WT/DS268/RW 
 Page B-1 
 
 
ANNEX B 
  
WRITTEN SUBMISSIONS OF THIRD PARTIES 
  
Contents Page 
Annex B-1 Third Party Written Submission of China, People's Republic of B-2 
Annex B-2 Third Party Written Submissi on of the European Communities B-10 
Annex B-3 Third Party Written Submission of Japan B-16 
Annex B-4 Third Party Written Submi ssion of Korea, Republic of B-23 
Annex B-5 Third Party Written Submission of Mexico B-30 
 WT/DS268/RW 
Page B-2  
 
ANNEX B-1 
 
THIRD PARTY WRITTE N SUBMISSION OF THE 
PEOPLE’S REPUBLIC OF CHINA 
 
26 April 2006 
  
Page
 
 
I. INTRODUCTION ................................................................................................................. 2  
II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT ................................ 3 
III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW ............... 3 
IV. THE LIKELIHOOD  DETERMINATION IN THE SECTION 129  
DETERMINATION .............................................................................................................. 5 
A. THE USDOC’S REASONING IN TH E SECTION 129 D ETERMINATION.....................................5 
B. THE USDOC’S FINDING OF LIKELY DUMPING...........................................................................5 C. THE USDOC’S FINDING OF DECLINING OCTG IMPORT VOLUMES .......................................6 
D. THE USDOC’S CONSIDERATION OF THE FACTUAL FACTORS AND 
CONCLUSION ON LIKELIHOOD OF DUMPING............................................................................7 
V. CONCLUSION .................................................................................................................. .... 9 
  
 
I. INTRODUCTION 
 
1. China welcomes the opportunity to present its  views in these proceedings on the dispute 
between Argentina and the United States ("US") with respect to the implementation by the US of the 
recommendations and rulings of the Dispute Settlement Body ("DSB") on United States – Sunset 
Reviews of Anti-Dumping Measures on O il Country Tubular Goods From Argentina . 
 2. In this submission, China will fo cus on the following four questions: 
 
 (1) Whether the US Department of Commer ce ("USDOC") is permitted by Article 11.3 
of the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994  ("AD Agreement ") to rely on the facts newly developed in its 
2005 Section 129 proceeding and covering th e original sunset review period; 
 
 (2) Whether the finding in the Section 129 Determination that Acindar likely was 
dumping during the sunset review period was properly made in line with the requirement of Article 11.3 of the AD Agreement ; 
 
 (3) Whether the finding in the Section 129 De termination that declining import volumes 
were apparently resulted from the impos ition of an anti-dumping dumping order 
constitutes a reasoned and adequate conclu sion as required by Article 11.3 of the 
AD Agreement ; 
  WT/DS268/RW 
 Page B-3 
 
 
 (4) Whether the USDOC’s consideration of  the factual findings and conclusion of 
likelihood of dumping were made in a r easoned way as required by Article 11.3 of 
the AD Agreement .  
 3. In China’s view, these issues are closely relate d to this Panel’s assessment on whether the US 
has implemented the DSB recommendations and rulings  and therefore deserve the attention by the 
Panel.  
II. CHINA’S VIEWS ON ARTICLE 11.3 OF THE AD AGREEMENT 
 4. As the issues discussed in this submissi on mainly relate to Article 11.3 of the AD Agreement , 
China would like to firstly present its understandi ng of the obligations imposed on investigating 
authorities in sunset reviews on the basis of  the said provision and WTO jurisprudence.  
 5. First
, the structure of Article 11.3 indicates that generally the definitive anti-dumping duty 
shall be terminated no later than five years.  The only exception to this general rule is the case where 
the authorities, by means of sunset review, determin e that the expiry of the duty would be likely to 
lead to continuation or recurrence of dumping and injury.  As observed by the Appellate Body in 
US Corrosion-Resistant Steel Sunset Review , Article 11.3 imposes a temporal limitation on the 
maintenance of anti-dumping duties and lays down a mandatory rule with an exception.1 
 
6. Second , in a sunset review, the authorities shall play an active rather than a passive decision-
making role with appropriate degree of diligence to arrive at a reasoned conclusion that dumping 
would be  probable if the duty were terminated.2  In other words, the investigating authorities must 
have a sufficient  factual basis to allow it to draw reasoned and adequate  conclusions concerning the 
likelihood of continuation or recurrence of dumping.3  
 
7. Third , in sunset reviews, the evidence is essential for an affirmative determination though the 
nature and extent of the evidence required for the pr oof of likelihood of continuation or recurrence of 
dumping and injury will vary with the facts and circumstances of the case under review.4  
 
III. COLLECTING NEW INFORMATION IN A REVISED SUNSET REVIEW 
 
8. Argentina argues that in the 2005 Sec tion 129 Determination, the USDOC acted 
inconsistently with Articles 11.3 and 11.4 of the AD Agreement  by developing new factual 
information to support its 2001 Sunset Review Determ ination.  According to Argentina, information 
on two of the key factual findings were developed in the 2005 Section 129 proceeding rather than in 
the review initiated "at that time" before the expi ration of the original anti-dumping measure.  In 
Argentina’s view, in relying on new informati on developed in 2005, the USDOC did not render a 
decision that brings the US into compliance w ith its obligations under Article 11.3 and 11.4.5 
 9. With respect to this issue, China submits the following views for the consideration of this 
Panel.  
 
                                                     
 
1 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. 104 (adopted 9 January 2004) 
("US －- Corrosion-Resistant St eel Sunset Review (AB) "). 
2 Ibid, para. 111. 
3 Ibid, para. 114. 
4 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 "). 
5 Argentina First Submission, para. 57. WT/DS268/RW 
Page B-4  
 
10. First
, China notes that neither Article 11.3 of the AD Agreement  by itself nor the DSU 
prohibits the investigating authorities from collect ing new factual information in the proceedings 
intended to bring its WTO-inconsistent measure in to conformity with the DSB recommendations and 
rulings.   
11. Second
, China notes that the panel in US Countervailing Measures on Certain EC Products 
(21.5－EC) made a relevant observation in this respect.  In that dispute, the USDOC, in a Section 129 
proceeding, refused to consider the additiona l evidence submitted by the respondents in the 
proceeding.6  The panel noted that "an investigating authority has the obligation to consider all 
evidence placed on the record in making a likelihoo d of continuation or recurrence of subsidization 
re-determination .  Without so doing, the investigating authority could not ensure that the new 
measure, that is, the likelihood-of-subsidizati on re-determination set out in the Section 129 
determination, is based on a sufficient factual re cord and therefore satisfies the requirements of 
Article 21.3 of the SCM Agreement "7.  The panel concluded that, with respect to "evidence provided 
for the first time by the interested parties during the Section 129 proceedings. . . .  Article 21.3 of the 
SCM Agreement  imposes an obligation on the investigati ng authority during sunset review or revised 
sunset review  proceedings to take into account all the evidence placed on its record in making its 
determination of likelihood of continua tion or recurrence of subsidization".8 
 
12. Therefore, the panel finds that the refusal  to consider new evidence presented during the 
Section 129 proceedings is inconsistent with  the requirement of Article 21.3 of the SCM Agreement .9 
 13. China submits that the above panel’s ru ling in respect of Article 21.3 of the SCM Agreement  
also applies to Article 11.3 of the AD Agreement  in this case.  The Appellate Body in US Corrosion-
Resistant Steel Sunset Review  has noted that Article 11.3 of the  AD Agreement  is textually identical to 
Article 21.3 of the SCM Agreement , except that, in Article 21.3, the word "countervailing" is used in 
place of the word "anti-dumping" and the word "s ubsidization" is used in place of the word 
"dumping".
10  Consequently, Article 11.3 of the AD Agreement  also imposes an obligation on the 
investigating authority during revised sunset review proceedings to take into account all the evidence 
in record, including newly submitted evidence, in making its determination of likelihood of 
continuation or recurrence of dumping.  14. Third
, in this dispute, when finding the inconsistency of the anti-dumping measure at issue 
with Article 11.3 of the AD Agreement , the original panel held that su ch inconsistency stems from two 
aspects:  (i) the USDOC’s relianc e of its finding of continued dumping on the dumping margin found 
in the original investigation;  (ii) the applica tion of the WTO-inconsistent waivers provisions.  In 
China’s view, these deficiencies are assumptions that lack  in sufficient factual basis.  In the attempt to 
remedy such deficiencies, the USDOC inevitably n eeds to solicit new factual information and make 
objective assessment on such information.  If the US DOC is not permitted to seek new information to 
adapt its measure, the lack of information would leave the USDOC with no choice but to continue to 
apply the methodology found inconsis tent with Article 11.3 of the AD Agreement  – making 
assumptions.  15. In summary, China holds the view that, in order to bring its measure into compliance with DSB recommendations and rulings, the USDOC is pe rmitted to solicit and collect relevant factual 
                                                     
 
6 Panel Report, United States – Countervailing Measures Concerning Certain Products from the 
European Communities (21.5 －EC), WT/DS212/RW, para. 7.68 (adopted 17 August 2005) 
("US – Countervailing Measures on Certain EC Products "). 
7 Ibid, para. 7.238. (emphasis added) 
8 Ibid, paras. 7.252-7.253. (emphasis added) 
9 Ibid, para. 7.255. 
10 Appellate Body Report, US Corrosion-Resistant Steel Sunset Review , footnote 114.  WT/DS268/RW 
 Page B-5 
 
 
information so as to make its determination on a su fficient factual basis.  Notwithstanding, China does 
not consider that this position necessarily mean s the USDOC’s Section 129 Determination is a 
reasoned and adequate conclusi on based upon positive evidence. 
 
IV THE LIKELIHOOD DETERMINATION IN THE SECTION 129 DETERMINATION 
 
A. THE USDOC’S REASONING IN THE SECTION 129 DETERMINATION 
 
16. China notes that, during the Section 129 pro ceeding, the USDOC requested information from 
three Argentine producers, i.e., Tubhier, Siderca a nd Acindar, none of which filed the statement of 
waiver including a statement that the respondent in terested party is likely to dump if the order is 
revoked.  Therefore, in accordance with the newl y amended US regulations, no producer waived to 
participate in the proceedings and thus the USDO C simply made one likelihood determination on an 
order-wide basis.  
17. During the Section 129 proceeding, it was repor ted by Tubhier and confirmed by the USDOC 
that Tubhier did not ship OCTG to the US during the sunset review period and did not intend to ship to the US in the future.  Thus, the USDOC did not make any finding on whether Tubhier had dumped during the sunset review period.    
18. With respect to Siderca, since the USDOC  considered the estimated cost information 
provided by Siderca was unreliable and Siderca had no US sales of OCTG during the original sunset 
review period, the USDOC made "no findings regarding specific instances of likely dumping by Siderca during the original sunset review period".
11 
 
19. With respect to Acindar, due to its failure to  provide data adequate to calculate costs for the 
subject merchandise, the USDOC was unable to calculate  the costs for Acindar.  For that reason, the 
USDOC compared Acindar’s US selling prices durin g the original sunset review period with 
prevailing US market prices during that same period and found that the former prices were substantially lower than the latter.  In additio n, the USDOC also found supports from the depression 
in the OCTG market as indicated by the losses shown by Acindar and other significant OCTG 
producers.  On such basis, th e USDOC reached the conclusion that Acindar likely was dumping 
significantly in the US market.
 12  
 20, Before reaching its conclusi on on likelihood of dumping, the USDOC referred to its previous 
finding regarding the declining import volumes of the subject merchandise for the period before and 
the period after the issuance of the anti-dumping duty order.  The USDOC concluded that such 
declining volumes were "apparently resulting from " the imposition of the anti-dumping measure.  
 21. On the above basis, the USDOC found that th ere was 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 review period. 
 
B. THE USDOC’S FINDING OF LIKELY DUMPING 
 
22. In the Section 129 Determination, USDOC co mpared the export price of Acindar with the 
prevailing US market price in reaching its finding of likely dumping in the sunset review period.  
Such an approach obviously contradicts with the b asic concept of "dumping" in Article 2.1 of the 
AD Agreement  which is also applicable to the word "dumping" in Article 11.3.   
 
                                                      
11 US Section 129 Determination, p. 9.  
12 US Section 129 Determination, p. 8-10. WT/DS268/RW 
Page B-6  
 
23. In US Corrosion-Resistant Steel Sunset  Review, the Appellate Body noted that: 
   However, as we have already observed, the opening words of Article 2.1 
("[f]or the purpose of this Agreement") go beyond a cross-reference and indicate that Article 2.1 applies to the entire Anti-Dumping Agreement.  
By virtue of these words, the word "d umping" as used in Article 11.3 has 
the meaning described in Article 2.1.  [footnote omitted]
13 
 24. Article 2.1 of the AD Agreement  clearly provides for a definition of "dumping" which reads as 
follows: 
 
 For the purpose of this Agreement, a product is to be considered as being 
dumped, i.e. introduced into the commer ce of another country at less than its 
normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the 
like product when destined for consumption in the exporting country. 
 In addition, Article 2.2 further provides that norma l value can be determined on the basis of export 
price to third country or so-called constructed va lue under certain specified circumstances.  It is 
surprising to note that the US goes so far as to alle ge that "Article 2 does not contain a ‘notion’ of 
dumping but rather a methodology for calculating an actual dumping margin"
14.  The underlying logic 
of the US argument is that given the fact that the US is not calculating a dumping margin, it can then 
ignore the concept of dumping and determine "likely dum ping" with whatever criteria it deems fit.  In 
China’s view, if one does not have a clear view of  the concept of dumping or denies the existence of 
such a concept, he cannot reasonably make a finding of likely dumping.     
25. Thus, the USDOC should have compared Aci ndar’s export price with its domestic sale price 
in Argentina (or third-country export prices / c onstructed value) to determine whether Acindar 
dumped during the sunset review period.  The im proper comparison with the prevailing US market 
price led to a flawed finding of "likely dumping" which may not meet the requirement of making a 
reasoned and adequate dete rmination on a sufficient factual basis as required by Article 11.3 of the 
AD Agreement .  
 
C. THE USDOC’S FINDING OF DECLINING OCTG IMPORT VOLUMES 
 
26. When making the Section 129 Determination, the USDOC also relied on its previous finding 
in 2000 sunset review regarding the import volume of the subject merchandise for the period before 
and the period after the issuance of the anti-dumping duty order.15 
 27. China submits that such reliance seems to  be inconsistent with  Article 11.3 of the 
AD Agreement  for the following reasons. 
 
28. First
, the US argues that the USDOC can legitim ately rely on its previous finding of 
declining import volumes in 2000 in that the origin al panel found no WTO-inc onsistency with respect 
to such finding.16 
 29. China does not agree.  China r ecalls that in the original dispute, the original panel found that 
the USDOC's reliance on the existence of the or iginal dumping margin was inconsistent with 
                                                     
 
13 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para 126. 
14 US First Submission, para. 46. 
15 US Section 129 Determination, at pages 4 and 6. 
16 US First Submission, para 23.  WT/DS268/RW 
 Page B-7 
 
 
Article 11.3 of the  AD Agreement , and therefore did not need to continue to address whether, as the 
second factual basis, the USDOC's reliance on declining import volumes was yet another action inconsistent with that article.
17  China does not believe the position he ld by the original panel can be 
understood to provide a safe haven to the US with resp ect to the said finding.  Therefore, the original 
panel’s lack of analysis on the issue of declin ing import volumes simply cannot be a valid defending 
argument for the US in this proceeding.  
 30. Second
, China notes that in the Section 129 De termination, the USDOC simply stated, 
without any reasoning, that "[d]eclining import volumes after, and apparently  resulting from, 
imposition of an anti-dumping order indicate that e xporters would need to dump to sell at pre-order 
levels".18  The USDOC did not explain why such decline of import volumes is attributable to the 
imposition of the order.  The word "apparently" indicates that the USDOC reached this conclusion by assumption instead of reasoning.  31. China submits the USDOC erred in assuming such  conclusion, in that the Appellate Body in 
US Corrosion-Resistant Steel Sunset Review  has clearly pointed out that assumptions are not enough 
to support a determination under Article 11.3, and th e decline in import volumes 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.
19   
 32. Therefore, the USDOC should have conducted a case-specific analysis of the factors behind 
the decline in import volumes in order to determine that dumping will continue or recur if the duty is 
terminated.  A simple assumption of such causati on is not such positive evidence as to enable the 
USDOC to draw a reasoned and adequate affirm ative likelihood determination as required by 
Article 11.3 of the AD Agreement . 
 
D. THE USDOC’S CONSIDERATION OF THE FACTUAL FACTORS AND CONCLUSION ON 
LIKELIHOOD OF DUMPING 
 
33. In the Section 129 Determination, the ma jor factual bases that the USDOC relied on in 
making an affirmative likelihood-of-dumping determin ation are:  (i) no findings regarding specific 
instances of likely dumping by Siderca during the original sunset review period;  (ii) the finding of likely dumping by Acindar during the original sunset review period;  and (iii) the previous finding regarding the import volumes of the subject merchand ise for the period before and the period after the 
issuance of the anti-dumping duty order.  
 
34. Even assuming, for the sake of argument, th at the USDOC properly made a finding of likely 
dumping with respect to Acindar by the compar ison between Acindar’s export prices and the 
prevailing US market prices, such a finding, in combination with the finding of declining import 
volumes, cannot sufficiently support an affirmativ e determination of likelihood of dumping.  The 
reasons are detailed below.   
 
35. At the outset
, in China’s view, it should be distinguish ed between "likelihood of continuation 
or recurrence of dumping if the anti-dumping duty or der is terminated" and "likelihood of dumping 
during the sunset review period".  These two concep ts respectively address events that will occur in 
the future and events that ha ve occurred in the past.   
 
                                                      
17 Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular 
Goods from Argentina , WT/DS268/R, paras. 6.11 and 7.221 (adopted 16 July 2004) ( US – Oil Country Tubular 
Goods Sunset Reviews ). 
18 US Section 129 Determination, page 11. 
19 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 177. WT/DS268/RW 
Page B-8  
 
36. According to Article 11.3 of the AD Agreement , the conclusion on likelihood of continuation 
or recurrence of dumping is one on future events that should be drawn from the past facts supported 
by positive evidence.  In US 
－ Corrosion-Resistant Steel Sunset Review , the Appellate Body 
explained that "the likelihood dete rmination is a prospective determ ination.  In other words, the 
authorities must undertake a forward-looking analysis a nd seek to resolve the is sue of what would be 
likely to occur if the duty were terminated."20   
 
37. On the other hand, the conclusion on likely dumping in the sunset review period is a 
speculation of the past facts.  At the time of making the review determination, the sales by the 
respondent to the US market had been made and whether it had dumped the subject merchandise in the US was a matter of fact, rather than a possibilit y or likelihood of events that will occur.  If the 
USDOC decides to rely on such a factual point, it h as to make sure that the fact is supported by 
sufficient factual information.  In other words, the USDOC can only draw a conclusion of "yes" or 
"no" instead of "likely yes".  If the USDOC cannot satisfy itself with sufficient evidence that Acindar 
was dumping during the sunset review period, then it should not draw any conclusion on it at all.  
 38. Second
, it is further noted that in its First Written Submission, the US submits that "[n]othing 
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".21  The logic 
behind such an argument seems to be that if the respondents fail to provide specific evidence of actual 
past behaviour, then the authorities are free to look at evidence of likely past behaviour.  But what the 
USDOC has done is not just "looking at".  Rather, it relied  on the finding of likely dumping in 
reaching its affirmative conclusion on likelihood of continuation or recurrence of dumping.   
 
39. As articulated by the Appellate Body, under Article 11.3 of the AD Agreement , the authorities 
bear the treaty obligations to "arrive at a reasone d conclusion" on the basis of "positive evidence".  
The failure by the respondents to provide n ecessary information cannot simply discharge the 
authorities of such duties.  Instead, under such circumstances, the authorities should follow an 
appropriate methodology and rely on positive ev idence on the record to see if it can draw a 
permissible conclusion on the likelihood of continuation or recurrence of dumping.   
 49. Third
, it is noted that in US - Corrosion-Resistant Steel Sunset Review , the Appellate Body 
held that,    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.  Such a presumption might have some validity when dumping has  continued  since the duty was imposed (as in the first scenario identified in 
Section II.A.3 of the Sunset Policy Bulletin), particularly when such 
dumping has continued with significant margins and import volumes.
22  
[emphasis added] 
 Therefore, in the view of the Appellate Body, even if dumping has continued  with significant 
margins  and import volumes  after the imposition of anti-dumping measure, such facts might only 
have some validity  in forming an affirmative likelihood conclu sion.  In this case, the findings made by 
the USDOC are far from reaching such a level of cer tainty.  The USDOC was only able to conclude 
that Acindar was likely dumping during the sunset re view period and it is not even clear whether the 
                                                     
 
20 Ibid., para. 105. 
21 US First Submission, para 46. 
22 Ibid, para. 177.  WT/DS268/RW 
 Page B-9 
 
 
import volume, after the declining following the im position of the anti-dumping duty order, was still 
significant.  Therefore, it is hard to accept that  the likely dumping finding made on Acindar and the 
finding of declining import volum es, taken together, could permissibly form the factual bases upon 
which the USDOC relied in making a WTO-consistent  and corrected sunset review determination.  
 
41. In summary, China submits that the finding of likely dumping and that of declining import 
volumes do not seem to form a sufficient factual basis  to reach an affirmative conclusion on 
likelihood of dumping.  
V. CONCLUSION 
 
42. In conclusion, China is of the follo wing views on the key issues discussed above:  
  (i) In the revised sunset review, the aut horities are permitted to collect new information 
so as to bring its measure into conformity  with DSB recommendations and rulings;  
 
 (ii) The US’s finding of likely dumping with respect to Acindar contradicts with the 
concept of dumping as provided for by Article  2 and therefore seems to fail to meet 
the requirement of making a reasoned and adequate determination on sufficient 
factual basis as required by Article 11.3 of the AD Agreement; 
 
 (iii) The USDOC assumed that the declining import volumes were due to the imposition 
of the anti-dumping duty order which does not seem consistent with Article 11.3; 
  (iv) The findings in respect of likely dumping and declining import volumes do not seem 
to constitute a sufficient factual basis for an affirmative determination. 
 WT/DS268/RW 
Page B-10  
 
 ANNEX B-2 
 
THIRD PARTY WRITTEN SUBMISSION OF THE  
EUROPEAN COMMUNITIES 
 
26 April 2006 
 
TABLE OF CONTENTS 
  
Page
 
 
I. INTRODUCTION ............................................................................................................... 10  
II. THE BALANCE ENSHRINED IN ARTICLE 11.3 AND THE SPECIAL CARE 
REQUIRED WHEN MAKING A PR OSPECTIVE DETERMINATION..................... 10  
III. ARTICLE 11.3 IN THE CONTEXT OF THE ANTI-DUMPING AGREEMENT: 
CONSEQUENCES OF TERMINATION AND CONSEQUENCES OF CONTINUATION ............................................................................................................... 11
 
IV. RELIANCE ON ORIGINAL DUMPING MARGIN AND DECLINE IN IMPORTS INSUFFICIENT................................................................................................................... 12
 
V. ZEROING........................................................................................................................ ..... 13  
VI. AUTOMATIC DUMPING IN A DEPRESSED MARKET CYCLE .............................. 14  
VII. CONCLUSION .................................................................................................................... 1 5 
 
 
 
I. INTRODUCTION 
 
1. The EC makes these written observations because  of its systemic interest in the correct 
interpretation of the Anti-Dumping Agreement  and the GATT 1994. 
 2. Consistent with our submissions to the origin al panel, we explain why we believe that the 
Article 11.3 re-determination
1 is not consistent with the Anti-Dumping Agreement , and does not 
comply with the findings and recommendations  of the DSB in the original dispute. 
 
II. THE BALANCE ENSHRINED IN ARTICLE 11.3 AND THE SPECIAL CARE 
REQUIRED WHEN MAKING A PROSPECTIVE DETERMINATION 
 
3. The EC re-iterates its submissions to the original panel. Article 11.3 of the Anti-Dumping 
Agreement  must be interpreted as striking a balance  between the termination  of an anti-dumping 
measure and its continuation .  It cannot be interpreted in an entirely one-sided  manner.  Neither 
Article 11.3, nor any other provision of the Anti-Dumping Agreement , provides that anti-dumping 
measures may remain in place indefinitely or forever , on the assumption that " once a dumper, always 
a dumper ".  To permit such an interpretation would be to  conclude that the addition of Article 11.3 to 
                                                      
1 Exhibit ARG-16: "Final Results of Sunset Review , Oil Country Tubular Good s from Argentina". This 
new sunset review was initiated (apparently out of time) on 2 November 2005 (Exhibit ARG-16, page 2, second 
para, penultimate sentence).  WT/DS268/RW 
 Page B-11 
 
 
 the Anti-Dumping Agreement  following the Uruguay Round of negotia tions in effect changed nothing, 
which would be to reduce the provision to redundancy , which would not be a permissible 
interpretation.  4. The European Communities would go further,  agreeing with the Appellate Body that the 
centre of gravity of that balance lies with terminat ion, rather than continuation.  The termination 
obligation is in the nature of a general rule ; continuation rather in the nature of an exception .
2 
 5. Because the required determination is partly prospective  in nature, investigating authorities 
inevitably have a certain leeway when assessing the facts.  That cannot, however, render the provision 
endlessly elastic , since that would destroy the balance clear ly enough enshrined within the provision. 
In fact, precisely the opposite is true.  It is pr ecisely because the determination is partly prospective 
that investigating authorities must exercise special care  when making it.  That is, they must be certain 
that they have a solid factual basis on which to pro ceed, and that no stone has been left unturned in the 
search for an objective finding. In this respect, Article 3.8 of the Anti-Dumping Agreement  provides 
relevant context, confirming that when a prospective determination is to be made (in that case, threat 
of injury) "the application of anti-dumping me asures shall be considered and decided with special 
care".  Such determinations are not to be based on mere "allegation, conjecture or remote 
possibility"
3, still less on "intuition"4 or "expectation".5  In short, there is ample authority for the view 
that the standard of review to be applied by a panel in a given case is a function of the substantive 
provisions of the specific covered agreements that are at issue in the dispute; and ample support for 
the proposition that, in the case of a provision such  as Article 11.3, a panel’s review should be 
particularly searching and probative.6 
 
III. ARTICLE 11.3 IN THE CONTEXT OF THE ANTI-DUMPING AGREEMENT: 
CONSEQUENCES OF TERMINATION AND CONSEQUENCES OF 
CONTINUATION 
 
6. As we indicated in our submissions to the original panel, interpreting Article 11.3 in a 
balanced manner requires consideration of that provision in the context of the Anti-Dumping 
Agreement  as a whole. 
 
7. In this respect, it is relevant to take into consideration what the consequences of termination 
may be, and particularly how quickly a new measu re could be put in place, should that prove 
necessary.  8. In that regard, the EC notes that there is no time requirement governing the filing of an 
application under Article 5.1:  as soon as dumpi ng occurs an application may be filed, where 
necessary based on a submission of threat of injury under Article 3.7 of the Anti-Dumping Agreement .  
Initiation of an original investigation may proceed  forthwith, with measures being imposed 60 days 
                                                     
 
2 Appellate Body Report, US – Carbon Steel , para 88: "An automatic time-bound termination of 
countervailing duties that have been in place for five years from the original investigation or a subsequent 
comprehensive review is at the heart of this provision.  Termination of a countervailing duty is the rule and its 
continuation is the exception." 
3 Anti-Dumping Agreement , Article 3.7:  "A determination of threat of material injury shall be based on 
facts and not merely on allegation, conjecture or remote possibility". 
4 Article 11.3 re-determination, page 8, fourth para , rejecting Siderca's data on the grounds that it is 
"counter-intuitive". 
5 Article 11.3 re-determination, page 8, fourth para, rejecting Siderca's data on the grounds that it is not 
what "we would expect". 
6 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , paras 95 and 96. WT/DS268/RW 
Page B-12  
 
 later
7, or even, if there is a history of dumping, from the date of initiation.8  Thus, if appropriate, anti-
dumping measures can be imposed at very short notice  indeed. 
 9. It is also relevant to take into consider ation what the consequences of continuation of the 
measure are.  In this respect, the EC recalls th at the US operates a system of duty collection under 
Article 9.3.1 of the Anti-Dumping Agreement  in which, at least according to the US, final liability for 
payment of anti-dumping duties can actually increase  retrospectively.  This means that, at the time of 
import, the exporter and importer w ill not know what the final liability might be, there being no cap, 
in place at the time of import, limiting such final lia bility.  Given the comple xity of the anti-dumping 
rules and thus the very many aspects of an inve stigation in which an authority may exercise 
discretion, and given the difficulty of ensuring effective judicial protection, there is no doubt that this 
has a substantial chilling effect .  In fact, an exporter may be hard  pushed to find any importer willing 
to take the risk of importing under the shadow of an uncertain and potentially very much increased 
liability; or indeed prepared to take such risk itself via a related importer. 
 
10. Taking these matters fairly in to consideration, one can perf ectly understand why an exporter 
that has not dumped for five years or more might reasonably hope and expect to have the "sword of 
Damocles" lifted from its head, and be given anothe r chance to play by the rules – particularly an 
exporter whose original offence was to "dump" by a mere 1.36 per cent.
9 
 11. On the other hand, it is something of a puzzle to understand why an investigating authority, 
which is under an obligation to c onduct an objective and even-handed enquiry, might seek to maintain 
a measure in place at all costs and on the basis of  the most brief and tenuous analysis, unless, of 
course, it were driven by purely protectionist considerations.  
IV. RELIANCE ON ORIGINAL DUMPING MARGIN AND DECLINE IN IMPORTS 
INSUFFICIENT 
 
12. As stated in our submissions to the origin al panel, the EC draws a distinction between 
continued  dumping and recurrent  dumping, the latter being a phenomenon necessarily interrupted at 
some point.  Further, the EC takes the view that  this is now a case of a determination of likely 
recurrent dumping.  The only "dumping" determination that has ever been made is that made in the 
original investigation.  There is no dumping dete rmination made in relation to the sunset review 
period (1995 to 2000).  Further, there is no objectiv e attempt to gather all the information necessary to 
make any such determination, the USDOC questio nnaires not covering all the matters set out in 
Article 2 of the Anti-Dumping Agreement .
10  The US appears to have simply made a prospective 
determination about what "will" happen after 7 No vember 2000 (a somewhat surreal finding, given 
that some 5 years have since passed), based only on other data from the years 1995 to 2000.  Thus, 
there is simply no basis for a determination of likely continuation  of dumping; or of likely recurrent 
dumping after 2 November 2005.  13. The EC agrees with Argentina that it is re markable that the Artic le 11.3 re-determination 
makes no express reference at all to the original  1.36 per cent "dumping" determination from the 
                                                     
 
7 Anti-Dumping Agreement , Article 7.3:  "Provisional measures shall not be applied sooner than 
60 days from the date of initiation of the investigation.". 
8 Anti-Dumping Agreement , Article 10.6:  "A definitive anti-dumping duty may be levied on products 
which were entered for consumption not more than 90 days prior to the date of application of provisional 
measures, when the authorities determine …". 
9 A percentage that is act ually less than the current de minimis  rule of 2 per cent in Article 5.8 of the 
Anti-Dumping Agreement . 
10 See USDOC questionnaires to Acindar, Tubhier and Siderca, at Exhibit ARG-13.  WT/DS268/RW 
 Page B-13 
 
 
 original proceeding; and that th is renders the countrywide determ ination of likely recurrence of 
dumping based only on the unsubstantiated assertion th at a marginal producer and exporter (Acindar) 
was "likely" dumping during the sunset review period tenuous in the extreme.  14. However, consistent with its submissions to the original panel, the EC remains of the view 
that, even if in a sunset review an investiga ting authority does not re-determine the dumping finding 
made in the original investigation, neverthel ess it cannot avoid but "rely" on such original 
determination.  This is so whether or not the or iginal determination is expressly mentioned in the 
sunset review determination.  That this is so resu lts directly from the use of the words "continuation or 
recurrence", both of which necessarily incorporate some historical element.  If there is nothing in the 
past, then there is nothing that can continue or recu r in the future.  This may be seen most clearly if 
one would simply eliminate the original "dumping" determination, for example by assuming that it would never have been made, or by assuming that it would have been invalidated following judicial 
review.  In such a case, there could simply be no sunset review.  One cannot have a valid sunset review without at the very least having a valid determ ination of dumping in an original investigation. 
The EC concludes that, even if the US has studious ly avoided any express reference to the original 
dumping determination, the fact remains it is a necessary pre-requisite for the Article 11.3 re-determination.   15. Consistent with its submissions  to the original panel, the EC remains of the view that reliance 
on the original dumping margin and decline in impo rts (effectively the line taken in the Article 11.3 
re-determination) is not sufficient to justify cont inuation of the measure.  The minimum meaning of 
Article 11.3 of the Anti-Dumping Agreement  is that some determination of dumping more recent than 
that made in the original proceeding is necessary in order to continue the measure.
11 
 
V. ZEROING 
 
16. Consistent with its submissions to the orig inal panel, the EC takes the view that it is 
impossible to conduct a sunset review, and make a finding of likely continuance or recurrence of 
dumping, without having in place and relying on as a basic foundation an historical determination of 
dumping.  In this case that foundation is the 1.36 pe r cent calculated in the original proceeding.  
However, the EC recalls that it is not in dispute that that "dumping" determination was based on the 
use of zeroing, a methodology that the Appellate Body has repeatedly held to be  inconsistent with the 
Anti-Dumping Agreement  and with Article VI of the GATT 1994.12  The Appellate Body has also held 
that if a sunset review is based on a past dumpi ng determination that is inconsistent with the Anti-
Dumping Agreement , the sunset review is itself also vitiated.13  The original panel exercised judicial 
economy on this point because it found an  inconsistency with Article 11.3.14  However, to the extent 
that the US now alleges that it h as complied with Article 11.3, this panel may now need to reconsider 
the zeroing issue.  17. As outlined in its submissions to the original panel, the EC considers that the fact that the 
original determination was made under the Tokyo Round Code affords no defence to the US, for two 
reasons.  First, the Appellate Body has now made it clear that zeroing is and in fact was always 
inconsistent with Article VI of the GATT 1994, whic h is identical in this respect to the GATT 1947.  
                                                     
 
11 Appellate Body Report, US – Carbon Steel , para. 88: "Mere reliance by the authorities on the injury 
determination made in the original investigation will not be sufficient." 
12 Appellate Body Report, US – Zeroing , paras 123 to 135. 
13 Appellate Body Report, US –  Corrosion-Resistant Steel Sunset Review , para. 127: "should 
investigating authorities choose to rely upon dumping margins in making their likelihood determination, the calculation of these margins must conform to the disciplines of Article 2.4." 
14 Panel Report, para. 7.223. WT/DS268/RW 
Page B-14  
 
 It is thus not the case that the original determ ination was consistent with the GATT or the Tokyo 
Round Code.  Second, in any event, in the present case, the investigating authority is charged with 
making a determination about likely future dumping as that term is defined under the Uruguay Round 
Anti-Dumping Agreement , that is, without zeroing.  The most that USDOC might be said to have 
demonstrated, even on its own logic, is that the phenomenon that arose in the original investigation 
period might again arise in the future.  However, th at phenomenon is simply not "dumping" within the 
meaning of Article 11.3 of the Anti-Dumping Agreement . 
 18. Finally, the EC is perplexed by the US refere nce to the results of the Acindar review for the 
2000 to 2001 period.
15  First, this is not mentioned anywhe re in the Article 11.3 re-determination. 
Second, this information falls outside the 1995 to 2000 investigation period fixed by USDOC for the 
purposes of its sunset review re-determination.  The US thus appears to be "cherry picking" – 
erroneously ignoring vast amounts of data from the last 5 years16, but nevertheless selecting particular 
data considered prejudicial to the interests of th e exporters.  These are not the actions of an even-
handed investigating authority conduc ting an objective examination.  Third, as the US perfectly well 
knows, that 2000 to 2001 determina tion for Acindar was itself vitiated by zeroing, a methodology that 
the Appellate Body has repeatedly he ld to be inconsistent with the Anti-Dumping Agreement  and the 
GATT 1994.  It could not therefore lawfully be relied on by the US for the purposes of the present sunset review re-determination.  
VI. AUTOMATIC DUMPING IN A DEPRESSED MARKET CYCLE 
 
19. One further aspect of the logic underlying the Article 11.3 re-determination appears to the EC to be at odds with the Anti-Dumping Agreement .  That is the apparent assumption by the investigating 
authority that at a stage of the market cycle wh ere global prices are relatively depressed, all producers, 
in Argentina, the US and elsewhere, will be selling be low cost, with the consequence that there is an 
automatic assumption that dumping is occurring.  This seems to explain why the investigating 
authority did not even attempt to examine domestic  prices in Argentina, or the prices at which 
producers in Argentina may have been exporting to third countries.
17 
 20. The problem with this approach is that it turns the Anti-Dumping Agreement  from an 
instrument designed to respond to specific unfair prac tices by exporters, into a general protection for 
US industry whenever "times are bad".  When times are good, everyone does well, and competition 
between producers is likely to be effectively reduced or even non-existent.  It is precisely when times 
are bad that competition really bites and plays its  necessary role in regulating market efficiency. 
 21. The key to this issue lies in the concept of th e "extended period of time" in Article 2.2.1 of the 
Anti-Dumping Agreement . In a cyclical industry, such as that at issue in the present case, such period 
of time must be sufficient to cover at least one full cycle.
18  Otherwise, by simply focussing on a 
depressed part of the cycle, investigating authoriti es will always be in a position to find dumping, or 
assume that dumping will automatically occur, even if , in the longer term, pricing is above cost, and 
export prices not below normal value.  It appears to  the EC that the reasoning in the Article 11.3 re-
                                                      
15 US First Written Submission, para. 41, final sentence. 
16 Appellate Body Report, Mexico –  Beef and Rice , paras 165 and 166. 
17 See USDOC questionnaires to Acindar, Tubhier and Siderca, at Exhibit ARG-13. 
18Appellate Body Report, EC –  Tube or Pipe Fittings , para. 80: "… we understand a POI to provide 
data collected over a sustained period  of time, which period can allow the investigating authority to make a 
dumping determination that is less likely to be subject to market fluctuations or other vagaries that may distort a 
proper evaluation."  WT/DS268/RW 
 Page B-15 
 
 
 determination is vitiated by just such an assumption.19  In fact, ironically, it appears to the EC that the 
depressed market situation could just as well explai n the lack of exports during the sunset review 
period, as could the imposition of the original measures.   Thus, all the indications are that this is an 
investigation in which the authority has arranged the facts to suit a pre-determined conclusion, rather 
than conduct an objective and even-handed analysis. 
 
VII. CONCLUSION 
 
22. In the light of the preceding observations, the EC invites the panel to agree with Argentina, 
and to conclude that the US has failed to comp ly with its obligations under Article 11.3 of the Anti-
Dumping Agreement , and failed to take measures that comp ly with the findings and recommendations 
of the DSB in the original dispute.  
                                                     
 
19 Article 11.3 re-determination, page 7: "… the financial statements of other significant OCTG 
producers … also were showing losses … These losses are an indication that the OCTG market was depressed." WT/DS268/RW 
Page B-16  
 
 ANNEX B-3 
 
THIRD PARTY WRITTEN SUBMISSION OF JAPAN 
 
26 April 2006 
 
TABLE OF CONTENTS 
  
Page
 
 
I. INTRODUCTION ............................................................................................................... 16  
II. ARGUMENTS ..................................................................................................................... 1 7 
A. THE DOC’S SECTION 129 DETER MINATION IS INCONSISTENT WITH 
ARTICLE 11.3 OF THE AD AGREEMENT AS APPLIED..............................................................17 
 1.  Article 11.3 of the AD Agreement applies to proceedings under 
Section 129 of the URAA. ....................................................................................... 17  
 2.  The DOC’s determination of the likelihood of dumping is inconsistent with Article 11.3, due to the lack of an objective examination of positive 
evidence.................................................................................................................... 18
 
B. THE DOC’S SECTION 129 DETER MINATION IS INCONSISTENT WITH 
ARTICLE 6 OF THE AD AGREEMENT AS APPLIED...................................................................19 
 1.  Article 6 of the AD Agreement applies to the proceedings under 
Section 129 of the URAA. ....................................................................................... 19  
 2.  The DOC’s determination of the likelihood of dumping is inconsistent 
with Article 6 of the AD Agreement, due to inadequacies in due process procedures. .............................................................................................................. 20
 
C. THE IMPLEMENTATION BY THE UNITED STATES ON THE WAIVER 
PROVISIONS REMAINS INCONSISTENT WITH ARTICLE 11.3 OF THE AD 
AGREEMENT AS SUCH.............................................................................................................. .....21 
III. CONCLUSION .................................................................................................................... 2 2 
 
  
I. INTRODUCTION 
 1. Japan welcomes this opportunity to present its  views in the proceeding brought by Argentina 
over the consistency with the Agreement on Implementation of Article VI of the GATT 
("AD Agreement") of the decisions by the United Stat es of America (the "US") in sunset reviews of 
the anti-dumping duty on oil country tubular goods ("OCTG") from Argentina and the US statutory, regulatory, and administrative provision s on which such decisions were based.  
  WT/DS268/RW 
 Page B-17 
 
 
 2. Japan has a systemic interest in the interp retation and application of the AD Agreement with 
regard to sunset reviews.  Also , Japan has a systemic interest in  ensuring the proper compliance with 
the DSB recommendations.  As a third party, Japan would like to address the following legal issues raised by Argentina’s First Written Submission:  
– Inconsistency of the US Department of Co mmerce (the "DOC")’s determination pursuant 
to Section 129 of the URAA ("Section 129 De termination") with its obligations under 
Article 11.3 of the AD Agreement; 
– Inconsistency of the DOC's Sec tion 129 Determination with its  obligations under Article 6 
of the AD Agreement; 
– Inconsistency of the Section 751(c)(4)(B) of  the Customs Act of 1930, and the amended 
Section 351.218(d)(2) of the DOC Regulations  under Article 11.3 of the AD Agreement. 
II. ARGUMENTS 
 
A. THE DOC’S SECTION 129 DETERMINATION IS  INCONSISTENT WITH ARTICLE 11.3 OF 
THE AD AGREEMENT AS APPLIED  
 
1. Article 11.3 of the AD Agreement app lies to proceedings under Section 129 of the 
URAA. 
 
3. It is clear that Article 11.3 applies to pr ocedures and determinations under Section 129.  In 
order to comply with DSB recommendations and rulings, a respondent Member must abide by the 
provisions of the covered agreement, in th is case the AD Agreement.  The Panel in US – EC Product 
(21.5)  reasoned as follows: 
 
7.237 From the review of the findings of the Appellate Body and the panels in relevant 
previous cases, it is clear that under Article 21.3 of the SCM Agreement, the investigating 
authority has an obligation in sunset review pr oceedings to consider all evidence placed on its 
record to make a likelihood of subsidization and likelihood of inju ry determination.  The Panel 
considers that the same obligation also app lies to the Section 129 proceedings regarding  the 
UK in the present dispute since it was designed to make revised sunset review determinations. 
 
7.238 The Panel therefore concludes that an investigating authority has the obligation to 
consider all evidence placed on the record in making a likelihood of continuation or recurrence 
of subsidization re-determination.  Without so  doing, the investigating authority could not 
ensure that the new measure, that is, the like lihood-of-subsidization re-determination set out in 
the Section 129 determination, is based on a suffi cient factual record and therefore satisfies the 
requirements of Article 21.3 of the SCM Agreement .1 
 References here to Article 21.3 of the SCM Ag reement apply equally to Article 11.3 of the 
AD Agreement, in view of the Ministerial Decl aration on Dispute Settlement Pursuant to the 
Agreement on Implementation of Article VI of th e General Agreement on Tariffs and Trade 1994 and 
Part V of the Agreement on Subsidies and Countervailing Measures.
2 
 
                                                      
1 Panel Report, United States – Countervailing Measures Concerning Certain Products from the 
European Communities - Recourse to Article 21.5 of the DSU by the European Communities ,WT/DS212/RW, 
adopted on 27 September 2005, paras. 7.237 and 7.238 (emphasis added).   
2 Ibid., para. 7.81. WT/DS268/RW 
Page B-18  
 
 4. Japan also recalls that an Article 21.5 proceedi ng is not confined to the claims of the original 
dispute.  Because the Member subject to the DS B recommendations and rulings must make its re-
determination in compliance with the WTO Agreements
3, the complaining Member may raise new 
claims if the re-determination does not comply with provisions of the WTO Agreements.  The Appellate Body confirmed this aspect, stating "a complainant in Article 21.5 proceedings may well 
raise new claims, arguments, and factual circumstances different from those raised in the original 
proceedings, because a ‘measure taken to comply’ may be  inconsistent  with WTO obligations in 
ways different from the original measure".
4 
 5. Therefore, in order to determine whether th e re-determination of the likelihood of dumping is 
consistent with the AD Agreement, the Panel is  required to review whether the re-determination 
satisfies all requirements for the determination und er Article 11.3 and other relevant requirements 
under the AD Agreement.  
2. The DOC’s determination of the likelihood of  dumping is inconsistent with Article 11.3, 
due to the lack of an objective examination of positive evidence 
 
6. Japan respectfully requests th at the Panel carefully review whether the DOC’s reliance on the 
"previous finding" in re-determining the likelihood of dumping is consistent with Article 11.3 of the 
AD Agreement.  As shown by the US’s First Wr itten Submission, the DOC determined the order-
wide likelihood of dumping on the basis of two findings : first, that Acindar is likely to dump, and 
second, that the decline in import volumes indi cates the likelihood of dumping if the duty were 
revoked.
5  The Unites States argues that the DOC’s finding also referenced "its finding from the 
original proceeding that the decline in import vol umes was evidence of likelihood of continuation or 
recurrence of dumping".6   
 
7. As mentioned above, the Member subject to the DSB recommendations and rulings is 
required to make its re-determination in complian ce with the WTO Agreement,  including issues that 
were not raised in the original Panel.  The aut horities of the anti-dumping proceeding are required to 
review all the evidence on the record objectively7, and reach a reasoned conclusion.8  I n  i t s  
Section 129 proceeding, the DOC collected several kinds of new information.  The evidence on the 
record of the proceeding, therefore, is different fro m the evidence on the record of the original sunset 
review.  The DOC is therefore required to make its-determination based on the objective evaluation of 
all evidence on the record of the Section 129 proceed ing, including newly collected information, so 
that it will be in compliance with the WTO Agreement.9   
                                                      
3 Article 21.5 of DSU provides that an Article 21.5 proceeding covers "the existence or consistency 
with a covered agreement of measures taken to comply  with the recommendations and rulings" (emphasis 
added). 
4 The 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, adopted on 
24 April 2003, para. 79. 
5 Decision Memorandum of the Section 129 Determination, at 11; US First Written Submission, 
paras. 42, 46-48. 
6 US First Written Submission, para. 44. 
7 Panel Report, para. 7.211. 
8 The Appellate Body confirmed this obligation of  the authorities, stating "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."  The 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 on 9 January 2004, para. 111. 
9 Japan makes this statement without prejudice to the primary argument made by Argentina in 
paragraph 39 of Argentina's First Written Submission.  WT/DS268/RW 
 Page B-19 
 
 
  
8. The lack of a specific finding by the original Panel on the inconsistency of the DOC’s finding on the decline in import volumes in the original sunset review cannot be a ground for arguing that the DOC has no obligation to review the original finding in light of evidence on the record of the Section 
129 proceeding, as the DOC appears to argue in the Decision Memorandum of Section 129 
Determination.
10  Since Japan takes part in this proceed ing based on a systemic interest in the 
interpretation and application of the AD Agreemen t, Japan does not take any specific position on the 
factual aspect of this issue. Japan respectfully re quests the Panel to review carefully whether the 
DOC objectively found the fact of the decline in  volume and reasonably reached its conclusions 
in the re-determination, giving due considerations to all evidence on the record of the Section 129 
proceeding. 
 
B. THE DOC’S SECTION 129 D ETERMINATION IS INCONSISTE NT WITH ARTICLE 6 OF THE 
AD AGREEMENT AS APPLIED  
 
1. Article 6 of the AD Agreement applies to the proceedings under Section 129 of the 
URAA 
 
9. The logic for the application of Article 11. 3 in conducting the Section 129 procedure, as 
discussed above (in paragraphs 3-4), applies equa lly to the application of Article 6 of the 
AD Agreement.  10. In this case, the original Panel and Appellate  Body found that the DOC’s determination in the 
sunset review is inconsistent w ith Article 6.2 of the AD Agreement.  The original Panel found that 
"the fact that certain exporters do not participat e in a sunset review can not justify depriving 
cooperating exporters of their procedural rights under Article 6.2", in respect of hearings.
11  The Panel 
accordingly found that the DOC acted inconsistently with  Article 6.2.  The Appellate Body also stated 
that "in respect of respondents to which [waive r] provisions cannot be applied, the USDOC will 
continue to make automatically an affirmative co mpany-specific determination and to deny the rights 
afforded by Articles 6.1 and 6.2 of the Anti-Dumping Agreement " in respect of waiver provisions.12  
 
11. Article 6.2 guarantees the fundamental due process of the anti-dumping proceedings.13  This 
general due process requirement is an overarchi ng provision, which includes specific due process 
requirements in other paragraphs  of Article 6.  These specific requirements include, among other 
requirements, a timely opportunity to see all informat ion in Article 6.4, and the disclosure of essential 
facts under Article 6.9. 
 12. In the implementation procedures, therefore, the US must give "a full opportunity" to interested parties to present their views in accordan ce with Article 6.2, including specific due process 
requirements, take the views presented into account , and reach a reasoned conclusion.  Without these 
procedures, any re-determination would not be consis tent with the requirements for a sunset review 
determination.  
 
                                                     
 
10 Decision Memorandum; Section 129 Determination: Final Results of Sunset Review, Oil Country 
Tubular Goods from Argentina (16 December 2005) ("Decision Memorandum") (Exhibit ARG-16), pages 2 
[fn.4] and 6 [fn.12]; see Argentina's First Written Submission, para. 60. 
11 Panel Report, para. 7.235. 
12 Appellate Body Report, para. 269. 
13 The Panel in Guatemala - Cement II similarly stated that "We interpret the first sentence of 
Article 6.2 of the AD Agreement as a fundamental due process provision."  Guatemala – Definitive Anti-
Dumping Measures on Grey Portland Cement from Mexico  ("Guatemala – Cement II "), WT/DS156/R, 
17 November 2000, para. 8.179. WT/DS268/RW 
Page B-20  
 
 13. It should be noted, however, that compliance with the due process requirements did not 
require the DOC to conduct another full sunset revi ew in the Section 129 proceeding.  The DOC had 
to ensure due process to the extent it made a re-d etermination pursuant to Section 129 to implement 
the DSB recommendations and rulings.  2. The DOC’s determination of the likelihood of  dumping is inconsistent with Article 6 of 
the AD Agreement, due to inadequacies in due process procedures 
 
14. Argentina argues that the DOC failed to disclo se the essential facts which formed the basis of 
the re-determination.
14  Article 6.9 of the AD Agreement  requires that the authorities must disclose 
the essential facts to interested part ies before the final determinati on.  It also requires that the 
disclosure must take place in sufficient time for the parties to defend their interests.  These explicit 
provisions recognize that the disclosure of the essen tial facts is an indispen sable element to ensure 
that interested parties have a full opportunity fo r defence of their interests under Article 6.2.  
 
15. As discussed above, it is clear that the DOC must conduct the present Section 129 proceeding 
in accordance with the requirements of Article 6.  It appears that the DOC did not make a disclosure 
of essential facts in accordance with Article 6.9.  Th e US, therefore, appears to have failed to provide 
a full opportunity to responding parties in the pro ceeding, and thus acted inconsistently with 
Article 6.9, and consequen tly with Article 6.2.  
 
16. Argentina also argues that the DOC failed to make certain information available to 
responding parties during the re-determination process.15  Article 6.4 of the AD Agreement requires 
that the authorities provide "timely opportunities for all interested parties to see all information that is 
relevant to the presentation of these cases".  As discussed  above, this procedural requirement is part of 
the fundamental due process requirement under Article  6.2.  Thus, any proceeding inconsistent with 
Article 6.4, therefore, is also inconsistent with Article 6.2. 
 17. Japan does not take any specific position whet her the memoranda cited by Argentina in its 
First Written Submission
16 in fact contain information that was not made available to responding 
parties.  Japan respectfully requests that this Panel closely review these memoranda in deciding 
whether DOC made all information available to r esponding parties in compliance with Articles 6.2 
and 6.4. 
 18. Argentina also made the following arguments :  DOC’s failure to provide explanation of 
reasons in rejecting evidence subm itted by the interested parties
17 and DOC’s recourse to the facts 
available are inconsistent with Article 6.8 and Annex II.18  Again, Japan does not take any specific 
position on the actual facts in this proceeding.  Jap an, however, respectfully request that the Panel 
carefully review the facts of the 129 proceeding relating to the DOC’s compliance with the due process requirements under Article 6.2 and its subsequent provisions. 
 19. The US’s attempts to justify such failures in its First Written Submission do not constitute a 
removal of defects made in the course of Sec tion 129 procedures.  The arbitrator has set the 
reasonable period of time for the implementation,  upon reviewing all necessary elements for the 
implementation argued by the US.  Members have  an obligation to respect and abide by the 
                                                     
 
14 Argentina's First Written S ubmission, paras. 187-193. 
15 Ibid., paras. 153-163. 
16 Ibid., paras.157-163. 
17 Ibid., paras. 171-173. 
18 Ibid., paras. 174-186.  WT/DS268/RW 
 Page B-21 
 
 
 arbitrator’s decision.  A Member should not be  allowed to disregard the timeframe set by the 
arbitrator, because its argument was not fully accepted by the arbitrator.19 
 20. In addition, a failure to let the interested parties know the availability of a hearing constitutes 
another procedural defect in this particular case.  The US argued that there was no request for a 
hearing.  Upon simple reading of provisions of Article 6.2, the argument by the US might appear 
correct.  What is problematic, however, is the failu re of the DOC to provide interested parties an 
opportunity for requesting a hearing.  As the original  Panel explained in para graph 7.235 of the Panel 
Report, it is the general practice of the DOC not to ho ld hearings in expedited sunset reviews; and the 
original Panel found such practice inconsistent with Article 6.2.  With this practice, the interested 
parties may well be made unaware of their rights and the administrative procedures under US laws to 
request hearings in the course of the Section 129 pr oceeding.  Considering that the Panel specifically 
found the DOC’s failure to hold a hearing inconsistent  with Article 6.2, the DOC should have notified 
the interested parties their right of and the proce dures necessary to request a hearing.  Under this 
particular situation, the fault is not the inaction of  the interested parties but inaction of the DOC that 
made the present Section 129 proceeding short of meeting the due process requirement.  Therefore, 
Japan supports the argument made by Argentina in Sec tion IV.D.2, in particular paragraph 151, in its 
First Submission.  
C. THE IMPLEMENTATION BY THE UNITED  STATES OF THE WAIVER PROVISIONS 
REMAINS INCONSISTENT WITH ARTICLE 11.3 OF THE AD AGREEMENT AS SUCH 
 
21. The original Appellate Body found that "S ection 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 ".20  This finding was made  because the "statutorily-mandated 
assumption  about a company's likelihood of dumping…is inconsistent with the obligation of an 
investigating authority under Article 11.3 to ‘arrive  at a reasoned conclusion’ on the basis of positive 
evidence"21 (emphasis in original).   
 22. To comply with the DSB’s recommendations and rulings, the US amended 
Section 351.218(d)(2)(iii) of the DOC regulation.  The amended Section 351.218(d)(2)(iii) of the 
DOC Regulation requires the respondent who applies for a waiver to submit a statement that such respondent is likely to dump.  When submitted, these provisions oblige the DOC to determine the 
likelihood of dumping with respect to the exporter.  
23. The implementation by the US does not comply fu lly with Article 11.3 of the AD Agreement.  
While the waiver statement would have certain probative value in many cases as argued by the US
22, 
the authorities can assess the value of such evidence only after examination of all other evidence on 
the record of the individual proceeding.  S ection 751(c)(4)(B) of the Tariff Act of 1930 and the 
amended Section 351.218(d)(2)(iii)  leave no room for the DOC to review any other evidence that 
reaches a different conclusion, even if the ot her evidence have more probative value than the 
exporter’s statement.  For example, even where im porters effectively demonstrate that they will not 
import any dumped products in the future, the DOC is still obliged to find that the dumping is likely 
to occur with respect to the exporter.  24. As stated above, the Appellate Body explicitly stated that the affirmative waiver provision is 
"inconsistent with the obligation of an investig ating authority under Article 11.3 to ‘arrive at a 
                                                     
 
19 See e.g., US First Written Submission, paras. 53, 65 and 78. 
20 Appellate Body Report, para. 235. 
21 Ibid., para. 234. 
22 US Submission, paras. 17-19. WT/DS268/RW 
Page B-22  
 
 reasoned conclusion’ on the basis of 'positive evidence'".
23  The Appellate Body’s statement is based 
on the fundamental obligation of the authorities to make its determination on objective assessment of 
all evidence on the record under Article 11.3.  In  connection with this presumption, the Appellate 
Body clarified that "[p]rovisions that create ‘irrebut table’ presumptions, or ‘pre determine’ a particular 
result, run the risk of being found incons istent with this type of obligation".24  These statements 
clarify the fact that the predetermined result b ased on single evidence without examination of any 
other evidence on the record would be inconsistent with Article 11.3.  
 25. Japan, therefore, respectfully submit that Section 751(c)(4)(B) of the Tariff Act of 1930, in combination with the amended Section 351.218(d)(2)(iii)  of the DOC Regulation, is inconsistent with 
Article 11.3 of the AD Agreement.
25  Japan accordingly supports the argument made by Argentina in 
Section V.B, in particular paragraphs 203 and 207, of its First Written Submission. 
 
III. CONCLUSION 
 26. For the foregoing reasons, Japan  respectfully requests the Pane l to find that the US acted 
inconsistently with Articles 6 and 11.3 of the AD Agreement.  
                                                     
 
23 Appellate Body Report, para. 234. 
24 Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 191. 
25 This does not assume these two provisions are necessarily "taken together" as argued by the US.  WT/DS268/RW 
 Page B-23 
 
 
 ANNEX B-4 
 
THIRD PARTY WRITTEN SUBMISSION OF  
THE REPUBLIC OF KOREA 
 
26 April 2006 
 
TABLE OF CONTENTS 
  
Page
 
 
I. INTRODUCTION ............................................................................................................... 2 3 
II. LEGAL ARGUMENTS....................................................................................................... 24 
A. USDOC’S SECTION 129 DETERMINATI ON STILL FAILS TO IMPLEMENT THE 
RECOMMENDATIONS AND RULINGS OF THE DSB AND THE COMPLIANCE 
CAN BE ONLY ACHIEVED THROUGH REVOCATION OF THE ORDER.................................24 
B. USDOC’S SECTION 129 DETERMINATION VIOLATES VARIOUS "DUE 
PROCESS" PROVISIONS CONTAINED IN ARTICLE 6 OF THE AD AGREEMENT ................26 
C. THE UNITED STATES HAS FAILED TO IMPLEMENT THE DSB 
RECOMMENDATIONS AND RULINGS WIT H RESPECT TO THE "AS SUCH" 
VIOLATIONS OF SECTION 751(C)(4)(B) AND SECTION 351.218. ............................................27 
III. CONC LUSION ................................................................................................................ .... 29 
 
  
I. INTRODUCTION  
 
1. This third party submission is presented by  the Government of the Republic of Korea 
("Korea") with respect to certain aspects of the first Panel submission by Argentina dated 
5 April 2006 in United States - Sunset Reviews of Anti-Dump ing Measures on Oil Country Tubular 
Goods From Argentina,  WT/DS268 (Recourse to Article 21.5 of the DSU by Argentina).   
 
2. Korea has systemic interests in the interpre tation and application of provisions of Articles 6 
and 11 of the Agreement on Implementation of Artic le VI of the General Agreement on Tariffs and 
Trade 1994 ("AD Agreement"), which regulate vari ous aspects of sunset reviews of existing 
anti-dumping duty orders, and Section 751(c)(4)(B) of the US  Tariff Act of 1930 as amended and 
Section 351.218 of the Regulation of the United States Department of Commerce ("USDOC"), both 
of which were challenged "as such" in the orig inal dispute and are being challenged again by 
Argentina in the present proceeding.  Therefore, Korea reserved its third party rights pursuant to 
Article 4.11 of the Understanding on Rules and Pr ocedures Governing the Settlement of Dispute 
("DSU").  Korea appreciates this opportunity to present its view to the Panel.  
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 in 2001.  The United States did not a ppeal that finding.  The United States now claims 
to have complied with the recommendations and ruli ngs of the Dispute Settlement Body ("DSB"), in 
part by conducting proceed ings under Section 129 of the Uruguay Round Agreements Act ("URAA") .  
The resulting Section 129 determination was i ssued on 16 December 2005, in which the USDOC WT/DS268/RW 
Page B-24  
 
 found that "revocation of the anti-dumping duty orde r would be likely to lead to continuation or 
recurrence of the dumping".
1 
 4. In Korea’s view, however, the new determin ation still fails to abide by the terms and 
conditions of Article 11.3 of the AD Agreement.  Setting aside the "timing" issue being vehemently 
challenged by Argentina in its first submission, wh ere it points out that the determination was issued 
more than five years after the date when the orde r was supposed to expire and nearly eleven years 
after the imposition of the original order, Korea notes that the United States continues to fail to prove 
that its OCTG anti-dumping sunset review is s upported by positive evidence and sufficient factual 
bases as provided in Article 11.3 of the AD Agreement.  Korea also shares the view of Argentina that 
the 129 determination constitutes violation of vari ous provisions of Article 6 of the AD Agreement 
 5. Article 11.3 of the AD Agreement unequivocally states that the unambiguous intent of the drafters at the Uruguay Round was to impose a five-y ear temporal period on any anti-dumping order.  
In Korea’s opinion, the 2005 US attempt to "compl y" with its Article 11.3 obligations in this case by 
resorting to information which could never have been possibly available to it during the original 
sunset review in 2000 would render a nullity the tem poral limitation on anti-dumping orders.  If this is 
allowed, an investigating authority could arbitrar ily justify an otherwise illegitimate extension of 
existing anti-dumping orders.  This would constitute di rect violation of the principle of "effective" 
interpretation which has been consistently adopted and applied by the Appellate Body.
2   
 
6. Simply put, Korea reiterates the obvious:  (i) if, as in this case, the likelihood of dumping 
determination undertaken at the required time wa s not supported by positive evidence, then the 
Member has no right to extend the measure,  and (ii)  if the Member cannot justify its original sunset 
review determination based on information and data reasonably available at that time, the only way to 
remedy its WTO-inconsistent sunset review is to  terminate the underlying anti-dumping order as soon 
as possible.   
 7. Korea therefore generally supports the arguments raised by Argentina in its first submission.  
Rather than covering all the arguments, however, Ko rea will address in this submission certain critical 
issues.   II. LEGAL ARGUMENTS 
 
A. USDOC’S SECTION 129 DETERMINATION STILL FAILS TO IMPLEMENT THE 
RECOMMENDATIONS AND RULINGS OF THE DSB AND THE COMPLIANCE CAN BE ONLY 
ACHIEVED THROUGH REVOCATION OF THE ORDER 
 
8. Neither the USDOC’s sunset review determin ation on Argentine OCTG in 2000 nor its 2005 
re-determination complies with Article 11.3 of the AD Agreement. 
 9. In Korea’s view, in making the 2005 Secti on 129 determination the USDOC did not establish 
a sufficient factual basis of positiv e evidence necessary to support a WTO-consistent finding of likely 
dumping.  Nor did the USDOC objectively assess the information collected in this regard.  Its 
                                                     
 
1 United States Department of Commerce, Issues and Decision Memorandum, Section 129 
Determination: Final Results of Sunset Revi ew, Oil Country Tubular Goods from Argentina , A-357-810 
(16 Dec. 2005). 
2 For example, the Appellate Body applied this princi ple by stating that an interpretation that renders 
"inutile" a provision of a covered agreement would be "a bhorrent to the principles of interpretation we are 
bound to apply."  United States – Import Prohibition of Certain Shrimp and Shrimp Products , WT/DS58/AB/R, 
adopted 6 November 1998, para. 121.  WT/DS268/RW 
 Page B-25 
 
 
 conclusions, therefore, are not reasoned, and the evidence it developed does not support a WTO-
consistent determination that  dumping would be likely.  
 10. Article 11.3 of the AD Agreement provides as follows:  
 Notwithstanding the provisions of paragraphs 1 and 2, any definitive 
anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has c overed both dumping and injury, or under 
this paragraph), unless the authorities dete rmine, in a review initiated before 
that date on their own initiative or upo n a duly substantiated request made by 
or on behalf of the domestic industry w ithin a reasonable period of time prior 
to that date, that the expiry of the duty would be likely to lead to continuation or recurrence  of dumping and injury.  The duty may remain in force pending the outcome of such a review. 
On the other hand, Article 11.4 of the AD Agreement provides that: 
 The review conducted under Article 11. 3 shall be carried out expeditiously 
and shall normally be concluded within 12 months of the date of initiation of 
the review. 
As such, these two provisions show the following: Article 11.3 provides that, notwithstanding the 
provisions of Articles 11.1 and 11.2, Members "shall" terminate an anti-dumping duty order "unless" the authorities make an affirmative likelihood dete rmination in a sunset review; and Article 11.4 
contemplates that the sunset review process may take up to one year.   
 
11. These phrases in the Articles have been inte rpreted by the Appellate Body as follows: 
  The text of Article 11.3 contains an  obligation "to determine" likelihood 
continuation or recurrence of dumping and injury….[I]t 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 c onclusions concerning the likelihood of 
such continuation or recurrence
.3 
 
In fact, this principle was reaffirmed by the Appellate  Body in the present dispute, where it stated that: 
 
The plain meaning of the terms "review" and "determine" in Article 11.3, 
therefore, compel  an investigating authority in a sunset review to undertake an 
examination, on the basis of positive evidence , of the likelihood of continuation 
or recurrence of dumping and injury.  In drawing conclusions from that examination, the investigating authority must arrive at a reasoned determination 
resting on a sufficient factual basis; it may not rely on assumptions or conjecture .
4 
                                                      
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. 114 (emphasis added).   
4 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina , WT/DS268/AB/R, adopted 17 December 2004, pa ra. 180 (emphasis adde d) ("US-OCTG from 
Argentina (AB)"). WT/DS268/RW 
Page B-26  
 
 Korea notes that the decisions of the Appellate Body use the terms "has to" and "compel" in 
describing the nature of obligations imposed on Memb ers’ investigating authorities engaged in sunset 
reviews.  As such, an investigating authorit y "must" conduct a sunset review based on positive 
evidence and sufficient factual information.  In othe r words, any sunset review determination derived 
from assumption or conjecture must fail. 
 
12. Korea brings the Panel’s attention to the fo llowing underlying facts.  In the original 2000 
sunset review proceeding, the USDOC sent out no questionnaires and limited itself to a review of the 
information submitted by the parties.  The USDOC si mply remained as a passive regulator rather than 
active investigator/adjudicator as contemplated by Article 11.3.  This inadequate information 
gathering/analysis process was one of the key cons ideration factors of the original panel when it 
ultimately concluded that:  
The purpose of a sunset review is to exam ine 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 .
5 
In short, the panel’s finding was simply that th e USDOC continued the anti-dumping measure in 2001 
without having engage[d] in [the] inquiry required by  Article 11.3.  This could be characterized as an 
incident of sunset review based on "assumption and conjecture." 
 13. In Korea’s view, the USDOC repeats its error yet again in the 2005 Section 129 determination 
by simply relying on its earlier findings.  Excluding information that would not have been reasonably 
available to it in 2000, the USDOC did not add an ything concrete to overcome the concern of the 
original panel.  One could argue, therefore,  that the 2005 determination simply constitutes 
continuation of the existing e rrors.  The new determination is still based on "assumption and 
conjecture" which the Appellate Body has warned ag ainst.  Such being the case, Korea stresses that 
the United States has failed to implement the reco mmendations and rulings of the DSB.  Under the 
circumstances, the only alternativ e for the USDOC to bring its sunset determination on the Argentine 
OCTG into conformity with relevant provisions of the AD Agreement would be to revoke the anti-
dumping order. 
 14. In this respect, Korea also requests the Panel to  take into consideration the fact that the United 
States was given a 12-month implementation period in this dispute.  During the arbitration under DSU 
Article 21.3(c) on the reasonable period of time fo r the implementation, the United States offered an 
extensive list of procedural steps to develop and re fine relevant information.  Given the information 
and data contained in the 129 determination, howe ver, Korea has serious reservation whether such 
proposed procedures have been duly taken by the US DOC.  For instance, unlike its original proposal 
in the 21.3 arbitration, the USDOC did not issue any draft or preliminary determination, as it routinely 
does in other Section 129 procedures.    
B. USDOC’S SECTION 129 DETERMINATION  VIOLATES VARIOUS "DUE PROCESS" 
PROVISIONS CONTAINED IN ARTICLE 6 OF THE AD AGREEMENT 
 
15. Furthermore, the way the Section 129 proceeding was implemented by the USDOC 
constitutes a violation by the United States of various provisions of Article 6 of the AD Agreement.  
                                                     
 
5 United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina , WT/DS268/AB/R, adopted 17 December 2004, para. 7.219 (emphasis added).  WT/DS268/RW 
 Page B-27 
 
 
 16. It is uncontested that the obligations of Ar ticle 6 of the AD Agreement also apply to sunset 
reviews.  Article 11.4 of the AD Agreement provides that "[t]he provisions of Article 6 regarding 
evidence and procedure shall apply to any review ca rried out under this Article".  The Appellate Body 
has also confirmed that "claims under Article 6 may be made in relation to sunset review 
determinations on the basis of the cross-re ference to Article 6 found in Article 11.4".6  Accordingly, 
the obligations of Article 6 of the AD Agreemen t apply to the Section 129 determination in the 
Argentine OCTG sunset review.  17. Korea notes that various aspects of the US DOC’s 129 proceeding constitute violation of 
provisions of Article 6.  First, the USDOC failed to provide the interested parties with meaningful 
opportunities to present in writing all evidence whic h they considered rele vant, which constitutes 
violation of Article 6.1; the USDOC also failed to pr ovide interested parties with a full opportunity for 
the defense of their interests, which in turn constitu tes violation of Article 6.2; the USDOC also failed 
to provide timely opportunities for interested parties to review all information that was relevant to the 
presentation of their cases, which constitutes violation of Article 6.4; the USDOC also failed to satisfy 
the requirements of Article 6.5.1 regarding th e provision of non-confidential summaries of 
confidential information; the USDOC failed to satisfy  the requirements of Article 6.6 by not ensuring 
the accuracy of information that was relied on to the exclusion of other more probative evidence; the 
USDOC also failed to follow the requirements of Ar ticle 6.8; and the USDOC also failed to inform 
interested parties of the essential facts under consid eration that formed the basis for the decision, 
which constitutes violation of Article 6.9.  As to the specific factual background for these claims, 
Korea requests the Panel to refer to the first submission of Argentina. 
 18. All these obligations contained in Article  6 collectively stand for the proposition that 
fundamental due process rights must be ensured at all times in an anti-dumping order sunset review.
 7  
Yet, the USDOC did not conduct the Section 129 proceeding in a manner consistent with the 
requirements of Article 6.  As such, Korea believe s that the United States still fails to implement the 
recommendations and rulings of the DSB, and the only way to bring the measure into conformity with 
relevant provisions of the covere d agreements is to revoke it. 
 
C. THE UNITED STATES HAS FAILED TO IMPLEMENT THE DSB RECOMMENDATIONS AND 
RULINGS WITH RESPECT TO THE "AS SUCH" VIOLATIONS OF SECTION 751(C)(4)(B) AND 
SECTION 351.218. 
 
19. Section 751(c)(4)(B) of the Tariff Act of 1930 as amended 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 lik ely to lead to continuation or recurrence 
of dumping or a countervailable subsidy (as the case may be) with respect to that interested party.
8 
                                                      
6 US – OCTG from Argentina (AB),  para. 239. 
7 US – OCTG from Argentina (AB ), para. 241; Guatemala – Definitive Anti-Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R, adopted 17 November 2000, para. 8.119; 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. 
8 19 USC. § 1675(c)(4)(B). WT/DS268/RW 
Page B-28  
 
 In the underlying dispute, the Appellate B ody found that Section 751(c)(4)(B) and its 
implementing regulation were inconsistent, as such , with US obligations under Article 11.3 of 
the AD Agreement.  The Appellate Body noted that: 
Because 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…. [E]ven assuming that the USDOC takes into account the 
totality of record evidence in making its orde r-wide determination, 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 least in part, on statutorily-
mandated assumptions about a company's likelihood of dumping.  In our view, this 
result is inconsistent with the obliga tion of an investigating authority under 
Article 11.3 to "arrive at a reasoned conclu sion" 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 .
 9 
20. Therefore, the Appellate Body was clear and unambiguous as to the WTO-inconsistency of 
Section 751(c)(4)(B) and its implementing regulatio n.  Despite the unambiguous conclusion of the 
Appellate Body, however, it is uncontested that Se ction 751(c)(4)(B) of the Tariff Act has neither 
been repealed nor amended.  Therefore, Korea is of the opinion that the United States has failed to 
bring Section 751(c)(4)(B) into conformity with the recommendations and rulings of the DSB and 
with US obligations under Articles 11.1 and 11.3 of the AD Agreement and Article XVI:4 of the 
WTO Agreement. 
 
21. In addition, Korea further notes that Secti on 351.218 of the Regulation of the USDOC, as 
amended, is WTO-inconsistent.  Section 351.218 of the Regulation,  as amended, requires respondent 
interested parties that waive their right to par ticipate in a USDOC sunset review to make an 
affirmative statement that it is likely to dump if the order is revoked.  The amended 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 party 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 subsidy (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 stat ement that the government is likely to 
provide a countervailable subsidy if the or der is revoked or the investigation is 
terminated; and the following information….
10 
22. Korea requests the Panel to focus on what w ould actually happen under this provision.  When 
a party affirmatively waives its participation in a sunset review, the Regulation basically prevents  the 
USDOC from developing the requisite factual inform ation.  The systematic inability of USDOC to 
gather the necessary information therefore is "as su ch" inconsistent with the obligation of the United 
States to conduct a sunset review and the need to ma ke the requisite determinat ion under Article 11.3.  
Under the revised Regulation, therefore, it is si mply impossible for the USDOC to carry out its 
obligation under Article 11.3 to "a rrive at a reasoned conclusion" on the basis of "positive evidence". 
                                                      
9 US – OCTG from Argentina (AB ), paras. 234-235. 
10 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).  WT/DS268/RW 
 Page B-29 
 
 
  
23. Korea thus points out that Section 351.218 of the Regulation, as amended, remains inconsistent with US obligations un der Article 11.3 of the AD Agreement. 
 
III. CONCLUSION 
 
24. For the foregoing reasons, Korea respectfully  submits that the Panel finds that the 
United States has failed to implement the recommend ations and rulings of the DSB, and remains in 
violation of its WTO obligations.  Korea appreciates th is opportunity to present its view to the Panel. 
 WT/DS268/RW 
Page B-30  
 
 ANNEX B-5 
 
THIRD PARTY WRITTEN SUBMISSION OF MEXICO 
 
26 April 2006 
 
 
Page  
 
I. INTRODUCTION ............................................................................................................... 3 0 
II. THE SECTION 129 DETERMINAT ION IS INCONSISTENT WITH 
WTO OBLIGATIONS AND DOES NOT IMPLEMENT THE DSB RECOMMENDATIONS..................................................................................................... 30 
A. THE USDOC'S DUMPING DETERMI NATION RELIED ON A STANDARD 
THAT WAS INCONSISTENT WITH ARTICLE 11.3 AND ON A DUMPING SCENARIO 
WHICH IS NOT PROVIDED FOR IN THE ANTI-DUMPING AGREEMENT ...............................31 
B. ALTHOUGH THE USDOC BASED ITS D ETERMINATION ON A DECLINE IN THE 
VOLUME OF EXPORTS, THE UNITED STATES ERRONEOUSLY SUBMITS THAT THE 
PANEL SHOULD NOT ANALYSE THIS FACT ..............................................................................31 
III. CONC LUSION ................................................................................................................ .... 32 
  
 
I. INTRODUCTION 
 
1. Mexico welcomes this opportunity to submit its paper on the implementation of the rulings 
and recommendations of the DSB and to present to the Panel its views on the facts and legal aspects 
of United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from 
Argentina (WT/DS268)  – Recourse to Article 21.5 of the DSU.   This case once again concerns the 
improper implementation by the United States of the ob ligations established in Articles 2, 6 and 11 of 
the Agreement on Implementation of Article VI of  the General Agreement on Tariffs and Trade 1994 
(Anti-Dumping Agreement). 
 
2. Mexico considers that the United States h as failed to implement the DSB's rulings and 
recommendations in this dispute.  The United Stat es maintains in force an anti-dumping order against 
Argentine products even though the DSB established that the measure was inconsistent with WTO 
legislation.  It has been more than five years since the United States extended the anti-dumping duties.  
Although it has had sufficient time and a fresh opport unity to comply, the United States still refuses to 
bring its measure into conformity.  
II. THE SECTION 129 DETERMINATIO N IS INCONSISTENT WITH WTO 
OBLIGATIONS AND DOES NOT IMPLEMENT THE DSB RECOMMENDATIONS 
 3. Let us turn to certain worrying aspects of th e determination by the United States Department 
of Commerce (USDOC).  We repeat that Mexico reserves its right to elaborate on these comments or to submit new comments on this determination.   WT/DS268/RW 
 Page B-31 
 
 
 A. THE USDOC'S DUMPING DETERMINATION RELIED ON A STANDARD THAT WAS 
INCONSISTENT WITH ARTICLE 11.3 AND ON A DUMPING SCENARIO WHICH IS NOT PROVIDED FOR IN THE ANTI-DUMPING AGREEMENT 
 
4. The United States based its determination of  continuation or recurrence of dumping on the 
following reasoning:  it is probable that one of th e Argentine exporters engaged in dumping in the 
past, and it is therefore also probable that the said exporter will engage in dumping in the future if the 
anti-dumping order is revoked.  The above premis e (that it is probable that Acindar engaged in 
dumping in the past) is itself based on the alleged f act that Acindar exported to the United States 
during the investigation period at prices lowe r than United States domestic market value. 
 5. In other words, the only fact that has been proven by the USDOC (assuming that the prices published by Preston Pipes accurately reflect the Un ited States domestic market prices for the product  
in question) is that Acindar's export prices were lo wer than the United States domestic market prices.  
Mexico would therefore like to express its con cern at the USDOC's approach, in particular: 
- At the fact that, as in the case of the measure applied against Mexico, the 
United States did not base its determination on what was "likely" to happen.  This is clearly inconsistent with the standard set forth in Article 11.3 of the Anti-Dumping 
Agreement; 
- at the fact that the United States relied on a dumping scenario that is not provided for 
in Article 2 of the Anti-Dumping Agreement. 
B. ALTHOUGH THE USDOC BASED ITS DETERMI NATION ON A DECLINE IN THE VOLUME 
OF EXPORTS, THE UNITED STATES ERRONE OUSLY SUBMITS THAT THE PANEL SHOULD 
NOT ANALYSE THIS FACT 
 
6. During the Panel proceedings, Mexico pointed out  to the Panel the decisive weight attached 
by the USDOC in the Sunset reviews to volum es exported following the imposition of the anti-
dumping order.  Much has happened in this respect since Mexico's third party submission.  The Panel 
and the Appellate Body in United States – Anti-Dumping Measures on Oil Country Tubular Goods 
(OCTG) from Mexico  (DS282) determined that the USDOC had relied solely on the decline in volume 
to justify the continuation of the measure for oil country tubular goods from Mexico.  The Panel 
pointed out that the use by the USDOC of the decline in volume to the exclusion of other evidence 
violated Article 11.3 of the Anti-Dumping Agreement,  while the Appellate Body determined that the 
investigating authority must analyse the causes of th e decline in volume rather than simply inferring 
the likelihood of dumping.1 
                                                      
1 Mexico would like to recall what was said by the Panel United States – Anti-Dumping Measures on 
Oil Country Tubular Goods (OCTG) from Mexico  (DS282):  
"The United States argues that the inference that dumping would continue or recur based on 
declines in import volumes following the impositi on of the anti-dumping order is "an exercise 
in logic."1  We do not dispute that an investigating authority may draw inferences in support 
of its conclusions, through the exercise of logic, based on the evidence presented.  However, 
where information is presented that suggests that the inference is not appropriate in a 
particular case, then the investigating authority  is obligated, under Article 11.3, to at least 
consider that information and take it into acco unt before making its determination.  In our 
view, information regarding changes in the financial circumstances of a company previously 
found to have been dumping, and changes in the overall economic situation of the exporting 
country, would appear to be relevant to whether the inference relied upon by USDOC is reasonable.  This is particular ly true where, as here, intervening reviews had resulted in 
findings of zero dumping margins.  Thus, in our view, consideration of such evidence is 
 WT/DS268/RW 
Page B-32  
 
  
7. Argentina clearly explained this in its firs t submission.  The United States, for its part, 
responded with its only argument by asking the Pane l to refrain from considering the volume element 
as a measure taken to comply.  However, the United States expressly states in its Section 129 
determination that it relied on the decline in volum e to support the likelihood of dumping:  "[t]he 
Section 129 Determination was based on the findings of likely dumping by Acindar and the decreased 
volumes".  8. The United States cannot purport, on the one ha nd, to base its determination on what it has 
inferred from the volume, and at the same time state that 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".  Th e decline in the volume of imports is a fundamental 
part of the determination.  In this connection, Mexico would respectfully draw the attention of the 
panel to two facts in particular:  
- The record in the determination does not c ontain any analysis or explanation of the 
causes of the decline in volumes; 
- The USDOC should have considered th e evidence voluntarily submitted by the 
exporters explaining the causes of the decline in volume. 
III. CONCLUSION 
 9. Under Article 19.1 of the DSU, the Panel has the authority to suggest to the United States 
ways in which it could implement the DSB's recomme ndations in this dispute.  When there are WTO 
obligations with a time element, as is the case here , a Member's options for bringing its measure into 
conformity with its WTO obligations are naturally limited.  
10. Mexico agrees with and suppor ts Argentina in its request to the Panel that "the measure be 
revoked", and asks the Panel to "suggest" to the Unite d States that it revoke the measure.  This is 
based on the fact that anti-dumping measures cannot last longer than five years unless, according to 
the interpretation of several panels, the authority applying the measure "determines" on the basis of 
"objective facts" that the dumping is likely to recu r or continue, something which the United States 
did not do either in the original Sunset review of  2000, or in the new determination.  This is why 
Argentina is justified in asking that the measure wh ich the United States has applied in an inconsistent 
manner for the past five years be terminated.  
                                                     
 
 
necessary in order to satisfy the requirements of  Article 11.3.  USDOC did not do so in this 
case."  (Paragraph 7.79)