WT/DS268/RW 
 Page A-1 
 
 
   
ANNEX A 
 
 
FIRST WRITTEN SUBM ISSIONS OF PARTIES 
 
 
Contents Page 
Annex A-1 First Written Submission of Argentina A-2 
Annex A-2 First Written Submission of the United States A-58 
 WT/DS268/RW 
Page A-2  
 
  ANNEX A-1 
 
FIRST WRITTEN SUBM ISSION OF ARGENTINA 
 
5 April 2006 
 
TABLE OF CONTENTS 
 
 
Page  
 
I. INTRODUCTION ................................................................................................................ .4 
II. PROCEDURAL BACKGROUND ....................................................................................... 5 
III. FACTUAL BACKGROUND FOR USDOC'S SECTION 129 DETERMINATION 
OF LIKELIHOOD OF DUMPING ..................................................................................... 7 
A. USDOC'S ORIGINAL ANTI-DUMPING INVESTIGATION OF OCTG FROM 
ARGENTINA IN 1994 .............................................................................................................. 7 
B. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION ............................................ 8 
C. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION FOUND TO BE  
INCONSISTENT WITH ARTICLES 6.2 AND 11.3 OF THE ANTI- DUMPING AGREEMENT .... 9 
D. USDOC'S 2005 LIKELIHOOD OF DUMPING DETERMINATION .......................................... 10 
IV. USDOC'S SECTION 129 DETERMINATION IS INCONSISTENT WITH US  
WTO OBLIGATIONS AND FAILED TO IMPLEMENT THE 
RECOMMENDATIONS AND RULINGS OF THE DSB ............................................... 12 
A. THE REQUIREMENTS OF ARTICLES 11.3  AND 11.4 OF THE ANTI-DUMPING  
AGREEMENT ........................................................................................................................ 13 
B. THE SECTION 129 DETERMINATION DID NO T BRING THE UNITED STATES INTO 
CONFORMITY WITH US OBLIGATIONS UNDER ARTICLES 11.3 AND 11.4 OF THE 
ANTI-DUMPING AGREEMENT AND DID NOT ACHIEVE COMPLIANCE WITH THE 
RULINGS OF THE DSB ......................................................................................................... 16 
C. IN THE ALTERNATIVE, EVEN ASSUMING ARGUENDO  THAT THE USDOC WERE 
PERMITTED TO DEVELOP THE REQUISITE FACTUAL INFORMATION IN 
2005 TO SUPPORT ITS 2000 LIKELIHOOD DETER MINATION, THE 2005 
SECTION 129 DETERMINATION NEVERTHELESS FAILED TO SATISFY THE 
REQUIREMENTS OF ARTICLE 11.3 OF THE ANTI-DUMPING AGREEMENT ..................... 20 
1. USDOC's 2005 Determination Does Not Properly Establish that Dumping  
was Likely to Continue or Recur in 2000........................................................................... 20 
2. The USDOC's Inference That Dumping Would Be Likely In the Event of 
Revocation of the Order Because of the Volume Decline is Inconsistent With 
Article 11.3................................................................................................................... ......... 32 
D. THE USDOC'S SECTION 129 DETERMI NATION WAS INCONSISTENT WITH 
ARTICLES 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9 AND ANNEX II OF THE ANTI-DUMPING 
AGREEMENT ........................................................................................................................ 34  WT/DS268/RW 
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  1. The USDOC failed to provide to in terested parties ample opportunity to 
present in writing all evidence which they considered relevant, in violation of 
US obligations under Article 6.1......................................................................................... 36 
2. The USDOC failed to provide to interested parties a full opportunity for the 
defence of their interests, in violation of US obligations under Article 6.2..................... 38 
3. USDOC failed to provide timely opport unities for interested parties to see all 
information that is relevant to the presenta tion of their cases, in violation of 
US obligations under Article 6.4......................................................................................... 39 
4. The USDOC failed to require certain interes ted parties to submit non-confidential 
summaries of their written submissions in the Section 129 proceeding in a manner 
so as to permit the Argentine exporters to have a reasonable understanding of the 
substance of the confidential information submitted, in violation of US obligations 
under Article 6.5, and 6.5.1 ................................................................................................. 41 
5. The USDOC did not rely on Siderca's submitted cost information, but USDOC 
first failed to satisfy itself as to the a ccuracy of that information for purposes of 
their findings, in violation of US obligations under Article 6.6 ....................................... 43 
6. The USDOC failed to follow the requirements of Article 6.8 and Annex II of the  
Anti-Dumping Agreement................................................................................................... 43 
7. The USDOC failed to inform interested  parties of the essential facts under  
consideration which formed the basis for the Section 129 determination, in  violation of US obligations under Article 6.9 of the Anti-Dumping Agreement ............ 48 
E. THE FAILURE OF THE UNITED ST ATES TO IMPLEMENT USDOC'S 
SECTION 129 DETERMINATION PRECLUDED THE OPPORTUNITY FOR THE 
ARGENTINE RESPONDENTS TO SEEK JUDICIAL REVIEW IN US COURTS, IN 
VIOLATION OF US OBLIGATIONS UNDER ARTICLE 13 OF THE ANTI-DUMPING 
AGREEMENT . ....................................................................................................................... 49 
V. THE UNITED STATES HAS FAILED TO IMPLEMENT THE  
DSB RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE 
"AS SUCH" VIOLATIONS ............................................................................................... 51 
A. SECTIONS 751(C)(4)(A) &(B) OF THE TARIFF ACT ARE WTO-INCONSISTENT ................. 51 
1. DSB Rulings on Section 751(c)(4)(B).................................................................................. 51 
2. Section 751(c)(4)(B) of the Tariff Act has not been repealed or amended...................... 51 
B. SECTION 351.218 OF THE REGULATIONS, AS AMENDED, IS WTO-INCONSISTENT ........ 52 
VI. ARGENTINA REQUESTS THAT THE PANEL SUGGEST THAT THE  
UNITED STATES REVOKE THE ANTI-DUMPING DUTY ORDER ON 
OCTG FROM ARGENTINA ............................................................................................. 53 
VII. CONC LUSION ................................................................................................................ .... 55  
 WT/DS268/RW 
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                                                       I. INTRODUCTION 
 
1. This dispute raises fundamental questions a bout the enforceability of a key discipline of the 
Anti-Dumping Agreement: the "sunset review " provisions of Articles 11.3 and 11.4.  
 
2. During the Uruguay Round, negotiators agreed that "any definitive anti-dumping duty shall 
be terminated on a date not later than five years from its imposition, " absent compliance with a 
number of strict conditions.  Investigating author ities seeking to extend the order beyond this expiry 
date have to conduct a "review" be fore that date and make a "determination" that the expiry of the 
duty would be likely to lead to continuation or recurrence of dumping and injury. 
 
3. The original Panel in this dispute found that  the United States violated its obligations under 
Article 11.3 when it extended the anti-dumping dut y order on oil country tubular goods (OCTG) from 
Argentina.  The United States did not appeal that  finding.  The United States now claims to have 
complied with the DSB rulings, in part by c onducting proceedings unde r Section 129 of the Uruguay 
Round Agreements Act , the statutory authority used by the United States to implement adverse WTO 
rulings.  The resulting Section 129 Determinati on was issued in December 2005, which is more than 
five years after the date when the order was require d to expire in the absence of a WTO-consistent 
likelihood of dumping determination . 
 
4. Article 11.3 embodies the carefully calibrated ba lance that was agreed to during the Uruguay 
Round.  Anti-dumping orders are permitted under the Agreement to remain in force for five years, and can be extended beyond this period only under the exceptional circumstances enumerated in 
Article 11.3.  The explicit temporal limitations of  Articles 11.3 and 11.4 would be rendered a nullity if 
a WTO Member could satisfy those obligations subsequent to the time periods specified in 
Articles 11.3 and 11.4.  Thus, if, as in this case,  the likelihood of dumping determination undertaken 
at the required time was not supported by positive evidence, then the Member has no right to extend the measure. 
 
5. Argentina respectfully submits that to pe rmit the United States to "comply" with its 
Article 11.3 obligations in this case with a post hoc  sunset proceeding – nearly eleven years after the 
imposition of the order, and five years after its  scheduled expiration – would render a nullity the 
temporal limitation on anti-dumping orders, contrary to the unambiguous intent of the drafters.  This would be contrary to the clear admonition of the Appellate Body that an in terpretation that renders 
inutile  a provision of a covered agreement would be "a bhorrent to the principles of interpretation we 
are bound to apply".
1
 
6. The facts of this case demonstrate that th e Section 129 Determination did not bring the 
United States into conformity with its obligations  under Article 11.3 of the Anti-Dumping Agreement, 
nor into compliance with the rulings of the DSB.  The United States developed, in 2005, a different 
factual basis to support its 2000 likely dumping dete rmination in a manner inconsistent with the 
requirements of Article 11.3. 
 
7. Wholly separate and apart from USDOC's illegal development of a new factual basis in 2005 
to support the 2000 likelihood of dumping determination, the new factual basis for the Section 129 Determination is itself WTO-inconsistent.  In  addition, USDOC's conduct of the Section 129 
proceeding in developing this new information was also inconsistent with US WTO obligations.  The new factual basis developed for the 2005 likelihood of dumping determination falls far short of the 
positive evidence required under Article 11.3 to support a WTO-consistent determination that 
dumping was likely to continue or recur, and significant aspects of the procedures employed by 
 
1 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products , 
WT/DS58/AB/R, adopted 6 November 1998, para. 121.  WT/DS268/RW 
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                                                       USDOC in the Section 129 proceeding were patently inconsistent with the provisions of Article 6 of 
the Anti-Dumping Agreement. 
 
8. Finally, the United States failed to bring the US statutory and regulatory waiver provisions 
into conformity with US WTO obligations and with the rulings of the DSB. 
 
II. PROCEDURAL BACKGROUND 
 
9. On 17 December 2004, the DSB adopted the Appellate Body Report and the Panel Report, as modified by the Appellate Body, in this disput e.  The resulting DSB rulings encompassed both "as 
applied" violations related to USDOC's November 2000 likelihood of dumping determination in the sunset review for OCTG from Argentina and "as such " violations related to th e "waiver" provisions of 
United States law and regulations. 
 
10. The Panel found that the USDOC likelihood of dumping determination was inconsistent with 
Articles 11.3 and 6.2 of the Anti-Dumping Agreement.2  These findings were not appealed by the 
United States.   
 
11. The Panel determined that the USDOC 's likelihood of dumping determination was 
inconsistent with Article 11.3 of the Anti-Dump ing Agreement for two separate and independent 
reasons.  First, the Panel determined that there wa s no legal or evidentiary basis for USDOC to have 
considered that dumping had continued over the life of  the order, and thus that there was no basis for 
a determination that dumping would be likely to continue or recur.3  Second, the Panel determined 
that the application of the waiver provisions inva lidated the factual basis for USDOC's likelihood of 
dumping determination.4  The Panel also found that the USDOC's likelihood of dumping 
determination was inconsistent with Article 6. 2 of the Anti-Dumping Agreement because "Siderca 
was subjected to a procedure that fell short of th e requirements of Article 6.2 of the Agreement in 
respect of hearings."5
 
12. With respect to the "waiver" provisions, th e Appellate Body upheld the Panel findings that: 
• Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the 
US Department of Commerce (USDOC) Regulations are inconsistent, as such, with 
Article 11.3; and 
• Section 351.218(d)(2)(iii) of the USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2 with respect to respondents that file incomplete  submissions in 
response to the USDOC's notice of initiation of a sunset review.
 6 
 
13. The DSB recommended that the United States br ing its measures into conformity with US 
WTO obligations.  On 14 January 2005, the Unite d States informed the DSB that it intended to 
implement the recommendations and rulings of the DSB in a manner that respected US WTO 
obligations.7
 
 
2 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina , WT/DS268/R, adopted 17 December 2004 , para. 8.1(d)(i) ("Panel Report"). 
3 Panel Report, para. 7.219; see also  para. 8.1(d)(i). 
4 Panel Report, para. 7.222; see also  para. 8.1(d)(i). 
5 Panel Report, US – Oil Country Tubular Go ods Steel Sunset Reviews , paras. 7.235; see also  
para. 8(1)(d)(i). 
6 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 Decem ber 2004, para. 365(c)(i) and (ii). 
7 Minutes of DSB Meeting, WT/DSB/M/181, 14 January 2005, para. 10. WT/DS268/RW 
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                                                       14. During the subsequent arbitration under DSU Article 21.3(c) to determine the "reasonable 
period of time" for compliance, the United States argu ed that it needed 15 months, in part to comply 
with the extensive due process requirements of Ar ticle 6 of the Anti-Dumping Agreement.  The 
Award of the Arbitrator noted the US position as follows: 
 
The United States argues that the time required to carry out these procedural steps in the two phases of implementation demonstrates the need for a 15-month implementation period in this dispute….  In the second phase, th e USDOC also needs 
sufficient time to ensure that it complies with  its obligations of transparency and due 
process under Articles 6 and 12 of the Agreement on Implementation of Article IV of 
the General Agreement on Tariffs and Trade 1994  (the " Anti-dumping Agreement ").  
The United States argues that, in accordance w ith previous arbitration awards, this 
should include time to obtain and analyze in formation from interested parties, even 
though this is not expressly requi red by statute or regulation.
8
 
15. On 7 June 2005, the Arbitrator determined  that the "reasonable period of time" for the 
United States to implement the DSB recommendations  and rulings would be 12 months from the date 
of adoption of the Panel and Appellate Body Reports, i.e., by 17 December 2005.9   
 
16. On 28 October 2005, the United States published in the Federal Register a notice of amendment of section 351.218(d)(2) of the USDOC regulations.
10  The Federal Register notice stated 
that the USDOC was "amending its regulations rela ting to sunset reviews to conform the existing 
regulation to the United States' obligations under Articles 6.1, 6.2, and 11.3" of the Anti-Dumping 
Agreement.11  The United States made no changes to Section 751(c)(4)(B) of the Tariff Act of 1930, 
the section of US law that the DSB ruled to be inconsistent with Article 11.3. 
 
17. On 2 November 2005, the USDOC initiated a Section 129 proceeding to address the Panel's findings concerning the USDOC's likelihood determin ation.  On 31 October 2005, USDOC requested 
information from Argentine OCTG producers Tubhi er, Acindar, and Siderca S.A.I.C. (Siderca).
12  For 
the period 1995-2000 (the period of the original suns et review), the USDOC requested certain cost of 
production information for OCTG, as well as production and shipment volumes.  Acindar and Siderca 
submitted their responses on 30 November 2005.13
 
18. The USDOC did not issue any supplemental questionnaires, or provide a briefing schedule as to the timing for written argument or a public hearing.  Nor did the USDOC conduct a public hearing.  On 16 December 2005, the USDOC issued its Secti on 129 Determination, finding that "we find there 
is likelihood of continuation or recurrence of dumping had the antidumping duty order on OCTG from 
Argentina been revoked in 2000, i.e., at the end of the original sunset period".
14  The Section 129 
 
8 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of the DSU, WT/DS268/12, 7 June 2005, 
para. 10. 
9 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of  the DSU, WT/DS268/12, circulated 
7 June 2005, para. 53.  
10 Procedures for Conducting Five-Year ("Sunset") Reviews for Antidumping and Countervailing Duty 
Orders:  Final Rule , 70 Fed. Reg. 62,061 (28 Oct. 2005) (ARG-12). 
11 Procedures for Conducting Five-Year ("Sunset") Reviews for Antidumping and Countervailing Duty 
Orders:  Final Rule , 70 Fed. Reg. 62,061 (28 Oct. 2005) (ARG-12). 
12 USDOC Questionnaire to Acindar, Tubhier and Siderca (31 Oct. 2005) (ARG-12). 
13 Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14). 
14 Section 129 Determination:  Final Results of Sunset Review, Oil Country Tubular Goods from 
Argentina , A-357-810 (16 Dec. 2005) ("USDOC Section 129 Determination") (ARG-16).  WT/DS268/RW 
 Page A-7 
 
 
                                                       Determination references and relies in part on several  USDOC internal file memoranda that are dated 
16 December 2005 – the same date as the Section 129 Determination.  
 
19. On 20 December 2005, the United States asserted to the DSB that it had "implemented the 
recommendations and rulings of the DSB in [this] dispute".15  Argentina does not agree.  Accordingly, 
there is "disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings" of  the DSB within the meaning of Article 21.5 of 
the DSU."
16
 
20. On 26 January 2006, Argentina requested consu ltations with the United States.  Consultations 
between the parties were held on 7 February 2006, in Washington, D.C., and by teleconference on 22 February 2006.  The consultati ons failed to settle the dispute.  On 6 March 2006, Argentina 
requested the establishment of a Panel.  The Panel was established by the DSB on 17 March 2006, 
and it was composed on 20 March 2006. 
 
III. FACTUAL BACKGROUND FOR USDOC'S SECTION 129 DETERMINATION OF 
LIKELIHOOD OF DUMPING 
 
A. USDOC'S ORIGINAL ANTI-DUMPING INVESTIGATION OF OCTG FROM ARGENTINA IN 
1994 
 
21. The anti-dumping investigation that gave rise to the US anti-dumping duty order on Argentine OCTG began in 1994 and was co mpleted in 1995.  The US industry's petition in the original 
investigation identified Siderca as the only produ cer and exporter of OCTG from Argentina.  The 
USDOC justified the initiation of an investiga tion of Argentine OCTG based on the information 
related to Siderca that the petitioners provided.  Siderca was the only Argentine producer and exporter 
considered to be a mandatory respondent for the investigation, and was the only party to which 
USDOC issued a questionnaire.  The USDOC conducted  a full investigation of Siderca and calculated 
a dumping margin of 1.36 per cent for Siderca, which was also used as the "all others" rate that would 
apply to any other Argentine exporter.
17  
 
22. Siderca had not shipped any OCTG to the Un ited States for consumption during the relevant 
sunset review period.  Siderca was the only Ar gentine producer/exporter for which annual reviews 
were requested for the years ending July 1996, 1 997, 1998, and 1999, and c onducted during the five-
year period relevant to sunset proceedings c onducted by USDOC and the US International Trade 
Commission (USITC).  USDOC conducted "no-shipme nt" reviews during the sunset review period 
and, in each instance, upheld  Siderca's claims that the company had not exported OCTG to the United States.
18  In all cases, USDOC ultimately agreed w ith Siderca's certification that it made no 
shipments and therefore rescinded the annual revi ews because there were no shipments to review. 
 
15 Statements by the United States at the December  20th Meeting of the WTO Dispute Settlement Body , 
available at http://www.us-mission.ch/Press2005/1221DSBmeeting.html.   
16 On 5 January 2006, Argentina and the United States concluded an agreement on procedures under 
Articles 21 and 22 of the DSU that apply to this dispute:  Agreed Procedures under Articles 21 and 22 of the 
Dispute Settlement Understanding Applicable to the WTO Dispute United States – Sunset Reviews of the Anti-
Dumping Duties on Oil Country Tubular Goods from Argentina , WT/DS268/14, 5 January 2005.  
17 Oil Country Tubular Goods from Argentina , 60 Fed. Reg. 33,539 (Dep't Comm. 1995)(final anti-
dumping determ.)(ARG-1).  Even though this amount was below the 2 per cent de minimis  level established in 
Article 5.8 of the Anti-Dumping Agreement, the inves tigation was governed by pre-WTO legislation, which 
established a de minimis level of 0.5 per cent.  Therefore, the 1.36 per cent dumping margin was considered 
sufficient to justify the issuan ce of an anti-dumping duty order. 
18 Oil Country Tubular Goods from Argentina , 62 Fed. Reg. 18,747 (Dep't Comm. 1997) (rescinded 
admin. Review) (ARG-2); Oil Country Tubular Goods from Argentina , 63 Fed. Reg. 49,089 (Dep't Comm. 
1998) (rescinded admin. Review) (ARG-3); Oil Country Tubular Goods from Argentina , 64 Fed. Reg. 4,069 WT/DS268/RW 
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B. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION 
 
23. On 3 July 2000, the USDOC initiated a sunset review of the anti-dumping duty order on 
OCTG from Argentina.19  The Petitioners responded to the in itiation notice and filed substantive 
responses as well as briefs arguing that revocation of the order would be likely to lead to recurrence or 
continuation of dumping, and that the anti- dumping duty order should be continued.20
 
24. Siderca also responded to the initiation noti ce and filed a complete substantive response, 
arguing that revocation of the order would not be likely to lead to continuation or recurrence of 
dumping and that USDOC should therefore revoke the order on OCTG from Argentina.21  I n  i t s  
response, Siderca stated that it did not export OCTG to the United States during the five-year period examined in the sunset review.  Siderca also stated that, consequently, there was no finding of dumping other than the 1.36 per cent dumping margin calculated in the original investigation.
22
 
25. On 22 August 2000, USDOC determined that Siderca's otherwise complete substantive 
response to USDOC's notice of initiation of the sunset review was "inadequate" because the company's exports fell below the Depa rtment's deemed threshold level: 
 
During 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 
exports of the subject merchandise to the United States was significantly below 
50 per cent.  Because the respondent accounts for significantly less than the 50 per cent threshold that the Department normally will consider to be an adequate foreign response (as provided in section 351.218(e)(1)(ii)(A)), we recommend that 
you determine Siderca's response to be inad equate and that we should conduct an 
expedited (120 day) sunset review (as provided for at section 751(c)(3)(B) of the Act 
and at section 351.218(e)(1)(ii)(C) of  the Department's regulations).
23
 
26. In its Issues and Decision Memorandum , dated 31 October 2000 (and incorporated by 
reference into USDOC's Sunset Determination), USDOC stated: 
 
Although the Department received a substan tive response on behalf of Siderca, the 
Department explained in its August 22, 2000 adequacy determination that because, during the period 1995 to 1999, the average annual share of Siderca's exports of the subject merchandise vis-a-vis the total Argentine exports of the subject merchandise 
during the same period was significantly below the fifty-per cent threshold provided 
 
(Dep't Comm. 1999) (rescinded admin. review) (ARG-4); Oil Country Tubular Goods from Argentina , 65 Fed. 
Reg. 8,948 (Dep't Comm. 2000) (rescinded admin review) (ARG-5). 
19 See Notice of Initiation of Five-Year ("Sunset") Reviews , 65 Fed. Reg. 41,053 (Dep't Comm. 2000) 
(ARG-6).  The ITC also initiated its sunset review on 3 July 2000.  Oil Country Tubular Goods From Argentina, 
Italy, Japan, Korea, and Mexico , 65 Fed. Reg. 41,088 (Int'l Trade Comm'n 2000)(notice of institution of sunset 
reviews)(ARG-7). 
20 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 3-4 (" Issues and 
Decision Memorandum ") (ARG-8). 
21 See Substantive Response of Siderca to the Department's Initiation of Sunset Review of the 
AD Order on OCTG from Argentina (2 Aug. 2000)(ARG-9). 
22 See Substantive Response of Siderca to the Department's Initiation of Sunset Review of the 
AD Order on OCTG from Argentina (2 Aug. 2000) at 3 (ARG-9). 
23 Oil Country Tubular Goods from Argentina:  Adequacy of Respondent Interested Party Response to 
the Notice of Initiation , A-357-810 (Dep't Comm., 22 Aug. 2000) at 2 (ARG-10)  WT/DS268/RW 
 Page A-9 
 
 
                                                       for in section 351.218(e)(1)(ii)(A) of the Sunset Regulations, the Department 
determined Siderca's substantiv e response to be inadequate.24
27. Based on its determination that Siderca's r esponse was inadequate, USDOC stated "[i]n the 
instant reviews, the Department did not receive an adequate response from respondent interested 
parties.  Pursuant to section 351.218(d)(2)(iii) of th e Sunset Regulations, this constitutes a waiver of 
participation".25
 
28. In its 7 November 2000 Final Determination in the sunset review (which incorporated 
USDOC's Issues and Decision Memorandum ), the Department stated that revocation of the anti-
dumping duty on OCTG from Argentina would be likely to lead to continuation or recurrence of 
dumping.  The Department stated th at the margin of likely dumping was 1.36 per cent, the same rate 
as in the original investigation.  The Department reported this rate to the USITC as the likely dumping 
margin to prevail in the event of termination. 26
 
C. USDOC'S 2000 LIKELIHOOD OF DUMPING DETERMINATION FOUND TO BE 
INCONSISTENT WITH ARTICLES 6.2 AND 11.3 OF THE ANTI- DUMPING AGREEMENT 
 
29. The original Panel found that USDOC's  likelihood of dumping determination was 
inconsistent with Article 11.3 because (1) there was no legal or evidentiary basis for the USDOC to have considered that dumping had continued over th e life of the order, and thus that there was no 
basis for a WTO-consistent determination that dumping would be likely to continue or recur
27;  and 
(2) the application of the waiver provisions invalid ated the factual basis for the USDOC's likelihood 
of dumping determination.28
 
30. Specifically, the original Panel stated: 
 
USDOC's Issues and Decision Memorandum de monstrate that the USDOC relied on 
the existence of the original dumping margin when concluding that dumping 
continued over the life of the order.  The i ssue therefore is whether the existence of a 
dumping margin from the original investiga tion can be interpreted to mean that 
dumping continued over the life of the measure.  In our view, it cannot.  The original dumping margin reflects the result of the dumping margin calculations in the original investigation, which establish the basis fo r the anti-dumping measure to be imposed 
in that investigation.  The existence of  the original dumping margin cannot be the 
basis of a factual determination that dump ing continued over the life of the measure.  
Exporters subject to the measure might ha ve changed their export or home market 
prices, or, their cost of production might have changed.  Thus, if an investigating authority relies upon the existence of dumping over the life of the measure as part of its sunset determination, it has to have an adequate factual basis for so concluding …  
The existence of the original dumping ma rgin cannot be the basis of a factual 
determination that dumping continued over the life of the measure ….  In our view … 
the original determination of dumping by itself cannot represent a sufficient factual 
basis for concluding that dumping continued during the life of the measure, let alone 
representing an adequate factual basis to c onclude that dumping is  likely to continue 
or recur after the expiry of the order.  The purpose of a sunset review is to examine 
 
24 Issues and Decision Memorandum  at 3 (ARG-8). 
25 Issues and Decision Memorandum at 5 (ARG-8). 
26 Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea , 65 Fed. Reg. 66,701 
(Dep't Comm. 2000)(final results sunset review)(ARG-11). 
27 Panel Report, para. 7.219; see also  para. 8.1(d)(i). 
28 Panel Report, para. 7.222; see also  para. 8.1(d)(i). WT/DS268/RW 
Page A-10  
 
                                                       whether the facts continue to justify the imposition of an anti-dumping measure.  The 
USDOC, however, did not engage in that inquiry because it simply relied on the 
existence of the dumping margin from the original investigation. 
Assuming arguendo that the basis of the USDOC's finding that dumping continued 
over the life of the measure was, as the United States asserts, the continued shipments 
of the subject product and the continued collection of the duty, rather than the 
existence of the original dumping margin per se, our analysis would not change ….  In our view, the fact that some imports of the subject product continued to be shipped from Argentina to the United States and th at anti-dumping duties continued to be 
collected on these shipments over the life of the order does not represent an adequate 
factual basis for the proposition that dumping continued in that period. 
We recall that the USDOC's likelihood determination in this sunset review was based on two factual findings, i.e. first dumping continued over the life of the measure and second import volumes declined following the imposition.  We have found that the 
factual basis of the first one is not proper .  We therefore conclude that the USDOC's 
likelihood determination in the instant sunset review was inconsistent with 
Article 11.3 of the Anti-Dumping Agreement. 
… Although the USDOC's final determinati on does not refer to … company-specific 
determinations, logically these determinations must be a relevant part of the factual basis of the USDOC's overall country-wide likelihood determination in the OCTG 
sunset review.  In our view, the application of deemed waivers provisions to 
Argentine exporters other than Siderca inva lidated the factual basis of the overall 
country-wide determination.  Therefor e, in addition to our above-stated 
considerations, we also find that the application of these provisions in the OCTG 
sunset review was inconsistent with Article 11.3 of the Agreement.
29
 
31. The Panel also found that USDOC had violat ed Article 6.2 of the Anti-Dumping Agreement 
because the USDOC's sunset review had "depriv[ed] cooperating exporters  of their procedural rights": 
 
Given the explicit provision of Article 6.2 that  hearings have to be arranged when so 
requested by interested parties, it becomes clear that in the OCTG sunset review 
Siderca was subjected to a procedure that fell short of the requirements of Article 6.2 of 
the Agreement in respect of hearings…. In our view, the fact that certain exporters do not participate in a sunset review cannot justify depriving cooperating exporters of their procedural rights under Article 6.2.
30
 
D. USDOC'S 2005 LIKELIHOOD OF DUMPING DETERMINATION 
 
32. Prior to formally commencing the Sec tion 129 proceeding, USDOC requested the 
Government of Argentina to assist USDOC in iden tifying all Argentine producers of OCTG within 
the period 1995-2000, including dr ill pipe and casing and tubing.31  The USDOC's 14 October 2005 
communication stated in part as follows: 
 
In that [original] investigation [the US DOC] determined that Argentine producers of 
OCTG had sold OCTG in the United States at less-than-fair value prices.  In this 
 
29 Panel Report, paras. 7.219-7.222 (footnotes omitted). 
30 Panel Report, para. 7.235. 
31 Letter from USDOC to Embassy of Argentina, Washington, D.C., 14 October 2005 (ARG-17).  WT/DS268/RW 
 Page A-11 
 
 
  sunset proceeding, the Department seeks to determine whether dumping of OCTG in 
the United States by Argentina producers (most of whom had ceased exporting 
OCTG to the United States following imposition of the antidumping duty order) would continue or recur if the anti dumping duty order had been revoked in 
August 2000.
32
33. In providing the information requested by the USDOC, the Government of Argentina pointed out several inaccuracies in the Department's request , including that "the public documents clearly 
establish, the 1994/95 investigation did not involve producer
s; it involved a single producer, Siderca.  
The Department never identified any other Argentine producer, it never sought to investigate any other producer, and there was no determination that 'Argentine producers' sold OCTG in the 
United States at less-than-fair value.  The only finding was related to Siderca, which was the only 
producer identified and investigated by the Department."
33
 
34. Argentina further explained that there w as no factual basis for the USDOC assertion that 
"most" of the "producers" "had ceased exporting OCTG to the United States following imposition of 
the antidumping duty order".  Argentina then stat ed that there was no information on the USDOC 
record establishing that any producer other than Si derca had exported before the order, and so it was 
meaningless to reference "most" of the producers ceasing their exports after the imposition of the 
order.34
 
35. After identifying USDOC's factual inaccuraci es regarding its description of the original 
investigation and sunset review, Argentina identified Siderca as a producer of OCTG during the 
relevant period.  The Government of Argentina added that "[b]ased on the information mainly 
developed by the USITC, it appears that other Ar gentine steel producers such as Tubhier and Acindar 
have had, at different points of time, the cap ability to produce OCTG, although no information 
available to the Government of Argentina indicat es that those companies produced any OCTG during 
the relevant period".35
 
36. On 31 October 2005, USDOC requested in formation from Argentine OCTG producers 
Tubhier, Acindar, and Siderca.36  For the period 1995-2000, the USDOC requested certain cost of 
production information for OCTG, as well as production and shipment volumes.  As Siderca 
specifically advised, the USDOC did not explain how  it would use the information solicited, "what 
procedures [would] be followed to analyze the information, the timing of any hearing, and how the parties [would] be permitted to have access to and comment on the essential facts being used by the 
Department to make its determination".
37  All three Argentine producers – Tubhier, Acindar, and 
Siderca – responded to USDOC's request for information.38  USDOC did not issue any supplemental 
questionnaires to any of the Argentine exporters, or provide a briefing schedule as to the timing, if 
any, for rebuttal and reply comments.  Nor did the USDOC conduct a public hearing. 
                                                      
32 Letter from USDOC to Embassy of Argentina, Washington, D.C., 14 October 2005 (ARG-17). 
33 Letter from Embassy of Argentina, Washington, D.C., to USDOC, 28 October 2005, at 2 
(Appendix I to USDOC Memorandum to the File from Fred Baker, Analyst, through Robert James, Program 
Manager, and Mike Heaney, Team Leader, Informa tion for the Record (22 Nov. 2005)) (ARG-18). 
34 Id. 
35 Letter from Embassy of Argentina, Washington, D.C. to US Department of Commerce, 
28 October 2005, at 3 (Appendix I to USDOC Memorandum to the File from Fred Baker Analyst, through 
Robert James, Program Manager, and Mike Heaney, Team  Leader, Information for the Record (22 Nov. 2005)) 
(ARG-25). 
36 USDOC Questionnaire to Acindar, Tubhier, and Siderca (31 Oct. 2005) (ARG-13). 
37 Letter from Siderca to USDOC, 7 December 2005, at 3 (ARG-19). 
38 Letter from Embassy of Argentina, Washington, D.C., to USDOC, 30 Nov. 2005 (transmitting 
Tubhier's Response to Questionnaire (23 Nov. 2005)) (ARG-20); Acindar's Response to Questionnaire (30 Nov. 2005) (ARG-14); Siderca's Response to Questionnaire (30 Nov. 2005) (ARG-15). WT/DS268/RW 
Page A-12  
 
                                                        
37. The USDOC's Section 129 Determination was issued on 16 December 2005.  The Department 
stated "we find there is likelihood of continuation or recurrence of dumping had the antidumping duty 
order on OCTG from Argentina been revoked in 2000, i.e., at the end of the original sunset period".39  
The USDOC 2005 affirmative likelihood determina tion was based on:  (1) inferences drawn from 
selected excerpts of the Argentine exporters' financial statements40;  (2) the use of certain limited 
pricing data regarding certain of Acindar's shipments and observed market prices in the United 
States41;  and (3) the inference that dumping would be  likely, based on the decline in volume of 
Argentine OCTG following the imposition of the anti-dumping order.42  These inferences are 
discussed further below. 
 
IV. USDOC'S SECTION 129 DETERMINATION IS INCONSISTENT WITH US WTO 
OBLIGATIONS AND FAILED TO IMP LEMENT THE RECOMMENDATIONS AND 
RULINGS OF THE DSB 
 
38. The United States offers as "compliance" w ith its Article 11.3 obligation a likely dumping 
determination made in December  2005, ten-and-one-half years after imposition of the duties, and 
nearly five years after it continued the duties.  In  Argentina's view, the 2005 likelihood determination 
did not bring the United States into conformity with US obligations under Article 11.3 of the Anti-Dumping Agreement or into compliance with the re commendations and rulings of the DSB.  In this 
regard, USDOC's 2005 likelihood determination in no way justifies USDOC's continuation of anti-
dumping duties on Argentine OCTG in 2001. 
 
39. First, in the 2005 Section 129 proceeding,  the USDOC developed a new factual basis to 
support the WTO-inconsistent determ ination it made in 2000.  The USDOC acted inconsistently with 
Articles 11.3 and 11.4 of the Anti-Dumping Agreem ent by developing new factual information to 
support its 2000 likelihood of dumpi ng determination, where none of the evidence required to support 
such a determination was developed in 2000, the time when USDOC was obliged to conduct the requisite "review" and gather the necessary posit ive evidence in order to make the requisite 
"determination" required by Articles 11.3 and 11.4 of the Anti-Dumping Agreement.  
 
40. At the same time, in its 2005 Section 129 proceeding USDOC chose not to ask the Argentine 
exporters any questions relating to the causes for the post-order volume decline, which was the only 
factor for which USDOC developed a factual basis in the review conducted in 2000.  Information 
provided by the Argentine exporters to USDOC regarding the causes for the volume decline was 
ignored without even being mentioned in USDOC's  Section 129 Determination.  USDOC simply 
remained content with its assumption from 2000, d espite the admonitions from the Appellate Body.  
This cannot satisfy the obligations of the Unite d States to conduct a "review" and to make a 
"determination" prior to continuing the anti-dum ping measure beyond five years, which is the 
unequivocal requirement of Articles 11.3 and 11.4. 
 
41. Second, and in the alternative, even assuming arguendo that the USDOC were permitted to 
develop the requisite factual information in 20 05 to support its 2000 likelihood determination, the 
2005 Section 129 Determination nevertheless failed to satisfy the requirements of Article 11.3 of the 
Anti-Dumping Agreement and the United States did not  bring itself into compliance with the rulings 
and recommendations of the DSB.  The USDOC did not establish a sufficient factual basis of positive evidence necessary to support a WTO-consistent finding of likely dumping.  It did not objectively assess the information that it had.  The USDOC's conclusions are not reasoned, and the evidence it 
 
39 USDOC Section 129 Determination at 11 (ARG-16). 
40 USDOC Section 129 Determination at 9-10 (ARG-16). 
41 USDOC Section 129 Determination at 6-8 (ARG-16). 
42 USDOC Section 129 Determination at 11 (ARG-16).  WT/DS268/RW 
 Page A-13 
 
 
  developed does not support a WTO-consistent de termination that dumping would be likely.  
Moreover, USDOC's conduct of the Section 129 proceeding was also inconsistent with several 
US obligations under the provisions of Article 6 of  the Anti-Dumping Agreement.  Separately, the 
United States violated its obligations under Artic le 13 of the Anti-Dumping Agreement by failing to 
implement the Section 129 Determination so as to affo rd judicial review of that determination in a 
US court. 
 
42. Subsection A describes the requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement and the relevant WTO jurisprudence clarifying the Agreement's sunset provisions.  
Subsection B explains why USDOC acted inconsistent ly with Article 11.3 by:  (i) seeking to develop 
new factual information in 2005 to support its 2000  likelihood of dumping determination, where none 
of the evidence that was required to support such  a determination was developed in 2000; and 
(ii) relying in 2005 on its inference from 2000 of likely dumping based on the post-order decline in Argentine OCTG imports, where USDOC made no e ffort (either in 2000 or 2005) to support its 
assumption and determine the reason for the decline.  Subsections C and D present an alternative 
argument , in which even assuming arguendo that the USDOC were permitted to develop the 
requisite factual information in 2005 to support its 2000 likelihood determination, the 2005 USDOC 
Section 129 Determination neverthele ss failed to satisfy US obligati ons under Articles 6.1, 6.2, 6.4, 
6.5.1, 6.6, 6.8, 6.9, 11.1, 11.3 and Annex II of the Anti-Dumping Agreement, and did not bring the 
United States into compliance with  the rulings and recommendations of the DSB.  Finally, subsection 
E explains that the United States' failure to  implement USDOC's Section 129 Determination 
precluded the opportunity for the Argentine respondents to seek judicial review in a US court, in violation of Article 13 of the Anti-Dumping Agreement. 
 
A. THE REQUIREMENTS OF ARTICLES 11.3 AND 11.4 OF THE ANTI-DUMPING AGREEMENT 
 
43. Article 11.3 provides as follows: 
 
Notwithstanding the provisions of paragra phs 1 and 2, any definitive anti-dumping 
duty shall be terminated on a date not la ter than five years from its imposition (or 
from the date of the most recent review under paragraph 2 if that review has covered 
both dumping and injury, or under this pa ragraph), unless the authorities determine, 
in a review initiated before that da te on their own initiative or upon a duly 
substantiated request made by or on be half of the domestic industry within a 
reasonable period of time prior to that date, th at the expiry of the duty would be likely 
to lead to continuation or recurrence  of dumping and injury.  The duty may remain in force pending the outcome of such a review. 
44. In US – Corrosion-Resistant Steel Sunset Review , the Appellate Body provided authoritative 
guidance on the obligations imposed on Members during a sunset review by Article 11.3.  It began by 
noting that: 
 
Article 11.3 imposes a temporal limitation on  the maintenance of anti-dumping duties. 
It lays down a mandatory rule with an excep tion. Specifically, Members are required to 
terminate an anti-dumping duty within five years of its imposition " unless " the 
following conditions are satisfied: first, that a review be initiated before the expiry of 
five years from the date of the imposition of the duty; second, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation 
or recurrence of dumping ; and third, that in the review the authorities determine that the WT/DS268/RW 
Page A-14  
 
                                                       expiry of the duty would be likely to lead to continuation or recurrence of injury. If any 
one of these conditions is not satisfied, the duty must be terminated. 43
 
45. The Appellate Body explained that "the likelihood determination is a prospective 
determination. In other words, the authorities must  undertake a forward-looking analysis and seek to 
resolve the issue of what would be likel y to occur if the duty were terminated".44  The Appellate Body 
went on to stress the diligence and rigor required by the authorities under Article 11.3:  
 
[The] language in Article 11.3 makes clear that it envisages a process combining both investigatory and adjudicatory aspects. In ot her 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.  In view of the use of the word "likely" in Article 11.3, an affirmative likelihood 
determination may be made only if the ev idence demonstrates that dumping would be 
probable if the duty were terminated – and not  simply if the evidence suggests that such 
a result might be possible or plausible.
45
 
46. Article 11.4 of the Anti-Dumping Agreemen t provides that the review conducted under 
Article 11.3 "shall be carried out e xpeditiously and shall normally be concluded within 12 months of 
the date of initiation of the review."  In clarifying Article 11.4 of the Agreement, the Appellate Body 
expressly recognized that the ability to keep an order in place for up to one more year was an 
"additional exception" – and in effect, the sole ex ception – to the requirement that anti-dumping duties 
will be terminated after five years: 
 
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 s unset review.  This confirms that the 
mandatory rule in Article 11.3 applies in a ddition 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 initiati ng a sunset review.  The last sentence of 
Article 11.3 allows the relevant duty to c ontinue 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 five 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, involving a number of procedural steps, and requiring an appropria te degree of diligence on the part of the 
national authorities.
46
 
 
43 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-
Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 1994, paras. 104-105 
(original emphasis) (" US – Corrosion-Resistant Steel Sunset Review "). 
44 Appellate Body Report, US - Corrosion-Resistant  Steel Sunset Review, paras. 104-105 (original 
emphasis). 
45 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 111 (original emphasis). 
46 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 113.  WT/DS268/RW 
 Page A-15 
 
 
                                                       47. As noted above, the Appellate Body then e ndorsed the view of the Panel in that case on the 
obligations imposed by Article 11.3 on inv estigating authorities in a sunset review: 
 
The text of Article 11.3 contains an obliga tion "to determine" likelihood of continuation 
or recurrence of dumping and injury…. The requirement to make a "determination" 
concerning likelihood therefore precludes an investigating authority from simply 
assuming that likelihood exists.  In order to continue the imposition of the measure after the expiry of the five- year application period, it is clear that the investigating 
authority has to determine, on the basis of positive evidence, that termination of the duty is likely to lead to continuation or recurrence of dumping and injury. An 
investigating authority must have a sufficient factual basis to allow it to draw reasoned 
and adequate conclusions concerning the likelihood of such continuation or 
recurrence.
47
 
48. The Appellate Body in the present dispute reaffirmed the meaning of "review" and 
"determination" in the obligations imposed by Article 11.3: 
 
The plain meaning of the terms "review" a nd "determine" in Article 11.3, therefore, 
compel an investigating authority in a sun set review to undertake an examination, on 
the basis of positive evidence, of the lik elihood of continuation or recurrence of 
dumping and injury.  In drawing conclusions from that examination, the investigating 
authority must arrive at a r easoned determination resting on a sufficient factual basis; it 
may not rely on assumptions or conjecture.48
 
49. In US – OCTG from Mexico , the Appellate Body affirmed that: 
 
…what is essential for an affirmative dete rmination under Article 11.3 is proof of 
likelihood of continuation or recurrence of dumping and injury, if the duty expires. The 
nature and extent of the evidence required for such proof will vary with the facts and circumstances of the case under review.  Furthermore, as  the Appellate Body has 
emphasized previously, determinations under Article 11.3 must rest on a "sufficient 
factual basis" that allows the investigating authority to draw "reasoned and adequate 
conclusions."
49
 
 
47 Appellate Body Report, US - Corrosion-Resistant  Steel Sunset Review , para. 114 (emphasis added).  
After quoting this passage, the Appellate Body stated that:  "The Panel's description of the obligations of 
investigating authorities in conducting a sunset review  closely resembles our own, and we agree with it." 
Id., para. 115.  
48 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, adopted 17 December 2004, para. 180 (" US - Oil Country 
Tubular Goods Sunset Reviews "). 
49 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico , WT/DS282/AB/R, adopted 28 November 2005, para. 123 (" US - OCTG from Mexico "). WT/DS268/RW 
Page A-16  
 
  B. THE SECTION 129 DETERMINATION DID NOT BRING THE UNITED STATES INTO 
CONFORMITY WITH US OBLIGATIONS UNDER ARTICLES 11.3 AND 11.4 OF THE 
ANTI-DUMPING AGREEMENT AND DID NOT ACHIEVE COMPLIANCE WITH THE 
RULINGS OF THE DSB 
 
50. In considering whether the United States is now in compliance with its Article 11.3 
obligation, Argentina asks this panel to apply the terms of Articles 11.3 and 11.4 of the Anti-Dumping 
Agreement.  Applying the text of these provisions, as clarified by the Appellate Body, to the 
circumstances of this dispute leads to the followi ng requirements, which Arge ntina considers to be 
beyond dispute: 
 
First , because the anti-dumping duty order on OCTG from Argentina was imposed in 
August 1995, the United States had an obligation to terminate the measure before August 2000 unless it adhered to the requirements  for invoking the exception (continuation of 
the measure), as set forth in Articles 11.3 and 11.4; 
 
Second, in order to invoke the exception and to extend the measure beyond August 2000, the 
US authorities were required to initiate a "review" before "that date," (i.e., August 2000) and 
to "determine" that "expiry of the duty would be likely to lead to continuation or recurrence of dumping"; 
 
Third , the "review" and "determination" in this regard must have had the following 
characteristics: 
 
• It needed to be a prospective determination, requiring a forward-looking analysis; 
• USDOC needed to take an active rather than a passive role in developing and assessing the information; 
• USDOC was required to act with an appropr iate degree of diligence and arrive at a 
reasoned conclusion on the basis of inform ation gathered as part of a process of 
reconsideration and examination; 
• The requirement to make a "determinati on" concerning likelihood precluded USDOC 
from simply assuming that likelihood exists; and 
• USDOC was required to assess the information before it objectively and to have a sufficient factual basis to allow it to draw reasoned and adequate conclusions 
concerning such likelihood. 
 
51. The USDOC Section 129 Determination does not bring the United States into compliance with the obligation of Articles 11.3 and 11.4 as they apply to this case for several reasons. 
 
52. First, the USDOC chose to develop a new a nd different factual basis for its Section 129 
Determination.  This informati on, first developed in 2005, cannot justify the 2001 decision by 
USDOC to invoke the exception of Article 11.3 and to extend the measures beyond August 2000.  
This is not a case of the national authorities seeking to  clarify information that it had developed in the 
2000 proceeding (that is, in the review initiated "at that time"); rather, it is a case in which the authority takes a second, different approach to the issue, creating a new factual basis in 2005 to justify its 2001 decision to extend the measure. 
 
53. The difference between the factual bases of the 2005 and 2000 proceeding are clear.  In the 
original 2000 proceeding, USDOC sent out no ques tionnaires and limited itself to a review of the 
information submitted by the parties.  After stating that the issue is "whether the USDOC's likelihood  WT/DS268/RW 
 Page A-17 
 
 
  determination in this sunset review rested on a sufficient factual basis",50 the Panel went on to state 
and conclude that:  
 
The purpose of a sunset review is to examine whether the facts continue to justify the 
imposition of an anti-dumping measure.  The USDOC, however, did not engage in that 
inquiry because it simply relied on the ex istence of the dumping margin from the 
original investigation.51
 
The Panel's finding could not be clearer:  the Un ited States continued the anti-dumping measure in 
2001 without having "engage[d] in [the] inquiry" required by Article 11.3. 
 
54. In the 2005 Section 129 proceeding, the USDO C takes a different approach, requesting from 
all the identified potential producers:  1) financia l statements for the period 1995-2000;  2) cost 
information for ten categories of OCTG products; 3) a description of each company's sales and marketing processes; and 4) a statement as to  whether the company exported OCTG to the 
United States during the 1995-2000 period.
52  Only this last question was related to the information 
that USDOC developed in its 2000 review.  All of  the other information (and presumably more) was 
available to the USDOC in 2000, but the USDOC decided to invoke the exception of Article 11.3 and continue the anti-dumping measure without developi ng any additional information.  In fact, USDOC 
even chose to conduct the 2000 review under the so- called "expedited review" procedures, which, by 
its nature, limited the development of information and argument in the review.  The fact that USDOC 
had to develop this information for the first time in 2005 demonstrates that this information was never 
part of the factual basis that the USDOC developed to support its 2001 decision to continue the anti-dumping measure. 
 
55. Second, the newly-developed information appare ntly played a key role in the Department's 
affirmative determination in the 2005 Section 129 determination.  Specifically, the Department based 
its 2005 Section 129 determination on:  1) infere nces drawn from statements in Siderca's and 
Acindar's financial statements during the original sunset period;  2) US import prices for Acindar's 
shipments compared to observed US market prices ;  and 3) the inference that the decrease in 
Argentine OCTG exported to the US market afte r the imposition of the order demonstrated that 
dumping would be likely to continue or recur in the absence of the order.53
 
56. There can be no dispute that the factual basis for the first two points were developed for the first time in the 2005 Section 129 proceeding:   
• Financial Statements : USDOC never requested the companies' financial statements in 
the original sunset proceeding, even though these documents must have been available to the Department at that time.  There is no reference to financial statements 
in the record developed by the USDOC prior to extending the anti-dumping measure, 
and DOC's 2000 decision does not mention the producers' financial statement. In fact, USDOC had not even bothered in the 2000 s unset proceeding to take the rudimentary 
step of identifying the relevant Argentine producers, choosing instead to assume the existence of other producers and  invoke th e "waiver" provisions of US law.  The 
USDOC sought and obtained financial st atements for the first time in 2005. 
• Customs data :  The customs data relied on by USDOC in the Section 129 proceeding 
was never developed at the time of the 2000 sunset review.  Such information 
                                                      
50 Panel Decision, para. 7.211. 
51 Panel Decision, paras. 7.219.  The Panel also observed that the USDOC relied on a finding "that 
import volumes declined following the imposition of the order."  Id. at paras. 7.213, 7.221. 
52 USDOC Questionnaire (31 Oct. 2005) (ARG-13). 
53 USDOC Section 129 Determination at 6-11 (ARG-16). WT/DS268/RW 
Page A-18  
 
                                                       certainly could have been developed at the time, but it was not.  The fact that USDOC 
developed this information in conjunction with another US government agency shows 
that USDOC could have done this had it applied the appropriate degree of diligence 
and taken an active, not passive, role in the original sunset determination in 2000. 
 
57. In relying on information developed for th e first time in 2005, the USDOC did not render a 
decision that brings the United States into complianc e with its obligations under Article 11.3 and 11.4.  
Those obligations require a substantive, reasoned "d etermination" in a review initiated "at that time" 
in order to continue the anti-dumping measure bey ond the five-year deadline, which expired in this 
case in August 2000.  There is no possibility that the United States can justify its 2001 decision to 
continue the anti-dumping measure on the basis of new factual information that developed only in 
2005. 
 
58. The only other basis for the 2005 Section 129 Determination is USDOC's restatement of the inference it drew in 2000 from the decrease in Ar gentine exports after the 1995 imposition of the anti-
dumping order.  The only references in USDOC's Section 129 Determination with respect to the volume issue are the following: 
 
[W]e solicited and considered information and argument from domestic and respondent interested parties for the same period at issue in our original sunset review, 1995 – 2000.  
Based upon this information and argument, as well as findings on import volumes during the 
1995 – 2000 from the original sunset review, we continue to find that revocation of the order 
would be likely to lead to continuation or recurrence of dumping.
54
 
. . . 
 
In assessing likelihood, we also rely on our prev ious finding regarding the volume of imports 
of subject merchandise for the period before  and the period after the issuance of the 
antidumping duty order.  In the original sunset review, we found that after imposition of the order, import volumes significantly decreased from pre-order levels.  [citations omitted].  Declining import volumes after, and apparently  resulting from, imposition of an antidumping 
duty order indicate that exporters would need  to dump to sell at pre-order levels.
55
 
59. This is the sum total of the discussion of  the volume issue in the 2005 Section 129 
Determination:  one reference in the introduction on page 1, and one reference immediately before the conclusion on page 11.  Both refe rences specifically state that the USDOC is relying on the "previous 
finding" (i.e. in the 2000 sunset review), and ma ke clear that the USDOC did not develop further 
factual basis for its inference. 
 
60. By treating the volume issue in this manner , the USDOC has sent an unequivocal message to 
Argentina and to this Panel:  it can rely on th e inference arising from declining import volumes 
without an analysis of the cause for the decrease.  The USDOC even reminds the reader, twice, that 
this was the position it took initially, and that this Panel decided to refrain from deciding the issue in 
its first review.56
 
61. Clearly, the United States has taken advantage of this Panel's decision to leave this issue 
unresolved.  As a preliminary, but extraordinaril y important matter, Argentina asks that the Panel 
decide the issue in this Article 21.5 proceeding so that the dispute may now be resolved. 
 
 
54 USDOC Section 129 Determination at 1 (ARG-16). 
55 USDOC Section 129 Determination at 11 (ARG-16). 
56 USDOC Section 129 Determination at 2 n.4 and 6 n.12 (ARG-16).  WT/DS268/RW 
 Page A-19 
 
 
                                                       62. In Argentina's view, the USDOC's treatment of the volume issue in the 2005 Section 129 
Determination (which expressly incorporates the treatment of the issue in the 2000 Sunset Determination) is deficient and must be reject ed by the Panel.  USDOC does nothing more than 
merely restate its reliance on this factor.  Its disinterest in doing anything other than relying on its assumption is clear from its short discussion on pa ge 11:  "Declining import volumes after, and 
apparently  resulting from, imposition of an antidum ping duty order indicate that exporters would need 
to dump  to sell at pre-order levels."  (Emphasis added) .  There is no factual basis for this assumption, 
either in the 2000 Sunset Determination or in  the 2005 Section 129 Determination, where the 
Department is content to say what "apparently"  is the case, and what an exporter "would need"  to do.  
This type of conjecture, without factual basis, does not satisfy the requirements of Article 11.3. 
 
63. Also, it should be recalled that the 2000 Sun set Determination was one  that was conducted on 
an "expedited" basis, a procedure which the Pane l found to violate Article 6.2 of the Anti-Dumping 
Agreement on the facts of this case.  USDOC, apparen tly confident in its inference, continues to rely 
on the findings made in that proceeding, without even asking any questions or otherwise developing 
information  regarding the causes for the volume decline. 
 
64. The Appellate Body has made clear that assumptions are not enough to support a 
determination under Article 11.3, and that "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 determine 
that dumping will recur if the duty is terminated".57  The Appellate Body stated that it did not believe 
that historical dumping margins or import volumes could always be presumed to constitute sufficient 
evidence of likely dumping: 
 
We would have difficulty accepting that  dumping margins and import volumes are 
always 'highly probative' in a sunset review by USDOC if this means that either or both 
of these factors are presumed, by themselves,  to constitute sufficient evidence that the 
expiry of the duty would be likely to lead to continuation or recurrence of dumping.58
 
65. The Appellate Body subsequently reaffirmed in US - OCTG from Mexico  that in the context 
of declining volumes, it is insufficient to rely on presumptions or conjecture as to a company's ability 
to ship to the US market without dumping: 
 
if the dumping had ceased soon after the i ssuance of the order, and there was no 
dumping or there were no imports for a substa ntial period before the sunset review, the 
investigating authority will need credible evidence to come to the conclusion that 
dumping will "recur" if the anti-dumping duty  order is revoked. A respondent party 
may have the responsibility to introduce relevant evidence in its favour, but the 
investigating authority also has a duty to  seek information to ensure that its 
determination rests on a sufficient evidentiary  foundation. An affi rmative determination 
cannot rest merely on a presumption, as envisaged under scenario (b) or (c), that the cessation of dumping or of imports was due solely to the anti-dumping duty order.
59
 
66. USDOC ignored this requirement in the 2000 Su nset Determination, and then repeated its 
error by simply relying on its earlier finding in the 2005 Section 129 Determination. 
 
67. In summary, the 2005 Section 129 Determina tion did not bring the United States into 
compliance with its Article 11.3 and Article 11.4 obligations.  USDOC chose not to develop further 
any of the information relating to the post-order volume decrease, which was the only factor for which 
 
57 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
58 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
59 Appellate Body Report, US - OCTG from Mexico, para. 199. WT/DS268/RW 
Page A-20  
 
  it developed a factual basis in the review conducted in 2000 that led to its 2001 decision to continue 
the measure.  It simply remained content with its assumption from 2000, despite the admonitions from 
the Appellate Body.  At the same time, USDOC al so chose to develop new and different factual 
information that demonstrably was not considered in the review conducted prior to the 2001 decision 
to continue the anti-dumping measure.  That information – developed in November and 
December 2005 – cannot satisfy the obligations of the United States to conduct a "review" and to 
make a "determination" prior to continuing th e anti-dumping measure, which is the unequivocal 
requirement of Articles 11.3 and 11.4. 
 
C. IN THE ALTERNATIVE, EVEN ASSUMING ARGUENDO  THAT THE USDOC WERE 
PERMITTED TO DEVELOP THE REQUISITE FACTUAL INFORMATION IN 2005 TO SUPPORT 
ITS 2000 LIKELIHOOD DETERMINATION, TH E 2005 SECTION 129 DETERMINATION 
NEVERTHELESS FAILED TO SATISFY THE REQUIREMENTS OF ARTICLE 11.3 OF THE 
ANTI-DUMPING AGREEMENT 
 
68. Aside from the question whether any review conducted by the United States in 2005 could 
justify its 2001 decision to continue the duties, or whether a review based on a completely different 
factual basis can do so, there are other reasons  why the 2005 determination does not bring the 
United States into compliance with its obligatio ns.  First, the USDOC 2005 determination does not 
comply with the requirements of Article 11.3 of the Anti-Dumping Agreement to demonstrate that dumping is likely to continue to recur in the event of expiry of the order. Second, the USDOC 2005 determination violated several provisions of Article 6 of the Anti-Dumping Agreement, which the 
United States acknowledged as being app licable to its 2005 determination. 
 
1. USDOC's 2005 Determination Does Not Properl y Establish that Dumping was Likely to 
Continue or Recur in 2000 
 
69. For its 2005 determination, the USDOC s ought to develop new in formation related to 
production costs and the selling process of OCTG from Argentina for the period 1995-2000.  Each of 
the three Argentine companies identified by  USDOC responded to USDOC's questionnaire.60  Each 
company said that it no longer maintained the requested information because it was outdated, and that Argentine law did not require the retention of this  information.  Tubhier added that it had never 
exported OCTG.  Tubhier and Acindar advised that they were not relevant OCTG producers.  Siderca 
provided reconstructed cost information to the best  of its ability and provided other positive evidence 
regarding the reasons for its absence from the US  market, its exports to other markets, and the 
evolution of its production and sales processes since the imposition of the order in 1995. 
 
70. In making its affirmative likelihood of dum ping determination in December 2005, USDOC 
relied on the following: 
 
1. Statements from Siderca's and Acindar's financial statements; 
2. US import prices for Acindar's shipments compared to US market prices; and 
3. The inference made in 2000 that the d ecrease in Argentine OCTG exported to the 
US market after the imposition of the order in 1995 demonstrated that dumping would be likely to continue or recur in the absence of the order. 
 
71. In addition, the USDOC stated that it was "convinced" that Siderca's cost information was 
flawed, and therefore it disregarded the cost information that it had previously requested. 
                                                      
60 See Siderca's Response to Questionnaire (30 No v. 2005) (ARG-15); Acindar's Response to 
Questionnaire (30 Nov. 2005) (ARG-14); Letter from Embassy of Argentina, Washington, D.C., to USDOC, 
30 Nov. 2005 (transmitting Tubhier's Response to Questionnaire (23 Nov. 2005)) (ARG-20).   WT/DS268/RW 
 Page A-21 
 
 
                                                        
72. As demonstrated below, the USDOC did not properly establish a factual basis necessary to 
support a likely dumping finding, it did not objectively assess the information, its conclusions are not reasoned, and the evidence developed does not show that dumping would be likely. 
 
(a) USDOC's Conclusions Regarding Siderca Are Inconsistent With Article 11.3  
 
73. The USDOC decided not to use any of Siderc a's cost information in its likelihood analysis, 
stating "Given the unreliability of the cost informat ion provided by Siderca and the fact that Siderca 
made no US sales of OCTG during the original sunset  review period, we make no findings regarding 
specific instances of likely dumping by Siderca during the original sunset review."61  The conclusion 
that the data was "unreliable" was based on three subs idiary findings:  1) that the OCTG cost data was 
"inconsistent with other product cost data  for steel products" and "counter-intuitive"62;  2) that 
"Siderca's cost calculations for non-OCTG products are problematic because their costs significantly exceed OCTG costs"
63;  and 3) that "methodological discrepancies" make it "unclear exactly how 
broad a product category Siderca has used in estimating its costs data".64
 
74. As a preliminary matter, these statements demonstrate a new, and flawed approach by USDOC to its Article 11.3 determination.  No where does the Anti-Dumping Agreement discuss the 
concept of "likely" dumping that occurred in the past.  Article 11.3 uses the phrase "likely" to 
describe the prospective, counterfactual determinati on that must be made if a WTO Member intends 
to extend an anti-dumping measure beyond five years:  it must find "that the expiry of the duty would be likely  to lead to continuation or recurrence  of dumping and injury".  The determination of whether 
dumping existed in a past period is governed by  Articles 2 and 9 (Article 9 incorporates the 
substantive rules of Article 2), neither of which men tions the possibility of a determination of "likely" 
dumping with respect to past sales.  Yet, this appa rently is what the USDOC intended to establish by 
requesting cost information from Siderca:  the pu rported unreliability of that data frustrated the 
Department's attempts to make "findings regard ing specific instances of likely dumping by Siderca 
during the original sunset review period".
65
 
75. In addition, as will be explained in more  detail below, there is no basis for USDOC's 
conclusion that Siderca's data was unreliable.  Rather, the three arguments relied on by the 
Department to support the purporte d unreliability show that the Department failed to properly 
establish the fact, did not conduct an objective assessment of the facts, and did not reach reasoned conclusions supported by positive evidence. 
 
 (i) USDOC manipulated Siderca's cost data to create the purported "inconsistencies" and 
counter-intuitive conclusions. 
 
 
61 USDOC Section 129 Determination at 9 (ARG-16). 
62 USDOC Section 129 Determination at 8 (ARG-16). 
63 Id. 
64 Id. at 9. 
65 Id. at 9. WT/DS268/RW 
Page A-22  
 
  76. The USDOC stated that: 
 
[W]e find that the estimated product cost da ta Siderca submitted are inconsistent with 
other product cost data for steel products.  Sp ecifically, in comparing similar types of 
OCTG, Siderca has reported lower costs for certain products that require additional 
materials, processing, and testing, as compared to costs for products that do not require 
such additional materials, processing, and testing.  A complete discussion of these 
discrepancies necessitates discussion of Siderca's business proprietary information; 
for specific examples, see the Department's Memorandum to the File dated 16 December 2005.
66
 
77. The "complete discussion of these discrepancies"  cited by USDOC to justify its decision to 
disregard the company's cost data is a four-line chart in a memorandum dated 16 December 2005 (the 
same date as USDOC's final determination).67  In this chart, the USDOC makes an observation 
regarding certain of the average costs reported by Si derca, and states that it is "convinced" that the 
reporting must be wrong based on its understanding of what it supposes the cost relationship should be between these product groupings.  As the chart show s, the perceived problem is in the reporting of 
the relative costs of carbon and alloy casing.   
 
78. In fact, the chart serves only to demonstrate – clearly and unambiguously – USDOC's lack of an objective assessment of the facts and its result-orie nted approach.  Contrary to its statement, the 
data submitted by Siderca did not show the in consistency claimed by the USDOC; the USDOC 
created the appearance of a discrepancy by manipulating Siderca's data.  
 
79. To see this clearly, we start with a comparison of the product categories requested in USDOC's questionnaire and Siderca's cost response with the product categories in USDOC's 
memorandum: 
 
Item # Product Groupings Requested by 
USDOC and reported by Siderca Product Groupings in 
USDOC's Memorandum 
1 Casing, carbon, plain end Casing, carbon 
2 Casing, carbon, threaded and coupled  
3 Casing, alloy, plain end Casing, alloy 
4 Casing, alloy, threaded and coupled  
 
As can be seen, USDOC did not compare the data provided in the form requested and provided by 
Siderca:  that is, it did not compare the costs of casing, carbon , plain end (item 1 above) with the 
costs of casing, alloy,  plain end (item 3), which would have been the reasonable comparison to do if 
one wanted to compare the cost di fference associated with the type of steel used (carbon or alloy).  
Instead, DOC first calculated a weighted-average of the cost of casing, carbon, plain end (item 1) with 
the cost of casing, carbon, threaded and coupled (i tem 2) in order to invent a new, more general 
category, "casing, carbon".  It then calculated a si milar weighted average for the cost of the two 
different alloy product groupings (items 3 and 4), and then compared the two weighted averages. 
                                                      
66 USDOC Section 129 Determination, at 8 (ARG-16). 
67 USDOC Memorandum to the File from Mark Flessner, Case Analyst, Re: In the Matter of 
Section 129 Determination With Respect to Oil Country Tubular Goods from Argentina, Inconsistencies in data 
reported by Siderca, S.A.I.C. (ARG-21).  WT/DS268/RW 
 Page A-23 
 
 
                                                        
80. What did the USDOC achieve by this manipulation?  Several things.  First, it was able to 
obscure the fact that the direct comparison using Siderca's actual data disproved  their theory that an 
inconsistency existed.  That is, using Siderca's data for each product grouping requested (item 1 vs. 3; 
item 2 vs. 4) showed that the cost of the alloy product was always higher than the cost of the carbon 
product, in each of the five years requested .  The contrary conclusion can only be reached by 
manipulating the data as USDOC did in its memorandum. 
 
81. Second, the manipulation uses two other variab les to create the apparent discrepancy:  the 
additional cost of threading and the relative volumes.  The first is obvious:  it will always cost more to 
put a specific type of end finishing on a pipe (such as threading and coupling) than to have no end finishing ("plain end").  By averaging together the costs of two product groupings having different 
end finishing, the cost differences between the other distinguishing factor – steel type (carbon versus alloy) – becomes less apparent.  The second factor is more subtle, but equall y apparent from Siderca's 
reported data:  most carbon casing is threaded and coupled (implying the additional cost of the end 
finishing), while alloy casing is more evenly divided between plain end and threaded and coupled.  
Thus, by calculating a weighted average (using volum e as the weighting factor), the results will tend 
to raise the weighted average cost of carbon casing (reflecting the fact that most products in this 
grouping are threaded and coupled) relative to alloy casing. 
 
82. Argentina would like to stress that the calc ulation of the weighted average was unnecessary.  
The form in which Siderca provided the informati on to USDOC was consistent with the form in 
which USDOC requested the information, and it permitted a direct comparison of the product 
groupings in order to isolate the impact on costs of using alloy steel instead of carbon steel.  
Analyzing the data in this form contradicted USDOC's conclusion.  USDOC then manipulated the 
data by weight-averaging the costs of finished and plain end pipes, skewing the comparisons so that 
they demonstrated the difference s caused by the type of steel and the type of end finish.  USDOC 
used the data resulting from these skewed comparisons to reach the conclusion that Siderca's cost 
information was plagued by "discrepancies," and that USDOC was "convinced" of these problems.   
 
83. USDOC's treatment of Siderca's cost information raises several problems.  First, it is a clear example of the USDOC's lack of objective assessment of the facts.  The information provided by 
Siderca in response to the product groupings demons trated that Siderca's cost information was 
consistent with USDOC's understanding that alloy products should cost more to produce than carbon 
products.  It is simply not an objective assessme nt to claim that the data prove the opposite, 
a conclusion that can only be reached by manipulating the data so that the cost of the end-
finishing raises the cost of the carbon product relative to the alloy product. 
 
84. Second, DOC did not properly establish the facts necessary to reach reasoned conclusions 
regarding Siderca's data.  If it had any questions about the relative costs of producing carbon and alloy 
casing, USDOC had an obligation to reveal these concerns to Siderca and ask supplemental questions.  USDOC cannot simply remain silent until the day of the final decision and reveal the results of its analysis.  As explained in section IV.D below, such  an approach also violates several obligations of 
Article 6. 
 
85. Third, the effect of USDOC's manipulation of the data was to exclude positive evidence 
submitted by Siderca to show that dumping was not likely to continue or recur.  As Siderca explained:  "The [cost] data . . . accurately reflect the increasing production efficiencies achieved by Siderca 
through this period," with significant gains in producti vity in its rolling mill (17.8 per cent) and labour 
(10.5 per cent).
68  Siderca added:  "The cost data (even with the limitations explained above) supports 
Siderca's position:  Siderca is a cost-efficient producer of OCTG and could have shipped OCTG 
 
68 Siderca's Response to Questionnaire  (30 Nov. 2005) at 2 (ARG-15). WT/DS268/RW 
Page A-24  
 
                                                       products profitably to the United States."69  DOC rejected this evidence without further questions or 
attempts to clarify any concerns. 
 
 (ii)  USDOC's analysis does not establish that Siderca's reported costs of non-OCTG are 
"problematic". 
 
86. As the second reason for its conclusion that Siderca's cost information was unreliable, 
USDOC stated: 
 
In addition, Siderca's cost calculations for non-OCTG products are problematic because 
their costs significantly exceed OCTG costs.  The products included in this product 
grouping are line pipe, standard pipe, structur al tubing, mechanical tubing, and pressure 
pipe.  The costs for the specific products in this group can vary greatly but, in aggregate, we would expect that they not exceed the costs for the specific noted OCTG 
product groupings because the majority of tubular demand is in the lower value 
products such as line pipe, standard pipe, and structural tubing.
70   
 
87. On its face, the passage relies on what USDO C "would expect" to be the relative costs of 
OCTG and non-OCTG.  But, nowhere in the record is there any factual basis for these expectations, 
nor was the USDOC's interest in such comparisons re vealed to the parties so that they could provide 
meaningful comment.  In fact, the USDOC's reason ing shows that the failure to develop a factual 
basis for this conclusion and to solicit comments from the parties precluded the USDOC from reaching a reasoned conclusion. 
 
88. The USDOC conclusion that the costs are problematic depend upon:  1) its assumptions 
regarding what other products Siderca produces;  2) its implicit assumptions regarding the relative 
quantities of the different products that Siderca pr oduced ("product mix") during the period;  and 
3) its assumptions regarding the relative costs of  the products, both among OCTG and the non-OCTG 
groups, and implicitly among the types of non-OCTG.  Without these assumptions, USDOC would not have any basis to conclude that Siderca's aggregate cost of OCTG should be higher or lower than non-OCTG.  Yet, none of these facts appear on the r ecord.  The Department never asked Siderca for 
this information, and it did not develop these facts on its own and place them on the record.  
 
89. The USDOC's logic also is dubious.  Explaini ng why the cost of non-OCTG should be lower 
than the cost of OCTG, the USDOC says that this is true "because the majority of tubular demand is 
in the lower value products such as line pipe, stan dard pipe, and structural tubing".  The statement 
itself is ambiguous:  the logical connection betwee n the relative demand for different types of non-
OCTG pipe and the cost of those types of pipe is not immediately clear.  A product that is in great demand could have either a high cost or a low cost.  Price will reflect demand, but cost may not.  It is 
simply not clear what the USDOC means by its statement. 
 
90. Also, the premise of the statement – that OCTG  has a higher cost than non-OCTG – simply is 
not true.  Had the USDOC requested such information,  Siderca could have shown that the unit cost of 
producing certain types of seamless non-OCTG (e.g., some mechanical, pre ssure, and cold-drawn 
pipe) significantly exceeds the unit cost of OCTG.  The Department did not establish the facts necessary to make these statements, either by ask ing the parties or by doing its own research and 
disclosing that research to the parties. 
 
91. Finally, the statement that "the majority of tubular demand is in the lower value products" is also highly suspect, and of questionable relevance, as  it applies to Siderca's production.  First, again, 
 
69 Id. at 10. 
70 USDOC Section 129 Determination at 8 (ARG-16).  WT/DS268/RW 
 Page A-25 
 
 
  there is no factual support for the statement in the record.  USDOC did not seek or otherwise establish 
this information.  Second, while the statement may be true if one considers all tubular products, both 
welded and seamless, it is not true with respect to  seamless tubular products, which are the products 
that Siderca produces.  The USDOC must know – or could have learned had it asked the question before making the assumption – the demand for seamle ss pipe (structural and standard) is miniscule 
compared to the same types of pipe in welded form.
71  The USDOC's failure to distinguish Siderca's 
production (which is exclusively of seamless t ubular products) from general assumptions about the 
total tubular market (which is primarily a we lded products market) significantly undermines the 
USDOC's attempted analysis. In summary, there is no basis for USDOC's conclusion that the 
comparison of Siderca's cost of OCTG and non-OC TG was "problematic".  USDOC did not establish 
the factual basis necessary to support such a conclusion, it did not objectively assess the information that was present, and it did not reach a reasoned conclusion from the information. 
 
 (iii) USDOC had no factual basis for concluding that there were "methodological 
discrepancies" that rendered the cost data unreliable. 
 
92. As the third reason for its conclusion that Si derca's cost information was unreliable, USDOC 
stated: 
 
We also find methodological discrepancies with the estimates submitted by Siderca.  The estimates for all years were based on Siderca's "operational cost reports".... As 
Siderca acknowledges, these cost reports we re not product-specific.  Rather, these 
reports provide only a summary detail of "t he operational costs of the major product 
[sic] lines of the plant on which the producti on occurs"….  From this statement it is 
unclear exactly how broad a product category Siderca has used in estimating its cost 
data.  As a result, we are unable to rely on the data for a likelihood analysis regarding 
OCTG.
72   
 
93. The statement demonstrates that the USDOC did not understand what Siderca was trying to 
say:  "it is unclear . . . ," the USDOC stated.  But,  rather than ask a follow-up question to clarify the 
information, USDOC simply resolved the purported am biguity against Siderca:  "As a result, we are 
unable to rely on the data for a likelihood anal ysis regarding OCTG."  This language, and the 
USDOC's failure even to attempt to clarify the information, speaks for it self.  It also demonstrates that 
the USDOC did not engage in the type of active revi ew that the Article 11.3 requires, as the Appellate 
Body has clarified. 
 
94. In fact, the methodology was not unclear.  The description of the methodology appeared in 
Attachment 4 to Siderca's 30 November 2005 res ponse to USDOC's questionnaire, which appears as 
ARG-15.  The four-page description explains the methodology in narrative form and provides 
examples to demonstrate each stage of the calcu lation.  USDOC created its own ambiguity by 
misquoting Siderca's description.  While Siderca expl ained that its operational cost reports "report the 
operational costs of the major production lines  of the plant on which the production  occurs", USDOC 
confused the phrase "production lines" with "product lines" and stated:  
                                                      
71 For example, the Argentine industry informs the Government that the Preston Pipe & Tube Report (a 
publication the USDOC cited for other purposes in its 129 Determination) from March 2000 shows the dramatic 
difference:  total supply of  tubular products is dominated by welded products.  For 1999, total supply exceeded 
12 million tons, but less than 2 million tons (approximately  15 per cent) were seamless.  Standard pipe (one of 
the lowest-valued tubular products) accounted for approximately 20 per cent of the total supply.  But, only 14 per cent of all standard pipe supplied to the US market was seamless, while 86 per cent was the welded 
product that Siderca does not produce.  Seamless standard pipe simply is not a high-demand product and does not fit the USDOC's theory. 
72 USDOC Section 129 Determination at 9 (ARG-16). WT/DS268/RW 
Page A-26  
 
                                                        
these reports provide only a summary detail of "the operational costs of the major 
product lines  of the plant on which the production occurs"….  From this statement it is 
unclear exactly how broad a product category Siderca has used in estimating its cost 
data.  As a result, we are unable to rely on the data for a likelihood analysis regarding 
OCTG.73
 
In misquoting Siderca, the USDOC did more than miss a few letters at the end of the word "product", it missed the concept.  Siderca reported the actual cost of the production lines used for producing the 
products for which the USDOC requested informati on.  If there is any ambiguity, then, USDOC's 
carelessness in interpreting the information provided by the exporter is at least partially to blame. 
 
95. Even if the description of the methodolog y were somehow unclear – which it was not – 
USDOC had an obligation to attempt to clarify its doubts rather than simply assume that there is a 
mistake or that the methodology is otherwise defec tive.  Again, the USDOC did not conduct an active 
review, did not establish the factual basis necessary to support its conclusion, it did not objectively 
assess the information that was present, and did not  reach a reasoned conclusion from the information. 
 
 (iv) USDOC's interpretation of comments from  Siderca's financial statements is flawed 
and does not support a finding of likely dumping. 
 
96. After disregarding Siderca's cost informati on as not credible, the USDOC then pointed to 
statements in both Siderca's and Acindar's financial statements reflecting the worldwide depression of the OCTG market in 1999/2000, and asserted that th ere was no evidence suggesting that this would 
change.  Specifically, the USDOC made the follo wing observations regarding Siderca's financial 
statements: 
• "Sales for fiscal 2000 were 25 per cent lowe r than during the previous fiscal year, 
reflecting the effects of the drastic fall in world demand for tubes for the oil industry;" 
• "Operating results were a loss of $27 milli on in fiscal 2000, constituting six per cent 
of sales revenue for the year. The prior year Siderca had recorded a profit of $28 million";  and 
• "During fiscal 2000 Siderca ended with a loss of $39 million, compared to a profit of $86 million the previous year."
 74 
 
Based on these isolated observations, the USDOC conc luded that:  "Given the weakened condition of 
Siderca at the end of the original sunset review period, we consider that there was no valid indication that a sudden turn-around in the OCTG market was likely."
75   
 
97. The USDOC's conclusions regarding Siderca's financial statements are flawed.  There are 
several reasons why the Department's establishment and assessment of this evidence fell short of the 
Agreement's standard that determinations must be based on the "objective assessment" of "positive 
evidence." 
 
98. First, the probative value of USDOC's obser vations is dubious.  "Dumping" has a specific 
meaning under the Anti-Dumping Agreement, and that  meaning is contained in Article 2.  Even 
though the USDOC is not required to calculate a dumping margin in an Article 11.3 review, the 
requisite likelihood of dumping dete rmination must be related to the concept of "dumping" that is 
 
73 USDOC Section 129 Determination at 9 (ARG-16)(emphasis added). 
74 USDOC Section 129 Determination at 9 (ARG-16). 
75 USDOC Section 129 Determination at 9 (ARG-16).  WT/DS268/RW 
 Page A-27 
 
 
                                                       defined in Article 2.  The specific financial statemen ts cited by USDOC, by their nature, relate to the 
total operations of multi-product companies, and USDOC  did not even attempt to tie such statements 
to OCTG that might be exported to the United Stat es.  The USDOC's observations are not related to 
"dumping", and they certainly do not constitute evid ence of likely or probable dumping of OCTG to 
the United States. 
 
99. Second, USDOC's conclusion that there is " no valid indication that a sudden turn-around in 
the OCTG market was likely" is demonstrably contra ry to the evidence.  Siderca specifically provided 
an interim financial statement fo r the April–June 2000 period, and brought to USDOC's attention the 
portions that showed that such a recovery was not only likely, but that it had started to occur.76  The 
USDOC ignores this information, and offered no ju stification for closing its eyes to Siderca's 
information.  Also, the USITC had already documen ted the recovery in the OCTG market in its 
likelihood of injury determination.   The conditions had improved to the extent that the US industry 
was not even considered to be vulnerable to in jury.  The USDOC cites to other findings by the 
USITC, but conveniently ignores the portions of the USITC record indicating the rebound in the 
OCTG market that the USDOC says is nowhere on the horizon.  This is not characteristic of an 
objective analysis. 
 
100. Third, positive evidence demonstrated that Side rca had reacted to the lean years within the 
period by achieving production effici encies and trimming its costs.  As  Siderca explained to USDOC, 
"The [cost] data . . . accurately reflect the increasing production efficiencies achieved by Siderca 
through this period", with significant gains in producti vity in its rolling mill (17.8 per cent) and labour 
(10.5 per cent).77  Siderca added:  "The cost data (even with the limitations explained above) supports 
Siderca's position:  Siderca is a cost-efficient producer of OCTG and could have shipped OCTG 
products profitably to the United States".78  USDOC rejected this evidence without further questions 
or attempts to clarify any concerns. 
 
101. Fourth, the USDOC's treatment of information from the financial statements is one-sided and 
not objective.  The April–June 2000 financial stat ements submitted by Siderca showed a profit of 
$27,413,771 in one quarter, demonstrating the recove ry that had already begun and the benefits 
reaped by Siderca's increasing efficiency.79  Also, sales volume increased to 185,882 metric tons (a 
48 per cent increase over the same period in the prev ious year) and total production volume increased 
to 195,132 metric tons (a 66 per cent increas e over the same period in the previous year).80  USDOC 
does not even mention this information, but instead relies on the data from previous periods as probative information of what is likely to occur in the future.  
 
102. Finally, Siderca provided evidence that was probative of the absence of a likelihood of 
dumping.  But USDOC did not mention this evidence in its 2005 likelihood determination, let alone 
analyze it.  In the Section 129 proceeding, Siderca of fered evidence regarding the diversification of its 
OCTG export markets following the imposition of the US order.81  This evidence demonstrated that 
Siderca had diversified its export markets and that  the company was not subject to any other anti-
dumping measures, and that if the US order were re voked, dumping would not be likely to recur in the 
United States.  Siderca noted that its "sales pr ocesses underwent significant changes during the 1995 – 
 
76 Letter from Siderca to USDOC, 7 December 2005, at 7 (ARG-19). 
77 Siderca's Response to Questionnaire  (30 Nov. 2005) at 2 (ARG-15). 
78 Id. at 10. 
79 Siderca's Response to Questionnaire (30 Nov. 2005) (Attachment 1, Siderca S.A.I.C., Financial 
Statements at 30 June 2000, at 1) (ARG-15). 
80 Siderca's Response to Questionnaire (30 Nov. 2005) (Attachment 1, Siderca S.A.I.C., Financial 
Statements at 30 June 2000, at 2) (ARG-15). 
81 Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15). WT/DS268/RW 
Page A-28  
 
                                                       2000 period, reflecting the further diversification of Siderca's export markets and its strategy of 
providing higher-value products and servi ces to its customers throughout the world." 82
 
103. Siderca supported this statement with add itional positive evidence, highlighting that the 
company had "developed an extensive network of international sales offices, and implemented a 
strategy to strengthen and maintain its interna tional presence" and this included "a distribution 
network with more than 20 offices around the world".83  It also informed the USDOC of the 
establishment of a series of long-term agreements wi th customers and international finishing plants" 
from around the world.84
 
104. Siderca further explained that it had conso lidated the company's strategic positioning in 
international markets during subsequent years, including by expanding from its traditional base in 
Latin America, and increasing significantly its shipme nts to Africa and Russia, in 1996 in particular.85  
Siderca also noted how it "reacted to the economic and financial crises in the emerging markets of 
Southeast Asia and Latin America by introd ucing flexible production programmes and the 
development of made-to-order produc ts and services for its internati onal clients", and identified the 
new stocking programs that the company had entere d into in Venezuela, Nigeria, Canada, Bolivia, 
Thailand, Azerbaijan, Malaysia, and Ecuador.86
 
105. With respect to the Argentine market, Side rca explained that the company had introduced 
regional stocking programs and "just- in-time" inventory management ag reements with several of its 
Argentine customers, developing regional storage f acilities in Las Heras, Barranquilla and Desfiladero 
Bayo.87  The measures significantly reduced order and transport time for local customers, and 
increased Siderca's ability to provide value added servi ces at the site of the oil and gas production.  
Siderca explained that these agreements "proved to  be important to Siderca and its customers during 
the crisis in the oil market in 1998/99, allowing customers to increase efficiency and reduce costs". 88  
Siderca summarized its evidence as follows: 
 
As can be seen through this summary (and the discussion in the cited annual reports), Siderca continued and intensified the pro cess of diversifying products, services, and 
markets during the 1995-2000 period.  By the end of the period under analysis, Siderca 
exported its OCTG to approximately 60 countr ies.  In some regions, such as Canada 
and Africa, the increase in OCTG exports over this period was significant. During this period, no other countries maintained anti- dumping measures against Siderca, nor has 
Siderca been accused of dumping or other unfair trade practice during or after this period.
89
 
106. This evidence is clearly probative of whether dumping would be likely to continue or recur.  Yet, there was no analysis by USDOC of this evidence.  Indeed, these issues are not mentioned 
anywhere in the 2005 likelihood determination.  This  is all the more striking given the Appellate 
Body's admonishment that "a case-specific analysis of the factors behind a cessation of imports or a decline in import volumes (when dumping is eliminat ed) will be necessary to determine that dumping 
will recur if the duty is terminated".
90
 
82 Siderca's Response to Questionnaire  (30 Nov. 2005) at 7 (ARG-15). 
83 Id. at 7. 
84 Siderca's Response to Questionnaire  (30 Nov. 2005) at 7-8 (ARG-15). 
85 See id . at 8. 
86 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8 (ARG-15). 
87 See id . at 8. 
88 Siderca's Response to Questionnaire  (30 Nov. 2005) at 8-9 (ARG-15). 
89 Siderca's Response to Questionnaire  (30 Nov. 2005) at 9 (ARG-15). 
90 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177.  WT/DS268/RW 
 Page A-29 
 
 
                                                        
107. Thus, the USDOC's analysis fell far short of the standards of the Agreement.  In the end, there 
was nothing in USDOC's 2005 likelihood determinati on relating to Siderca that constituted positive 
evidence that revocation would be likely to lead to recurrence of dumping.  
 
(b) USDOC's Conclusion That Acindar Would Be  Likely to Dump Was Inconsistent with 
Article 11.3  
 
108. As a preliminary matter, the USDOC's findings regarding Acindar are completely at odds 
with the standard established by Article 11.3 of  the Anti-Dumping Agreement.  The USDOC made 
what seems to be a prospective ("likelihood") determination about past sales.   That is USDOC 
made findings about what was "likely" to have ha ppened during the sunset review period (1995 to 
2000).  This is not the standard that is established by Article 11.3.  That USDOC used the wrong standard is plainly evident from the statements in USDOC's Section 129 Determination: 
• "…we find that Acindar likely was dumping subject OCTG during the original sunset period."
91 
• "The combination of Acindar selling in the United States at below market prices at the end of the sunset period and the depr essed OCTG market indicates that Acindar 
likely was dumping significantly in the US market."
92 
• "… we find it likely that Acindar's US sales of OCTG during the original sunset review were at dumped prices."
93 
 
109. These statements demonstrate the flawed approach by USDOC to its Article 11.3 
determination.  As noted above, nowhere does the Anti-Dumping Agreement discuss the concept of 
"likely" dumping that occurred in the past.  Article 11.3 uses the phrase "likely" to describe the 
prospective, counterfactual determination that must  be made if a WTO Member intends to extend an 
anti-dumping measure beyond five years:  it must find "that the expiry of the duty would be likely  to 
lead to continuation or recurrence of dumping and injury."  The determination of whether dumping 
existed in a past period is governed by Articles 2 and 9 (which incorporates the substantive rules of 
Article 2), neither of which mentions the possib ility of a determination of "likely" dumping with 
respect to past sales. 
 
110. The Department noted that Acindar's submi ssion "failed to include any data adequate to 
calculate costs for the subject merchandise,"94 and concluded that "it did not have usable cost data for 
Acindar."95
 
111. The Department thus relied on "usable price data" for Acindar.  The specific import prices of 
Acindar's OCTG were based on US Customs and Border Protection (CBP) data.  These prices were considered by the USDOC to be too low when comp ared to observed selling prices in the US market, 
as reported in a publication known as Preston Pipe & Tube Report.
96  The Department concluded:  
"Our analysis indicates that Acindar's US selling pr ices during the sunset period were substantially 
lower than prevailing US market pric es for the corresponding OCTG products." 97
 
 
91 USDOC Section 129 Determination at 7 (ARG-16). 
92 USDOC Section 129 Determination at 7-8 (ARG-16). 
93 USDOC Section 129 Determination at 10 (ARG-16). 
94 USDOC Section 129 Determination at 6 (ARG-16). 
95 USDOC Section 129 Determination at 7 (ARG-16). 
96 USDOC Section 129 Determination at 7 (ARG-16). 
97 USDOC Section 129 Determination at 7 (ARG-16). WT/DS268/RW 
Page A-30  
 
                                                       112. The USDOC's comparison of pricing da ta based on a commercial publication does not 
constitute an objective examination of informati on and is not positive evidence to support a WTO-
consistent determination th at dumping would be likely to continue or recur.  First, Article 2 does not 
define dumping in terms of a comparison between export prices and market prices prevailing in the 
market of the importing country .  It is a basic principle of Article 2 – and Article VI of GATT 1994 
– that dumping is defined by the comparison of the export price to a normal value in the country of 
export (or to another export price, or to a constructed value).  The USDOC provides no explanation 
why it is probative evidence of "likely" dumping. 
 
113. Second, USDOC's comparison of Acindar's US shipments to prevailing US market prices did 
not involve any product-specific comparison.  Rather, the USDOC compared prices for specific 
Acindar transactions to prices of "carbon casing, welded" as reported by Preston Pipe & Tube 
Reports.  However, that publication does not repor t prices by specific size of pipe, and it does not 
discriminate between plain end and casing that is thr eaded and coupled.  As Siderca explained in its 
responses, these variables affect cost and price, and any comparison that does not account for these 
differences is suspect.  These facts are well known to USDOC. There was no control for any of the 
physical characteristics of the products being co mpared which (as explained in submissions by 
Siderca) affect the price and cost of OCTG products.98
 
114. Also, the prices reported in Preston Pipe & Tube Report are prices to the final customers in the United States; that is, they are prices reported on the basis of a specified delivery point in the 
United States.  The prices that USDOC obtained from USCBP presumably are stated on a different basis; most likely, FOB port of export, which in the case of Acindar would be Argentina.  The record 
of the Section 129 proceeding contains no indication that USDOC exercised any care to eliminate the obvious distortion that would be implicit in any such comparison. 
 
115. In short, the comparison described by the Department as supporting its determination of "likely" dumping does not even resemble the notion of "dumping" under Article 2.  The record does not reveal any attempt by USDOC to ensure that the prices it reviewed related to the same products within the specific categories, or that basic diffe rences in points of sale and transportation were the 
same.  The USDOC never even asked Acindar any qu estions about the observed prices, either of its 
exports or the average US prices of the OCTG product groupings. 
 
116. Moreover, there was no factual basis for inferring that Acindar was "likely dumping" during the original sunset period.  Acindar was never investigated during the original investigation, and the company had no prior history of dumping.  As Acindar explained, it is principally a producer of steel long products (e.g., bars, wire rod, structural steels), and the company did not even produce any 
OCTG until 1998, more than half-way  through the sunset review period.
99  Acindar was never a 
significant producer of OCTG, and its OCTG pr oduction was inconsequential in terms of the 
company's total production, representing less than one per cent of Acindar's total production during 
this time.   
 
117. The USDOC also relied on the losses shown on Acindar's financial statements, and an 
ambiguous statement in the financial statemen ts which the USDOC cited as support for the 
proposition that Acindar was willing to dump its produc ts on export markets in order to stabilize its 
production.  The USDOC quoted the following from Acindar's 2000 financial statement regarding the company's marketing strategy:  "Acindar's strategy has been and will continue to be to focus on the 
Argentine market while using the export market to stabilize its overall sales volume during periods of 
 
98 See Siderca's Response to Questionnaire (30 Nov. 2005) at 4 (ARG-15) ("While Siderca has reported 
the cost data for the product categories defined by the Department, Siderca would like to stress that the data for 
such broad product groupings is of limited value from a cost and commercial point of view."). 
99 Acindar's Response to Questionnaire (30 Nov. 2005) at 1 (ARG-14).  WT/DS268/RW 
 Page A-31 
 
 
                                                       slowdown in domestic economic activity."100  Using export markets to "stabilize overall sales" during 
periods of slowdown is hardly tantamount to dumping. 
 
118. The USDOC makes the following other points based on Acindar's fiscal year 2000 financial 
statements: 
• "Fiscal 1999 net sales were 16.8 per cent lower than fiscal 1998; sales for fiscal 2000 
fell another 11.8 per cent from fiscal 1999;" 
• "Cost of sales, administrative and selling expenses, and depreciation and amortization, as a percentage of net sales, all increased in fiscal 1999 compared to 
fiscal 1998 levels, and increased again in fiscal 2000 from 1999 levels;" 
• "Operating income decreased from 12.5 per cent in fiscal 1998 to 3.8 per cent in 1999, and to 0.3 per cent in 2000;" and 
• "Acindar suffered losses of Argentine pesos (Ps.) 28.3 million in fiscal 1999, and of 
Ps. 96.9 million in fiscal 2000. These losses contrast markedly with the Ps. 38 million 
profit Acindar reported for fiscal 1998."101 
 
119. As noted above, Acindar is principally a producer of steel long products.  Acindar's OCTG production was inconsequential in terms of the comp any's total production, representing less than one 
per cent of Acindar's total production during this tim e.  Therefore, Acindar's financial statements 
cannot be considered as positive evidence to suppor t USDOC's determination that Acindar would be 
likely to dump OCTG in the US market in the event of revocation of the order. 
 
120. In addition, the USDOC either missed or c hose to ignore information on the record that 
suggested that the inferences that it drew from the financial statements as a whole were not 
representative of the pipe and structural division of Acindar.  As demonstrated in the financial statements placed in the record, this division posted results that were considerably different from the 
company as a whole.  While the company financial statements showed a loss of $28.3 million in 1999, 
the tube and structural division showed positive net income of $21.3 million.  The same is true for 2000, when the net income of $17.8 million from this  division compared favourable to the overall 
company loss of $96.8 million.
102
 
121. In summary, the USDOC's treatment of Acinda r's information reveals a rush to judgment 
rather than an objective assessment of positiv e evidence and reasoned decision making.  The 
determination of likely dumping is  not consistent with the standards set forth in Article 11.3. 
 
 
100 USDOC Section 129 Determination at 10-11 (ARG-16) (quoting Acindar's 2000 financial statement 
at 12). 
101 USDOC Section 129 Determination at 10 (ARG-16). 
102 See Letter from Skadden, Arps, Slate, Meagher & Flom LLP to USDOC, 2 Dec. 2005, Exhibit 5 at 
F-75 and F-75 (Acindar Consolidated Financial Statements) (ARG-27). WT/DS268/RW 
Page A-32  
 
                                                       2. The USDOC's Inference That Dumping Would Be Likely In the Event of Revocation of 
the Order Because of the Volume Decline is Inconsistent With Article 11.3 
 
122. As it had in 2000, in 2005 the USDOC again relied on the inference that dumping would be 
likely to continue based on the decrease of import volumes after the imposition of the order.  The 
USDOC asserted that the original WTO Panel in this  dispute never made any finding with respect to 
USDOC's inference relating to low volume.103 The Section 129 Determination confirmed the lack of 
any analysis on the issue of volume, and highlight s that the USDOC simply returned to the same 
inference from its 2000 sunset determination:  
 
In assessing likelihood, we also rely on our  previous finding regarding the volume of 
imports of subject merchandise for the period before and after the issuance of the antidumping duty order.  In the original s unset review, we found that after imposition 
of the order, import volumes significantly decreased from pre-order levels.  Declining import volumes after, and apparently resu lting from, imposition of an antidumping duty 
order, indicate that exporters would need to dump to sell at pre-order levels.
104
 
123. The Appellate Body has reaffirmed that the administering authority cannot rely on the cessation of imports or on a volume decline as a ba sis for a WTO-consistent likelihood determination 
without "a case-specific analysis of the factors behind a cessation of imports or a decline in import volumes".
105 As the Appellate Body has stated, there are many factors that can reasonably explain a 
volume decline or the cessation of imports in the wake of anti-dumping measure: 
 
The cessation of imports in the second scenar io and the decline in import volumes in 
the third scenario could well have been cau sed or reinforced by changes in the 
competitive conditions of the market-place or st rategies 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 determine that dumping will recur if the duty is terminated.
106
 
124. During the Section 129 proceed ing, the Argentine exporters (1) explained the reason for the 
volume decline during the sunset period of review, (2) established that Acindar was only a minor 
producer, and (3) showed that Siderca had diversif ied its export markets after the imposition of the 
order and that the company performed quite well without exporting to the US market.107  T h e  
USDOC's 2005 likelihood determination does not even  address these arguments, which explained the 
reason for the reduction in Argentine OCTG imports into the United States. 
 
125. As stated above, the Appellate Body reaffirmed in US - OCTG from Mexico  that in the 
context of declining volumes, it is insufficient to rely on presumptions or conjecture as to a company's 
ability to ship to the US market without dumping: 
 
If the dumping had ceased soon after the issuance of the order, and there was no 
dumping or there were no imports for a substa ntial period before the sunset review, the 
investigating authority will need credible evidence to come to the conclusion that 
dumping will "recur" if the anti-dumping duty  order is revoked. A respondent party 
may have the responsibility to introduce relevant evidence in its favour, but the 
investigating authority also has a duty to  seek information to ensure that its 
 
103 USDOC Section 129 Determination at 2 n.4 (ARG-16). 
104 USDOC Section 129 Determination at 11 (ARG-16). 
105 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
106 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 177. 
107 See Siderca's Response to Questionnaire (30 Nov. 2005) at 7-10 (ARG-15)   WT/DS268/RW 
 Page A-33 
 
 
                                                       determination rests on a sufficient evidentiary  foundation. An affi rmative determination 
cannot rest merely on a presumption, as envisaged under scenario (b) or (c), that the 
cessation of dumping or of imports was due solely to the anti-dumping duty order.108
 
126. Yet, the USDOC did nothing to explore the r eason for the volume decline, or to address the 
Argentine producers' comments regarding volume.  In stead, contrary to the rulings of the Appellate 
Body, the USDOC simply presumed that a volume decline after the imposition of an order is the result of a company's inability to particip ate in the US market without dumping. 
 
127. As stated earlier, the Appellate Body stated that it did not believe that historical dumping 
margins or import volumes could always be presumed to constitute sufficient evidence of likely 
dumping: 
 
We would have difficulty accepting that  dumping margins and import volumes are 
always 'highly probative' in a sunset review by USDOC if this means that either or both 
of these factors are presumed, by themselves,  to constitute sufficient evidence that the 
expiry of the duty would be likely to lead to continuation or recurrence of dumping.109
 
128. The Appellate Body distinguished evidence of continued dumping margins – which, it noted, 
might in certain instances be sufficient evidence of likely dumping – from import volumes: 
 
Such a presumption might have some validity when dumping has continued since the 
duty was imposed (as in the first scenario id entified in Section II.A.3 of the Sunset 
Policy Bulletin), particularly when such dumping has continued with significant margins and import volumes.  However, the 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 dec line in import volumes in the third scenario 
could well have been caused or reinforced by changes in the competitive conditions 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 
determine that dumping will recur if the duty is terminated.
110
 
129. The Appellate Body thus confirmed that the cessation or decline of imports alone would not 
be sufficient to support an affirmative likelihood de termination, without an analysis of the causes 
behind the cessation or decline in imports.  Moreover, with respect to continued dumping margins, the Appellate Body's statement is in the contex t of "significant margins and import volumes". 
 
130. As noted above, however, Siderca provide d evidence showing that the company had 
diversified its markets following the imposition of th e order, and that this explained the reduction in 
Argentine OCTG imports into the United States.  Siderca observed that by the end of the sunset 
period, the company "exported its OCTG to approximately 60 countries.  In some regions, such as Canada and Africa, the increase in OCTG exports over this period was significant. During this period, 
no other countries maintained anti-dumping measures against Siderca, nor has Siderca been accused 
of dumping or other unfair trade practice during or after this period".
111
 
 
108 Appellate Body Report, US - OCTG from Mexico, para. 199. 
109 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
110 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
111 Siderca's Response to Questionnaire  (30 Nov. 2005) at 9 (ARG-15). WT/DS268/RW 
Page A-34  
 
                                                       131. There is no analysis of this anywhere in the 2005 likelihood determinati on.  This is all the 
more striking given the Appellate Body's admonishment that "a case-specific analysis of the factors 
behind a cessation of imports or a decline in im port volumes (when dumping is eliminated) will be 
necessary to determine that dumping will recur if the duty is terminated".112  As the Appellate Body in 
Mexico OCTG  explained: 
 
Likewise, scenario (c) also could have many  variations within it. This scenario deals 
with situations where imports continue, but without dumping, and an affirmative 
determination under this scenario is therefor e a determination that dumping will "recur" 
if the anti-dumping duty order is revoked.  The underlying presumption in scenario 
(c) is that, if import volumes had declined si gnificantly, it was due solely to the anti-
dumping duty order, and that, if the order were revoked, the company concerned would 
resort to dumping to increase its import volumes. Such a presumption cannot be the sole basis for a determination of "recurren ce" of dumping. A company's strategy and 
ability to increase or decrease its exports to particular markets depend on a variety of 
market conditions, such as, in particular, th e opportunities available in different markets 
and the competitive conditions in the market  place. Therefore, unless all relevant 
factors are taken into account, there may not be an objective evaluation in such cases of 
the causes of the variations in import volumes in the importing Member's market. 
 
Thus, the factual scenarios of the SPB must not be mechanistically applied. The 
responding parties do have a responsibility to submit information and evidence in their 
favour, particularly about their prici ng behaviour, import volumes, and dumping 
margins. But the investigating authority h as a duty to seek out information on relevant 
factors and evaluate their probative value in order to ensure that its determination is 
based not on presumptions, but on a sufficient factual basis.113
 
132. USDOC's  reliance on the decline in im port volume as a basis for its 2005 likelihood 
determination violated Article 11.3 of the An ti-Dumping Agreement, and failed to bring the 
United States into compliance with the rulings a nd recommendations of the DSB.  The USDOC relied 
on the decline in import volumes to disregard positiv e evidence and to make its affirmative likelihood 
determination.   In relying on the lower volume to the exclusion of the positive evidence, the USDOC 
did not conduct a case-specific analysis of the fa ctors behind the decline, did not properly establish 
the facts relevant to the likelihood determination,  and did not objectively evaluate the matter. 
 
D. THE USDOC'S SECTION 129 DETERMINATION WAS INCONSISTENT WITH ARTICLES 6.1, 
6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9 AND ANNEX II OF THE ANTI-DUMPING AGREEMENT 
 
133. The conduct of the Section 129 proceeding, and the resulting determination, are inconsistent 
with the obligations of the United States under the Anti-Dumping Agreement.  The USDOC: 
 
• failed to provide to the interested parties ample opportunity to present in writing all 
evidence which they considered relevant, in violation of US obligations under Article 6.1; 
• failed to provide to interested parties a full opportunity for the defence of their 
interests, in violation of US obligations under Article 6.2; 
 
112 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. 
113 Appellate Body Report, US - OCTG from  Mexico , paras. 200-201.  WT/DS268/RW 
 Page A-35 
 
 
                                                       • failed to provide timely opportunities for inter ested parties to see all information that 
was relevant to the presentation of their case s, in violation of US obligations under 
Article 6.4;  
• failed to satisfy the requirements of Ar ticle 6.5.1 regarding the provision of non-
confidential summaries of confidential information; 
• failed to satisfy the requirements of Artic le 6.6 by not ensuring the accuracy of 
information that was relied on to the exclusion of other more probative evidence; 
• failed to follow the requirements of Article 6.8 and Annex II; and 
• failed to inform interested parties of the essential facts under consideration that 
formed the basis for the decision, in violation of US obligations under Article 6.9. 
 
134. The obligations of Article 6 apply to sunset reviews.  Article 11.4 of the Agreement provides 
in part that "[t]he provisions of  Article 6 regarding evidence and pr ocedure shall apply to any review 
carried out under this Article."  The Appellate Body  has also confirmed that "claims under Article 6 
may be made in relation to sunset review determ inations on the basis of the cross-reference to 
Article 6 found in Article 11.4."114
 
135. Accordingly, the obligations of Article 6 of the Agreement applied to the USDOC Section 129 Determination in this case.     
 
136. The US violations of Article 6 are particularly egregious in light of the representations made by the United States to the Article 21.3(c) Arbitr ator regarding the time it said it required to 
implement the DSB rulings.   The Arbitral Award noted that: 
 
The United States argues that the time required to carry out these procedural steps in 
the two phases of implementation demonstrates the need for a 15-month 
implementation period in this dispute…. In the second phase, the USDOC also needs sufficient time to ensure that it complies with  its obligations of transparency and due 
process under Articles 6 and 12 of the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 (the " Anti-Dumping Agreement "). 
The United States argues that, in accordance w ith previous arbitration awards, this 
should include time to obtain and analyze in formation from interested parties, even 
though this is not expressly requi red by statute or regulation.
115
 
137. Thus, after having represented to a WTO Arbitrat or that it needed "sufficient time to ensure 
that it complies with its obligations of transparen cy and due process", the United States proceeded to 
ignore these obligations, as discussed below. 
 
 
114 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 239. 
115 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina, Arbitration under Article 21.3(c) of the DSU, WT/DS268/12, 7 June 2005, 
para. 10. WT/DS268/RW 
Page A-36  
 
  1. The USDOC failed to provide to intereste d parties ample opportunity to present in 
writing all evidence which they considered relev ant, in violation of US obligations under 
Article 6.1 
 
138. Article 6.1 of the Anti-Dumping Agreement provides that: 
 
(a) All interested parties in an anti-dumping investigation shall be given notice of the 
information that the authorities require and ample opportunity to present in writing all 
evidence that they consider relevant in respect of the investigation in question. 
 
139. This obligation has been read broadly by the Appellate Body to provide fundamental due 
process rights to responding parties.  Indeed, referring to Articles 6.1 and 6.2 in the context of the present dispute, the Appellate Body stated that: 
 
(b) These provisions set out the fundamental due process rights to which interested 
parties are entitled in anti-dumping investiga tions and reviews.  Articles 6.1 and 6.2 
require that the opportunities afforded inter ested parties for presentation of evidence 
and defence of their interests be "ample" and "full", respectively.  In the context of these provisions, these two adjectives suggest there should be liberal opportunities for respondents to defend their interests.
 116
 
140. In the recent case of Mexico – Rice , the Appellate Body interpreted the parallel provision in 
the SCM Agreement in a similar manner: 
 
(c) [W]e are of the view that, like Article 6 of the Anti-Dumping Agreement , Article 12 
of the SCM Agreement as a whole "set[s] out evidentiary rules that apply throughout 
the course of the … investigation, and provi de[s] also for due process rights that are 
enjoyed by 'interested parties' throughout … an investigation" …  This due process 
obligation—that an interested party be permitted to present all the evidence it 
considers relevant—concomitantly requir es the investigating authority, where 
appropriate, to take into account the info rmation submitted by an interested party.117
 
141. The Panel in Guatemala – Cement II  stressed that "Article 6.1…requires that interested 
parties shall have 'ample' opportunity to present evidence and 'full' opportunity to defend their interests."
118  The Panel in US – Corrosion-Resistant Steel Sunset Review summarized the law 
succinctly:  "Articles 6.1 and 6.2 make it clear that interested parties have a broadly-defined right to submit evidence to the investigating authority dur ing a sunset review and are entitled to a full 
opportunity for the defence of their interests."
119
 
142. It is important to note that Article 6.1 must  be read in a conjunctive and cumulative manner:  
all interested parties must be given notice of  the information which the authorities require and ample 
opportunity to present in writing all evidence which they  consider relevant.  A breach of either of 
these rights will establish a violation of Article 6.1. 
 
                                                      
116 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , para. 241. 
117 Appellate Body Report, Mexico - Definitive An ti-Dumping Measures on Beef and Rice , 
WT/DS295/AB/R, adopted on 20  December 2005, para. 292 (" Mexico Rice ") (original emphasis). 
118 Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from 
Mexico , WT/DS156/R, adopted 17 November 2000, para. 8.119 (" Guatemala – Cement II"). 
119 Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan , WT/DS244/R, adopted 9 January 2004, para. 7.255 (" US - Corrosion-
Resistant Steel Sunset Review ").  WT/DS268/RW 
 Page A-37 
 
 
                                                       143. During the arbitration under DSU Article 21.3(c) on the reasonable period of time for the 
United States to implement the DSB rulings in this dispute, the United States enumerated an extensive 
– and non-exhaustive – list of procedural steps that  it would be required to undertake, including the 
following: 
 
(d) During this 15-month period, the Office of the United States Trade Representative 
("USTR") and Commerce expect to take – a nd have taken – steps, as detailed below, 
that include: 
 
(e) … Phase 2 - Issuance by Commerce of a New Determination of Likelihood of 
Continuation or Recurrence of Dumping 
 
(f) … approximately two months for Commerce to  consider what information is needed 
from parties; draft and send questionnaires, if appropriate; provide for extensions, if requested; draft and send supplemental questi onnaires, if necessary; review, analyze, 
and respond to responses; verify informati on from respondents, if appropriate; issue a 
preliminary redetermination; 
 
(g) approximately one month to allow interested parties to submit comments to 
Commerce, including through a hearing,  on preliminary  redetermination; 
 
(h) one month for Commerce to review, analy ze, and respond to comments and make any 
appropriate changes to its analysis befo re issuance of final redetermination….120
 
144. Despite this US assertion to the WTO of the due process rights of the responding parties, none of these steps ever took place except for the initial questionnaire.  Specifically, USDOC: 
• failed to issue supplemental questionnaires, d espite the fact that it had some questions 
about the information submitted; 
• failed to issue a preliminary redetermination; 
• failed to establish a schedule to allow interested parties to submit comments, including rebuttal comments, to USDOC; 
• failed to request clarification or addi tional documentation from the responding 
parties; and 
• failed to hold a hearing. 
 
145. The interested parties thus had little opportunity  – let alone "ample" or "full" opportunity – to 
present in writing all evidence that they considered to  be relevant for the Section 129 Determination.  
The United States represented to Argentina in the Artic le 21.3 arbitration that it would engage in a 
multi-stage process in which information would be developed, refined, a nd debated through written 
and oral argument.  Instead, the USDOC provided a "black box" – information entered, and a decision 
came out.  No argument; not even notice that its plan s had changed and that parties would not have an 
opportunity to provide written and oral argument.  Th e failure of the United States to accord basic due 
process rights to the interested parties fell far short of the requirements of Article 6.1. 
 
 
120 United States – Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods from 
Argentina (WT/DS268):  Arbitration Under Article 21.3(c) of the DSU , Submission of the United States, 
22 April 2005, para. 4.  Available from the Web site of  the United States Trade Repr esentative:  www.ustr.gov. 
 WT/DS268/RW 
Page A-38  
 
                                                       2. The USDOC failed to provide to interested parties a full opportunity for the defence of 
their interests, in violation of US obligations under Article 6.2 
 
146. Article 6.2 of the Anti-Dumping Agreement provides in part that: 
 
(a) Throughout the anti-dumping investigation all interested parties shall have a full 
opportunity for the defence of their interests.  To this end, the authorities shall, on 
request, provide opportunities for all interest ed parties to meet those parties with 
adverse interests, so that opposing views may be  presented and rebuttal arguments 
offered…. Interested parties shall also have  the right, on justification, to present other 
information orally.   
 
147. As noted above, the Appellate Body has char acterized Article 6.2 as one of the "fundamental 
due process rights" of the Anti-Dumping Agreement, which requires interested parties to be given a 
"full" opportunity for the defence of their interests. 
 
148. The lack of a hearing will violate the specific obligation in Article 6.2 to allow interested parties to "meet" parties with adverse interests, and to "present … information orally."  Indeed, in the 
present dispute, the lack of a hearing was one of  the bases on which the Appellate Body invalidated 
the waiver provisions: 
 
(b) [T]he respondent will … be denied any opportunity to confront parties with adverse 
interests in a hearing, notwithstanding this respondent's clear expression of interest in participating in the sunset review. As a result, this respondent is denied its rights, pursuant to Article 6.2, to the "full oppor tunity for the defence of [its] interests.
121
 
149. In addition, the original Panel also f ound that the USDOC's likelihood of dumping 
determination was inconsistent with Article 6.2 because "Siderca was subjected to a procedure that fell short of the requirements of Article 6.2 of the Agreement in respect of hearings."
122
 
150. The Panel in this dispute referred to the "the  explicit provision of Article 6.2 that hearings 
have to be arranged when so requested by interested parties…".123  Thus, the lack of a hearing in a 
sunset review will breach Article 6.2. 
 
151. As noted above, the procedural defects in the conduct of the Section 129 proceeding established a violation of Article 6.1.  In the contex t of this case, the defects also establish a violation 
of Article 6.2, in that the interested parties were  by no means provided with a "full" opportunity to 
defend their interests. The lack of a hearing duri ng the Section 129 proceeding violated the specific 
obligation in Article 6.2 to allow interested parti es to "meet" parties with adverse interests, and to 
"present … information orally".   
 
152. Thus, USDOC violated both the general and speci fic obligations of Article 6.2.  It breached 
the general obligation to provide interested parties with a full opportunity to defend their interests, and 
the specific obligation to provide a hearing. 
 
 
121 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews,  para. 246.  
122 Panel Report, US – Oil Country Tubular Goods Steel Sunset Reviews , paras. 7.235; see also  
para.8(1)(d)(i). 
123 Panel Report, US – Oil Country Tubular Goods Sunset Reviews , para. 7.235.   WT/DS268/RW 
 Page A-39 
 
 
                                                       3. USDOC failed to provide timely opport unities for interested parties to see all 
information that is relevant to the presentation of their cases, in violation of US 
obligations under Article 6.4  
 
153. Article 6.4 of the Anti-Dumping Agreement provides that: 
 
(a) The authorities shall whenever practicable provide timely opportunities for all 
interested parties to see all information that  is relevant to the presentation of their 
cases, that is not confidential as defined in  paragraph 5, and that is used by the 
authorities in an anti-dumping investigation, and to prepare presentations on the basis 
of this information. 
 
154. In EC – Pipe Fittings , the Appellate Body discussed the sc ope of the obligations imposed by 
Article 6.4: 
 
(b) Article 6.4 requires that, "whenever prac ticable", investigating authorities provide 
timely opportunities for all interested parties to see and prepare presentations on the basis of "all information" that meets the following criteria: 
(c) the information is relevant to the pr esentation of the interested parties' cases; 
(d) the information is not confidential as defined in Article 6.5; and 
(e) the information is used by the aut horities in an anti-dumping investigation.124
 
155. The Appellate Body made clear that whether or  not the information is "relevant" is to be 
determined from the perspective of the inter ested parties, not the investigating authority. 125  It also 
stated that: 
 
One of the stated objectives of the disclosure of information required under Article 6.4 is to allow interested parties "to prepare pr esentations on the basis of this information". 
The "presentations" referred to in Article 6.4, whether written or oral, logically are the principal mechanisms through which an exporter subject to an anti-dumping investigation can defend its interests.
 126
 
156. Yet, the Department did not conduct the Sec tion 129 proceeding in a manner consistent with 
the requirements of Article 6.4.  It clearly was "pr acticable" for the USDOC to allow the parties to see 
all the information relevant to the presentation of their case.  As discussed above, during the 
arbitration to establish a reasonable period of time for US implementation, the United States asserted that the requested 15 months was needed, in part, so that the United States could comply with the 
procedural requirements of Article 6 of the Anti-Dumping Agreement.
127  Yet, the United States failed 
to "provide timely opportunities for parties to see all information that is relevant to the presentation of 
their cases."  This information was used by USDOC  in the Section 129 proceeding.  The Argentine 
exporters were not given a sufficient opportunity "to prepare presentations on the basis of this 
information." 
 
 
124 Appellate Body Report, European Communities – Anti-Dumping Duties on Malleable Cast Iron Tube 
or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 18 August 2003, para. 142 (" EC - Pipe Fittings "). 
125 Appellate Body Report, EC - Pipe Fittings , para. 145. 
126 Appellate Body Report, EC - Pipe Fittings , para. 149. 
127 Award of the Arbitrator, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , Arbitration under 21.3(c) of the DSU, WT/DS268/12, 7 June 2005, para. 10. WT/DS268/RW 
Page A-40  
 
                                                       157. Indeed, in USDOC's Section 129 Determination,  there are several references to additional 
USDOC memoranda to the file128, several of which are memoranda dated 16 December 2005 ( i.e., the 
same date as the Section 129 Determination).  Th ree of the memoranda are public documents, and 
three of these memoranda are proprietary documents with public summaries or redactions.  The public 
versions of the proprietary documents indicate that the vast majority of the content is "not susceptible 
to bracketing".129
 
158. Four of the five memoranda are styled as "Memorandum to The File From Mark Flessner, 
Case Analyst, Re:  In the Matter of the S ection 129 Determination on the Antidumping Duty 
Determination With Respect to Oil Country Tubul ar Goods (OCTG) from Argentina, pursuant to 
WTO Appellate Body Report WT/DS268/ADR (2004)  and Section 129(b) of the Uruguay Round 
Agreements Act" and, specifically, relate to (1 ) "Information from Preston Publishing Company, 
Inc.";  (ARG-22) (2) "Inconsistencies in data re ported by Acindar" (public  version of proprietary 
document) (ARG-23); (3) "Inconsistencies in data reported by Siderca S.A.I.C." (public version of 
proprietary document) (ARG-21); and (4) "Securiti es and Exchange Commission Filings of Domestic 
OCTG Producers (ARG-24)".  The fifth memorandum  is entitled, Memorandum to The File From 
Fred Baker, Case Analyst, Through Mike Heaney, Te am Leader, Robert James, Program Manager, In 
the Matter of the Section 129 Determination on the Antidumping Duty Determination With Respect to 
Oil Country Tubular Goods (OCTG) from Argent ina, pursuant to WTO Appellate Body Report 
WT/DS268/ADR (2004) and Section 129(b) of the Uruguay Round Agreements Act: Information for 
the Record (ARG-25)". 
 
159. These documents, or the underlying analysis, must  have been prepared prior to 16 December, 
yet the parties were never advised of their existence.130  Nor did the Department offer any opportunity 
to the parties during the course of the proceeding to review this information or provide comments on the accuracy or relevance of the information and argument.
131
 
160. With respect to the EC – Pipe Fittings  criteria, each of the five USDOC file memoranda 
contained information that was used by USDOC in  the Section 129 proceeding and that served as the 
basis for its Section 129 Determination.  As indicat ed above, at least three of the memoranda clearly 
satisfy the criteria established by the EC – Pipe Fittings  panel:  (a) the information is directly relevant 
to the presentation of the Argentine interested parties'  cases; (b) the information is not confidential as 
defined in Article 6.5; and (c) the information w as used by USDOC in the Section 129 proceeding and 
was identified in USDOC's Section 129 Determination. 
 
 
128 Section 129 Determination at 4-5, n. 10 (referencing Memorandum to File, dated 
16 December 2005); at 7 ("This compar ison, which includes Acindar's busine ss proprietary information, is set 
forth in the memorandum to the file dated 16 December 2005"); at 8 ("A complete discussion of these 
discrepancies necessitates discussion of Siderca's business proprietary information; for specific examples, see, 
the Department's Memorandum to the File dates 16 Decem ber 2005); and at 11 (referencing financial statements 
of Lone Star, Maverick, and North St ar as set forth in the memorandum to the file dated 16 December 2005) 
(ARG-16). 
129 See, e.g. , ARG-18, Appendix II; ARG-21; ARG-23, Appendix I. 
130 Letter from Siderca to USDOC, 21 December 2005 (ARG-26) ("We are dismayed that the 
Department relied on this information without first disc losing it to the parties.  These documents, or the 
underlying analysis, must have been prepared prior to 16 December, yet the parties were never advised of their existence."). 
131 Under the US system, information classified as "business proprietar y" is released to authorized 
representatives of the parties (typically lawyers or cons ultants) under the terms of an "Administrative Protective 
Order" ("APO").  Thus, the US system is not one in which proprietary or confidential information is exempt 
from disclosure within the terms of Article 6.4 of th e Anti-Dumping Agreement.  Authorized representatives 
have a right to, and in fact do, receive confidential information in the US system.  WT/DS268/RW 
 Page A-41 
 
 
                                                       161. Although Siderca's legal counsel ultimately obtained copies of the proprietary documents 
identified in USDOC's Section 129 Determination, it was only after USDOC issued the determination 
in December 2005.  In accordance with the terms of the administrative protective order ("APO") that 
was in place for the entire Section 129 proceedin g, Siderca's counsel was entitled to access to 
proprietary documents released under the APO.  Nevertheless, prior to its request for disclosure of the 
proprietary documents that formed the basis for USDOC's 2005 likelihood determination, the 
information had not been provided to the parties. 
 
162. Moreover, the unsolicited comments filed by the Petitioners in the Section 129 proceeding 
further compounded the impact of the US breach of Article 6.4.  The USDOC did not request any comments or information from Petitioners, yet the Petitioners filed a letter  dated 30 November 2005 
(the same response date as the deadline for the responses of the Argentine exporters who were 
responding to the USDOC questionnaire that was dir ected to them) in which data are suggested for 
price comparisons that would then be used to  support a conclusion regarding likely dumping.  
Petitioners' letter concludes – without ever seeing the cost data that was being filed the same day – 
that "it is almost a certitude that a comparison of the AUVs with Siderca's costs will show that Siderca 
was engaging in dumping OCTG on a global basis during the POR".
132  Furthermore, the Petitioner's 
letter references confidential data provided to them by the USDOC;  the same confidential data that 
was made available to Siderca only on 28 November, two days before the Pe titioners letter in which 
its conclusions are stated so emphatically.  All of this occurs without any communication from the 
USDOC as to how it will use the information solicited by Siderca, what procedures will be followed to analyze the information, and how the parties w ill be permitted to have access to and comment on 
the essential facts being used by the USDOC to make its determination. 
 
163. In the midst of this uncertainty, Siderca provided comments to demonstrate that Petitioners' 
analysis was without merit and did not establish any positive evidence that dumping would be likely 
to continue or recur.133  In the end, however, Petitioners' appr oach was no different from the approach 
the Department took in the original sunset review, and the approach that it took in the Section 129 
proceeding. 
 
4. The USDOC failed to require certain int erested parties to submit non-confidential 
summaries of their written submissions in the Section 129 proceeding in a manner so as 
to permit the Argentine exporters to have a reasonable understanding of the substance 
of the confidential information submitted, in violation of US obligations under 
Article 6.5, and 6.5.1 
 
164. Article 6.5.1 provides: 
 
The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof.  These summaries shall be in sufficient 
detail to permit a reasonable understanding of the substance of the information 
submitted in confidence.  In exceptional circ umstances, such parties may indicate that 
 
132 Letter from Skadden, Arps, Slate, Meagher & Flom LLP to the USDOC, 2 Dec. 2005 (Public 
Version) at 4 (ARG-27).  Despite having a 30 Novemb er 2005 date, Petitioner's letter was not served until 
1 December, as accurately stated in the ce rtificate of service.  US Steel also availed itself of the rule allowing for 
the public version to be filed and served one day later, so  that a public version of the letter was not received until 
late in the day on Friday, 2 December.  Siderca's counse l sent the text of the public version immediately to 
Siderca for review by company official s, with the entire submission sent by express courier to Argentina.  Also, 
public Annexes 2 and 3 were sent by facsimile on 5 December when it became apparent that the express 
delivery had not yet arrived.  Compan y officials analyzed the comments, de veloped and checked the information 
being provided in this rebuttal, and reviewed th is text for accuracy as quickly as possible. 
133 Letter from Siderca to USDOC, 7 December 2005 (ARG-19). WT/DS268/RW 
Page A-42  
 
                                                       such information is not susceptible of summary.  In such exceptional circumstances, a 
statement of the reasons why summarization is not possible must be provided. 
 
165. The Panel in Korea – Paper AD Duties, concluded that "the KTC acted inconsistently with Article 6.5 in the investigation at issue by not re quiring that good cause be shown with respect to the 
information submitted in the applicati on which was by nature confidential".
134  S i m i l a r l y ,  i n  
Guatemala-Cement II , the Panel found that Guatemala violat ed Article 6.5 by granting confidential 
treatment to submissions by the petitioner even though Guatemala could present no evidence that the 
petitioner had even requested confidential treatment.135
 
166. Here, the same problems exist.  In this regard, the USDOC recognized that the Argentine 
exporters viewed this as problematic.  USDOC ack nowledged that "Siderca and Acindar also argue 
that US Steel and IPSCO's treatment of informati on as business proprietary information hindered their 
ability to respond effectively".136
 
167. With respect to Article 6.5.1, in particular, the Panel in Guatemala-Cement II  found a 
violation of that provision because there was no evidence demonstrating either that petitioner provided a statement of reasons as to why summarization was not possible or that the Ministry even requested such a statement.
137
 
168. During the Section 129 proceeding, Ar gentine exporter Acindar explained that: 
 
At the outset, Acindar is concerned that its basic right to defend itself from the allegations being made are being impaired by the manner in which the information is 
being developed in this proceed ing.  In US Steel's submission, claims for confidential 
treatment appear to be so broad (either because of the Department's designation of 
confidential treatment, or that by US Steel 's attorneys) that Acindar cannot even 
understand the nature of the allegations.  For example, on page 9, point B, US Steel's 
letter states: "First, during 1999 and 2000, [      ]".  It is difficult to 
believe that no other information can be given regarding the allegedly confidential 
information that follows the comma that would allow Acindar to understand the basic 
nature of the allegation so that it ca n defend itself.  US Steel provides no non-
confidential summary in sufficient detail so  as to permit a reas onable understanding of 
the substance of the information submitte d in confidence, nor does it provide any 
justification for excluding completely this allegedly confidential information, which, 
after all, relates to information that is now more than 5 – 6 years old.   Therefore, the 
Department must require US Steel to re-subm it its letter in a form that is consistent 
with the regulations, and which will allow Acindar to at least understand the nature of the allegation being made so that it can defend itself.
138
 
169. There was no response by USDOC to Acinda r's request.  Thus, Acindar necessarily had to 
confine its arguments to the public versions of the US industry's comments.  Petitioners' comments 
did not provide, in the words of Article 6.5.1, "sufficient detail to permit a reasonable understanding 
of the substance of the information submitted in co nfidence".  Moreover, there was no explanation as 
 
134 Panel Report, Korea – Anti-Dumping Duties on Imports of Certain Paper from Indonesia , 
WT/DS312/R, adopted 28 November 2005 , paras. 7.329-335, (" Korea – Paper AD Duties "). 
135 Panel Report, Guatemala - Cement II, paras. 8.207-223. 
136 USDOC Section 129 Determination at 6 (ARG-16). 
137 Panel Report, Guatemala - Cement II, paras. 8.207-223. 
138 Letter from Acindar to USDOC, 6 December 2005 at 1 (ARG-28); see also  Letter from Siderca to 
USDOC, 14 December 2005 at 4 ("As a preliminary matter, IPSCO places its comments in brackets, depriving 
Siderca officials of the ability to review the substance of the comments.") (ARG-29).  WT/DS268/RW 
 Page A-43 
 
 
                                                       to why greater clarification could not be provid ed nor was it demonstrated that this was an 
"exceptional circumstance" where the "information [was] not susceptible of summary". 
 
170. Thus, as the Panel found in Guatemala-Cement II , in this case, the USDOC violated 
Article 6.5.1 because there is no evidence demonstra ting either that petitioner provided a statement of 
reasons as to why summarization was not possibl e or that the USDOC ev en requested such a 
statement.139  
 
5. The USDOC did not rely on Siderca's subm itted cost information, but USDOC first 
failed to satisfy itself as to the accuracy  of that information for purposes of their 
findings, in violation of US obligations under Article 6.6 
 
171. Article 6.6 provides: 
 
Except in circumstances provided for in para graph 8, the authorities shall during the 
course of an investigation satisfy themselve s as to the accuracy of the information 
supplied by interested parties upon which their findings are based. 
 
172. The obligation in Article 6.6 requires the administering authority to satisfy itself as to the 
accuracy of the information upon which it relies to ma ke its findings.  In this case, USDOC violated 
this obligation.  USDOC erroneously disregarde d information supplied by Siderca regarding the 
company's cost of production for OCTG for the suns et period examined by the Department.   USDOC 
failed to act with a sufficient degree of diligence to satisfy itself that Siderca's information was not probative for the likelihood inquiry.  Regarding th e cost information submitted by Siderca, USDOC 
merely offers a conclusory statement that it is "una ble to rely on the data for a likelihood analysis for 
OCTG".
140  An authority acts inconsistently with th e requirements of Article 6.6 when it rejects 
information and does not satisfy itself as to the accu racy of that information – especially when that 
information has been offered to counter unsubstantiated inferences re lied on by the authority, and is 
otherwise more probative of the likelihood of dump ing than the unsubstantiated inferences on which 
the authority is basing its determination. 
 
173. While the Panel in US - DRAMS  observed that Article 6.6 does not require verification of all 
information upon which the authority relies, and that  there are many ways to "satisfy" oneself as to 
the accuracy of information141, one such way cannot be to simply assert, without sufficient 
justification, that an authority will not rely on probative information in making a determination.  
USDOC did not provide sufficient justification fo r its assertion that Siderca's reported information 
was unreliable. 
 
6. The USDOC failed to follow the requirements of Article 6.8 and Annex II of the Anti-
Dumping Agreement 
 
174. Article 6.8 of the Anti-Dumping Agreement provides that: 
 
In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reas onable period or significantly impedes 
the investigation, preliminary and final de terminations, affirma tive or negative, may 
 
139 See Panel Report, Guatemala - Cement II, paras. 8.207-223. 
140 USDOC Section 129 Determination at 9 (ARG-16). 
141 Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access Memory 
Semiconductors (DRAMS) of One Megabit or Above from Korea, WT/DS99/R, adopted 19 March 1999, 
paras. 6.74 – 6.82. WT/DS268/RW 
Page A-44  
 
  be made on the basis of the facts available.  The provisions of Annex II shall be 
observed in the application of this paragraph. 
 
175. The provisions of Annex II, which must be observed in the application of Article 6.8, include the following:  
 
All information which is verifiable, which is  appropriately submitted so that it can be 
used in the investigation without undue difficulties, [and] which is supplied in a 
timely fashion … should be taken into account when determinations are made…. 
 
…. 
 
[Paragraph 3] 
 
Even though the information provided may not be ideal in all respects, this should not 
justify the authorities from disregarding it, provided the interested party has acted to 
the best of its ability. 
 
…. 
 
[Paragraph 5] 
 
If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons  therefore, and s hould have an opportunity to provide further 
explanations within a reasonable period, due account being taken of the time-limits of the investigation.  If the  explanations ar e considered by the authorities as not being 
satisfactory, the reasons for the rejection of such evidence or information should be given in any publishe d determinations. 
 
…. 
 
[Paragraph 6] 
 
If the authorities have to base their findings , including those with respect to normal 
value, on  information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection.  In such cases, the authorities should, where practicable, check the 
information from other independent sources at their disposal, such as published price 
lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation.  It is clear, however, that if an interested party does not cooperate and thus  relevant information is being withheld 
from the authorities, this situation could l ead to a result which is less favourable to 
the party than if the party did cooperate. 
 
[Paragraph 7] 
 
176. In Mexico – Rice , the Appellate Body stressed that recourse to facts available is subject to 
strict compliance with the conditions set out in Ar ticle 6.8 and Annex II.  It began by noting that:  WT/DS268/RW 
 Page A-45 
 
 
                                                        
Article 6.8 provides that an investigating authority may base its determinations on the 
basis of facts available where, inter alia , a respondent "does not provide … necessary 
information within a reasonable period", subj ect to the conditions set out in Annex II, 
entitled "Best Information Available in Term s of Paragraph 8 of Article 6".  Among 
these conditions is the obligation in paragra ph 1 of Annex II to inform the relevant 
respondent that, if it fails to provide the necess ary information, the agency will resort to 
use of facts available. Paragraph 3 obliges an  investigating authority to "take[] into 
account" the information supplied by a respondent, even if other information requested 
has not been provided by the respondent and will need to be supplemented by facts 
available. Similarly, paragraph 5 prevents an investigating authority from rejecting the 
information supplied by a respondent, even if incomplete, where the respondent "acted 
to the best of its ability". Finally, paragraph 7 mandates, where an investigating 
authority relies on data from a secondary source to fill in gaps resulting from a respondent's failure to provide requested info rmation, that the investigating authority 
examine such data "with special circumspection."
142
 
177. The Appellate Body then stressed that: 
 
From these obligations, we understand that an investigating authority in an anti-
dumping investigation may rely on the fact s available to calculate margins for a 
respondent that failed to provide some or a ll of the necessary information requested by 
the agency. In so doing, however, the agency must first have made the respondent aware that it may be subject to a margin calculated on the basis of the facts available because of the respondent's failure to provide necessary information.  Furthermore, assuming a respondent acted to the best of its ability, an agency must generally use, in 
the first instance, the information the respondent did provide, if any. 
 
With respect to the facts that an agency may use when faced with missing information, the agency's discretion is not unlimited.  First,  the facts to be empl oyed are expected to 
be the "best information available".  In this respect, we agree with the Panel's 
explanation: 
 
The use of the term " best information" means that information has to be not 
simply correct or useful per se , but the most fitting or "most appropriate" 
information available in the case at hand . Determining that something is "best" 
inevitably requires, in our view, an evaluative, comparative assessment as the 
term "best" can only be properly applie d where an unambiguously superlative 
status obtains.  It means that, for the conditions of Article 6.8 of the 
AD Agreement and Annex II to be co mplied with, there can be no better 
information available to be used in th e particular circumstances. Clearly, an 
investigating authority can only be in a position to make that judgement correctly if it has made an inherently comparative evaluation of the "evidence 
available".  
 
Secondly, when culling necessary information from secondary sources, the agency should ascertain for itself th e reliability and accuracy of such 
information by checking it, where practicab le, against information contained in 
other independent sources at its dis posal, including material submitted by 
 
142 Appellate Body Report, Mexico - Rice, para. 287 (original emphasis). WT/DS268/RW 
Page A-46  
 
                                                       interested parties. Such an active appr oach is compelled by the obligation to 
treat data obtained from secondary s ources "with special circumspection".143
 
178. As noted below, the Section 129 Determina tion fell far short of these rigorous standards. 
 
179. In its Section 129 Determination, the USDOC disregarded information submitted by Siderca, 
and used instead "facts available" (although the S ection 129 Determination did not use this term). 
 
180. According to the USDOC, Acindar's submission "failed to include any data adequate to 
calculate costs for the subject merchandise".144  Therefore, the Department resorted to what it called 
"usable price data" and compared "Acindar's US selling prices during the original sunset review period with prevailing market prices in the United States during that same period".
145  Based on this 
comparison, USDOC found that "Acindar likely w as dumping subject OCTG during the original 
sunset review period".146
 
181. This treatment of Acindar is not consistent with the disciplines of Article 6.8 and Annex II of 
the Agreement.  Acindar explained that it did not have the requested information for two reasons.  First, it did not have any legal obligation as an Argentine company to reta in product-specific cost 
information for such a long period of time.  S econd, because it was never a significant producer of 
OCTG and it was not currently (at the time of USDOC's request) an OCTG producer, it had not 
retained the product-specific cost information a nd did not have a basis to reconstruct it.  In 
Argentina's view, these are reasonable explanations in light of the nature of the information requested 
by USDOC, which, by any objective measure, pushe d the limits of reasonableness.  Rather than 
follow up with the company by trying to develo p other information, the USDOC resorted to a 
comparison of questionable legitimacy, and drew conclusions in final form without the benefit of any further comment. 
 
182. With respect to Siderca, the USDOC stated th at this company "attempted to cooperate with 
the Department's request for information".147  However, the Department claimed to have "significant 
problems with [Siderca's] allocation of costs, w ith respect to both OCTG production and all tubular 
production" as well as "methodological discrepancies with the estimates submitted by Siderca".148  
Therefore, the USDOC stated that: 
 
[F]or both Siderca and Acindar, we have fina ncial statements from the original sunset 
review period that provide information on th e financial statuses of these companies. 
This information establishes that the gl obal OCTG market was depressed during a 
significant portion of the original sunset review period which suggests that prices 
would continue to be low after the sunset period. 
 
…. 
 
Given the weakened condition of Acindar during the original sunset review period, 
including substantial losses during fiscal 1999 and 2000, we find it likely that Acindar's 
US sales of OCTG during the original sunset review period were at dumped prices…. [W]e find (contrary to the implications of Siderca's argument) that Acindar was likely 
to continue selling in the United States at  dumped prices if the order were revoked. 
 
143 Appellate Body Report, Mexico - Rice, paras. 288-289 (footnote omitted). 
144 USDOC Section 129 Determination at 6 (ARG-16). 
145 Id. at 7. 
146 Id. at 7. 
147 USDOC Section 129 Determination at 8 (ARG-16). 
148 Id. at 8-9.  WT/DS268/RW 
 Page A-47 
 
 
                                                        
We find additional support for this conc lusion from a statement in Acindar's 2000 
financial statement regarding its marketing strategy. Acindar states, "Acindar's strategy 
has been and will continue to be to focus on the Argentine market while using the 
export market to stabilize its overall sales volume during periods of slowdown in 
domestic economic activity".149  [emphasis added by USDOC] 
 
183. Yet the USDOC did not comply with the conditions set out in Article 6.8 and Annex II for 
recourse to "facts available".  Neither Acindar nor Siderca refused access to necessary information.  Moreover, neither company "significantly impeded the investigation," and the USDOC has not 
claimed otherwise.  Both companies explained why they could not provide information requested, and 
there was no indication from USDOC that it did not accept those explanations.  Siderca's and 
Acindar's explanations are objectively reasonable.  In fact, they are consistent with the guidelines national authorities should consider when developing information.  As the Committee on Antidumping Practices has stated:   
 
In establishing the specific periods of data collection in a particular investigation, 
investigating authorities may, if possible, c onsider practices of firms from which data 
will be sought concerning financ ial reporting and the effect that this may have on the 
availability of accounting data . . . .150
 
184. Similarly, the USDOC failed to comply with the obligations of Annex II:  
 
• The information provided by Siderca was veri fiable, and was appropriately submitted.  
It could readily have been used by the USDOC in the Section 129 proceeding without 
"undue difficulties."  The Department was therefore required un der paragraph 3 of 
Annex II to take such information into acc ount in its Section 129 determination, but it 
failed to do so. 
• Even if, arguendo, the information provided by Siderca was not "ideal in all 
respects", paragraph 5 of Annex II makes clear that this did not justify disregarding it, 
provided the interested parties acted to th e best of their ability.  The USDOC has not 
claimed that either company failed to act to  the best of its ability.  Indeed, as noted 
above, the Department expressly recognized that Siderca "attempted to cooperate 
with the Department's request for information".151 
• Some of the information sought by USDOC  was 5-10 years old.  The USDOC never 
suggested that it was in any way unreasonable fo r Siderca not to have all of this data. 
• Although some of the information submitted by Siderca was not accepted by the 
USDOC, neither Siderca nor Acindar was "informed forthwith of the reasons 
therefore" or given "an opportunity to provide further explanations within a reasonable period…".  Instead, the first time that these interested parties ascertained 
that the USDOC was dissatisfied with th e information they provided was in the 
Section 129 Determination itself, when it was too late to "provide further 
explanations".  The Department therefor e breached its obligations under paragraph 6 
of Annex II. 
 
149 USDOC Section 129 Determination at 9-10 (ARG-16). 
150 Committee on Anti-dumping Practices, "Recommendation Concerning the Periods of Data 
Collection for Antidumping Investigations," adopted 5 May 2000, G/ADP/6. 
151 USDOC Section 129 Determination at 8 (ARG-16). WT/DS268/RW 
Page A-48  
 
                                                       • There is no indication whatsoever th at the USDOC acted with "special 
circumspection" within the meaning of paragraph 7.  There is nothing in the 
Section 129 Determination demonstra ting that the USDOC "check[ed] the 
information from other independent sources at  [its] disposal."  DOC never even asked 
Acindar to explain the general reference in  its 2000 financial statement.  Instead, it 
assumed that it must be consistent with the notion that Acindar was likely to dump 
OCTG in the US in the even t of expiry of the measure. 
 
185. Finally, the USDOC ignored the requirement to use the "best" information available.  The 
recourse to financial statements – and ambiguous asser tions taken out of context in those financial 
statements – can in no way be considered as the "most fitting" or "most appropriate" information 
available to the Department.   
 
186. The USDOC therefore breached its obligations under Article 6.8 and Annex II. 
 
7. The USDOC failed to inform interested part ies of the essential facts under consideration 
which formed the basis for the Section 129 determination, in violation of US obligations under Article 6.9 of the Anti-Dumping Agreement 
 
187. Article 6.9 of the Anti-Dumping Agreement provides that: 
 
The authorities shall, before a final determina tion is made, inform all interested parties 
of the essential facts under consideration whic h form the basis for the decision whether 
to apply definitive measures.  Such disclosu re should take place in sufficient time for 
the parties to defend their interests. 
 
188. The importance of this provision was emphasized by the Panel in Argentina – Ceramic Tiles : 
 
Article 6.9 anticipates that a final determin ation will be made and that the authorities 
have identified and are considering the essential facts on which that decision is to be made.  Under Article 6.9, these facts must be disclosed so that parties can defend their 
interests, for example by commenting on the completeness of the essential facts under 
consideration.
152
 
189. The Panel in Korea – Paper AD Duties  stressed that this disclosure had to be made before the 
investigating authority had ma de its determination:   
 
[T]he obligation under Article 6.9 is one th at requires the IA to make a one-time 
disclosure and that is before a final dete rmination is made as to whether or not a 
definitive measure will be applied.153
 
190. The USDOC did not inform the interested pa rties of the essential facts under consideration 
that formed the basis for its decision.  The S ection 129 Determination refe rs to additional USDOC 
memoranda to file, several of which are dated December 16, 2005, the same date as the Determination itself.
154  Two of the memoranda are public versions of proprietary documents, in which it is indicated 
 
152 Panel Report, Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from 
Italy, WT/DS189/R, adopted 5 November 2001, para. 6.125. 
153 Panel Report, Korea - Paper AD Duties , WT/DS312/R, adopted 28 November 2005, para. 7.204.  
154 See USDOC Memoranda to the File from Mark Fles sner, Case Analyst, Re: In the Matter of the 
Section 129 Determination on the Antidumping Duty Determination With Respect to OCTG from Argentina 
(16 Dec. 2005): (1) Inconsistencies in data reported by  Siderca, S.A.I.C. (ARG-21); (2) Information from 
Preston Publishing Company (ARG-22); (3) Inconsiste ncies in data reported by  Acindar (ARG-23); (4)  WT/DS268/RW 
 Page A-49 
 
 
  that the vast majority of the content is "not su sceptible to bracketing."  Such documents were not 
disclosed to the interested parti es during the Section 129 proceeding. 
 
191. Even if the public versions of these documents could be considered as sufficient to inform the 
interested parties of the essen tial facts under consideration, quod non, the disclosure of the public 
versions were not made "in sufficient time for the parties to defend their interests".  As noted above, 
five of these memoranda are dated December 16, 2005, the same date as the Section 129 Determination, even though they obviously must have  been prepared in advance of that date.  As 
these documents were disclosed contemporaneously w ith the Section 129 Determination itself, they 
were not provided to the interested parties before  a final determination was made in the Section 129 
proceeding. 
 
192. Also, the USDOC did not issue any draft or preliminary determination, as it routinely does in other Section 129  cases and as it said it would do in the arbitration pursuant to Article 21.3 of the 
DSU .   To apply the test set out in Korea – Paper AD Duties , such a preliminary determination would 
have enabled the United States to "make a one-time disclosure … before a final determination is made…".  Instead, the United States made 
no disclosure before the Section 129 final determination 
was made.  Moreover, the Departme nt provided no indication of what – if any – analysis it performed 
on Siderca's information. 
 
193. The United States thus violated its obligations  under Article 6.9 to inform all interested 
parties of the essential facts under consideration.   
 
E. THE FAILURE OF THE UNITED STATES TO IMPLEMENT USDOC'S SECTION 129 
DETERMINATION PRECLUDED THE OPPORTUNITY FOR THE ARGENTINE RESPONDENTS 
TO SEEK JUDICIAL REVIEW IN US COURTS , IN VIOLATION OF US OBLIGATIONS UNDER 
ARTICLE 13 OF THE ANTI-DUMPING AGREEMENT. 
 
194. Article 13 of the Anti-Dumping Agreement provides that: 
 
Each Member whose national legislation c ontains provisions on anti-dumping measures 
shall maintain judicial, arbitral or administrative tribunals or procedures for the 
purpose, inter alia, of the prompt review of administrative actions relating to final 
determinations and reviews of determinations within the me aning of Article 11.  Such 
tribunals shall be independent of the aut horities responsible for the determination or 
review in question. 
 
195. The failure of the United States to implem ent USDOC's Section 129 Determination precluded 
the opportunity for the Argentine r espondents to seek judicial review in US courts, in  violation of 
US obligations under Article 13 of the Anti-Dumping Agreement. 
 
196. Section 129(b) of the Uruguay Round Agreements  Act ("URAA") is the provision of US law 
that governs US implementation of adverse WTO rulings in cases in which a determination by the USDOC has been found to be WTO-inconsistent.
155  URAA Section 129(b) requires the USDOC, 
pursuant to a written request from the US Trade Re presentative ("USTR"), to issue a determination 
that would render USDOC's earlier action "not incons istent" with the findings of the WTO Panel or 
the Appellate Body.  Section 129(b)(1) provides that USTR "shall" consult with the USDOC and 
                                                                                                                                                                     
Securities and Exchange Commission Filings of Dome stic OCTG Producers (ARG-24); USDOC Memorandum 
to the File from Fred Baker, Case Analyst, through Mike Heaney, Team Leader, and Robert James, Program 
Manager, In the Matter of the Section 129 Determination on the Antidumping Duty Determination With Respect 
to OCTG from Argentina, Information for the Record (16 Dec. 2005) (ARG-25). 
155 See 19 U.S.C.. § 3538(b) (ARG-30). WT/DS268/RW 
Page A-50  
 
                                                       certain Congressional committees "[p]romptly after a report by a dispute settlement panel or the 
Appellate Body is issued that contains findings that an action by the administering authority in a proceeding under Title VII of the Tariff Act of 1930 is  not in conformity with the obligations of the 
United States under the Anti-Dumping Agreement…".
156
 
197. The US Statement of Administrative Action ("SAA") explains that the requirement to promptly consult "is intended to ensure that the Trade Representative benefits from Commerce's 
administrative and substantive expertise in the eval uation of a panel's findings and the development of 
implementing action, if any".
157  The SAA continues: 
 
The Administration expects that Commerce would provide the Trade Representative 
advice on:  (1) whether implementation of  the findings is permissible under the 
antidumping or countervailing duty law;  (2) the implications for the administration of the antidumping and countervailing duty laws of implementing the findings;  and (3) the most desirable method of impl ementing the findings and the time required 
to do so.
158
 
198. Thus, the process of "implementing" a Section 129 determination under US law involves two steps.  First, USTR must direct USDOC to make a new determination.  Once directed, USDOC must 
issue a new determination.  Second, USTR "may" (b ut is not required to) di rect USDOC to implement 
that determination: 
 
The Trade Representative may, after consultin g with the administering authority and 
the congressional committees under paragraph (3), direct the administering authority to 
implement, in whole or in part, the determination made under paragraph (2).159
 
The provisions of Section 129(b) thus vest USTR with discretion as to whether the USDOC's Section 129 determinations will be "implemented" within the meaning of US law.  The URAA then provides that the USDOC or USTR  "shall pub lish in the Federal Register notice of the 
implementation of any determin ation made under" Section 129.
160  The statute requires that "prior to 
issuing a determination under this section, the De partment or the Commission, as the case may be, 
shall provide interested parties with an opportunity to submit written comments and, in appropriate 
cases, may hold a hearing, with respect to the determination".161
 
199. In turn, under the applicable provisions of  the Tariff Act of 1930, as amended, governing 
judicial review of antidumping and countervailing duty determinations, an interested party may 
challenge a determination issued by the USDOC in accordance with section 129(b) of the URAA only 
if that determination has been "imp lemented" as opposed to merely issued.162  The SAA confirms that 
Section 129(b) determinations that have not been  implemented are not subject to judicial review, 
"because such determinations will not have any effect under domestic law".163
 
200. The United States did not implement USDOC's Section 129 Determination.  By failing to 
implement the Section 129 Determination, the Unite d States violated its obligations under Article 13 
 
156 19 U.S.C. § 3538(b)(1) (ARG-30). 
157 US Statement of Administrative Action, accomp anying the Uruguay Round Agreements Act, Pub. 
L. No. 103-465, 108 Stat. 4809 (1994), reprinted in H.R. Doc. No. 103-316, Vol. 1 at 1025 ("SAA") (ARG-31). 
158 SAA at 1025 (ARG-31). 
159 19 U.S.C. § 3538(b)(4) (ARG-30). 
160 19 U.S.C. § 3538(c)(2)(ARG-30). 
161 19 U.S.C. § 3538(d) (ARG-30). 
162 See 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and § 1516a(a)(2)(B)(vii) (ARG-32). 
163 SAA at 1026 (ARG-31).  WT/DS268/RW 
 Page A-51 
 
 
                                                       of the Agreement, because it precluded the opportunity  for the Argentine respondents to seek judicial 
review in the US courts. 
 
V. THE UNITED STATES HAS FAILED TO IMPLEMENT THE DSB 
RECOMMENDATIONS AND RULINGS WITH RESPECT TO THE "AS SUCH" 
VIOLATIONS  
 
A. SECTIONS 751(C)(4)(A) &(B) OF THE TARIFF ACT ARE WTO-INCONSISTENT 
 
1. DSB Rulings on Section 751(c)(4)(B) 
 
201. Section 751(c)(4)(B) of the Tariff Act provides as follows: 
 
(B) Effect of waiver 
 
In a review in which an interested part y waives its participation pursuant to this 
paragraph, the administering authority shall conclude that revocation of the order or 
termination of the investigation would be likely to lead to continuation or recurrence of 
dumping or a countervailable subsidy (as the case may be) with respect to that interested party.
164
 
202. The Appellate Body found that Section 751( c)(4)(B) and its implementing regulation were 
inconsistent, as such, with US obligations unde r Article 11.3 of the Anti-Dumping Agreement: 
 
Because the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without regard to any evidence on record, these determinations 
are merely assumptions made by the agency, rather than findings supported by 
evidence…. [E]ven assuming th at the USDOC takes into account the totality of record 
evidence in making its order-wide determina tion, it is clear that, as a result of the 
operation of the waiver provisions, certain order-wide likelihood determinations made 
by the USDOC will be based, at leas t in part, on statutorily-mandated assumptions 
about a company's likelihood of dumping. In ou r view, this result is inconsistent with 
the obligation of an investigating authorit y under Article 11.3 to "arrive at a reasoned 
conclusion" on the basis of "positive evidence". 
 
Therefore, we uphold the Panel's findings...that Section 751(c)(4)(B) of the Tariff Act 
of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as 
such, with Article 11.3 of the Anti-Dumping Agreement . 165
 
2. Section 751(c)(4)(B) of the Tariff Act has not been repealed or amended  
 
203. It is uncontested that Section 751(c)(4)(B) of  the Tariff Act has neither  been  repealed nor 
amended.  Therefore, this measure remains extant , and remains WTO-inconsistent.  Furthermore, the 
amendments to the USDOC Regulations could not eliminate, and have not eliminated, the WTO-
inconsistency of this statutory provision operating in conjunction with the revised regulation and 
Section 751(c)(4)(A) of the Tariff Act.  The United States has therefore failed to bring 
Section 751(c)(4)(B) into conformity with the r ecommendations and rulings of the DSB and with 
US obligations under Articles 11.1 and 11.3 of th e Anti-Dumping Agreement and Article XVI:4 of 
the WTO Agreement. 
 
 
164 19 U.S.C. § 1675(c)(4)(B) (ARG-33). 
165 Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews , paras. 234-235.  WT/DS268/RW 
Page A-52  
 
                                                       204. Moreover, Section 751(c)(4)(B) is a statutory provision enacted by the US Congress.  It can 
only be repealed or amended through an actus contrarius  of the same authority, the US Congress.  It 
cannot be rendered "inoperative" through regulatory means. 166
 
B. SECTION 351.218 OF THE REGULATIONS,  AS AMENDED, IS WTO-INCONSISTENT 
 
205. Section 351.218 of the Regulations, as amended,  requires respondent interested parties that 
waive their right to participate in a USDOC sunset re view to make an affirmative statement that it is 
likely to dump if the order is revoked.  The am ended Regulations provide in part as follows: 
 
Contents of statement of waiver.  Every st atement of waiver must include a statement 
indicating that the respondent interested part y waives participation in the sunset review 
before the Department; a statement that the respondent interested party is likely to 
dump or benefit from a countervailable subs idy (as the case may be) if the order is 
revoked or the investigation is terminated; in the case of a foreign government in a 
CVD sunset review, a statement that the government is likely to provide a 
countervailable subsidy if the order is revoked or the investigation is terminated; and the following information….
167
 
206. Article 11.3 of the Anti-Dumping Agreement permits a WTO Member to continue an anti-
dumping duty beyond five years only when certain st rict requirements have been satisfied.  The 
administering authority is required to conduct a "r eview" and to make a "determination" that both 
dumping and injury would be likely/probable in the ev ent of termination of the duty.  The review and 
determination required to extend th e anti-dumping duties beyond five years must be forward-looking, 
based on positive evidence, and must be the result of a rigorous examination of the evidence adduced 
by the authorities.168  Compliance with the strict requirement s of Article 11.3, as those obligations 
have been clarified by the Appellate Body, necessitates that a WTO Member adhere to certain 
minimum disciplines in making a sunset determination.   In the absence of comp liance, the duty must 
be terminated. 
 
207. When a party affirmatively waives its partic ipation, the regulation prevents the USDOC from 
developing the requisite factual information.  The inability of USDOC to  gather the necessary 
information is inconsistent with the obligation of the United States to conduct a sunset "review" and 
the need to make the requisite "determination" under Article 11.3.  The revised regulation is 
inconsistent with the obligation of the USDOC under Article 11.3 to "arrive at a reasoned conclusion" 
on the basis of "positive evidence". 
 
208. As noted above, the Appellate Body has str essed that an investigating authority assumes both 
investigatory and adjudicatory functions under Article  11.3.  The provision "assigns an active rather 
than a passive decision-making role to the authorities" that they must discharge "with an appropriate degree of diligence."
169  By requiring an admission of dumping – which, as argued above, will rarely 
be forthcoming – the United States has abdicated its responsibilities under Article 11.3.  Indeed, the 
 
166In Lagardère SCA – Canal + SA , the European Court of First Instance stated that "in accordance 
with a general principle of law…a body which has power to adopt a particular legal measure also has power to 
abrogate or amend it by adopting an actus contrarius , unless such power is expressly conferred upon another 
body…."  Judgment of the Court of First Instance, Lagardère SCA – Canal + SA, Case T-251/00, 20 November 2002, paras. 128, 130.  Obviously, the power of the US Congress to abrogate or amend the Tariff Act has not been conferred on any another body, including the USDOC.
 
167 Procedures for Conducting Five-Year ("Sunset") Reviews for Anti-Dumping and Countervailing 
Duty Orders:  Final Rule , 70 Fed. Reg. 62,061, 62,064 (28 Oct. 2005) (ARG-12). 
168 Appellate Body Report, US – Corrosion-Resistant Carbon Steel Sunset Review , paras. 105, 111-115. 
169 Appellate Body Report, US - Corrosion-Resistant Steel Sunset Review, para. 111.  WT/DS268/RW 
 Page A-53 
 
 
                                                       Regulation, as amended, assigns a "passive rather  than active" decision-making role to the USDOC, 
despite the Appellate Body's clear admonitions to the contrary. 
 
209. Section 351.218 of the Regulations, as amende d, therefore remains inconsistent with 
US obligations under Article 11.3. 
 
VI. ARGENTINA REQUESTS THAT THE PANEL SUGGEST THAT THE 
UNITED STATES REVOKE THE ANTI-DUMPING DUTY ORDER ON OCTG 
FROM ARGENTINA 
 
210. In this dispute, Argentina requested both the original Panel and the Appellate Body to 
exercise their discretion under DSU Article 19.1 and to suggest that the United States terminate the 
anti-dumping measure on OCTG from Argentina.  The Panel declined this request, stating "[w]e note 
that Article 19.1 of the DSU states that WTO pane ls may suggest ways the Member concerned could 
implement their recommendations.  In the circum stances of the present proceedings, however, we see 
no particular reason to make such a suggesti on and therefore decline Argentina's request".170  T h e  
Appellate Body similarly declined to make any such suggestion. 
 
211. There is now, given the sequence of events, "a particular reason to make  such a suggestion".  
By failing to revoke the anti-dumping duty order on OCTG from Argentina before the expiration of 
the reasonable period of time for implementation, the United States violated the requirements of 
Articles 11.3 and 11.4 of the Anti-Dumping Agreemen t, and thereby failed to implement the rulings 
and recommendations of the DSB.  The US violatio n continues to nullify and impair the rights of 
Argentina under these same provisions. 
 
212. The nature of a Member's obligation under Articles 11.3 and 11.4 necessarily limits the 
infringing WTO Member's options to bring itsel f into compliance.  Argentina's rights under 
Article 11.3 have been undermined completely by US  implementation in this case.  Several provisions 
in the DSU emphasize that the WTO dispute settlement system should not diminish the rights of 
WTO Members.  Allowing a Member repeated a ttempts to comply with its obligations under 
Article 11.3 obligations, long after the expiration of the five-year period and on the basis of an ever-
changing factual record, would render the provision of Article 11.3 inutile.  In this case, permitting 
this would deny Argentina its right under that provi sion to termination of the measure in the absence 
of US compliance with the requirements for continuation. 
 
213. In this regard, Article 3.2 of the DSU provides that: 
 
The dispute settlement system of the WTO is the central element in providing security and predictability to the multilateral trading system.  The Members recognize that it serves to preserve the rights and obligations  of Members under the covered agreements, 
and to clarify the existing provisions of t hose agreements in accordance with customary 
rules of interpretation of public international law.  Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered 
agreements. 
 
214. Article 3.2 of the DSU reaffirms that the role of the WTO dispute settlement system is to "clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law".  The general rules of interpretation of the Vienna 
Convention  require a panel to interpret treaty provis ions in good faith in accordance with their 
ordinary meaning, in their context, and in light of the treaty's object and purpose.
171  Thus, the treaty 
 
170 Panel Report, para. 8.5 (footnote omitted). 
171 Vienna Convention on the Law of Treaties, Ar t. 31, adopted 22 May 1999, 1555 U.N.T.S. 331. WT/DS268/RW 
Page A-54  
 
  language defines the extent of Members' rights and ob ligations.  One of the corollaries of this general 
rule is that "interpretation must give meaning and eff ect to all the terms of a treaty.  An interpreter is 
not free to adopt a reading that would result in re ducing whole clauses or paragraphs of a treaty to 
redundancy or inutility".172
 
215. As set out above, the Appellate Body has cont ributed importantly to clarifying the meaning of 
the rights and obligations comprised in Article 11.3.  Argentina 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 Article 11.3 of the Anti-Du mping Agreement.  The United States failed to do 
so in 2000, and has again failed in 2005.  Thus, the anti-dumping order on Argentine OCTG was not 
terminated in 2000, as required by Article 11.3, a nd a WTO-inconsistent determination continues to 
serve as the US justification for the imposition of anti-dumping duties in violation of US WTO 
obligations. 
 
216. Article 3.7 of the DSU provides that "[t]he aim of the dispute settlement mechanism is to 
secure a positive solution to a dispute…  In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure withdrawal of the measures concerned if they are found to be inconsistent with  the provisions of any of the covered agreements."  
This is particularly relevant when, as is the case he re, the nature of the obligation itself requires that 
the measure "expire" – i.e., be withdrawn at the end of five years in the absence of strict compliance 
with the substantive requirements.  Yet, the Unite d States has not yet withdrawn the measure, despite 
an obligation to do so in 2000 in the absence of the requisite findings.  Nor did the United States 
revoke the anti-dumping order before the expiration of reasonable period of time for implementation 
in this case (by 17 December 2005).  At a minimum, the United States should have brought itself into conformity with its WTO obligations at this time.   
 
217. As the foregoing demonstrates, the 2005 like lihood determination was the result of USDOC 
undertaking in 2005 to develop a new factual basi s to support its WTO-inconsistent 2000 likelihood 
determination – conduct that is patently inconsistent with the re quirements of Article 11.3 and 11.4 of 
the Anti-Dumping Agreement.  Moreover, even if USDOC could have developed a new factual basis, 
the Section 129 Determination did not bring the United  States into conformity with the rulings of the 
DSB and it in no way satisfies US obligations unde r Article 11.3 of the Anti-Dumping Agreement. 
 
218. Article 19.2 of the DSU adds that "[i]n accord ance with paragraph 2 of Article 3, in their 
findings and recommendations, the Pa nel and Appellate Body cannot add to or diminish the rights and 
obligations provided in the covered agreements."  Ye t, any rulings by this Panel in this compliance 
proceeding that would give the United States, now  in 2006, the opportunity to conduct yet another 
Section 129 proceeding in order to comply with the ob ligations that first attached in 2000, and which 
the United States once again failed to discharge in 2005, would violate both aspects of DSU Article 19.2. 
 
219. First, any such ruling would serve only to fu rther erode Argentina's already impaired rights 
under Article 11.3 to termination of the measure after five years in the absence of compliance with the 
requirements of Articles 11.3 and 11.4.  Second, giving the United States yet another opportunity to make a WTO-consistent determination would constitute an addition to the limited US right  under 
Article 11.3 to invoke the provision's exception to the prin cipal obligation to terminate the measure  
(and thereby continue anti-dumping duties on OCTG from Argentina) only if it had first complied 
with the substantive obligations of Articles 11.3 and 11.4 of the Anti-Dumping Agreement .  The 
United States cannot now have a 
third  opportunity in 2006 to satisfy the obligations of Article 11.3 
that attached in 2000. 
                                                      
172 Appellate Body Report,  United States – Standards for Reformulated and Conventional Gasoline , 
WT/DS2/AB/R, adopted 20 May 1996, at 23.  WT/DS268/RW 
 Page A-55 
 
 
   
220. Argentina finds additional support for a sugges tion pursuant to DSU Article 19.1 in this case 
for the following reasons. 
 
221. First, the temporal limitations containe d in Articles 11.3 and 11.4 are meaningless if a 
Member can expect limitless opportunities to satisfy th e obligations.  This is the context for Argentina 
in this case. For Argentina, in very  real terms, there is no meaningful sunset provision applicable to 
the US antidumping duty order on Argentine OCTG.  The Appellate Body recently recognized the 
harm to the dispute settlement system that could result from allowing an implementing Member to abuse its implementation rights under the DSU, at the expense of the rights of the complaining 
Member.  The Appellate Body in the sec ond recourse to DSU Article 21.5 in the FSC case 
admonished that Panel rulings in compliance proceedings should not "lead to a potentially 'never-ending cycle' of dispute settlement proceedings and inordinate delays in the implementation…".
173   
 
222. Here, Argentina has already had its Article 11.3 right denied twice  – in 2001 (following the 
failure of the United States to terminate the orde r in the absence of compliance with Article 11.3 
requirements) and in 2005  (at the conclusion of the RPT, where again the United States failed to 
comply with Article 11.3 and did not bring itself into  compliance with the rulings of the DSB). In the 
absence of a suggestion that the United States revoke  the anti-dumping order, Argentina stands on the 
brink of yet another Section 129 proceeding and a "never-ending cycle" of non-compliance. 
 
223. Second, a suggestion is all the more compelling given the facts of this case, where the second  
sunset review of the order on OCTG from Argentina is fast approaching, i.e., June 2006 .  Thus, 
Argentina faces the potential absurd ity – yet very real prospect – of facing the second sunset review 
of the Argentine anti-dumping duty order in this case in June 2006, when the DSB has already ruled that the initial sunset review from August 2000 was inconsistent with US obligations 
under Article 11.3.  
 
224. Finally, Argentina recalls Article 21.7 of the DSU, which also recognizes that "[i]f the matter 
is one which has been raised by a developing country Member, the DSB shall consider what further action it might take which would be  appropriate in the circumstances".  In this case, such further 
action would be the recommendation that the United States terminate the anti-dumping duty order on 
OCTG from Argentina.  Consequently, the Panel should make this recommendation so as to prevent 
the "never-ending cycle" of US violation and subseq uent Section 129 proceedings.  In such an endless 
loop, there will never be US implementation of the DSB rulings and recommendations in this case. 
 
VII. CONCLUSION 
 
225. For the foregoing reasons, Argentina respectfully requests the Panel to find that the 
United States has failed to implement the recommend ations and rulings of the DSB, and remains in 
violation of its WTO obligations.  In particular, Argentina requests that the Panel make the following findings: 
 
Section 129 Determination  
 
1. USDOC's Section 129 likelihood of dumping determination is inconsistent with 
Article 11.3 because: 
 
                                                      
173 Appellate Body Report, United States – Tax Treatment For "Foreign Sales Corporations" Second 
Recourse To Article 21.5 Of The DSU By The European Communities , WT/DS108/AB/RW2,  adopted 
14 March 2006, para. 86. WT/DS268/RW 
Page A-56  
 
  a. USDOC based its 2005 likelihood dete rmination on factual evidence that 
USDOC developed in 2005, and which was not developed during the original 
sunset review in 2000, and therefore, the United States violated the requirements of Articles 11.3 and 11.4 of the Anti-Dumping Agreement. 
 
b. As for the USDOC's statement that it also relied on its position from the 
original sunset review that the post-order volume decline created a basis for inferring that dumping would be likely to continue or recur, this was an insufficient basis to support the 200 0 likelihood determination and also 
cannot support the 2005 likelihood determin ation in violation of Article 11.3. 
 
2. Alternatively, assuming that USDOC could,  consistently with US WTO obligations, 
conduct a proceeding in 2005 to justify USDOC's 2001 continuation of the antidumping duty order on Argentine OCTG, then USDOC's Section 129 likelihood of dumping determination is incons istent with Article 11.3 because: 
 
a. The USDOC did not properly establis h a sufficient factual basis, did not 
objectively assess the facts, and did not reach a reasoned conclusion supported by positive evidence that expiry of the order would be likely to lead to continuation or recurrence of dumping. 
 
i. The USDOC determination with respect to the Argentine exporters is 
inconsistent with Article 11.3 of the Anti-Dumping Agreement. 
 
ii. As for the USDOC's statement that it also relied on its position from 
the original sunset review that the post-order volume decline created 
a basis for inferring that dumping would be likely to continue or 
recur, this was an insufficient basis to support the 2000 likelihood 
determination and also ca nnot support the 2005 likelihood 
determination in violation of Article 11.3 of the Anti-Dumping Agreement. 
 
b. The USDOC's conduct of the Section 129 proceeding was also inconsistent 
with Articles 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9, and Annex II of the Anti-Dumping Agreement: 
 
i. The USDOC's failure to provide the parties notice regarding the 
procedures it would follow to make its determination and to notify the parties of the essential facts unde r consideration that formed the 
basis for the Section 129 Determina tion, including, when necessary, 
by providing reasonable summaries of confidential information, was inconsistent with US obligations u nder Articles 6.1, 6.4, 6.5, 6.5.1, 
and 6.9 of the Anti-Dumping Agreement. 
 
ii. The USDOC's failure to hold a hearing in the Section 129 proceeding 
and to provide to interested parties a full opportunity for the defence of their interests was inconsistent with US obligations under Article 6.2 of the Anti-Dumping Agreement. 
 
iii. The USDOC's failure to require interested parties to submit non-
confidential summaries of their written submissions in the Section 129 proceeding in such a manner as to permit a reasonable understanding of the substance of  the confidential information  WT/DS268/RW 
 Page A-57 
 
 
  submitted violated US obligations under Articles 6.1, 6.2, 6.5, 6.5.1 
of the Anti-Dumping Agreement. 
 
iv. The USDOC's characterization of Siderca's submitted cost 
information as unreliable without a reasonable basis for doing so and 
without following the requirements of the Anti-Dumping Agreement 
was in violation of US obligations under Articles 6.1, 6.2, 6.4, 6.6, 6.8 and Annex II of the Anti-Dumping Agreement. 
 
3. The failure of the United States to "implement" the Section 129 Determination, 
pursuant to Section 129(b)(4) of the Uruguay Round Agreements Act , was inconsistent with 
US obligations under Article 13 of the Anti-Dumping Agreement. 
 
Failure of the United States to Repeal or Amend the Tariff Act  
 
4. The failure of the United States either to re peal Section 751(c)(4)(B) of the Tariff Act of 
1930, or to amend this provision to remove th e WTO-inconsistency, failed to implement the 
recommendations and rulings of the DSB and was inc onsistent with US oblig ations under Article 11.3 
of the Anti-Dumping Agreement and Ar ticle XVI:4 of the WTO Agreement. 
 
US Amendment of Section 351.218(d)(2) of USDOC Regulations  
 
5. The amendment by the United States of Section 351.218(d)(2) of the USDOC Regulations 
failed to implement the recommendations and ruli ngs of the DSB and was inconsistent with 
US obligations under Articles 6.1, 6.2, 6.6, 11. 1, and 11.3 of the Anti-Dumping Agreement and 
Article XVI:4 of the WTO Agreement. 
 
226. In accordance with DSU Article 19.1, Argentin a further requests that the Panel suggest that 
the United States bring its measures into conformi ty with its WTO obligations, including through 
immediate revocation of the order on OCTG from Argentina. 
 
 WT/DS268/RW 
Page A-58  
 
  ANNEX A-2 
 
FIRST WRITTEN SUBMISSION OF  
THE UNITED STATES  
 
19 April 2006 
 
TABLE OF CONTENTS 
 
 
Page  
 
I. INTRODUCTION ...............................................................................................................5 9 
II. PROCEDURAL HISTORY................................................................................................60 
III. THE WAIVER PROVISIONS ...........................................................................................61 
IV. THE SECTION 129 DETERMINATION .........................................................................63 
A. COMMERCE'S USE OF "NEW  FACTUAL INFORMATION" .......................................................64 
B. THE FINDING THAT DUMPING WAS LIKELY TO CONTINUE OR RECUR ...........................66 
1. Siderca..................................................................................................................... .............67 
2. Acindar..................................................................................................................... ............68 
3. Financial Statements........................................................................................................ ...68 
C. EVIDENTIARY AND PROCEDURAL REQUIREMENTS OF ARTICLE 11.3 AND 
ARTICLE 6...................................................................................................................... ...................69 
1. Article 6.1................................................................................................................. ............69 
2. Article 6.2................................................................................................................. ............71 
3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9...........................................71 
(a) Article 6.4................................................................................................................ ..71 
(b) Article 6.5.1...............................................................................................................72 
(c) Article 6.6................................................................................................................ ..73 
(d) Article 6.9................................................................................................................ ..74 
4. Article 6.8 and Annex II .................................................................................................... .74 
D. ARTICLE 13.................................................................................................................. .....................75 
V. ARGENTINA'S REQUEST FOR A SUGGESTION .......................................................75 
VI. CONC LUSION ................................................................................................................. ...76 
EXHIBIT LIST .................................................................................................................................77 
  WT/DS268/RW 
 Page A-59 
 
 
                                                       I. INTRODUCTION 
 
1. Argentina asks the Panel to conclude that  Commerce was wrong in determining that dumping 
was likely to continue or recur if the order on OCTG from Argentina were revoked.  Argentina does 
so, even though Commerce was ultimately proven righ t:  One of the Argentine exporters was found to 
be dumping after the continuation of the order. 
 
2. The majority of Argentina's grievances are grounded in the flawed assumption that the 
exporter of a product subject to a sunset review bears no responsibility for supplying an administering 
authority with sufficient, or accurate, information to make a determination.  Indeed, Argentina's 
position goes even further – an exporter may refrain  from participating in a review, deprive the 
administering authority of information, complain to the WTO about the lack of information, and then complain again about having to supply that information, even as the administering authority undertakes to come into complian ce.  Neither Argentine respondent provided any actual cost 
information, and when Siderca provided estimates,  coupled with the fact that it was no longer 
exporting to the United States, Commerce simply declined to make any specific finding as to whether 
Siderca dumped over the life of the order.  Still, Argentina complains. 
 
3. Argentina's grievances extend to the manner in which the US implemented the 
recommendations and rulings of the Dispute Settleme nt Body ("DSB") pertaining to the so-called 
"waiver provisions."  Argentina's argument rests on a misguided understanding of the text of the 
Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994 
("Anti-Dumping Agreement"), as well as of the recommendations and rulings in this dispute.  The United States is not obligated to provide respondent s with an option to waive participation in the 
likelihood of dumping aspect of the sunset review.  The Panel made clear that where the United States does so, the waiver must not "taint" the overall de termination by requiring an assumption that the 
waiving respondent is likely to dump absent evidence that it is, in fact, likely to dump.  
 
4. Argentina's argument boils down to this:  th e respondent's own admission that it is likely to 
dump is somehow not "positive evidence" of what the respondent is likely to do.  This is odd indeed, 
because Argentina's position in the underlying dis pute was that the deemed waiver provisions 
required Commerce to make dete rminations about likely beha viour without the respondent's 
participation.1  Now Argentina is criticizing Commerce fo r doing just the opposite – relying on the 
respondent's own admissions made in the course of  participating in the proceeding.  Still more 
confusing, Argentina complains that the Unite d States violated Articles 6.6 and 6.8 by not relying on 
the respondent's statement as to costs (which th e respondent itself described as "estimated"); yet 
Commerce is to be faulted for relying on a respondent's statement as to its own future behaviour.  
Argentina's analysis is simply results-driven. 
 
5. With respect to the waiver statute, Argentin a insists that the statute had to be amended, as 
opposed to the regulations alone.  First, the Panel, and subsequently the Appe llate Body, made it clear 
that the statute and the regulations operated together , and as they operated together, they were 
inconsistent with Article 11.3 – he nce the term "waiver provisions".  There is nothing in either report 
to suggest that correcting the regulations would be in sufficient to remedy concerns about the statute.  
Second, it is well established that the Member charged with implementing a recommendation and 
ruling is in the best position to decide how to  bring its measure into compliance.  Here, the 
United States amended its regulations in such a wa y that no amendment to the statute was necessary, 
and in doing so implemented the recommendati ons and rulings as expeditiously as possible. 
 
6. In that vein, Argentina's arguments to the arbitrator during the Article 21.3(c) proceedings are difficult to reconcile with the arguments it makes he re.  Before the arbitrator, Argentina argued that 
 
1 See, e.g. , Argentina First Submission in the original proceeding, para. 120. WT/DS268/RW 
Page A-60  
 
                                                       the United States could come into compliance in a mere seven months.  Given that Argentina is 
insisting that a statutory change was necessary, that  time frame was particularly abbreviated; indeed, 
it took Argentina more than 15 months simply to come into compliance w ith DSB recommendations 
and rulings regarding a single investigation, with no statutory or regulatory amendments.2  Moreover, 
in spite of requesting such a brief period of time,  Argentina now contends that the United States 
violated a host of procedural obligations under Article  6.  Argentina's argument is ironic, given that 
the United States insisted that 15 months would be necessary in order to come into compliance while 
observing the procedural obligations found in Article  6, as well as to provide additional procedural 
steps, including a preliminary determination, that Argentina now wishes its companies had enjoyed.  
Argentina is trying to have it both ways – first demanding an unreasonable period of time for 
implementation, and then asserting WTO-inconsistenci es relating to a host of procedural steps that 
would have required even more time.  Despite the abbreviated reasonabl e period of time, the 
United States has not acted inconsistently  with the obligations of Article 6. 
 
II. PROCEDURAL HISTORY 
 
7. The DSB adopted the Panel and Appella te Body reports 17 December 2004.  On 
14 January 2005, the United States notified th e DSB of its intention to implement those 
recommendations and rulings.  The United States re quested 15 months to bring its measure into 
compliance with the DSB recommendations and ru lings, while Argentina insisted on only seven 
months.3  On 7 June 2005 an arbitrator appoint ed pursuant to Article 21.3(c) of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes  ("DSU") determined that a "reasonable 
period of time" for the United States to implement the recommendations and rulings of the DSB 
would be 12 months from the date on which the DS B adopted the Panel and Appellate Body Reports, 
or 17 December 2005.4
 
8. On 15 August 2005, Commerce published in the Federal Register  a notice proposing to 
amend its sunset regulations and soliciting public comment on the proposed amendments.5  T h e  
Federal Register notice stated that Commerce was "amending  its regulations relating to sunset 
reviews to conform the existing regulation to the United States' obligations under Articles 6.1, 6.2, 
and 11.3" of the AD Agreement.6
 
9. On 28 October 2005, the United States publishe d amendments to sections 351.218(d)(2)(iii) 
and 351.309(c) of Commerce's regulations.  Th ese amendments became effective 31 October 2005.7  
That same day, the US Trade Re presentative ("USTR") transmitted a request for Commerce to issue a 
determination with respect to the sunset review so  as to render that determination not inconsistent 
with the findings of the DSB in this dispute.  
 
10. On 2 November 2005, Commerce initiated a proceeding pursuant to section 129 of the 
Uruguay Round Agreements Act to address the Pane l findings regarding the likelihood determination 
in the sunset review of OCTG from Argentin a.  Commerce requested information from the 
Government of Argentina, Acindar, Siderca, and Tubhier.  No public hearing was requested. 
 
2 WT/DS189/8 
3 See Submission of the United States pursuant to DSU Article 21.3.   
4 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina: Award of the Arbitrator , WT/DS268/12, para. 53 (7 June 2005). 
5 Procedures for Conducting Five-Year Reviews of Anti-Dumping and Countervailing Duty Orders: 
Proposed rule, 70 Fed. Reg. 47738 (15 August 2005) (Exhibit US-1). 
6 Id. 
7 Procedures for Conducting Five-Year ("Sunset") Reviews of Anti-Dumping and Countervailing Duty 
Orders: Final Rule  (Exhibit ARG-12)  WT/DS268/RW 
 Page A-61 
 
 
                                                       11. On 16 December 2005, Commerce issued its Section 129 Determination.8  After analysis of 
all the factual information on the record and argum ents made by the interested parties, Commerce 
found that "there is a likelihood of continuation or recurrence of dumping had the anti-dumping duty 
order on OCTG from Argentina been revoked in 2000, i.e. at the end of the original sunset period".9  
On 16 March 2006, USTR directed Commerce to im plement the Section 129 Determination, and on 
18 April 2006, Commerce implemented that determination.10
 
III. THE WAIVER PROVISIONS 
 
12. The Panel considered the affirmative waiver provisions to be inconsistent with Article 11.3 
because the "investigating authority can not simply assume, without further enquiry, that dumping is 
likely to continue or recur because the exporte r chose not to participate in the review".11  With respect 
to affirmative waivers, the Panel's analysis invol ved consideration of the statutory and regulatory 
provisions collectively, rather than individually.12  The Panel ultimately concluded that "the 
provisions of US law relating to affirmative waivers" are inconsistent with Article 11.3.13
 
13. The Appellate Body agreed: 
[b]ecause the waiver provisions require the USDOC to arrive at affirmative company-
specific determinations without rega rd to any evidence on record, these 
determinations are merely assumptions  made by the agency, rather than findings 
supported by evidence . . . .14  
 
Therefore, the waiver provisions, as they operated together, were found to be in violation of Article 11.3 because they required an assumption wit hout regard to the underlying evidence, if any.  
As discussed below, Commerce ame nded the regulations such that a waiver occurs only with respect 
to a respondent that states that it is likely to dum p in the future.  Commerce therefore no longer makes 
its company-specific finding based on an "assumpti on" but rather on evidence.  As a result, the 
United States has brought its measures into compliance with the DSB rulings and recommendations. 
 
14. With respect to the statute, the Panel noted th at it "simply provides that interested parties may 
choose not to participate in the USDOC part of a sunset review".15  The requirements for what 
constitutes a waiver are only found in the regulations.  (For example, the Panel recognized in the 
original proceeding that the regulations went so far as to create an entirely new category of waiver, 
the "deemed" waiver.)16  Consistent with the DSB recomme ndations and rulings, Commerce amended 
the waiver provisions to delete the "deemed" waiver, and to require the following in the case of what 
the Panel has referred to as an affirmative waiver: 
Every statement of waiver must include a statement indicating that the respondent interested party waives particip ation in the sunset review before the 
Department; a statement that the respondent interested party is likely to dump 
 
8 Decision Memorandum; Section 129 Determination: Final Results of Sunset Review, Oil Country 
Tubular Goods from Argentina (16 December 2005) (" Decision Memorandum ") (Exhibit ARG-16). 
9 Decision Memorandum  at 11 (Exhibit ARG-16). 
10 Notice of Implementation under Section 129 of th e Uruguay Round Agreements Act; Anti-Dumping 
Measures Concerning Oil Country Tubular Goods from Argentina, 71 Fed. Reg. 19873 (18 April 2006) 
(Exhibit US-2). 
11 Panel Report, para. 7.99. 
12 Panel Report, para. 7.85. 
13 Panel Report, para. 7.99. 
14 Appellate Body Report, para. 234 (emphasis in original). 
15 Panel Report, para. 7.85. 
16 Panel Report, para. 7.83. WT/DS268/RW 
Page A-62  
 
                                                       or benefit from a countervailable subsidy (as the case may be) if the order is 
revoked or the investigation is terminated; . . . 17
 
15. Therefore, as noted above, because the waiver provisions are triggered only when a 
respondent provides a statement that it is likel y to dump, these provisions also eliminate any 
"assumptions" about what an individual company waiv ing participation is likely to do if the order is 
revoked. 
 
16. Argentina complains that the United States h as failed to bring the statute into compliance 
because it has been neither repealed nor amended; Argentina further complains that the amendments 
to Commerce's regulations are insufficient.18  However, Argentina ignores the fact that the Panel and 
the Appellate Body analyzed the waiver provisions – the statute and the regulations – collectively .  
Thus, the United States never had to amend both the statute and the regulations – rather, it needed to ensure that the collective impact of the two was consistent with the DSB recommendations and 
rulings.  The statute and the regulations now no  longer create the inconsistency in question.  
Therefore, Argentina has failed to substantiate its assertion that the United States was obliged to 
amend the statute in order to comply with the DSB recommendations and rulings. 
 
17. Argentina also takes issue with the amendment to the regulations.  Argentina asserts that when "a party affirmatively waives its particip ation, the regulation prevents the USDOC from 
developing the requisite factual information" a nd that it prevents USDOC from arriving a "reasoned 
conclusion" on the basis of "positive evidence".
19  Therefore, Argentina takes the counterintuitive 
position that the respondent's admission is not po sitive evidence.  That argument is  plainly 
inconsistent with the underlying reports.  The United States recalls that the Panel expressly noted that 
in most cases it is the exporter who will be in possession of the "bulk of the information" as to 
whether that particular exporter is likely to dump.   The Appellate Body echoed the Panel's views by 
noting the negative consequences likely to inure to an exporter who does not participate in a review.20  
Argentina's view is that an exporter may waive part icipation, provide an admission of likely dumping, 
and affirmatively decline to provide any other information – yet somehow the administering authority's company-specific affirmative finding is not "reasoned" or based on "positive evidence."  In 
a theme that will be repeated in its discussion of the Section 129 Determination, Argentina's approach deprives the respondent of any responsibility for the r ecord before the administering authority, even 
though, as the Appellate Body has noted, "the expor ters or producers themselves . . . often possess the 
best evidence of their likely future pricing behaviour – a key element in the likelihood of future dumping." 
 
18. In addition, Argentina's assertion that the amended regulation prevents Commerce from 
developing the requisite factual information is simply  wrong.  First, it should be noted that Argentina 
fails to specify what  factual information is not being developed with respect to that company, and why 
that mystery factual information would be more probative than the company's own admission.  It is worth noting that a sunset review is a prospective and counterfactual enquiry, and it is difficult to 
 
17 Id. (emphasis added). 
18 Argentina First Submission, paras. 201-204.  At n. 166, Argentina somewhat puzzlingly cites 
European Community law for the prin ciple that a European statute cannot be rendered "inoperative" through 
regulatory means.  The passage quoted however does not stand for the principle cited by Argentina – the 
passage quoted states that a body that has the authority to adopt a measure also has authority to repeal or amend 
it, absent some provision to the contrary.  In any event,  as the United States is not a member of the European 
Communities, European Community law has no relevance to the relationship between US statutes and 
regulations.  Argentina's argument also overlooks the fact that to comply with the recommendations and rulings, 
the United States was not required to make the statute "inoperative," but rather to  ensure that the company-
specific finding was not based on mere "assumptions". 
19 Argentina First Submission, para. 207. 
20 Appellate Body Report, para. 234.  WT/DS268/RW 
 Page A-63 
 
 
                                                       conceive of evidence that would establish that a comp any is not likely to dump in the future when the 
company has itself stated that it will. 
 
19. Second, it is not the regulation that "prevents" Commerce from developing factual 
information; rather, the exporter is providing the statement as to its likely future behaviour in lieu of 
providing other information.  Therefore, the absence of further factual information is attributable 
entirely to the respondent's exercise of choice, rather than to any "requirement" in the regulations. 
 
20. Argentina further states that the regulations require an admission of dumping.21  T h a t  i s  
simply incorrect.  No exporter is obliged to make  any admission of dumping.  However, an exporter 
who wishes to decline to participat e in the Commerce portion of the sunset review may do so by filing 
a statement of waiver, which includes a statement that it is likely to dump if the order is revoked.  
Further, given Commerce's deletion of the deemed wa iver provision, an exporter may also decline to 
participate without filing such a waiver, with the potential negative consequences that the Panel 
identified in its report: "non-cooperation clearly is not without consequences for the exporter.  Under 
these circumstances, the USDOC may, consistent with the terms of Article 6.8 and Annex II of the Agreement, resort to the use of the facts available . . . ."
22
 
21. By amending its sunset regulation, Commerc e bases its company-specific findings for those 
waiving participation on "positive" evidence, el iminating reliance on "assumptions". In doing so, 
Commerce brought both the statute and the regulation into compliance with its WTO obligations.  No 
repeal or amendment of the statute is required, nor are any further amendments of the regulations necessary. 
 
IV. THE SECTION 129 DETERMINATION 
 
22. Argentina asserts that in the original proceed ing, the Panel concluded that there was "no basis 
for a WTO-consistent determination that dumping would be likely to continue or recur".23  That is 
incorrect.  What the Panel actually stated was that  "the original determination of dumping by itself 
cannot represent a sufficient factual basis for conc luding that dumping continued during the life of the 
measure, let alone representing an adequate fact ual basis to conclude that dumping is likely to 
continue or recur after the expiry of the order." 24  Therefore, the Panel did not conclude that there 
was no basis, but rather an inadequate basis. 
 
23. Further, the Panel recognized that there were two factual bases for the determination.25  The 
Panel did not make any findings with regard to  the second basis – Commerce's conclusion that the 
decline of import volumes was probative of likeli hood – as Argentina well knows, because during the 
interim review Argentina asked the Panel to make such a finding.26  The Panel declined to do so.27
 
24. Finally, the Panel concluded that application of the "deemed waiver" provisions to Argentine exporters other than Siderca "invalidated' the De partment's order-wide likelihood determination.
28  
The Appellate Body agreed with the Panel regarding the waiver provisions. 
 
 
21 Argentina First Submission, para. 208. 
22  Panel Report, para. 7.95. 
23 Argentina First Submission, para. 29. 
24  Panel Report, para. 7.219. 
25 Panel Report, para. 7.221. 
26 Panel Report, para. 6.9. 
27 Panel Report, para. 6.11. 
28 Panel Report, para. 7.222. WT/DS268/RW 
Page A-64  
 
                                                       25. Once the revisions to the regulation to remove "deemed waivers" and to require an affirmative 
statement of likelihood of dumping for an affirmat ive waiver were effective, Commerce began its 
Section 129 proceeding.  Commerce responded to the DSB recommendations and rulings by gathering 
additional information, conduc ting a thorough analysis, and providing detailed and reasoned 
explanations for its findings.29  In addition to using the evidence gathered in the original sunset 
proceeding, Commerce sent questionnaires to all known Argentine exporters/producers of OCTG.  
Commerce also gathered statistical import data from US Customs and Border Protection ("CBP"), as well as from other independent sources.  Commerce evaluated the accuracy and reliability of the evidence and based its decision on the most reliable information. 
 
26. On the basis of its analysis of the record  evidence, Commerce made the determination that 
dumping was likely to continue or recur if the order were revoked.30  This determination was based on 
the Argentine respondents' submissions, their financial statements, and on independent sources of 
data.  Argentina's contention that the Section 129 Determination is inc onsistent with the Anti-
Dumping Agreement cannot be substantiated. 
 
A. COMMERCE'S USE OF "NEW  FACTUAL INFORMATION" 
 
27. Argentina argues that Commerce should be precluded from developing a new factual record in the Section 129 proceeding.  Argentina contends that the United States failed to bring its 
determination into compliance because "USDOC cho se to develop a new and different factual basis 
for its Section 129 Determination".
31  Argentina distinguishes Commerce's approach from that in 
which "national authorities seek [] to clarify information that it had developed in the 2000 
proceeding".32
 
28. As an initial matter, Argentina provides no textual support for the proposition that a Member 
is prohibited from collecting new information in the course of coming into compliance with DSB 
recommendations and rulings.  Argentina simply offe rs the conclusory statement that new information 
cannot satisfy the requirements under Article 11.3 and 11.4 to "conduct a 'review' and to make a 
'determination' prior to contin uing the anti-dumping measure".33  Indeed, the panel in 
US – Countervailing Measures on Certain EC Products  came to the opposite conclusion in the 
parallel sunset review provis ion of the Agreement on Subsidies and Countervailing Measures: 
 
Regarding the second category of evidence, namely, evidence provided for the first 
time by the interested parties during the Section 129 proceedings, the Panel notes that Corus and the GOUK provided new evidence during the Section 129 proceedings . . .  
The Panel recalls its previous findings in paragraph 7.238 above that Article 21.3 of 
the SCM Agreement  imposes an obligation on the investigating authority during 
sunset review or revised sunset review proceedings to take into account all the 
evidence placed on its record in maki ng its determination of likelihood of 
continuation or recurrence of subsidization.
34
 
 
29 See generally , Decision Memorandum  (Exhibit ARG-16). 
30 The evidence in Commerce' s Section 129 proceeding incorporates the record in Co mmerce's original 
sunset review of OCTG from Argentina, the Panel a nd Appellate Body reports, and additional information 
gathered in and comments submitted duri ng Commerce's  Section 129 proceeding. 
31 Argentina First Submission, para. 52. 
32 Argentina First Submission, para. 52. 
33 Argentina First Submission, para. 67. 
34 Panel Report, United States – Countervailing Measures Concerning Certain Products from the 
European Communities , WT/DS212/R, paras. 7.252-7.253 (adopted 8 January 2003, as modified by the 
Appellate Body Report) (" US – Countervailing Measures on Certain EC Products ").  WT/DS268/RW 
 Page A-65 
 
 
                                                       29. Further, Argentina does not explain what it means by a "new and different factual basis", 
which is, for Argentina, apparently, impermissibl e, and how that is to be distinguished from 
"clarifying information it had developed in the 2000 proceeding", wh ich is, for Argentina, apparently, 
permissible.  It seems that Argentina does not disagree with the collection of new information per se , 
but rather new information that leads to a "new and different factual basis", which is the basis for the 
Member's coming into compliance.  However, Argentina's position cannot be correct – the logical 
extension of that argument is that a Member could never comply with a narrow DSB recommendation or ruling that the factual basis for a measure is inadequate. 
 
30. Moreover, the question of the collection of new information was discussed during the 
Article 21.3 arbitration proceeding.  The Arbitrator  sought to ensure that Commerce would confine its 
collection of information to the original period of  review – not that Commerce would be prevented 
from collecting new information about that period. 
 
31. With regard to this particular sunset re view, the Panel rejected Commerce's finding that 
dumping had continued over the life of the order because it was based on Acindar's payment of cash 
deposits, which in turn was based on the margin from the original investigation.  Acindar did not 
identify itself during the review proceeding, nor did Siderca identify Acindar as the then-unidentified exporter.  In any event, in its Section 129 pro ceeding, Commerce requested information from the 
Argentine respondents to ascertain whether dumping had continued over the life of the order.  Argentina concedes that all of this additional evid ence was specific to the period of review and was 
available at the time of the original review.
35
 
32. Argentina's position would reward Acindar for failing to participate in the original sunset 
review, and for failing to provide Commerce with the information it would have needed to make a 
finding, based on positive evidence.  Argentina's position finds no basis in the text of the Anti-
Dumping Agreement; rather, it is clear that Argentin a simply wishes to achieve a particular result by 
whatever means necessary. 
 
33. Argentina also takes issue with Commerce' s finding on the post-order volume decrease.  
According to Argentina "Commerce chose not to de velop further any of the information relating to 
the post-order volume decrease, which was the only factor for which it developed a factual basis in the review conducted in 2000 . . . .".
36  Argentina's position with respect to the volume issue cannot be 
reconciled with its position with respect to th e continuation of dumping issue – Argentina is 
criticizing Commerce for not developing more information on the volume question while criticizing 
Commerce for developing  more information on the dumping question.  In any event, the Panel 
expressly declined to make any findings regarding the decline in volume.  Therefore, Commerce was 
under no obligation to develop further facts, or furthe r justify, the finding it made with regard to the 
volume decrease. 
 
34. The United States also notes that the Appellate Body stated in EC – Bed Linen (Article 21.5 – 
India) , "we do not see why that part of a redetermina tion that merely incorporates elements of the 
original determination . . . would constitute an in separable element of the measure taken to comply 
 
35 Argentina First Submission, para. 54. 
36 Argentina First Submission, para. 67.  What Argentina means by "factual basis" is unclear, but in any 
event, that statement is incorrect.  In the original sunset determination, Commerce did develop factual 
information on more than the post -order volume decrease; Commerce developed information as to whether 
dumping had continued over the life of the order – and did so to the best of its ability, given that the exporter 
who continued to ship during the period of review declin ed to identify itself or participate in the proceeding.  
Simply, the Panel considered that factual basis to be insufficient.   WT/DS268/RW 
Page A-66  
 
                                                       with the DSB rulings in the original dispute."37  Further, in that dispute, "India [sought] to challenge 
an aspect of the original measure which has not changed, and which the European Communities did 
not have to change, in order to comply with the DSB recommendations and rulings to make that 
measure consistent . . . ".38  Argentina has offered no argument as to why the finding regarding import 
volumes, which is an incorporation of an element of the original determination, is a measure taken to 
comply.  
 
B. THE FINDING THAT DUMPING WAS LIKELY TO OR RECUR 
 
35. The Panel found that the fact that dumping duties continued to be collected on imports over 
the life of the order did not represent "an adequate  factual basis for the proposition that dumping 
continued" during the period 1995-2000.39  Therefore, Commerce collected additional evidence on 
this matter.  As discussed below, relying upon Arge ntine exporters' data and certain independent data, 
Commerce properly determined in its Section 129 pr oceeding that revocation of the order was likely 
to result in continued dumping. 
 
36. As an initial matter, Article 11.3 "does not  expressly prescribe any specific methodology for 
investigating authorities to use in making a likelihood determination in a sunset review".40  Therefore, 
it is within the authorities' discretion to decide how  to make the determination in question.  The only 
question is whether dumping would be likely to continue or recur if the order were revoked. 
 
37. In this context, Argentina's arguments about the Section 129 Determination lack merit.  Argentina takes exception to Commerce's use of the Argentine companies' data, as well as Commerce's effort to evaluate whether dumpi ng likely occurred during the period of review. 
 
38. Commerce sought to evaluate whether dumping continued over the life of the order.  To do so, Commerce issued questionnaires to the known  Argentine producers of OCTG to gather 
information on their costs of production for the interv ening five years.  With a very abbreviated time 
within which to conduct the Section 129 proceedi ng, Commerce gathered information from the 
interested parties and sought additional sources for the information (e.g ., CBP data and Preston 
Publishing data). 
 
39. None of the Argentine respondents provided Co mmerce with actual cost data for the period of 
review, stating that they had not retained it.  Si derca had provided estimated cost data by using one 
month's worth of its costs of production for October 2005 and extrapolated what costs during the five year period would have been.  However, these data  were unusable for several reasons, explained in 
detail below.  The only company that had exported to the United States during the period, Acindar, 
was unable to provide any cost data.  Therefore, Commerce relied on the available information that was reliable ( i.e., audited financial statements, CBP data, and Preston Publishing data). 
 
40. Given the lack of actual cost informati on, it was impossible for Commerce to evaluate 
whether dumping had in fact continued over the life of the order.  However, it is not necessary in an 
Article 11.3 review to determine whether dumping conti nued over the life of the order, or to calculate 
a particular margin.  As noted above, no methodol ogy is prescribed.  Therefore, Commerce proceeded 
 
37 Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India – Recourse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, para. 86 
(adopted 24 April 2003) (" EC – Bed Linen (21.5) (AB) "). 
38  EC – Bed Linen (21.5) (AB), para. 87. 
39  Panel Report, para. 7.220. 
40  Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, para. 123 (adopted 
9 January 2004) (" US – Corrosion-Resistant Steel Sunset Review (AB) ").  WT/DS268/RW 
 Page A-67 
 
 
                                                       to evaluate whether it was likely that dumping had continued over the life of the order, as part of its 
overall assessment of whether it was likely that dump ing would continue or recur if the order were 
revoked. 
 
41. Commerce compared prices of Argentine OCTG imports (CBP data that reflected Acindar's 
US sales) with US sales data (Preston Publishi ng data) and found that Acindar's prices "were 
substantially lower than prevailing US market  prices for the corresponding OCTG products".41  That 
fact, coupled with the fact that there was a depressed OCTG market, led Commerce to conclude that 
Acindar was likely dumping during the period.  This  finding was proved to be accurate:  Acindar was 
reviewed for the 2000-01 period and was found to be dumping at a very high 60.73 per cent margin.42
 
42. Argentina asserts that Commerce applied the wrong standard by assessing whether Argentine respondents were likely dumping during the period instead of determining whether they would likely dump in the future if the order was revoked.
43  Argentina is incorrect.  Commerce examined whether 
they would likely dump in the future using past da ta as a predictor.  Given that Article 11.3 requires 
Members to make a conclusion about events that ha ve not yet occurred, the only data available are 
past data.  Although Acindar did not retain its actual cost data, Commerce nevertheless sought to 
determine whether dumping had likely occurred.  If Acindar was likely dumping while an order was in place, then, in the absence of evidence to the contrary, it would likely continue to do so if the order 
were revoked.  It should also be noted that Acindar's likely dumping was just one of two findings that supported the determination, the other being the dec line in import volumes.  Therefore, there was an 
additional basis for continuing the order. 
 
43. The logical extension of Argentina's argument is that a Member cannot possibly make an affirmative determination if the respondents provi de no cost data.  That simply is not what 
Article 11.3 provides.  Argentina's arguments specifi c to Siderca, Acindar, and the use of financial 
statements are addressed below. 
 
1. Siderca 
 
44. Argentina contends that Commerce's failure to use Siderca's cost data  led to conclusions" 
"inconsistent with Article 11.3".44  According to Argentina, "the effect of USDOC's manipulation of 
the data was to exclude positive evidence submitted by Siderca to show that dumping was not likely 
to continue or recur".45  F i r s t ,  C o m m e r c e  m a d e  no findings regarding Siderca.  Second, because 
Commerce makes its determinations on an order-wide b asis, all Siderca might have been able to show 
was that it was not likely to dump.  Commerce found th at Acindar was likely to dump.  Commerce 
also referenced its finding from the original proceeding that the decline in import volumes was 
evidence of likelihood of continuation or recurrence of dumping.  Therefore, Commerce's treatment of 
the facts concerning Siderca was simply not germane to the ultimate determination and was not inconsistent with Article 11.3. 
 
45. Finally, it is curious that Argentina fau lts Commerce for undertaking a thorough examination 
of the data presented.  Argentina on the one hand considers that Commerce has been too active – but 
additionally argues that Commerce has no right to be "passive".46  Again, Argentina's views seem to 
 
41 Decision Memorandum , 7 (Exhibit ARG-16). 
42 Oil Country Tubular Goods Other than Drill Pipe , 68 Fed. Reg. 13,262 (19 Mar. 2003) (final 
results and rescission in part of anti-dumping duty administrative review) (Exhibit US-3). 
43 Argentina First Submission, paras. 74, 108. 
44 Argentina First Submission, para. 76. 
45 Argentina First Submission, para. 85. 
46 See, e.g., Argentina First Submission, para. 50. WT/DS268/RW 
Page A-68  
 
                                                       be driven by the results it seeks to achieve, rather than an unbiased analysis of the obligations in 
question. 
 
2. Acindar 
 
46. Argentina asserts that Commerce erred in fi nding that Acindar was likely to dump based on 
past data.47  Article 11.3 does not prescribe a particular methodology.  Nothing in Article 11.3 
prevents authorities from looking at evidence of past  behaviour, or past likely behaviour where 
respondents are unable to provide evidence of actual past behaviour.  Argentina argues that "the 
comparison described by the Department as supporti ng its determination of 'likely' dumping does not 
even resemble the notion of 'dumping' under Article 2".48  Argentina ignores the fact that Commerce 
was not calculating a dumping margin.  Article 2 doe s not contain a "notion" of dumping but rather a 
methodology for calculating an actual dumping margin. 
 
47. Had there been administrative reviews of the order, Commerce coul d have relied upon those 
findings of dumping during the period as evidence c oncerning likelihood if the order were revoked.  
However, there were no administrative reviews c onducted, so Commerce had to use available data 
gathered during the Section 129 proceeding to determine whether dumping likely occurred during the period and thus, is indicative that dumping is likely to continue or recur if the order were revoked.  Acindar provided no cost information.  Therefore,  Commerce used other information in making its 
finding. 
 
48. Argentina also contends that Commerce had "no factual basis for inferring that Acindar was 
'likely dumping'" because it "was never investigated  during the original investigation, and the 
company had no prior history of dumping".49  It is telling that Argentin a never argues that Acindar did 
not dump its product during the period, only that there had not yet been a review of Acindar to find 
that it had dumped during the period.  Simply because no review had been conducted for Acindar 
does not mean that Commerce is precluded from cons idering Acindar in a sunset review.  Commerce 
reviewed the relevant data and determined that Acindar was likely to dump if the order were revoked.  
Commerce's analysis of Acindar's sales data, as co mpared to US sales, provided sufficient evidence 
for its likelihood determination and is  consistent with Article 11.3. 
 
3. Financial Statements 
 
49. Argentina argues that Commerce should not have  relied upon claims made in either Siderca's 
or Acindar's financial statements because they are not probative of the state of the OCTG industry.50  
This is a perplexing argument because Argentina wants Commerce to accept Siderca's extrapolated 
cost data, yet reject financial statements that refl ect the companies' actual financial situation during 
the period.  In fact, audited financial statements such as these represent the type of affirmative evidence the Appellate Body said was lacking in the original sunset determination.  Relying on these 
financial statements and other evidence, Commerce determined whether Argentine producers would be likely to dump if the order were revoked. 
 
47  Argentina states that "USDOC made what seems to be a prospective (‘likelihood') determination 
about past sales.  That is USDOC made findings about what was ‘likely' to have happened during the sunset 
review period . . . ."  Argentina First Submission, para. 108.  Argentina equates "lik ely" with "prospective."  
But that is not so – it is possible for something to have "likely" happened in the past.  What makes a sunset 
review prospective is not the use of the term "likely," but the fact that, under Artic le 11.3, an administering 
authority is examining whether the "expiry of the duty would be likely to lead to continuation or recurrence of 
dumping and injury."  The verb "would be" is what makes the determination prospective.  Therefore, the 
premise of Argentina's argument is simply wrong. 
48 Argentina First Submission, para. 115. 
49 Argentina First Submission, para. 116. 
50 Argentina First Submission, paras. 98, 119.  WT/DS268/RW 
 Page A-69 
 
 
                                                        
50. The financial statements provided affirmativ e evidence of the condition of the US industry, 
the condition of the Argentine OCTG producers, and the likelihood that they would continue to export 
to the US market.  This information provi ded affirmative evidence to support Commerce's 
Article 11.3 determination and is consistent with the DSB findings. 
 
C. EVIDENTIARY AND PROCEDURAL REQUIREMENTS OF ARTICLE 11.3 AND ARTICLE 6  
 
51. Article 11.4 of the AD Agreement establishes that for sunset reviews, the "provisions of 
Article 6 regarding evidence and procedure shall a pply ...".  Relying on this cross-reference, 
Argentina claims that Commerce's Section 129 Pro ceeding was inconsistent with Articles 6.1, 6.2, 
6.4, 6.5.1, 6.6, 6.8, 6.9, and Annex II of the AD Agreement.51
 
52. Commerce provided all interested parties, in cluding the Government of Argentina, Acindar, 
Siderca, and Tubhier with the notice and opportunity to present evidence, argument, and rebuttal 
required by Articles 6.1 and 6.2.52  All information was made available to the parties and their lawyers 
were granted access to business proprietary information under the administrative protective order 
("APO") so they could view all information on the reco rd.  No party requested a hearing.  In addition, 
Commerce did not apply Article 6.8 or Annex II "facts available" with respect to any aspect of the 
likelihood determination in the S ection 129 Determination with respect  to the determination in this 
dispute.  Instead, Commerce objectively examined a ll the evidence on the record of the Section 129 
proceeding and made its likelihood determination based  on an analysis of the relevant data submitted 
to or obtained by Commerce during the proceeding. 
 
53. Commerce satisfied all of its obligations under Article 6 despite the fact that it was only given 
12 months to both amend the regulations and c onduct the Section 129 proceeding when it had 
explained 15 months would be re quired to give all parties, including Commerce, sufficient time to 
develop the record and submit argument.  For exam ple, a full sunset review takes 240 days, and an 
additional 90 days if it is extraordinarily complicated.53  Therefore, a full sunset review would take 
from 240 - 330 days.  Yet, Commerce only had 365 da ys to both amend its regulation and conduct the 
full sunset proceeding.  The 129 proceeding could not commence until the regulation was amended.  
Amending a regulation is an involved process, requiring notice and comment, as well as approval 
within many levels of the government.  The am ended regulation was effective 31 October 2005, and 
Commerce sent questionnaires to the Argentine res pondents on that same day. Even with the short 
period of time that Commerce was given, it satisfied all of the procedural obligations of Article 6. 
 
1. Article 6.1  
 
54. Article 6.1 requires that interested parties "s hall be given notice of the information which the 
authorities require and ample opportunity to present in writing all evidence which they consider 
relevant in respect of the investigation in ques tion".  All of the interested parties had ample 
opportunity to present in writing all evidence they considered relevant. 
 
55. On 31 October 2005, Commerce initiated the Section 129 proceeding and sent specific and 
detailed requests for information to the three Argentine OCTG compan ies identified by the 
Government of Argentina as producers of OCTG dur ing the five-year sunset review period (1995-
 
51  Argentina First Submission, paras. 166-171. 
52  Decision Memorandum , 2-3 (Exhibit ARG-16).  
53 19 C.F.R. 351.218(f)(3) (an additional 90 day extensio n is also permitted for sunset reviews that are 
extraordinarily complicated) (Exhibit US-4).  See also , Section 751(c)(5) of the Act (Exhibit ARG-33). WT/DS268/RW 
Page A-70  
 
                                                       2000).54  On notice and apprised of the information that Commerce required for the Section 129 
proceeding, Acindar and Siderca took the opportunity  to present in writing the evidence and argument 
that these interested parties considered re levant regarding the Section 129 proceeding.55
 
56. Both Acindar and Siderca timely filed s ubstantive responses to Commerce's requests for 
information.56  In addition, both Acindar and Siderca provided substantive rebuttal comments to 
submissions made by other interested parties.57  Therefore, the respondents had not one but two 
opportunities to present in writing the ev idence they considered relevant. 
 
57. Regardless, Argentina contends that the United States acted inconsistently with Article 6.1 in 
the following ways.  First, Argentina argu es that Commerce failed to issue supplemental 
questionnaires.  Article 6.1 makes no mention of supplemental questionnaires.  Article 6.1 requires 
only that "notice of the information the authorities require" be given to the interested parties.  
Commerce sent inquiries to all three Argentine companies and the Government of Argentina 
regarding the information it believed was necessar y to the conduct of the section 129 proceeding. 
 
58. Second, Argentina contends that Commerce failed to issue a preliminary determination.58  
Again, Article 6.1 does not require the i ssuance of a preliminary determination. 
 
59. Third, Argentina contends that no hearing was held, and therefore the United States acted 
inconsistently with Article 6.1.  Again, Article 6.1 does not require a hearing.  Argentina advances the 
same argument in connection with Article 6.2, which will be addressed below.  However, it should be noted that no hearing was requested. 
 
60. Finally, Argentina contends that Commerce  failed to issue a schedule for the Section 129 
proceeding that would have allowed interested parties to submit comments.59  Article 6.1 does not 
require that a schedule be issued, nor has Argentin a cited to any specific requirement of Article 6.1 
containing such an obligation.  Indeed, it is curious that Argentina cites to Guatemala – Cement II, 
because the panel in that di spute expressly concluded: 
 
Article 6.1 of the AD Agreement does not require investigating authorities to set time-limits for the presentation of arguments and evidence during the final stage of 
the investigation.  The only time-limit provide d for in Article 6.1 is that contained in 
Article 6.1.1 . . . .
60
 
 
54  Letter from US Department of Commerce to Embassy of Argentina (14 October 2005) 
(Exhibit US-5).  In anticipation of the limited time available to conduct the Section 129 sunset review 
proceeding, Commerce requested on 10 October 2005, from the Government of Argentina a comprehensive list of all Argentine OCTG producers who had exports to the United States during the five-year sunset review 
period.  The Argentine Embassy identified Acindar Industria Argentina de Aceros S.A., Siderca SAIC, and 
Tubhier S.A. 
55 Tubhier responded to Commerce's request for information by explaining that it had never exported 
OCTG to the United states and had no plans to ever do so, and that its production of OCTG-class goods was irregular and an insignificant portion of it overall production.  See Embassy/Tubhier Submission 
(Exhibit ARG-20). 
56 See  Acindar Substantive Response (Exhibit AR G-14); and Siderca Substantive Response 
(Exhibit ARG-15). 
57 See Acindar Reply  (Exhibit US-6); and Siderca Reply (Exhibits ARG-19, 29) . 
58  Argentina First Submission, para. 144. 
59  Argentina First Submission, para. 144. 
60  Panel Report, Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from 
Mexico , WT/DS156/R, para. 8.118 (adopted 17 November 2000) (" Guatemala – Cement  II").  WT/DS268/RW 
 Page A-71 
 
 
                                                       61. The panel's reasoning is correct, and is equally  applicable here.  As that panel noted, what 
counts is whether the substantive obligation of Article 6.1 has been met.61  In this case, Acindar, 
Siderca, Tubhier, and the Government of Ar gentina all submitted factual information and 
comments.62  Both Acindar and Siderca submitted rebuttal comments to the domestic industry's 
submission, and in fact, Siderca filed rebuttal comments on two separate occasions.63  Thus, the 
substantive obligation contained in Article 6.1 – "ample opportunity" – has been met, and Argentina's 
argument is without merit. 
 
2. Article 6.2 
 
62. Article 6.2 of the AD Agreement provides for the rights of interested parties to "a full 
opportunity for the defence of their interests", and, inter alia, provides that: 
 
the authorities shall, on request, provide opportunities for all interested parties to 
meet those parties with adverse interests, so that opposing views may be presented 
and rebuttal arguments offered. (emphasis added). 
 
63. Argentina argues that the United States acted  inconsistently with Article 6.2 because 
Commerce failed to hold a hearing.64  However, Article 6.2 does not require a Member to hold a 
hearing.  Article 6.2 requires a Member to hold a hearing on request.   No interested party requested a 
hearing. 
 
3. Procedural Requirements in Articles 6.4, 6.5.1, 6.6, and 6.9 
 
64. Argentina makes a series of claims regarding Commerce's treatment of the information 
submitted in the course of the Section 129 proceeding. 
 
(a) Article 6.4 
 
65. Article 6.4 provides that the administeri ng authority will provide interested parties 
opportunities to see information relevant to the case "w henever practicable".  Argentina contends that 
Commerce failed to provide timely opportunities for in terested parties to see all information that was 
relevant in the sunset review in violation of Article 6.4 of the AD Agreement.65  It should be noted at 
the outset that this Section 129 proceeding was a measure taken to comply.  The usual time frame for conducting a full sunset review – at least 240 days – was not available.  While the United States had 
requested 15 months, in part to ensure that ade quate time was available for such procedures as a 
preliminary determination, Argentina vehemently opposed this time frame, and the United States was 
given only 12 months.  This abbrevia ted time frame is directly releva nt to what is "practicable" under 
Article 6.4. 
 
66. With regard to specifics, Ar gentina's discussion of the information that was purportedly not 
put on the record is murky.  Argentina initially argues that there were six memos (three plus three),66 
then mentions just five67, and just four of those five68, and then finally just three.69  In doing so, 
 
61  Guatemala – Cement II,  para. 8.119. 
62  See  Acindar Substantive Response, p. 1 (Exhibit ARG-14); Siderca Substantive Response, p. 3 
(Exhibit ARG-15); and Tubhier Substantive response, p. 1 (Exhibit ARG-20).  
63 See Siderca Reply (Exhibits ARG-19, 29). 
64 Argentina First Submission, para. 152. 
65 Argentina First Submission, para. 156. 
66 Argentina First Submission, para. 157. 
67 Argentina First Submission, para. 158. 
68 Argentina First Submission, para. 158. WT/DS268/RW 
Page A-72  
 
                                                                                                                                                                      Argentina simply asserts that "at least three of th e memoranda clearly satisfy the criteria established 
by the EC – Pipe Fittings panel".70  However, Argentina does not id entify which three.  Therefore, 
Argentina has not met the burden of making a prima facie  case with respect to this claim. 
 
67. Regardless, it should be noted that notwith standing the limited time available, Commerce 
made available to all parties participating in the proceeding all the information submitted to or 
obtained by the agency in the Section 129 proceeding to the extent "practicable", as required by 
Article 6.4.  For example, Commerce disclosed to  all interested parties information obtained from 
CBP regarding the entries of Acindar-produced OCTG from Argentina made during the five-year period preceding the original sunset review.
71  In addition, all submissions made during the 
section 129 proceeding were served on all othe r interested parties to the proceeding.72  Therefore, 
Argentina's assertion that Commerce failed to provide timely opportunities for interested parties to see all relevant information, "wheneve r practicable", is without basis. 
 
68. Argentina also argues that Commerce's "v iolations" of Article 6.4 were "compounded" 
because the US OCTG industry submitted factual information and comments without any request from Commerce that it do so.
73  Having just argued that Article 6.1 requires administering authorities 
to provide ample opportunity to pr esent evidence in writing, Argentina th en seeks to deny that right to 
domestic interested parties.  Article 6.1 does not apply simply to respondent interested parties, but to all interested parties, including domestic interested parties.  Argentina cannot mean to argue that the 
United States violated its obligations under Article 6.4 by complying with its obligations under 
Article 6.1.  In any event, Argentine respondent s obviously saw the letter, inasmuch as Argentina 
admits that Siderca responded to it.
74  Therefore, Argentina admits there was no violation.  
 
(b) Article 6.5.1  
 
69. Article 6.5.1 provides for administering authorities to require interested parties providing 
confidential information to furnish non-confidential summaries thereof.  Argentina argues that Commerce failed to require interested parties to  submit non-confidential summaries in their written 
submissions in a manner to perm it a reasonable understanding of the substance of the confidential 
information in violation of Article 6.5.1 of the AD Agreement.
75
 
70. At the outset, it should be noted that Articles 6.4 and 6.5 contemplate that the parties will not 
see confidential information provided by other par ties.  Under those circumstances, the summary of 
the confidential information is the only basis on which opposing parties can attempt to address the confidential information provided.  Commerce,  however, has established a system whereby counsel 
for interested parties can have direct access to confidential information and therefore may directly 
address the evidence provided.  Therefore, the Argentine respondents had the option of accessing confidential information through counsel.  As a r esult, the assertion that Acindar "necessarily" had to 
confine its arguments to the public version of the US Steel letter
76 is simply false.  Acindar's counsel 
had the option of requesting confidential informa tion pursuant to the administrative protective order 
 
69 Argentina First Submission, para. 160.   
70 Argentina First Submission, para. 160.  The United States does not consider that the EC – Pipe 
Fittings  panel established criteria, but rather simply id entified the relevant elements of Article 6.4. 
71 Memo Re: Information for the Record (Exhibit ARG-18).  This information was disclosed 
approximately three weeks before the decision was made.  
72 See e.g ., Certificates of Service in US Steel Fact ual Submission (Exhibit ARG-27); and Siderca 
Questionnaire Response (Exhibit ARG-15).   
73 Argentina First Submission, para. 162. 
74 Argentina First Submission, para. 163. 
75 Argentina First Submission, para. 169. 
76 Argentina First Submission, para. 169.  WT/DS268/RW 
 Page A-73 
 
 
                                                       that seeks to ensure the confidential information will not be released.  It was Acindar's choice not to 
access that information. 
 
71. In any event, it is not clear to what "c onfidential" information Argentina refers.  The 
comments by the US industry that contained "conf idential information" were in reference to 
information submitted as confidential by Siderca or  gathered through CBP, which Commerce released 
under APO.  The domestic interested parties summari zed the confidential information in the text of 
the letter itself; more detailed summaries were not possible because the domestic interested parties 
risked divulging information designated business pr oprietary, in violation of the administrative 
protective order.  Therefore, the summaries were as detailed as possible, particularly in light of the 
fact that respondent interested parties' counsel  has direct access to th e bracketed information.77
 
72. Finally, Argentina stated that the panel report in Guatemala – Cement II  supports the 
argument that the United States acted inconsistently  with Article 6.5.1.  Not only did that panel 
expressly state that it was not addressing Article 6.5. 1, but that dispute involved a situation in which 
the administering authority on its own initiative  classified information as confidential.78  Therefore, 
the United States finds no support for Argentina's statement that "as the Panel found in Guatemala – 
Cement II , in this case, the USDOC violated Article 6. 5.1 because there is no evidence demonstrating 
either that petitioner provided a statement of reasons as to why summarization was not possible or that the USDOC even requested such a statement."
79
 
(c)  Article 6.6 
 
73. Article 6.6 requires administering authorities to  satisfy themselves as to the accuracy of the 
information upon which they rely in making thei r findings.  Argentina asserts that Commerce 
erroneously disregarded cost information submitted by Siderca without satisfying itself as to the 
accuracy of that information. 
 
74. First, Commerce requested cost informa tion from the Argentina respondents to examine 
whether the respondents had dumped during the period of review.  Commerce expressly stated that 
"we make no findings regarding specific instances of  likely dumping by Siderca during the original 
sunset review period".80  Therefore, the cost information was not information "upon which . . . 
findings are based," and Artic le 6.6 is not applicable. 
 
75. Second, Siderca argued that it did not have any of the actual cost information from the period of review and therefore offered extrapolated data  based on the month of October 2005 (the period of 
review was 1995-2000).  By its own admission, Siderca was providing estimated  cost data rather than 
the actual data requested and therefore the information was, on its face, not what Commerce requested.  Commerce did not, however, reject th e information on that basis.  Rather, although 
Argentina contends that Commerce "merely offers a conclusory statement that it is 'unable to rely on the data'," Commerce explained, at length, how  Siderca's estimated production cost data was 
inconsistent with other cost data for steel  products in the Section 129 Determination.
81  T h r e e  
paragraphs of discussion do not cons titute a conclusory statement.  For all of these reasons, the 
United States did not act inconsistently with Article 6.6. 
 
 
77 See e.g.  Memo Re: Information for the Record, App. II (CPB entries of ARG OCTG) 
(Exhibit ARG-18). 
78 Guatemala – Cement II, para. 8.221. 
79 Argentina First Submission, para. 170. 
80 Decision Memorandum , p. 9 (Exhibit ARG-16). 
81 Decision Memorandum , p. 8-9 (Exhibit ARG-16).  See also  Memo Re: Inconsistencies in Siderca's 
Cost Data (Exhibit ARG-21). WT/DS268/RW 
Page A-74  
 
                                                       (d)  Article 6.9 
 
76. Article 6.9 requires authorities, before a final determination is made, to inform all interested 
parties of the essential facts under consideration wh ich form the basis for the decision whether to 
apply definitive measures.  Argentina argues that the United States did not comply with its obligations 
under this provision.  Specifically, Argentina ar gues that memoranda accompanying the Section 129 
Determination "were not made 'in sufficient ti me for parties to defend their interests'".82
 
77. As with its arguments regarding Article 6.4,  Argentina simply asserts that memoranda were 
placed in the file the same day as the determination was issued, as if that alone satisfies Argentina's burden of proving its claim.  Argentina fails even to discuss whether those memoranda contain 
essential facts forming the basis for the decision, the elemental aspects of proving an Article 6.9 
claim.
83  As a result, Argentina has not made a prima facie case of a violation of Article 6.9.84
 
78. Argentina also states that the United States did not issue a draft or preliminary determination "as it said it would do in the arbitration pursuant to Article 21.3 of the DSU".
85  Once again, the 
United States said it would issue a preliminary determination if it were given 15 months to implement 
the DSB recommendations and rulings.  That Argentina continues to reference the US submission to 
the arbitrator simply reinforces the US argumen t that it needed 15 months to implement the 
recommendations and rulings in order to provide th e additional procedural steps not required by 
Article 6 but that Commerce routinely offers, su ch as a preliminary determination, and which 
Argentina's companies apparently would have preferred. 
 
4. Article 6.8 and Annex II 
 
79. Article 6.8 provides that in cases in which a ny interested party refuses access to or otherwise 
does not provide necessary information, the determ ination may be made on the basis of the facts 
available.  Argentina argues that Commerce "did not comply with the conditions set out in Article 6.8 
and Annex II for recourse to 'facts available'".86
 
80. The United States recalls that an Article 11.3 determination of likelihood in a sunset 
proceeding is different from an Article 2 determin ation of dumping in an investigation or an 
assessment review.  In those latter proceedings, it is necessary to have the respondent's data in order to calculate its individual margin.  The rules in Articles 2 and 9 establish a presumption for investigations and assessment reviews that the Memb er will use that company's data to calculate a 
margin.  For example, Article 2.1.1. states that "costs shall normally be calculated on the basis of 
records kept by the exporter or producer under inv estigation . .".  Without the data, substitute data 
may be necessary to calculate a margin. 
 
81. In contrast, a sunset review has no such requirement to determine likelihood based on the actual data of the foreign producers and exporters.  The Appellate Body conf irmed that Article 11.3 
 
82 Argentina First Submission, para. 191. 
83 See, e.g., Panel Report, Argentina – Definitive Anti-Dumping Duties on Poultry from Brazil , 
WT/DS241/R,  para. 7.223 (adopted 19 May 2003) (" Argentina – Poultry "). 
84 Indeed, the danger in making such vague and unsubstantiated assertions is revealed by examining 
just one of the memoranda Argentina identifies in support of its Article 6.9 claim – it consists simply of pages 
from a website identifying the source of information disclosed earlier, on 22 November 2005.  See Memo 
Re: Preston Publishing Website Information (Exhibit ARG-22). 
85 Argentina First Submission, para. 192. 
86 Argentina First Submission, para. 183.  WT/DS268/RW 
 Page A-75 
 
 
                                                       does not "identify any particular factors that authorities must take into account in making such a 
determination".87
 
82. In this context, Argentina's claim is exposed as being without merit.  First, with respect to 
Siderca, the result of Commerce's analysis of Siderca's estimated cost information was no company-
specific finding regarding Siderca.  The Section 129 Determination was based on the findings of likely dumping by Acindar and the decreased volumes.  Therefore, there was no use of "facts available" and no violation of e ither Article 6.8 or Annex II. 
 
83. With respect to Acindar, Acindar provided no cost information, so there was no information 
to reject.88  As a result, there is no violation of either Article 6.8 or Annex II. 
 
D.  ARTICLE 13 
 
84. As the United States noted at the DSB meeti ng at which the Panel was established, USTR 
directed Commerce to implement the Section 129 De termination on 16 March 2006.  As Section 129 
makes clear, implementation is effective as of the date on which USTR directs implementation.89  The 
basis for Argentina's Article 13 clai m is the supposed US failure to implement the determination, but 
that determination had been implem ented before the Panel was established.  Therefore, there is no 
basis for Argentina's claim. 
 
V. ARGENTINA'S REQUEST FOR A SUGGESTION  
 
85. Argentina "submits that it had a right to termination of this measure"90 and asks the Panel to 
"suggest" that the United States terminate the measure.91  That assertion is plainly incorrect.   No such 
right is found in the text of the DSU or the Anti-Dumping Agreement, as the Appellate Body has 
recognized in its reasoning in US – Mexico OCTG , where it stated: 
 
The fact that the USDOC acted inconsistently  with the requirements of Article 11.3 in 
its likelihood-of-dumping determina tion does not necessarily imply that the 
underlying anti-dumping duties must be terminated immediately.92  
86. Nor is there any basis for making such a suggestion.  A Member retains the right to determine the manner of implementing DSB recommendations and rulings.  While Argentina may prefer to have 
the measure terminated, the question in this proceedi ng is the existence or consistency of the measure 
taken to comply.  In addition, under Article 19.1 of the DSU, any "suggestion" by a panel is "in 
addition" to any recommendations.  It is unclear that Argentina is asking the Panel to make a 
recommendation in this proceeding.  Argentina appe ars to explicitly request that the Panel make no 
recommendation
93 but then switches from requesti ng a "suggestion" to requesting a 
 
87 US – Corrosion-Resistant Steel Sunset Review (AB), para. 123. 
88 Decision Memorandum , pp. 6-7 ("we find that [Acindar's] submission failed to include any data 
adequate to calculate costs for the subject merchandise.  Acindar claimed that it no longer has the product-
specific cost information in the form  the Department requested and, therefore, is unable to provide the 
requested cost data specific to OCTG  sales during the period . . . .") 
89 See Uruguay Round Agreements Act , Section 129(c)(B); see also  Notice of Implementation under 
Section 129 of the Uruguay Round Agreements Act; An ti-Dumping Measures Concerning Oil Country Tubular 
Goods from Argentina , 71 Fed. Reg. 19873 (18 April 2006) (Exhibit US-2). 
90 Argentina First Submission, para. 215.  
91 Argentina First Submission, para. 210. 
92 Appellate Body Report, United States – Anti-Dumping Measures on Oil Country Tubular Goods 
from Mexico , para. 187, WT/DS282/AB/R (adopted 28 November 2005).  
93 Argentina First Submission, para. 219. WT/DS268/RW 
Page A-76  
 
                                                       "recommendation".94  To the extent Argentina is asking that this be a "recommendation" rather than a 
"suggestion", Argentina's request is inconsistent with Article 19.1 of the DSU which specifies the 
content of any "recommendation" by a panel. 
 
87. The United States respectfully request s the Panel to decline the request. 
 
VI. CONCLUSION  
 
88. For the foregoing reasons, the United States respectfully requests that the Panel reject 
Argentina's claims. 
 
 
94 Argentina First Submission, para. 224.  WT/DS268/RW 
 Page A-77 
 
 
   
EXHIBIT LIST 
 
 
Number  Document
 
 
US-1   Procedures for Conducting Five-Year Revi ews of Anti-Dumping and Countervailing 
Duty Orders : Proposed rule, 70 Fed. Reg. 47738 (15 August 2005). 
 
US-2   Notice of Implementation under Section 129 of the Uruguay Round Agreements Act; 
Anti-Dumping Measures Concerning Oil C ountry Tubular Goods from Argentina, 
71 Fed. Reg. 19873 (18 April 2006). 
 
US-3   Oil Country Tubular Goods Other t han Drill Pipe from Argentina, 68 Fed. 
Reg. 13262 (19 March 2003) (fi nal results and rescission in part of anti-dumping duty 
administrative review).  
 
US-4   19 C.F.R. § 351.218(f)(3) (US Department of Commerce regulations). 
 
US-5  Letter from US Department of Commerce to Embassy of Argentina 
(14 October 2005).  
 
US-6  Letter from Acindar Industria de Acer os S.A. to US Department of Commerce 
(14 December 2005).