientation that these industries would increa se their exports to the United States in specific 
amounts (as Argentina argues).  Instead, this export-orientation was just one of a number of factors 
that led the ITC to conclude that the likely volume of subject imports would be significant if the anti-
dumping duty orders were revoked. 
 
78. Argentina’s approach to the ITC’s analysis of  the likely volume of imports is to examine in 
isolation each factor that the ITC considered and to assert that each  factor does not amount to positive 
evidence.  However, the Panel is directed in Artic le 17.6 to assess whether the establishment of the 
facts was proper and whether the evaluation of thos e facts was unbiased and objective.  The ITC 
properly developed an extensive record in the sunset reviews at issue and conducted an unbiased and 
objective analysis of that record.  Although Argentina may have drawn a different conclusion based 
on those facts, that alone does not render the IT C’s determination inconsistent with the Anti-Dumping 
Agreement. 
 
VII. CONCLUSION 
79. Based on the foregoing, the United States renews  its request that the Panel reject Argentina’s 
claims in their entirety. 
  
 
                                                     
 
 99 The United States directs the Panel’s attention to Figure II-1 on page II-5 of the ITC Report, which 
shows that the percentage of worldwide rig counts in 2000 was as follows: United States – 47.91 per cent, 
Canada – 17.99 per cent, Latin America – 11.87 per cent, Middle East – 8.16 per cent, Far East – 7.32 per cent, and Europe and Africa – 6.75 per cent. 
 100 IT Hearing Tr. at 158-159 (Mr. Dunn, Lone Star Steel) (Exhibit US-30). 
 101 ITC Hearing Tr. at 159 (Mr. Dunn, Lone Star Steel) and 161 (Mr. Barnes, IPSCO Tubulars) 
(Exhibit US-30)]. 
 102 ITC Report at 20. 
 103 Argentina's Oral Statement, para. 123.