WT/DS282/R 
 Page A-1 
 
 
  
 
ANNEX A 
  
EXECUTIVE SUMMARIES OF THE FIRST WRITTEN SUBMISSIONS  
OF THE PARTIES 
 
 
Contents Page 
Annex A-1 First Written Submission of Mexico A-2 
Annex A-2 First Written Submission of the United States  A-6 
 
 WT/DS282/R 
Page A-2  
 
  
 
ANNEX A-1 
  
FIRST WRITTEN SUBM ISSION OF MEXICO 
 
 
I. EXECUTIVE SUMMARY OF MEXICO' CLAIMS 
 
1. Mexico's claims are summarized as follows: 
 
A. THE DEPARTMENT 'S SUNSET REVIEW WAS INCONSISTENT WITH WTO  OBLIGATIONS  
• The statute (19 U.S.C. § 1675a(c)(1)), the SAA (pages 889-890), and the SPB (Section II.A.3) 
as such violate Article 11.3.  The text of the statute, the SAA, and the SPB are sufficiently 
clear to demonstrate a violation of Article 11.3 for two reasons: 
 
 o First, the statute, the SAA, and the SPB establish a presumption that termination of 
the anti-dumping duty would be likely to lead to continuation or recurrence of 
dumping in violation of Article 11.3.  The presumption created by the statute, the SAA, and the SPB violates Article 11.3 as such because declines in import volume and/or the existence of historic dumping margins are given decisive weight, while the 
burden is placed on exporters to convince th e Department even to consider any other 
factors (see section VII.A.). 
 
 o Second
 by permitting the use of presumptions, the statute, SAA, and SPB adopt a 
meaning of "likely" that is inconsistent w ith the use of that term in Article 11.3.  
Because the statute, SAA, and Section II.A.3 of the SPB require the Department to attach decisive weight to declines in impor t volume and/or the  existence of historic 
dumping margins, the US legal standard is  less than the "likely" or "probable" 
standard required by Article 11.3 and theref ore inconsistent as such with Article 11.3 
(see section VII.A.). 
 
• The Department's consistent practice in sunset review cases demonstrates the WTO-
inconsistent presumption and itself constitutes a violation of Article 11.3 as such.  To date 
there have been 227 sunset reviews conducted by  the Department where the domestic industry 
has participated.  In 100 per cent of these pr oceedings, the Department determined that 
dumping would be likely to continue or recur.
1  In these cases no responde nt has been able to 
overcome the criteria prescribed by the SAA and the SPB as conclusive of likely dumping2 
(see section VII.B.); 
 
• The Department's Sunset Determination was inconsistent with Article 11.3 of the Anti-
Dumping Agreement because the Department focu sed solely on a decline in import volume, 
failed to apply the disciplines of Article 2, fa iled to conduct a prospective analysis, failed to 
make a determination of "likely" (or "probable" ) dumping, and failed to  base its determination 
on positive evidence.  The Department's relian ce on the import volume decline in the wake of 
the anti-dumping measure as the sole basis for its likelihood determina tion was inconsistent 
                                                      
1 US Department of Commerce Sunset Reviews (MEX-62). 
2 Id.  WT/DS282/R 
 Page A-3 
 
 
 with Article 11.3.  In addition, the Department 's reporting of the original margin of dumping 
of 21.70 per cent to the Commission for purposes of its likelihood decision was inconsistent with Article 11.3 and Article 2 of the An ti-Dumping Agreement (see section VII.C.); 
 B. T
HE COMMISSION 'S SUNSET REVIEW WAS INCONSISTENT WITH US WTO  OBLIGATIONS  
• The Commission's standard for determining whet her termination of the duty would be likely 
to lead to continuation or recurrence of injury is inconsistent as such with Article 11.3 of the 
Anti-Dumping Agreement because the Commission  applies a lower standard than that 
required by Article 11.3 (see section VIII.A.); 
 
• The Commission's Sunset Determination that term ination of the duty would be likely to lead 
to continuation or recurrence of injury was inconsistent with Article 11.3 of the Anti-
Dumping Agreement because the Commission app lied a lower standard for determining the 
likelihood of injury than that which is requi red by Article 11.3.  The Appellate Body has 
confirmed that "likely" means "probable" and not something less than probable (see section 
VIII.B.); 
 
• The Commission's Sunset Determination viol ated Article 11.3 because it was not based on 
"positive evidence" that termination of the duty would be likely to lead to continuation or 
recurrence of injury (see section VIII.C.); 
 
• The Commission's Sunset Determination violated Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the 
Anti-Dumping Agreement because the Commission did not conduct an objective examination 
of the record or base its determination on pos itive evidence.  The Commission's conclusions 
regarding the likely volume of imports, the likel y price effects, and the likely impact of 
imports on the domestic industry can in no way be considered to be objective when those 
conclusions are viewed in light of a neutral examination of the information on the record.  
Moreover, the purported bases relied on by the Commission in support of its likely injury 
finding simply do not constitute positive evid ence as required by Article 3.1 of the Anti-
Dumping Agreement (see sections VIII.D.1-3); 
 
• The Commission's Sunset Determination vi olated Article 3.4 because in assessing the 
likelihood of continuation or recurrence of injury to the domestic industry, the Commission 
either failed to evaluate or improperly evalua ted the relevant economic factors and indices 
having a bearing on the state of the industry, in cluding the mandatory factors enumerated in 
Article 3.4 of Anti-Dumping Agreement (see section VIII.D.4); 
 
• The Commission' Sunset Determination violat ed Article 3.5 because the Commission failed 
to:  (1) demonstrate a causal relationship between  the dumped imports and likely injury to the 
domestic industry; (2) separate and distinguish the effects of other factors from those of the effects of the dumping; and (3) base its determination on the effects of the dumping on the 
domestic industry (see sections VIII.D.5); 
 
• The Commission's Sunset Determination violated Articles 3.7 and 3.8 because the 
Commission based its likelihood of injury dete rmination on conjecture and remote possibility 
and failed to satisfy the special requirements of Articles 3.7 and 3.8 for making prospective 
injury determinations (see sections VIII.D.6); 
 
• The Commission's application of a cumulative in jury analysis of OCTG imports from Korea, 
Italy, Japan, Mexico, and Argentina to dete rmine whether termination of the anti-dumping 
duty on Mexican OCTG imports would be likely to lead to continuation or recurrence of WT/DS282/R 
Page A-4  
 
 injury was inconsistent with Articles 11.3 an d 3.3 of the Anti-Dumping Agreement, which 
preclude the use of a cumulative in jury analysis in sunset reviews.  Alternatively, assuming 
arguendo  that cumulation is permitted in sunset reviews, the Commission violated Articles 
11.3 and 3.3 by failing to comply with the e xplicit restrictions on cumulation set forth in 
Article 3.3. (see sections VIII.E and F); 
 
• The US statutory requirements that the Commis sion determine whether injury would be likely 
to continue or recur "within a reasonably for eseeable time" (19 U.S.C. § 1675a(a)(1)) and that 
the Commission "shall consider that the effect s of revocation or termination may not be 
imminent, but may manifest themselves only over a longer period of time" (19 U.S.C. § 
1675a(a)(5)) are inconsistent with Articles 3.1, 3. 2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the 
Anti-Dumping Agreement.  By adding the phrase "within a reasonably foreseeable time" and including a time frame that is not "imminent" but rather relat es to "a longer period of time," 
US law requires ("shall consider") speculation an d an open ended analysis for possible future 
injury.  The Commission's market forecasting a nd sheer speculation is inconsistent with WTO 
requirements to assess whether termination of an anti-dumping duty order would be likely to 
lead to recurrence of injury at the time of termin ation – not at some distant, undefined point in 
the future.  The Commission's application of these statutory provisions in the sunset review of 
OCTG from Mexico also violated US WTO oblig ations as noted above (see sections VIII.G.1 
and 2). 
 
C. T
HE DEPARTMENT 'S FOURTH ADMINISTRATIVE REVIEW DETERMINATION NOT TO REVOKE 
THE ORDER WAS INCONSISTENT WITH US WTO  OBLIGATIONS  
• The Department's Fourth Administrative Revi ew Determination Not to Revoke violated 
Article 11.2 of the Anti-Dumping Agreement b ecause the Department did not terminate the 
anti-dumping duty immediately upon a showing that  the continued application of the duty was 
not "necessary to offset dumping" (see section IX.A.); 
 
• The Department violated Articles 11.2, 2.4,  and 2.4.2 of the Anti-Dumping Agreement 
because the Department "zeroed" Hylsa's nega tive margins and relied on the positive margin 
that resulted from this unlawful methodology as justification for not revoking the anti-dumping duty on OCTG from Mexico with respect to Hylsa (see section IX.B.); 
 
• The Department's Fourth Administrative Revi ew Determination Not to Revoke violated 
Article 11.2 of the Anti-Dumping Agreement becau se the Department:  (i) applied a standard 
which required a demonstration that dumping was " not likely" in the future;  (ii) arbitrarily 
imposed a "commercial quantities" threshold test which has no basis in Article 11.2;  and (iii) 
it ignored positive evidence that demonstrated  that the measure was no longer necessary to 
offset dumping (see section IX.C);  and 
 
• The Department violated Article X:2 of th e GATT 1994 because the Department imposed 
conditions on TAMSA for the termination of the anti-dumping duty in advance of the official 
publication of such conditi ons (see section IX.D.). 
 D. V
IOLATIONS OF GATT ARTICLE X:3(A) 
• Separate and apart from whether US anti-dumpi ng laws and regulations  regarding sunset 
reviews are found to be consistent per se  with US WTO obligations, the data drawn from the 
Department's sunset review determinations demonstrate th at the Department failed to 
administer in an impartial and reasonabl e manner US anti-dumping laws, regulations,  WT/DS282/R 
 Page A-5 
 
 
 decisions and rulings with respect to the Depa rtment's conduct of sunset reviews of anti-
dumping duty orders, in violation of Article X:3(a) of the GATT 1994 (see section X). 
 E. C
ONSEQUENTIAL VIOLATIONS OF THE ANTI-DUMPING AGREEMENT , THE GATT 1994,  AND 
THE WTO  AGREEMENT . 
 Because the United States violated its obliga tions under the Anti-Dumping Agreement, it also 
violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO Agreement (see section X.I).   WT/DS282/R 
Page A-6  
 
  
 
ANNEX A-2 
 
 
FIRST WRITTEN SUBMISSION OF  THE UNITED STATES  
 
 
(3 May 2004) 
 
 
I. INTRODUCTION  
 
1. This proceeding involves Mexi co's challenge to the findings of the US Department of 
Commerce ("Commerce") and the US International Tr ade Commission ("ITC") in the sunset review 
determinations and Commerce's fourth administ rative review of the anti-dumping duty order on oil 
country tubular goods ("OCTG") from Mexico.   2. Mexico disagrees with the conclusions draw n by Commerce and the ITC in the sunset and 
fourth review determinations.  However, the fact  that Mexico disagrees with those conclusions does 
not render them inconsistent with US obliga tions under the AD Agreement.  Mexico asserts 
obligations that in many cases do not exist, and its  claims to have iden tified breaches by the 
United States are meritless.  
II. THE PANEL SHOULD REJECT MEXICO'S CLAIMS CONCERNING AN 
ALLEGED "PRESUMPTION" AND ITS ALLEGED INCONSISTENCY WITH 
ARTICLE 11.3  
 
3. Article 11.3 establishes the requirement that an  investigating authority either terminate the 
duty after five years or conduct a review to determ ine whether termination of that order "would be 
likely to lead to continuation or recurrence of dumping and injury."   
4. Mexico's entire claim under Article 11.3 hing es upon the existence of an alleged Commerce 
"presumption" in sunset reviews that the continuati on or recurrence of dumping is likely.  Mexico's 
claim fails because:  (1) the alleged "WTO-incons istent presumption" does not exist;  (2) the 
instruments that allegedly give rise to this pr esumption do not constitute challengeable measures for 
purposes of the DSU;  and (3) even if the instrument s and practices were subj ect to challenge, two of 
them – the Sunset Policy Sunset Policy Bulletin  and Commerce practice – are not "mandatory" within 
the meaning of the mandatory/discretionary distinction, i.e. , they do not mandate a breach of a 
WTO obligation.  
III. COMMERCE FULLY CONSIDERED ALL RECORD INFORMATION IN MAKING 
THE FINAL SUNSET DETERMINATION  
 
5. Mexico claims that Commerce failed to addr ess all the record information in the sunset 
review of OCTG from Mexico and, thereby, failed to  determine, in accordance with Article 11.3, that 
dumping was likely to continue or recur if the anti- dumping duty were removed.  Specifically, Mexico 
asserts that Commerce failed to address TAMSA' s explanations for the depressed state of 
OCTG imports from Mexico for the period following imposition of the order.  In addition, Mexico 
alleges that Commerce failed to consider, in ma king the likelihood determination, information 
regarding the dumping margin calculated for TAMSA in  the original investigation.  Mexico is wrong  WT/DS282/R 
 Page A-7 
 
 
 because Commerce addressed TAMSA's import volume explanation and Commerce did not rely upon 
the dumping margin from the original investigation (or any dumping margin) in making the affirmative likelihood determina tion in the sunset review.  
 
IV. MEXICO'S CLAIMS REGARDING COMMERCE'S IDENTIFICATION OF THE 
MARGINS LIKELY TO PREVAIL IN THE EVENT OF REVOCATION ARE 
EQUALLY ERRONEOUS 
 
6. Mexico maintains that, pursuant to Article 2 and Article 11.3 the margins reported to the 
ITC as the rates of dumping likely to prevail in th e event of revocation were improperly identified by 
Commerce.  Mexico is wrong, because there simply is no obligation under the AD Agreement to 
consider the magnitude of the margin likely to pr evail in determining like lihood of continuation or 
recurrence of injury in a sunset review under Artic le 11.3.  In addition, as a factual matter, Commerce 
did not "rely" on the margins from the original investigation in making the likelihood determination in OCTG from Mexico as asserted by Mexico.  Rather, Co mmerce relied solely on the depressed state of 
OCTG imports from Mexico to make its affirma tive determination that dumping was likely to 
continue or recur and simply reported the "margins likely to prevail" to the ITC.  For these reasons, 
the Panel should not and need not consider Mexi co's arguments concerning the manner in which 
Commerce identified the margins that it reported to the ITC.  
V. THE PANEL SHOULD REJECT MEXICO'S CLAIM THAT COMMERCE'S 
DETERMINATION NOT TO REVOKE TAMSA AND HYLSA FROM THE ANTI-
DUMPING DUTY ORDER WAS INCONSISTENT WITH ARTICLES 11.1 AND 11.2 OF THE AD AGREEMENT     
 
7. Article 11.2 requires a review of the continuing need for "the anti-dumping duty."  The "anti-
dumping duty" refers to the anti-dumping duty or der as a whole, not as applied to individual 
companies.  As the Appellate Body stated in Japan Sunset , "the duty" referenced in Article 11.3 is 
imposed on a product-specific (i.e., order-wide) basis, not a company-specific basis.  8. Mexico's second principal claim is that, in  not revoking the order on OCTG from Mexico 
based on the results of the fourth administrative review, the United States breached its obligations 
under the AD Agreement and GATT 1994.  The heart of  Mexico's claim rests on the obligations in 
Article 11.2 of the AD Agreement.  An examination of the text of that Article, in context and in light 
of its object and purpose, demonstrates that Mexico's claims are unfounded.  9. Article 11.2 contains no obligation for Memb ers to provide company-specific revocations.  
For this reason, and because neither TAMSA nor Hy lsa sought to present info rmation substantiating 
the need for the overall revocation of "the duty" dur ing the fourth administrative review, Mexico's 
revocation claims based on the fourth  administrative review must fail. 
 10. Even assuming arguendo  that this Panel were to find that Article 11.2 applies to company-
specific opportunities for revocation, the terms of Article 11.2 would not compel the revocations 
TAMSA and Hylsa sought in the fourth administrative review, as Mexico argues.   
 11. Article 11.2 of the AD Agreement provides that a reviewing authority must conduct a 
revocation review "where warranted" and where an interested party requests a review in order to 
determine whether continued imposition of an anti-du mping duty is necessary.  However, Article 11.2 
expressly limits this right to instances in which the interested party is able to ". . . submit positive 
information substantiating the need for a review."   In the Fourth Administrative Review, however, 
TAMSA failed to substantiate the need for such a review.  WT/DS282/R 
Page A-8  
 
 12. Under US law and consiste nt with Article 11.2, Commerce will examine the need for 
revocation at the request of an interested pa rty only if the interested party provides positive 
information substantiating the need for a re view.  This positive information includes, inter alia , that 
(1) the requesting party has meaningfully participated in the US market for at least three years and (2) 
the requesting party has not dumped subject merchandise during that three year period.   
 
13. Meaningful participation in the market is necessary because without it there is no evidentiary 
basis for determining whether continued imposition of the duty is necessary.  Commerce examines the 
sales volumes during the periods in which the expor ter did not dump both in absolute terms and in 
comparison with the period of investigation and/or other review periods.  If the sales volumes during 
the non-dumped periods represent an extremely sm all portion of the sales during the period of 
investigation and/or other review periods, Comme rce infers that these sal es are an insufficient 
evidentiary basis for the need to examine whether the order continues to be necessary.  If an interested 
party were able to provide evid ence that the severely reduced sales volume was due to some unusual 
occurrence, independent of the discipline of the or der, Commerce could find that the extremely small 
sales constitute information sufficient to subs tantiate the need to review the duty.  
 14. During the fourth administrative review , TAMSA argued that it had sold OCTG in 
commercial quantities during the second, third and f ourth reviews.  Commerce analyzed TAMSA's 
request and determined that these sales were made at volumes that constituted an extremely small 
portion of the sales TAMSA made during the POI ..  Commerce allowed TAMSA an opportunity to 
refute the inference that its extremely small sales fail ed to substantiate the need for an examination of 
whether the order remained necessary.  In respon se, TAMSA argued that its extremely small sales 
were probative because the small sales were caused by both the dumping order on OCTG from Mexico as well as a cyclical downturn in the o il industry.  After considering these arguments, 
Commerce rejected them, fully explaining why in th e final results of the fourth review.  Thus, 
Commerce found that TAMSA failed to meaningfully pa rticipate in the market because it had not sold 
OCTG in commercial quantities.  Consistent with Article 11.2, TAMSA had failed to provide positive 
information substantiating the need for a review  and Commerce properly rejected its revocation 
request.  15. Mexico also argues that, in reviewi ng the necessity of the OCTG order in the Final Results of 
Fourth Review , Commerce improperly applied a "not likely" standard with respect to the question of 
whether the order remained necessary as to TAMSA.  In the Final Results of Fourth Review , 
Commerce analyzed whether TAMSA's revocation requ est provided a sufficient evidentiary basis for 
consideration for revocation.  Commerce found th at, as an evidentiary matter, the request was 
insufficient.  Because Commerce thus did not reach  the question of whether the continued imposition 
of the duty remained necessary to offset dumping, Mexico's arguments that Commerce improperly 
applied a "not likely" standard in  resolving that question should be rejected by this Panel.  
 
VI. COMMERCE'S "IMPOSITION OF CONDITIONS" FOR REVOCATION WAS NOT 
INCONSISTENT WITH ARTICLE X:2 OF THE GATT 1994  
 16. Through a misleading characterization of the f acts, Mexico has attempted to argue that the 
commercial quantities requirement Commerce applied in the Final Results of Fourth Review  was 
imposed without official publication "in advance of its application," in breach of Article X:2 of the GATT.  Although Mexico implies that the comme rcial quantities requirement was imposed through a 
change in practice in 1999, that requirement was set forth in the regulations published in 1997, in 
section 351.222(e)(1) of Commerce's regulations, a section of the regulations Mexico studiously 
deemphasizes.  This regulation was effective for a ll administrative reviews initiated on the basis of 
requests for reviews made on or after 1 July 1997 .  Thus, the effective date of the regulations 
preceded the date of request for the second, thir d, and fourth OCTG administrative reviews. 
Commerce properly applied the regulation to TAMSA's request for revocation.  Second, to the extent  WT/DS282/R 
 Page A-9 
 
 
 that Mexico is challenging an alleged change  in Commerce "practice," TAMSA's claim under 
Article X:2 must fail because, Article X:2(a) is li mited in scope to measures of general application, 
not to changes in how Commerce exercises its discretion on a case-by-case basis – its so-called practice.  VII. THE MARGIN CALCULATION METH ODOLOGY IN THE FOURTH REVIEW 
WAS CONSISTENT WITH THE AD AGREEMENT BOTH AS SUCH AND AS APPLIED TO HYLSA 
 
17. Mexico claims that the United States calcula ted dumping margins for OCTG with respect to 
Hylsa in a manner inconsistent with Articles 11.2 and 2 of the AD Agreement, relying primarily on 
the Appellate Body reports in EC – Bed Linen  and Japan Sunset . 
 18. In the fourth review, one of the three consecutive years Hylsa needed to qualify for 
revocation, Commerce calculated a weighted-avera ge margin of 0.79 for Hylsa.  Because the 
revocation inquiry conducted in accordance with Article 11.2 failed
 to demonstrate that the anti-
dumping duty was no longer necessary to offset injurious dumping, no obligation arose under Article 11.1 for Commerce to revoke the order as to Hylsa.   Mexico argues that, had the margin been 
calculated in the manner it suggests, Hylsa would not have been considered to have dumped in that 
review and argues that the order should therefore ha ve been revoked as to Hylsa.  However, quite 
apart from the question of which methodology Commer ce used to calculate Hylsa's overall margin, 
the United States was not required to revoke the order as to Hylsa.   
 19. First, even if Hylsa had been assigned a we ighted-average margin of zero per cent for the 
fourth review, this alone would not have been su fficient for the order to have been revoked with 
respect to Hylsa.  Commerce would have permis sibly analyzed whether Hylsa made sales to the 
United States in commercial quantities during the three years upon which the revocation claim was 
based.   Thus, the United States was not required to revoke the order with respect to Hylsa even if it 
had received a margin of zero per cent in the fourth review.  20. Second, because Article 11.2 of the AD Agreement does not require company-specific revocation, the Panel should reach this calculation methodology issue only if
 it finds that the 
United States was required to conduct a company-sp ecific revocation analysis.  Moreover, the Panel 
should find that Mexico has failed to establish a prima facie violation of Article 2.4 with respect to the 
challenged calculation methodology.  21. Commerce's calculation is not inconsistent w ith the AD Agreement.  Article 2.4 does not 
establish obligations as to the calculation of the overa ll dumping margin.  Mexico merely justifies its 
position with respect to "zeroing" largely by rely ing on the reasoning in the Appellate Body Reports 
in EC – Bed Linen and Japan Sunset .
1  That reliance, however, is misplaced.  EC – Bed Linen  is not 
relevant to this dispute because the finding in th at case was based on a provision that is explicitly 
limited to the investigation phase and because it examined a calculation methodology distinct from 
that which is before this Panel.  Mexi co's reliance on the Appellate Body report in Japan Sunset is 
equally inapposite.2  In Japan Sunset , the Appellate Body found that it was unable to make findings 
on whether the United States acted inconsistently with Article 2.4 or Article 11.3 of the ADA by 
relying on dumping margins from administrative revi ews in making its likelihood determination in a 
sunset review.3  Consequently, there were no findings in that report relevant to this dispute.   
                                                      
1 European Communities – Anti-Dumping Duties on Im ports of Cotton-Type Bed Linen from India 
("EC – Bed Linen "), WT/DS141/AB/R, Report of the Appellate Body, adopted 12 March 2001. 
2 Mexico First Written Submission, paras. 293-294. 
3 United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan,  WT/DS244/AB/R, adopted 9 January 2004, para. 138. WT/DS282/R 
Page A-10  
 
  
VII. THE UNITED STATES APPLIED ITS ANTI-DUMPING LAWS, REGULATIONS,  
DECISIONS AND RULINGS WITH RESPECT TO COMMERCE'S SUNSET REVIEWS IN A UNIFORM AND IMPARTIAL MANNER, IN ACCORDANCE WITH ARTICLE X:3(A) OF THE GATT 1994  
 
22. Mexico attempts to revisit its claims by turning to Article X:3(a) of the GATT 1994 in the 
alternative.  Taken together the terms of Article X:3( a) require that, in administering US sunset review 
laws and regulations, Commerce must act in a manner that is consistent, unbiased and not irrational or 
absurd.  Mexico does not appear to be arguing that US administration of its laws is not consistent, 
focusing instead on an alleged lack of impartiality and reasonableness. 
 23. However, Mexico has provided no evidence of bias or that Commerce has administered 
US laws and regulations in an irrational or absu rd manner, instead merely asserting the conclusion 
that the record in sunset reviews demonstrates bias.  As demonstrated above, Mexico's "clear 
systematic bias" does not exist, and a deconstructi on of Mexico's "analysis" of 301 Commerce sunset 
reviews shows that in 88 per cent of the cases, th e issue of likelihood of dumping simply was not 
contested.  With respect to the 12 per cent of  the cases where likelihood was contested, Mexico 
provides no evidence – let alone proves – that th ose cases were not decided in an impartial and 
unreasonable manner.  VIII. THE ITC APPLIED THE CORRECT STANDARD FOR DETERMINING WHETHER 
TERMINATION OF THE ANTI-DUMPING DUTY ORDERS WOULD BE LIKELY TO LEAD TO CONTINUATION OR RECURRENCE OF INJURY, AND THE ITC'S DETERMINATION OF LIKELIHOOD IN THE SUNSET REVIEW OF OCTG FROM 
MEXICO WAS CONSISTENT WITH ARTIC LE 11. 3 AND ARTICLE 3.1 OF THE 
AD AGREEMENT  
 
24. Much of Mexico's first submission is based on the incorrect and unproven premise that the Commission's application of the "likely" standa rd was inconsistent with Article 11.3 of the 
Agreement.  The Commission does not, as Mexico states,  take the position in this dispute that "likely" 
means "possible."  Rather, the United States agrees th at the term "likely" as used in Article 11.3 can 
be equated with "probable" in the manner that the US courts understand the meaning of "probable" 
and as "probable" has been explained by the Ap pellate Body.  The views of the participating 
Commissioners in the OCTG sunset review remain c onsistent with the "likely" standard as that term 
has been defined by the US courts and the WTO Appellate Body.   
25. The US courts charged with reviewing the in terpretation of the statute have interpreted the 
meaning of "likely" as used in the US statute, gi ving due regard to the SAA, in a manner completely 
consistent with the meaning ascribed to "likely" in  Article 11.3.  Accordingly, there is no basis for 
Mexico to assert that the US statute is inconsistent  as such with Article 11.3.  Mexico plainly has 
failed to meet its burden on this claim.  IX. THE ITC'S DETERMINATION WAS CONSISTENT WITH ARTICLE 11.3 
BECAUSE THE ESTABLISHMENT OF THE FACTS WAS PROPER AND THE EVALUATION OF THE FACTS WAS UNBIASED AND OBJECTIVE  
 
26. Mexico argues that the ITC failed to conduct an "objective examination" based on "positive 
evidence" in accordance with Article 3.1.  Article 3. 1 does not apply to sunset reviews.  Nonetheless, 
the ITC's sunset determination was based on a proper establishment of the relevant facts and an unbiased and objective evaluation of those facts and,  accordingly, would satisfy the requirements of 
Article 3.1, were that provision applicable.    WT/DS282/R 
 Page A-11 
 
 
 X. ARTICLE 3 DOES NOT APPLY TO SUNSET REVIEWS 
 
27. Nothing in Article 3 indicates that its require ments are intended to extend to sunset reviews, 
nor does Article 11.3 indicate that sunset reviews are governed by the requirements of Article 3.  
The inapplicability of Article 3 to sunset reviews under Article 11.3 is clear based on an analysis of 
the text of these treaty provisions.   
 
XI. THE ITC'S SUNSET DETERMINATION WAS CONSISTENT WITH ARTICLE 11.3  
 
28. Mexico's claims concerning Article 3.1 are pr emised on the notion that Article 3.1 applies to 
sunset reviews. As explained above, the provisions of  Article 3 are not applicable to sunset reviews.  
There are further textual indications in Article 3.1 as  to why it specifically is not applicable to sunset 
reviews.  For example, in a sunset review, aut horities are required to evaluate the likelihood in the 
future of a continuation or recurrence of injury if  the dumping order is lifted.  Imports may not even 
be present in the market at the time of the sunset review, and they may not be sold at dumped prices.  
Even if they are sold at dumped prices, the effect s of the dumping are offset, at least in part, by the 
anti-dumping duty.  As a result, an examination of "the volume of dumped imports and the effect of 
dumped imports on prices" is not meaningful in  the context of an Article 11.3 review.  
 29. The ITC's sunset determination was based on a proper establishment of the relevant facts and 
an unbiased and objective evaluation of those fact s, was based on evidence gathered during the 
review, and, accordingly, would sa tisfy the requirements of Artic le 3.1, were that provision 
applicable.  Mexico has failed to show that th e ITC's determination was biased in favour of any 
interested party or that the qualit y of the evidence considered was co mpromised in any way.  That the 
ITC may have given a different weight or meani ng to record evidence than the Mexican respondent 
would have preferred, does not go to whether the ITC conducted an "objective" examination based on 
"positive" evidence.  To the contrary, if the IT C's establishment of the facts was proper and its 
evaluation was unbiased and objective, then its ev aluation shall not be overturned "even though the 
panel might have reached a different conclusion."   30. Mexico's arguments concerning the likely volume of imports do not stand up to scrutiny.  The ITC's findings on the likely volume of impor ts are based on an objective evaluation of the 
relevant facts and are supported by positive evidence.  Mexico's criticisms of the ITC's findings with 
respect to likely price effects likewise are without  merit.  The claim regarding the likely adverse 
impact should be rejected because it is based on Me xico's meritless arguments concerning volume and 
price effects.  XII. THE ITC SUNSET DETERMINAT ION WAS NOT INCONSISTENT WITH 
ARTICLE 3.4 OF THE AD AGREEMENT  
 
31. In addition to the general inapplicability of the provisions of Article 3 to sunset reviews, there 
are also textual indications in Article 3.4 as to why it  specifically is not applicable to sunset reviews.  
There may be no "dumped imports" at the time of a sunset review, and consequently there may be no 
"impact" for the investigating authority to examine.  There also may not be any "actual and potential" 
declines evident or reflected in the information befo re the investigating authority at the time of the 
sunset review, by virtue of the absence of imports.  In short, the obligations described in Article 3.4 
cannot practicably be applied to all sunset review s, and certainly could not be applied to sunset 
reviews in the same systematic and comprehensive manner that has been required in original dumping 
investigations. 
 32. Moreover, even if Article 3.4 did apply, while  all enumerated factors must be evaluated, not 
all are necessarily material in any particular case.   If, upon evaluation, the authority determines that a 
particular factor is not material to the investigati on, the authority is not required to discuss that factor WT/DS282/R 
Page A-12  
 
 in its notice or report.  In this review, the Commission's staff report clearly addresses each of the 
factors enumerated in Article 3.4.    33. The ITC considered, cited extensively to, an d appended to its published determination the 
report of the ITC staff in the OCTG sunset revi ew, which presents detaile d information concerning 
each of the Article 3.4 factors.  
 
XIII. THE ITC SUNSET DETERMINATION WAS NOT INCONSISTENT WITH 
ARTICLE 3.5 OF THE AD AGREEMENT  
 34. In addition to the general inapplicability of Article 3 to sunset reviews, there are further 
textual indications in Article 3.5 that it specifically is  not applicable to sunset reviews.  For example, 
Article 3.5 refers to the "dumped imports and speak s of such imports in th e present tense as "causing 
injury."  However, in a sunset review there may be  no dumped imports.  As a result of the order, such 
imports may have decreased or exited the market alt ogether, or if they have maintained their presence 
in the market, they may be priced higher than they were during the original investigation, when they 
were entering the market unencumbered by any additional duties.  35. Second, Article 3.5 refers to existing "inj ury" and describes an existing causal link between 
dumped imports and that injury.  However, in a su nset review, with an anti-dumping order in place, 
there may be no current injury or causal link; indeed, it would be surprising if there were given the 
remedial effect of an anti-dumping duty order.  This is implicit in the referenc e in Article 11.3 to the 
"continuation or recurrence
 of injury." 
 36. Third, under Article 3.5, investigating au thorities are obliged only to "examine any known 
factors other than the dumped imports which are at the same time injuring the domestic industry" and 
ensure that the injurious effects caused by those factors are not attributed to the dumped imports 
(emphasis added).  If a particular factor is not known to the investigating authorities, or if that factor is not "at the same time injuring the domestic industry," then the investigating authorities are under no 
obligation to examine that factor in the course of their causality analysis. 
 37. In focusing on the positive performance of the domestic industry during the review period, 
Mexico ignores that Article 11.3 expressly contemplates an examination of the likelihood of a 
"recurrence" of injury.  Such an examination plainl y recognizes that an industry that was injured prior 
to the entry of the orders may not experience injury during the pendency of the orders, yet injury may be likely to recur if the orders are revoked.  Ind eed, the imposition of the orders in the first instance 
may be responsible for the industry's improved performance. 
 
38. Even if Article 3.5 were applicable, Mexico has not identified any "other causal
 factors" the 
ITC failed to consider.    
XIV. THE US STATUTORY PROVISIONS AS TO THE TIME FRAME IN WHICH 
INJURY WOULD BE LIKELY TO CONTINUE OR RECUR ARE NOT 
INCONSISTENT WITH ARTICLES 11.3 AND 3 OF THE AD AGREEMENT  
 
39. Article 11.3 does not specify the time frame re levant to a sunset inquiry.  Article 11.3 only 
requires a determination of whether revocation "would  be likely to lead to continuation or recurrence 
of injury."  The words "to lead to" affirmatively indicate that the Agreement contemplates the passage 
of some period of time between the revocation of the order and the continuation or recurrence of 
injury.  In the absence of any specific provision in  Article 11.3, Members remain free to determine 
under their own laws and procedures the time frame relevant in sunset inquiries.   
  WT/DS282/R 
 Page A-13 
 
 
 40. Mexico attempts to inject the "imminent" a nd "special care" terms from Articles 3.7 and 3.8 
into an Article 11.3 sunset review.  As previously  explained, Article 3 does not apply to Article 11.3 
sunset reviews.  41. Because the statutory requirements contai ned in Sections 752(a)(1) and 752(a)(5) are not 
inconsistent with AD Agreement Articles 11.3 and 3,  the ITC's application of those requirements is 
likewise not inconsistent with those articles.   
XV. THE ITC DID NOT ACT INCONSISTENTLY WITH ANY PROVISION OF THE AD 
AGREEMENT BY CONDUCTING A CUMULATIVE ANALYSIS IN THE OCTG 
SUNSET REVIEW  
 
42. Mexico argues that because cumulation is not expressly permitted in Article 11.3, the ITC is 
prohibited from engaging in a cumulative analysis in a sunset review.  However, the genesis of any obligation or right arising under the WTO Agreement is  the text of the relevant provision.  Absent a 
textual basis, the rights of Members cannot be circumscribed. 
 43. The relevant principle of treaty interpretation goes to the object and purpose of the treaty
, and 
not particular treaty provisions.  To the extent th at the purpose of Article 11.3 is relevant, Mexico 
simply misconstrues it.  If that purpose were simply a ministerial rescission of anti-dumping duties, there would be no need to inquire as to whether expiry of the duty would be likely to lead to 
continuation or recurrence of dumping and injury.  
 44. Mexico seeks to bolster its argument that cumulation is not permitted in sunset reviews by 
noting that there is no explicit cross-reference to cumulation or to Article 3.3 in the context of 
Article 11.  This argument has no merit.  A cross- reference to an obligation is necessary where the 
drafters seek to assert a broader obligation.  Howe ver, there is no need to cross-reference to a 
permissive authority where a right exists  absent its limitation in the Agreement. 
 45. In addition to the inapplicability of the provisi ons of Article 3 to sunset reviews, Mexico's 
position is directly at odds with recent panel and Appella te Body reports construing the meaning of 
Article 3.3. 
 
XVI. THE DECISIONS OF COMMERCE AND THE COMMISSION COMPLIED WITH 
ARTICLE VI OF THE GATT 1994, ARTICLES 1, 18.1, AND 18.4 OF THE AD AGREEMENT AND ARTICLE XVI:4 OF THE WTO AGREEMENT  
 46. These claims are consequential claims in th at they depend upon a finding that some other 
provisions of the AD Agreement or GATT 1994 have  been breached.  None  of the "measures" 
identified by Mexico, however, is inconsistent any other provision of the WTO Agreement.  They are 
therefore not inconsistent with Article VI of th e GATT 1994, Articles 1 and 18 of the AD Agreement, 
and Article XVI:4 of the WTO Agreement.  XVII.  THE SPECIFIC REMEDY SOUGHT BY MEXICO IS INCONSISTENT WITH 
ESTABLISHED PANEL PRACTICE AND THE DSU  
 
47. Finally, Mexico has requested this Pa nel to recommend that the DSB request the 
United States to immediately revoke the anti-dum ping duty on OCTG imports from Mexico.  In so 
doing, Mexico has requested a specific remedy th at is inconsistent with established GATT/WTO 
practice and the DSU.  Therefore, should the Panel agree with Mexico on the merits, the Panel nonetheless should reject the requested remedy , and instead should make a recommendation, 
consistent with the DSU and established GATT/WTO practice, that the United States bring its anti-
dumping measure into conformity with its obligations under the AD Agreement. WT/DS282/R 
Page A-14  
 
  
XVIII. CONCLUSION 
 
48. Based on the foregoing, the United States respect fully requests that the Panel reject Mexico's 
claims in their entirety.