WT/DS282/R 
Page E-1 
  
 
ANNEX E 
 
 
QUESTIONS AND ANSWERS   
and  
COMMENTS OF PARTIES ON THE APPELLATE BODY REPORT IN 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES ON 
OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
 ("ARGENTINA OCTG ") 
 
 
Contents Page 
Annex E-1 Answers of Mexico to Questi ons of the Panel- First Meeting  E-2 
Annex E-2 Answers of the United States to Questions of the Panel – 
First Meeting  E-27 
Annex E-3 Answers of the United States to Questions of Mexico – 
First Meeting  E-40 
Annex E-4 Answers of Argentina to Questions of the Panel – 
Third Parties Session  E-50 
Annex E-5 Answers of China to Questions of the Panel – Third Parties Session  E-56 
Annex E-6 Answers of the European Communities to Questions of the Panel – 
Third Parties Session E-62 
Annex E-7 Answers of Japan to Questions of the Panel – Third Parties Session E-75 
Annex E-8 Answers of the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu to Questions of the Panel – Third Parties Session E-78 
Annex E-9 Answers of Mexico to Questi ons of the Panel – Second Meeting E-80 
Annex E-10 Answers of the United States to Questions of the Panel –  
Second Meeting E-86 
Annex E-11 Answers of the United States to Questions from Mexico –  
Second Meeting E-91 
Annex E-12 Comments of Mexico on the Un ited States' answers to the Panel's 
and Mexico's questions – Second Meeting E-97 
Annex E-13 Comments of the United States on Mexico's Responses to 
Questions from the Panel – Second meeting E-105 
Annex E-14      Comments of Mexico  on the Appellate Body's Report in United 
States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , DS 268 E-110 
Annex E-15      Comments of the United States on the Relevance of the Appellate 
Body Report in United States – Sunset Reviews of Anti-Dumping 
Measures on Oil Country Tubular  Goods from Argentina  
(“Argentina OCTG ”) E-128 
 WT/DS282/R 
Page E-2    
ANNEX E-1 
  
ANSWERS OF MEXICO TO QUESTIONS OF THE PANEL – 
FIRST MEETING 
 
 
(18 June 2004) 
  
Question 1
. At paragraph 135 of its first written statement, the United States asserts that Mexico 
acknowledges that Commerce did not "rely" on the margins from the original investigation in 
making the likelihood determination in OCTG.  Do es Mexico accept this characterization of its 
position as correct?  If not, could Mexico indica te where, in the relevant determination and decision 
memo, it finds support for the assertion that Commerce DID rely on those margins? 
 
Mexico's Response  
 1. Mexico does not accept the US characterization of its position.   2. Mexico has argued consistently that the Department's reliance on the margin of dumping 
determined in the original investigation violates Ar ticle 11.3 because the original 21.7 per cent margin in 
this case was not probative of the likelihood of recurrence of dumping, it was not derived from the application of the Anti-Dumping Agreement, it was inconsistent with the Anti-Dumping Agreement, and it had no logical connection whatsoever to Hylsa.  3. Mexico's arguments relating to each of th ese points are set forth in paragraphs 129-155 of 
Mexico's First Written Submission.  Also, Mexico  repeated these arguments in summary form in 
paragraphs 28 to 30 of its Oral Statement at the First Substantive Meeting of the Panel. 
 4. The fact that the Department relied on the marg in from the original investigation in this case is 
not surprising because the US system is set up in this manner.  First, the statute says that the Department 
"shall consider" two factors: 1) "the dumping margin s determined in the investigation and subsequent 
reviews"; and 2) the volume of imports. (Section 752(c )(1)).  The SAA indicates that the Department will 
normally select a margin "from the investigation, becau se that is the only calculated rate that reflects the 
behavior of exporters without the discipline of an order or suspension agreem ent in place." (SAA at 890.) 
 The regulations implementing the statute add that:  "only under the most extraordinary circumstances will 
the Secretary rely
 on a . . . dumping margin other than those it calculated and published in its prior 
determinations. . . ."  (Section 351.218(e)(2)(i))(emph asis added).  The Sunset Policy Bulletin confirms 
"that continued margins at any level would lead to a finding of likelihood ."  (Section II.A.4.) 
 5. Thus, the statute and the regulations make cl ear that the Department must consider dumping 
margins, the SAA provides that the Department will normally select the margin from the original 
investigation, and the SPB confirms that the Secretary is to rely
 on dumping margins.  The only open 
question is which  dumping margin the Department will choose to rely upon. 
 6. To answer this question, Mexico turns to the De partment's specific statements in this case, which 
the Panel has also asked Mexico to id entify.  The Department states in the Issues and Decision 
Memorandum  (page 5-6): 
 WT/DS282/R 
Page E-3 
  
In the Sunset Policy Bulletin, the Department stated that it will normally provide to the 
Commission the margin that was determined  in the final determination in the original 
investigation . (Emphasis added). . .  
The Department continues to find that the margin rates from the original investigation  
are the appropriate rates  to report to the Commission. (Emphasis added). . .   
Therefore, the Department will report to the Commission  the margins contained in the 
Final Results of Review section  of this decision memo. (Emphasis added). . .  
We determine that revocation of the an ti-dumping duty order on OCTG from Mexico 
would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average margins: [TAM SA, Hylsa, All Others:  21.70 per cent].  
7. The record in this case shows that the Mexican exporters provided positive evidence and 
argument that the dumping margin from the original investigation was not probative of likely dumping, and that the results of the several annual reviews (zer o margins) were more probative of future behavior.  
The Department, however, used the "inference" aris ing form lower import volumes to disregard this 
evidence.  In doing so, it did not cease to rely on dumping margins; it simply eliminated the possibility of relying on the zero margins, and instead relied on the dumping margin from the original investigation.  
This is what its law, the SAA, the regulations, and the SPB instruct the Department to do, and this is what 
it did.  8. Finally, and independently from these arguments, Mexico also has argued that the Department's 
reliance on a flawed margin also tainted its likelihood decision, and that of the Commission, which relied 
on the reported margin in its likelihood determination.  
Question 2
. In its request for establishment (WT/DS282/2 at page 2), Mexico lists, as a measure 
it considers inconsistent with the United States' obligations, "Continuation of Countervailing and Anti-Dumping Duty Orders on Oil Country Tubular  Goods from Argentina, Italy, Japan, Korea 
and Mexico, and Partial Revocation of Those Ord ers from Argentina and Mexico with Respect to 
Drill Pipe", Federal Register, Vol. 66, page 38630 (25 July 2001).  Could Mexico confirm that it has made no separate claims of violation with respect to the order continuing the application of anti-
dumping and countervailing duties on imports of OCTG  from Mexico?  If Mexico considers that it 
has made such separate claims of violation with respect to that measure, could Mexico indicate 
where, in its first submission, it has presented arguments regarding such claims? 
 
Mexico's Response
 
 9. Mexico identified as a measure in its Pane l Request the "Continuation of Countervailing and 
Anti-Dumping Duty Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, Korea and Mexico, and Partial Revocation of Those Orders from Argentina and Mexico with Respect to Drill Pipe," 
66 Federal Register, 38630 (25 July 2001) ("Notice of Con tinuation").  Mexico identified this measure in 
anticipation of possible argumentation that this measu re was the measure with the operational or legal 
effect for continuing the imposition of anti-dumping duties, as opposed to the substantive likelihood of 
dumping and likelihood of injury dete rminations of the Department and the Commission, respectively. 
 10. Mexico confirms that there are no claims that re late only to the Notice of Continuation.  Rather all 
of Mexico's claims related to the Department's Sunset Determination and the Commission's Sunset Determinations also apply to the Notice of Conti nuation, as this is the instrument through which the 
United States continued the measure for, at a minimum, an additional six years.  WT/DS282/R 
Page E-4   
Question 3
. The United States argues, at paragraph 25 of its first oral statement, that 
Commerce, in the fourth periodic review of the amount of duty (annual administrative review) 
concerning TAMSA and Hylsa, did not address the qu estion as to whether the measure should be 
revoked as to these two companies, because the p rerequisites for such review were not met.  Could 
Mexico clarify whether it accepts this characterizati on of the decision of Co mmerce in the context of 
the revocation requests in the fourth periodic rev iew of the amount of duty (annual administrative 
review)? 
 
Mexico's Response  
 11. Mexico does not accept the US characterizati on.  The companies representing 100 per cent of 
Mexican OCTG imports, TAMSA and Hylsa, each requested  revocation of the order as it pertained to that 
company.  In response to these separate requests, the Department initiated and conducted only one review. 
 The title of the Department's determination is:  "Oil Country Tubular Goods from Mexico:  Final Results of Anti-Dumping Duty Administrative Review and Determ ination Not to Revoke in Part."  The title of the 
measure speaks for itself.    12. Apart from the fact that the Department undertook a single review, and apart from the manner in which the Department characterized its determination (again, as evidenced by its title), the determination 
itself reveals that the Department conducted an Article 11.2 review.  On page 8 of the Issues and Decision 
Memorandum,  the Department states: "The Department determ ined that it could not conclude that future 
dumping was not likely due to business cycles and the fluctuation of prices."  The Department then goes on to analyze TAMSA's statements regarding its commercial policy:  
In DRAMS from Korea, 62 Fed. Reg. 39809 (24 July 1997), the Department determined that it could not conclude that future dum ping was not likely due to business cycles and 
the fluctuation of prices.  Steel demand and oil prices are, likewise, cyclical.  TAMSA further explained its commercial policy:  "T AMSA has no interest in shipping significant 
quantities to a depressed market.  See TAMSA' s Case Brief at 19-20 (Public Document). 
As explained in the SAA at 889-90 and the House Report at 63-64, if the volume of imports declines significantly after the issuance of the order and dumping was eliminated, the Department may reasonably infer that dumping would resume if the order were revoked.  This same logic also appli es on a company-specific basis.  The premise 
that the decline in TAMSA's export levels after the issuance of the order was the result of a depressed market for small amounts of OCTG without dumping in no way conflicts with the Department's inference.  If it became necessary to make fewer sales at more 
fairly traded prices while the discipline of th e order was in place, it is reasonable to infer 
that dumping would be likely to resume if su ch discipline ceased to exist, especially if 
TAMSA were to again encounter a ‘depressed ma rket' in this very cyclical industry.  
(Issues and Decision Memorandum  at 8.) 
13. This passage demonstrates that the Department applied the substantive standard of Article 11.2 in 
determining not to revoke the order on OCTG from Mexico.  The specific analogy to DRAMS from Korea  
is further support.  As we all know, the Department made a substantive determination in that case, which 
was later found to violate the Article 11.2 requirements because of the standard applied by the Department 
in making that determination.  14. In addition, the Department cited the substan tive standard of Article 11.2 in explaining that 
TAMSA did not qualify for revocation:  "TAMSA's overall record of sales to the United States during these three years, when viewed in terms of both vol ume and value, do not provide a reasonable basis for 
determining that the discipline of the order is no longer necessary to offset dumping."
1  The Department 
                                                      
1 Issues and Decision Memorandum, page 8. WT/DS282/R 
Page E-5 
  
did not say that TAMSA failed to qualify for a review
 to determine whether the measure should be 
revoked, but rather that the company "does not qualify for revocation ."  The Department's ultimate finding 
is clear:   "[W]e find that TAMSA does not qualify for revocation of the order on OCTG under 19 CFR 351.222(e)(1)(ii) and 19 CFR 351.222(d)(1)."
2 
 15. If the Panel were to accept the US characterizati on of its decision, Mexico believes that the Panel 
would nonetheless have to determine whether the Department was justified in not conducting a 
substantive determination.  Article 11.2 does not speak of thresholds or prerequisites such as "commercial 
quantities," or the requirement of "three consecutive zero margins" in reviews, or two zeroes in the first 
and third years with shipment in "commercial quan tities" in the "intervening year."  All of these are 
constructs of US law.  The Panel must determine whethe r or not the application of these constructs to this 
specific case are consistent with the international oblig ations of the United States under Article 11.2.  That 
provision creates the obligation on WTO Members to "review the need for the continued imposition of the duty," and provides interested parties "the right to request the authorities to examine whether continued 
imposition of the duty is necessary to offset dumping . . ." If the authorities determine that the anti-
dumping duty is no longer warranted, "it shall be te rminated immediately."  Mexico does not see how 
declaring that one never entered into the substantiv e analysis can be viewed as a defense against the 
application of these provisions.  
Question 4
. It appears that, under US law, there are mu ltiple avenues for an exporter to request 
revocation of an anti-dumping duty order.  Thus , revocation may be requested by an individual 
company in the context of a periodic review of th e amount of duty (annual administrative review).  
Revocation may also be requested in the contex t of a changed circumstances review, either with 
respect to a company making the request (company -specific revocation), or with respect to the 
order as a whole (order wide revocation).  Is it Mexico's contention that the United States was 
obligated to treat the requests for revocation ma de on behalf of TAMSA and Hylsa individually 
simultaneously with the requests for the fourth  periodic review of the amount of duty (annual 
administrative review) (Exhibits MEX-10 and MEX-11) as a request for a changed circumstances review or a request for order-wide revocation? 
 
Mexico's Response
 
 16. Mexico's contention is this:  when interest ed parties present positive information substantiating 
the need for a review to determine whether the c ontinued imposition of the duty is necessary to offset 
dumping, the WTO Member maintaining the measure mu st conduct a review.  The Mexican exporters did 
precisely that in this case.  Mexico 's argument is that the Department  should have conduc ted a substantive 
analysis – consistent with the requirements of Article 11.2 – to determine whether the continued 
imposition of the duty was necessary to offset dumping.  17. The United States has implemented its Article 11.2 obligation by creating a mechanism to conduct reviews when requested by individual interested  parties, and to terminate the measure "in part" 
whenever certain conditions are satisfied.  This system was analyzed in depth in DRAMS from Korea , 
DS99.  The US anti-dumping measures challenged by Ko rea were company-specifi c in nature.  The anti-
dumping measure was entitled:  "Notice of Final Results of Anti-Dumping Duty Administrative Review and Determination Not to Revoke Order in Part
:  Dynamic Random Access Memory Semiconductors of 
One Megabyte or Above From the Republic of Korea"  (Emphasis added.)  In addition, Korea challenged 
the US revocation regulation (covering company-speci fic revocation requests) "as such," and argued, 
successfully that the regulation violated the substan tive requirements of Article 11.2. The United States 
did not argue in that case that Article 11.2 only creates "order-wide" obligations.    
                                                     
 
2 Issues and Decision Memorandum, page 8. WT/DS282/R 
Page E-6   18. In implementing the adverse Panel ruling in DRAMS from Korea , the Department explained the 
reason for modifying the company-specific revocation provision:  
On 29 January 1999, the Panel determined th at the Department's standard for revoking 
an anti-dumping duty order contained in 19 CFR 353.25(a)(2) (the precursor to 19 CFR 
351.222(b)) was inconsistent with the United States' obligations under Article 11.2 of the 
WTO Anti-Dumping Agreement…  Specifically, the Panel determined that requiring the Secretary to conclude that "it is not likely" that persons requesting revocation
 will dump 
merchandise subject to an anti-dumping duty order in the future did not implement 
properly Article 11.2 of the Anti-Dumping Agreement .3 
. . .  
As discussed in the Proposed Rule, in situa tions where there is an absence of dumping 
(or subsidization) for three years , the Department intends to presume that an order is not 
necessary in the absence of additi onal evidence.  We believe that such a presumption is 
consistent with prior Department practice as  well as US obligations under Article 11.2 of 
the Anti-Dumping Agreement  and Article 21.2 of the SCM Agreement.  As the Panel 
recognized, a decision to maintain an order mu st be substantiated by positive evidence.  
If the only evidence on the record is a respondent's ability  to sell subject merchandise at 
not less than normal value for three consecu tive years, the record would not support a 
decision to maintain the order in light of the requirement in Article 11.2 , as interpreted 
by the Panel, that there be positive eviden ce reflecting the continued necessity of the 
order.4  
. . .  We have formulated the final rule in a way th at clarifies that the Secretary must make an 
affirmative finding of necessity in order to retain an anti-dumping or countervailing duty 
order.  While this reformulation does not affect the process by which the Department considers revocation, the reformulated regul ation more closely tracks the wording of 
Article 11.2 of the Anti-Dumping Agreement  and Article 21.2 of the SCM Agreement.5 
19. Through these statements, the United States clarified to its trading partners that it implements its 
Article 11.2 obligations through the company-sp ecific revocation procedure outlined in 19 CFR 
351.222(b).  The United States cannot deny these statements and its practice on implementing its Article 11.2 obligations now for the expediency of  defending against the Article 11.2 claim brought by 
Mexico.  
Question 5
. Could Mexico specify the evidence it consid ers to have been submitted in the sunset 
review, but ignored, i.e. not considered, by Commerce? 
 
Mexico's Response  
 20. Mexico summarized this eviden ce in Exhibit MEX-64, which Mexico attached to its 25 May oral 
statement.  21. To summarize, Mexico submitted positive evidence demonstrating that the dumping margin from the original investigation was not a reliable measu re, given that it resulted from unique circumstances 
                                                     
 
3 US Department of Commerce, Amended Regulati on Concerning the Revocation of Anti-Dumping and 
Countervailing Duty Orders, Final Rule, 64 Fe deral Register 51236, 51236-7 (22 September 1999). 
4 64 Federal Register at 51238. 
5 64 Federal Register at 51238. WT/DS282/R 
Page E-7 
  
involving the 1994 Mexican peso devaluation and the company's then high US dollar indebtedness.  
Mexico also provided positive evidence of the company' s experience in the US market during the relevant 
period of the sunset review, which demonstrated that dumping would not be likely.  This evidence 
consisted of the consecutive no dumpi ng determinations by the Department in administrative reviews.  
The positive evidence also included statements by TA MSA and Hylsa that the companies would not dump 
in the event the order was termination.  The positiv e evidence submitted included detailed explanations by 
TAMSA why the past dumping would not recur, and a justification why "good cause" existed not to rely 
on the original dumping margin.  
Question 6
. Assume, for purposes of argument, that, as argued by the United States, Article 11.2 
of the AD Agreement does not apply to company-specifi c revocation reviews of the type at issue in 
this dispute with respect to TAMSA and Hylsa.  Co uld Mexico please address whether, in this case, 
there are any relevant WTO obligations with respect to  such reviews?   Has Mexico set out claims 
regarding such obligations? 
 
Mexico's Response  
 22. Mexico confirms that the claims arising from the Department's decision not to revoke the orders 
as they apply to TAMSA and Hylsa were based on Ar ticle 11.2 of the Anti-Dumping Agreement.  If the 
Panel finds that Article 11.2 does not obligate WTO Me mbers to terminate the m easure with respect to 
specific companies, then the Panel must determin e whether the United States was justified in not 
considering whether termination of the duty as a whole was warranted in this case.  In this context the 
evidence presented by both TAMSA and Hlysa – the only known Mexican producers of OCTG – provided the requisite degree of positive information sufficient not merely to warrant a "review" under 
Article 11.2, but also sufficient to demonstrate th at the continued imposition of the duty was no longer 
"necessary to offset dumping."  
Question 7
. Is Mexico of the view that prerequisites for the conduct of company-specific 
revocation reviews are precluded by the AD Agreement in  general?  Is Mexico of the view that the 
specific prerequisites for th e conduct of company-specific revocation reviews at issue in this dispute 
are precluded by the AD Agreement?  Could Mexico please specify the relevant provisions of the 
AD Agreement upon which it relies in this context. 
 
Mexico's Response  
 23. The text of Article 11.2 creates affirmative ob ligations.  WTO Members are required to review 
("shall review") "the need for the continued impositi on of the duty, where warranted ... upon request by an 
interested party which submits positive information s ubstantiating the need for a review."  Article 11.2 
does not use the word "prerequisite" anywhere, and it does not establish any "prerequisites" for reviews 
(other than perhaps, a request supported by "positive information").  24. "Prerequisites" may not be precluded per se.   However, if prerequisites are applied in such a way 
as to lessen the party's affirmative obligation under Article 11.2, a prerequisite can infringe another 
Member's right, and therefore violate the Agreement.  Also, if the prerequisites are used in such a manner 
that the authorities do not properly consider positive ev idence, the use of prerequisites can violate the 
Agreement.  25. Mexico notes that Article 11.2 provides some measure of discretion to WTO Members through the use of the phrase "where warranted" in the first sentence.  However, this statement conditions the 
obligation to conduct the review.  Mexico believ es that a proper understanding of this phrase would 
permit the placement of reasonable prerequisites be fore the authorities are required to expend their 
resources on a review to determine whether the anti-dumping measure continues to be necessary.  WT/DS282/R 
Page E-8   However, if such prerequisites are used in a manne r to exclude or ignore positive evidence they can again 
run afoul of the substantive obligations of the Agreement.  26. With respect to the specific prer equisites applied in this case, ther e were two:  1) the "commercial 
quantities" requirement applied to TAMSA; and 2) the requirement of obtaining a zero margin in the third of three annual reviews for Hylsa.  With respect to  the commercial quantities requirement, Mexico is of 
the view that this "prerequisite" was based who lly on the presumption that declines in import volumes 
mean that dumping is likely to continue once the measure  is removed.  In this case, the Department used 
this "prerequisite" to reach a substantive determinati on that TAMSA would dump in the future.  As stated 
in response to question 3 above, the Department found that "it is reasonable to infer that dumping would 
be likely to resume if such disci plines [i.e., the existence of the m easure] ceased to exist, especially if 
TAMSA were again to encounter a ‘depressed ma rket' in this very cyclical industry."  ( Issues and 
Decision Memorandum  at 8.)  The Department also made the factual finding that TAMSA "did not 
meaningfully participate in the market," and that th erefore "its sales during th ese periods do not provide a 
reasonable basis for determining that it is unlik ely that TAMSA will dump in the future."   
 27. Thus, in this case, the commercial quantities requi rement was used as the basis for the substantive 
decision not to revoke the order and not as a prerequis ite to conduct the review.  This is not permitted by 
Article 11.2.  The Panel in DRAMS from Korea  found that Article 11.2 decisions must be based on 
"positive evidence," and that "‘necessity ' in the context of Article 11.2 requires the need for the continued 
imposition of an anti-dumping duty being demonstrable on the basis of the evidence adduced."  ( DRAMS 
from Korea , paras. 6.42 and 6.50). 
 28. The commercial quantities requirement also suffers several other defects, all of which have been 
explained in Mexico's First Written Submission.  Firs t, the  requirement of "commercial quantities" was 
never defined for the purposes of the revocation review s (Mexico's First Submission, para. 344.)  Second, 
the meaning given to the "commercial quantities" requi rement was fundamentally different than the only 
definition of "commercial quantities" in US law, referred to a transaction-specific measurement of 
commercial quantities (Mexico's First Submission at paras. 346-348).  Third, the "commercial quantities" 
requirement was introduced as a requirement for cases in  which there was an "intervening third year," a 
circumstance which did not apply to TAMSA.  (First Submission, paras. 334-343).  Fourth, the "commercial quantities" requirement as applied as a "p rerequisite for revocation" was introduced after 
TAMSA began the process of seeking revocation under est ablished US procedures.  (First Submission, 
paras. 328-343).  Fifth, the "commercial quantities" requirement arises from a presumption that volume declines means that the order is necessary to stop fu ture dumping.  This is precisely the type of 
presumption that the Appellate Body has warned agai nst in the context of Article 11.3 reviews, and it 
applies equally to Article 11.2 reviews.  29. With respect to Hylsa, the Department applied the prerequisite that Hylsa obtain a zero dumping margin in the first and third of the reviews requested  by Hylsa.  The Department then found that Hylsa 
had not met this prerequisite because the Department  calculated a dumping margin greater than the 0.5 per 
cent de minimis  level. However, this above de minimis  margin was possible only through the use of a 
"zeroing" calculation methodology.  Mexico submits that the use of the zeroing methodology violates Article 2, and, to the extent that it is used as a basis for disqualifying Hylsa from a substantive review, it 
also violates Article 11.2.  
Question 8
. Could Mexico address the United States' ar gument that, just as Article 11.2 provides 
that a party requesting a review under that Article mu st submit positive information substantiating 
the need for a review, it is permissible for the United States to require evidence of no dumping for 
three years on sales in commercial quantities as a prerequisite for the conduct a company-specific 
revocation review? 
 
Mexico's Response  WT/DS282/R 
Page E-9 
  
 30. Please refer to Mexico's response to question 7 above.  In short, Mexico believes that the analogy does not work.  In the case of the requirement that in terested parties submit positive evidence, this can be 
viewed as a neutral prerequisite designed to ensure that the investigating authority is not required to 
initiate frivolous reviews, or that it will not have a suffi cient evidentiary record to evaluate.  In the case of 
the "commercial quantities" requirement it is not ne utral, but rather is based on a presumption that 
predetermines that the measure is n ecessary.  With respect to the third year of no dumping it is not clear to 
Mexico why three years are necessary (under some circumstances less time, or other proof of the 
exporters' practices could be sufficient, yet the US system would not allow for a review without complying with the three review requirement).  In an y event, the requirement was not applied in a neutral 
manner in this case, in which the Department used an illegal methodology to find that Hylsa did not qualify for the review.  
Question 9.
 Could Mexico please indicate where it presents  argument in support of its claims of 
violations of Article 6 of the AD Agreement, and th e specific provisions of that Article alleged to 
have been violated? 
 
Mexico's Response  
 31. Mexico's arguments concerning US violations of Article 6 of the AD Agreement are found in paragraphs 153 and 143 of Mexico's First Submission and paragraph 33 of its Oral Statement in the 
Panel's First Substantive Meeting with the parties.  32. In paragraph 153 of its First Submission, Mexico stated that:  
… by mechanically relying on a margin of dumping that was determined in the original investigation (that is, outside the purview of the scope of the WTO Anti-Dumping Agreement), the Department denied Mexico 
the benefit of a dumping margin calculated 
in accordance with Article 2 and the opport unity to present evidence and defend its 
interest in accordance with Article  6 of the Anti-Dumping Agreement . (Emphasis added) 
33. In paragraph 143 of the same submission, Mexico also stated that: 
 
… given the Department's rejection of the positive evidence explaining the volume decline, to the extent that the Departme nt relied on other information that was not 
requested of the Mexican exporters, the Depart ment also violated Article 6.1.  To the 
extent that the Department relied on information that suggested that the economic circumstances from the original investigation would be likely to exist upon termination of the measure, the Department failed to disclose such information in violation of Article 6.9. (Emphasis added) 
34. And then, in paragraph 33 of its Oral presenta tion to the Panel, Mexico further stated that: 
 
The Department's reliance on this margin [the margin of dumping to prevail] violates Article 11.3 because: (a) the margin was not  derived from the application of the WTO 
Anti-Dumping Agreement, in particular Articles 2 and 6,
  but from a pre-WTO 
calculation and (b) the margin was extended to a company which has never been found 
to have been dumping. (Emphasis added) 
35. As the above references demonstrate, Mexico's  Article 6 claims are based on:  the lack of 
application of the provisions of the WTO Anti-Dumping Agreement, including Article 6; the Department reliance on information that was not requested of the Mexican exporters; and the Department's failure to 
comply with the evidentiary and procedural provisi ons of Article 6, as required by Article 11.4.  WT/DS282/R 
Page E-10    
Question 10
. Could Mexico indicate how, in its view, an analysis of likelihood of continuation or 
recurrence of injury could be conducted consistent  with the requirements of Article 3?  For 
instance, assume the case where, a fter the imposition of the anti-dumping measure, there were no 
further imports from the sources found to be dumping .  How in such a case could, for example, the 
requirement of Article 3.2 regarding consideration of the volume of dumped imports be satisfied? 
 
Mexico's Response  
 36. Mexico does not see any particular difficulty in applying the requirements of Article 3 to an Article 11.3 injury determination.  The key to any su ch analysis is that the investigating authority is 
investigating "injury," which is defined only in Article  3.  In the particular context of an Article 11.3 
injury determination, additional requirements appear:  1) the investigating authority must find that injury 
must be a "continuation or recurrence" of an injury; a nd 2) the "continuation or recurrence" of injury must 
be "likely" to follow from the expiry of the orde r and the "likely" "continuation or recurrence" of 
dumping.  37. The existence of these additional requirements doe s not change the nature of the inquiry, which is 
an inquiry regarding "injury."  "Injury" is defined only
 in Article 3 of the Agreement (footnote 9), and 
footnote 9 requires  that "injury" "shall be interpreted in accord ance with the provisions of [Article 3]."  
(See Mexico's response to question 20 below.) 
 38. In the hypothetical situation posited by the Pa nel, Mexico considers that the investigating 
authority must apply Article 3.  The absence of im ports would require the investigating authority to 
determine why
 the imports are absent, and whether  imports are likely to return to the market.  Also, in 
order to render an affirmative injury determina tion in such a case, it seems to Mexico that the 
investigating authority would have to determine, ba sed on positive evidence, that the imports are likely to 
be dumped, and that injury is "likely" to continue  or recur as a result of the likely dumping that follows 
the expiry of the measure.  39. It could be difficult for an investigating author ity to make such determinations in a circumstance 
in which there are no imports, but Mexico believes that the WTO Members intended
 the analysis to be 
difficult and rigorous.  As the Appellate Body has stat ed, the termination of the measure is the principal 
obligation of Article 11.3, and continuation based on a finding of likely dumping and likely injury is the 
exception .  Therefore, both the text and the context of Ar ticle 11.3 suggest that a determination of likely 
injury in the example suggested by the Panel would be, and should be, difficult.  40. It is not, however, impossible.  For example, it may be the case that the imports disappeared from the market only to be redirected to other markets.  It may also be the case that the imports are subject to 
anti-dumping measures in all of these other markets, which could be a fact that suggests that these 
particular exporters have a proclivity to dump thei r products and to injure the domestic industries.  
Alternatively, it may be the case that there were  no dumping measures against these products in other 
markets, and there is no other information suggesting unfair trade. In either case, these facts can be put 
before the investigating authority, and the inv estigating authority would have to assess the facts 
objectively to determine whether injury is likely to recur if the measure is removed, even though imports 
had ceased.  Mexico offers this only as a hypothetical ex ample, and does not suggest that this is the only 
possible information that the investigating author ity could use in a case in which imports have ceased. 
 41. No hypothetical fact pattern could change the f undamental concept of what "injury" is.  That is 
established "under this Agreement" by the first part of footnote 9.  The factors that should guide the investigating authority in determining whether inju ry can be found in Article 11.3 are the same as those 
listed in Article 3, because the WTO Members explicitly st ated that they require a ll injury determinations 
to be interpreted in accordance with Article 3.  The difficulty arising from the circumstances posited by WT/DS282/R 
Page E-11 
  
the Panel is the prospective nature of the Article 11.3 injury determination.  This arises from the terms of 
the negotiated text of Article 11.3, not the text of Ar ticle 3 or any inherent problem in applying Article 3 
to different factual circumstances.  42. That there is no particular conceptual problem in applying the terms of Article 3 to Article 11.3 
reviews can be observed in the sunset practice of the Commission, which purportedly performs this 
analysis in all of its sunset determinations.  The Commission first determines the likely volume of 
imports, then determines the likely price effect of  imports, and then makes an assessment of the likely 
impact of these dumped imports on the US industry.  In doing so, the Commission at least purports to apply many of the provisions of Article 3 in reaching its sunset determination.  If the Commission were to 
find that imports had disappeared from the market and that the imports were not likely to return to the 
market, Mexico imagines that the Commission would find th at injury was not likely to recur as a result of 
the expiry of the measure.  43. Mexico submits that the Commission's injury de termination in this case violated Article 3, and 
that the Commission failed to determine "injury" in acco rdance with Article 3, as required by footnote 9.  
The Commission's determination is based on conjecture and a number of possibilities that arise from its analysis.  However, these problems are caused by the Commission's failure to apply a "likely" standard, 
and its failure to assess objectively information on th e record.  These are not problems arising from the 
terms of Article 3, or any particular difficulty  in applying Article 3 to Article 11.3 reviews. 
 
Question 11
. Could Mexico specify whether it is seeking separate rulings from the Panel with 
respect to the consistency with the United St ates' obligations under the WTO Agreement, GATT 
1994, and the Anti-Dumping Agreement, of each of the following:  (1) US statutory provisions, (2) 
US regulatory provisions (3) the United States Stat ement of Administrative Action accompanying 
the Uruguay Round Agreements Act, and (4) the Department of Commerce's Sunset Policy 
Bulletin?  Could Mexico specify, with respect to each of the foregoing, which provisions of the WTO 
Agreement, GATT 1994, and the Anti-Dumping Agreement, are alleged to be violated? 
 
Mexico's Response  
 44. Mexico understands this question to relate to Mexico's "as such" challenges of the US statute, the 
SAA, and the Sunset Policy Bulletin.  Mexico furthe r understands that the Panel has not asked in this 
question for clarification of Mexico's "as such" challe nge to the Department's "consistent practice" (which 
is the subject of question 12 from the Panel).  Nor has the Panel sought clarification (in this question) of 
Mexico's "as applied" challenges to the Department 's Sunset Determination, the Commission's Sunset 
Determination, or the Department's Fourth Admi nistrative Review Determination Not to Revoke the 
Order.  45. Mexico refers the Panel to the chart below, which specifies Mexico's " as such" challenges to the 
statute, the SAA, and the Sunset Policy Bulletin. Mexico is seeking separate rulings from the panel 
regarding each measure identified in each box (or group of  measures in the case of the first item listed) in 
the left column.   
Measure Alleged Violations 
19 U.S.C. 1675a(c)(1), Statement of Administrative 
Action (pages 889-890), and SPB (Section II.A.3), collectively. Articles 1, 11.3, 18.1, and 18.4 of the Anti-
Dumping Agreement; Article VI of the GATT; Article XVI:4 of the WTO Agreement. 
19 U.S.C. 1675a(c)(1) Articles 1, 11.3, 18.1, and 18.4 of the Anti-
Dumping Agreement; Article VI of the GATT; Article XVI:4 of the WTO Agreement. 
19 U.S.C. 1675a(a)(1) Articles 1, 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1,11.3, 
18.1, and 18.4 of the Anti-Dumping Agreement; WT/DS282/R 
Page E-12   
Measure Alleged Violations 
Article VI of the GATT; Article XVI:4 of the 
WTO Agreement. 
19 U.S.C. 1675a(a)(5). Articles 1, 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1,11.3, 
18.1, and 18.4 of the Anti-Dumping Agreement; Article VI of the GATT; Article XVI:4 of the WTO Agreement. 
Statement of Administrative Action (pages 889-890) Articles 1, 11.3, 18.1, and 18.4 of the Anti-
Dumping Agreement; Article VI of the GATT; Article XVI:4 of the WTO Agreement. 
Sunset Policy Bulletin, Section II.A.3 Articles 1, 11.3, 18.1, and 18.4 of the Anti-
Dumping Agreement; Article VI of the GATT; Article XVI:4 of the WTO Agreement. 
 
Question 12 . Could Mexico clarify whether it is making a separate claim regarding the 
Department of Commerce's "consistent practice", as indicated in paragraph 110 of Mexico's 
submission.  If so, could Mexico indicate where, in  the request for establishment, that claim is set 
out? 
 
Mexico's Response  
 46. In addition to, but separate from, its challenge of the statute, the SAA and the SPB, Mexico also 
challenges the Department's consistent practice in the conduct of sunset reviews "as such."  This claim is 
set forth explicitly in section VII.B of Mexico's First Submission, paras. 110-120.   Mexico's claim is set 
out in section A.1 of the Panel Request:  
The Department's "likely" standard
 for determining whether termination of the anti-
dumping duty would be likely to lead to continuation or recurrence of dumping, the  
Department's determination in this regard , and the Department's calculation of the 
"likely" margin of dumping reported to the Commission, are inconsistent , both as such  
and as applied, with Articles 11.1, 11.3, 2.1, 2.2, 2.4, 6.1, 6.2, 6.4, 6.6, and 6.9 of the Anti-Dumping Agreement. 
47. This paragraph makes clear that Mexico is ch allenging the Department's consistent practice in 
sunset reviews in determining whether termination woul d be likely to lead to continuation or recurrence of 
dumping.  The first clause provides that Mexico is challenging the Department's "standard" for 
determining likelihood of dumping (i.e., 19 U.S.C.  1675a(c)(1), the SAA (pages 889-890), and the SPB 
(section II.A.3)).  The second clause – "the Department 's determination in this regard" – means that 
Mexico is challenging the Department's likelihood de termination "as such," which occurs through the 
Department's practice.  Thus, the fi rst and second clauses read together with the remainder of the sentence 
indicate that both
 the standard and the Department's "determi nation in this regard" are being challenged 
"both as such and as applied."  48. In other words, the Department's standard (the  statute, the SAA, and the SPB) is being challenged 
both as such and as applied.  As section A.1 of th e Panel Request indicates, the Department's use
 of the 
standard in rendering the lik elihood determination is also  being challenged both  as such and as applied.  
In this context then, the "as applied" challenge re lates to the Department's likelihood determination in 
OCTG from Mexico.  Consequently, the "as such" challenge  refers to the Department's use of the standard 
– "in this regard" – in rendering the likelihood of dumping determination in all sunset cases, i.e., the 
Department's practice.  49. Mexico notes that it has used the Department 's consistent practice for three separate and 
independent purposes in this case.  First, Mexico s ubmits that the Department's consistent practice WT/DS282/R 
Page E-13 
  
confirms the meaning of section II.A.3 of the Sun set Policy Bulletin.  The Department's consistent 
practice (as set out in MEX-62) demonstrates that sec tion II.A.3 of the Sunset Policy Bulletin directs the 
Department to give decisive weight to declines in import volumes and historic dumping margins.  In this 
context, the "consistent practice" is used as an elemen t to support the "as such" claim related to the Sunset 
Policy Bulletin.  50. Second, Mexico has challenged separately the c onsistent practice of the Department "as such" 
because the Department always treats satisfaction of at least one of the three Sunset Policy Bulletin 
criteria ((1) continued dumping margins; (2) cessation of imports; and (3) declining volumes) as conclusive of likely dumping, and thus applies a WTO-inconsistent presumption of likely dumping in 
violation of Article 11.3.
6  There are no exceptions; the Department's consistent practice (as evidenced by 
MEX-62) demonstrates that no party ever has overcome the presumption.  51. Third, Mexico argued in the alternative, that if the Panel does not agree with Mexico's claims 
regarding the WTO-inconsistent presumption established by  US law, or that the Department's consistent 
practice violates as such US WTO obligations, then Mexico submits that the United States failed to 
administer in an impartial and reasonable manne r US anti-dumping laws, regulations, decisions and 
rulings with respect to the Department's sunset reviews of anti-dumping duty orders, in violation of 
Article X:3(a) of the GATT 1994.  For Mexico, it is not  credible to believe that a review based on positive 
evidence could lead to an affirmative finding of likely dumping in each
 of the 227 cases in which the US 
industry requests continuation of the anti-dumping measure.  52. Mexico would also note that the United States has formulated substantive rebuttal arguments to 
Mexico's challenge to the Department 's "consistent practice" "as such."
7  While, the United States argues – 
albeit unconvincingly – that the Department's "consis tent practice" is not a "measure" that can be 
challenged in WTO dispute settlement, the United States has not argued that Mexico's claim with respect to the Department's "consistent practice" is not properly before the Panel on DSU Article 6.2 grounds.
8 
 53. Finally, Mexico notes that in Japan Sunset , the Appellate Body evaluated whether "the type of 
instrument itself – be it a law, regulation, procedure , practice , or something else – govern[s] whether it 
may be subject to WTO dispute settlement[.]"
9  The Appellate Body concluded "that there is no basis, 
either in the practice of the GATT and the WTO generally or in the provisions of the Anti-Dumping 
Agreement , for finding that only certain types of measure can , as such, be challenged in dispute settlement 
proceedings under the Anti-Dumping Agreement ."10  The Appellate Body's reasoning thus requires the 
conclusion that agency practice may be challenged as such.  
Question 13
. Is Mexico of the view that the text of Ar ticle 11.3, taken alone, prohibits cumulation 
in sunset reviews? 
 
Mexico's Response  
 54. Yes, Mexico is of the view that the text of Article 3 prohibits cumulation in sunset reviews.  
(Please refer to Section VIII.E of Mexico's First S ubmission, especially paragraph 254.)  Mexico's view 
begins with the text of Article 11.3, noting that a Member may continue an anti-dumping measure beyond 
                                                     
 
6 See US Department of Commer ce Sunset Reviews (MEX-62). 
7 See US First Submission, paras. 110-116. 
8 See US First Submission, paras. 110-116. 
9 Appellate Body Report, Japan Sunset , para. 78 (emphasis added).  See also Appellate Body Report, 
United States – Countervailing Measures Concerni ng Certain Products from the European Communities , 
WT/DS212/AB/R, adopted 8 January 2003, paras. 150, 151, 162 (" US – CVDs on EC Products "); United States – 
CVDs on EC Products: Status Report by the United States , WT/DS212/13 (28 Oct. 2003) (stating that the 
United States/Department changed a methodology to comply with its WTO obligations). 
10 Appellate Body Report, Japan Sunset , para. 88. WT/DS282/R 
Page E-14   five years only if "the expiry of the duty
 would be likely to lead to continuation or recurrence of dumping 
and injury."  It is significant to Mexico that the obligation is phrased in this manner:  the use of the 
singular "the duty" was not an accident.  This is true  especially when one considers that Article 3.3 itself 
demonstrates that the WTO Members specifi cally contemplated that several duties  could result from a 
single investigation, and therefore WTO Members kne w that the Article 11.3 injury determination in 
many cases would involve several duties applicable to exports from different countries.  In Mexico's view, 
the text of Article 11.3 shows that each WTO Member has the right to termination of a measure affecting 
its exports unless the investigating authority shows that  expiry of the measure applicable to its exports 
would be likely to lead to continuation or recurrence of dumping or injury.  55. Mexico believes, however, that the Panel shoul d not limit itself to the text of Article 11.3 to 
determine whether cumulation is prohibited.  It shoul d also review the context of Article 11.3, and the 
object and purpose of the Agreement, including the c onsequences of an alternative interpretation of 
Article 11.3 that would permit cumulation in sunset  reviews.  In this regard, Mexico notes that 
Article 11.1, which the Appellate Body has referre d to as establishing the "over-arching principle" of 
Article 11 also uses the singular to talk about the duration of an anti-dumping duty (a duty
 can remain in 
force "only as long as and to the extent necessary to counteract dumping which is causing injury").  Also, 
Article 11.2 requires authorities to "review the need for the continued imposition of the duty ," and 
provides interested parties the right to request an  examination of whether "continued imposition of the 
duty" is necessary.  (In fact, the United States cites th is particular use of the singular to support its 
argument that Article 11.2 does not require "company sp ecific" terminations).  Thus, the text of Articles 
11.1 and 11.2, and the drafting the entire article, demonstrate that WTO Members were granting the right to individual WTO Members (and, in the case of Article  11.2, individual exporters) to the termination of 
the duty
 applicable to its exports. 
 56. There is no suggestion in Article 11 or in any other part of the Agreement that this right is 
conditioned by the behavior of othe r exporters from other countries that are subject to other duties.  
However, as we can see in this case, a cumulative an alysis would condition the right in exactly this 
manner.  For example, using the hypothetical that th e Panel posed to Mexico in Question 10, it simply 
would not matter that there were no exports from a particular WTO Member or that exports from a 
particular WTO Member were not likely to recur.  Once the analysis proceeds on a cumulative basis, the 
behavior of exports from individual countries loses its mean ing.   It could be argued that an investigating 
authority could decide not to cumulate if imports from a particular country were not likely to return to the 
market.  However, as the United States has argued in this case, if Article 11.3 does not prohibit 
cumulation, then there is no regulation of cumulation what soever in sunset reviews.  Therefore, there is no 
discipline that would require the investigating authority  to make such a determination not to cumulate.  
The WTO Members could not have intended to allo w countries to continue measures on imports from a 
country that is not likely to resume exports to the market in question.  57. The problem is apparent in this particular  case, in which the Commission never even analyzed 
when
 imports might return to the market from each of  the cumulated sources.  That is, there was no 
positive evidence demonstrating that it would be likely that the imports from the various countries would 
be simultaneously present in the market and compete with each other and the domestic like product.  Such 
findings are necessary in order to justify a cumulativ e injury assessment of the impact of imports on the 
domestic industry.  58. Finally, even if the Panel finds that cumulati on is not prohibited by Article 11.3, it cannot find 
that cumulation can be applied without any disciplin es.  Such use of cumulation undermines the rights of 
individual Members under Article 11.3.  
Question 14
. Could Mexico explain further its view that the fact that 227 sunset reviews resulted 
in findings of likelihood of continuation or recurren ce of dumping establishes the role and function 
of the Sunset Policy Bulletin in the decision-making of the Department of Commerce? WT/DS282/R 
Page E-15 
  
 Mexico's Response
 
 59. According to the United States, the Sunset Polic y Bulletin "does not ‘do' anything.  It does not 
instruct Commerce or even advise Commerce. . ."; and "Commerce is free to disregard it."
11   These 
descriptions are belied by the facts of the Department 's consistent practice.  Exhibit MEX-62, and the 
administrative decisions annexed thereto, demonstrates that the instructions of the Sunset Policy Bulletin 
led to likely dumping determinations in 100 per cent of the full and expedited sunset reviews.   
 60. As a starting point, both the "role and function" of the Sunset Policy Bulletin is demonstrated by 
its terms and by the Department's reliance on the SPB is  every single sunset review.  First the text of the 
statute (19 U.S.C. 1675a(c)(1), the SAA pages 889-890), and the SPB (section II.A.3) direct the Department to give decisive weight to reduction in import volumes and the existence of historic dumping margins.  At the same time, these instruments place the burden on exporters to convince the Department 
even to consider any other factors.  61. Hence, the role and function of the Sunset Po licy Bulletin (as well as the statute and the SAA) is 
to direct the Department in the conduct of sunset revi ews.  Under the terms of the statute, the SAA, and 
the SPB, import volumes and prior dumping margins are considered to be highly probative of likely dumping, and consideration of "other factors" is contingent upon an interested party providing 
information or evidence that would warra nt consideration of this information.
12  The reversal of the burden 
to provide information or evidence that would warrant consideration of other relevant factors is by itself 
inconsistent with the Article 11.3 ob ligation to undertake a case-specific analysis of the factors other than 
dumping margins and import volumes that are necessary to determine the likelihood of future dumping.  Rather than examining all the factors relevant to the Article 11.3 obligation, the Department requires 
exporters to provide information or evidence that, s ubject to the Department's discretion, would warrant 
consideration of such factors.  62. The role and function, and the meaning of the statute, the SAA, and the SPB are confirmed by the Department's consistent practice in the 227 full and expedited sunset reviews set out in MEX-62.  The 
statute, the SAA, and the SPB do not permit a case-sp ecific analysis of the factors relevant to the 
determination whether termination of the duty would be likely to lead to the continuation or recurrence of dumping.  The Department's consistent reliance on th e three SAA/SPB criteria as the sole basis for its 
likelihood determinations is incons istent with the Article 11.3 ob ligation to make a particular 
determination in each case using positive evidence.  63. The Appellate Body in  Japan Sunset  was not able to decide whethe r the SPB is inconsistent with 
Article 11.3 as such.  The Appellate Body conclude d that, because the Panel had not made any factual 
findings as to the "consistent application" of Sec tion II.A.3, it could not fully discern that provision's 
meaning and could not determine whether Section II.A. 3 directs the Department to consider the three 
criteria to be conclusive of likely dumping.  Therefor e, the Appellate Body determined that evidence of 
the consistent application of Section II.A.3 was necessary to discern its meaning.  64. Mexico's Exhibit MEX-62 demonstrates that the Department follows the instruction of the statute, the SAA, and the SPB in every sunset review, and ever y time it finds that at least one of the three criteria 
of the SPB is satisfied, the Department makes an affirmative finding of likely dumping without considering additional factors.  The Departme nt's consistent application of the SPB (and 
citation to the 
SPB as support for its determinations in every case) t hus demonstrates the role, function, and meaning of 
the SPB:  Section II.A.3 directs the Department to attach decisive weight to historical dumping margins and declining import volumes (or the cessation of imports altogether) in every case.  Because Section 
                                                     
 
11 US Opening Statement, para. 7. 
12 Sunset Policy Bulletin , Section II.C, at 18,874 (MEX-32). WT/DS282/R 
Page E-16   II.A.3 of the SPB instructs the Department to treat  satisfaction of any one of the three criteria as 
conclusive of likely dumping, the measure is inconsis tent with the Article 11.3 obligation to determine on 
the basis of all relevant evidence whether terminati on of the anti-dumping duty would be likely to lead to 
continuation or recurrence of dumping.
13 
 65. In 100 per cent of the full and expedited s unset reviews conducted by the Department, the 
Department cited the authority of the SPB and determ ined that dumping was likely to continue or recur. 
 
Question 15
. The Panel notes that Mexico has agreed with the European Communities' argument 
that the phrase "during the investigation phase" in  Article 2.4.2 of the AD Agreement does not limit 
the application of that provision to original investigations, and that therefore the obligations in that provision apply to sunset reviews.  The Panel also notes that Mexico argues that the use of the term 
"investigations" in Article 3.3 of the AD Agreement limits the application of that provision to original investigations, and that therefore cumulation is prohibited in sunset reviews.  Could Mexico 
explain how it reconciles these two positions? 
 
Mexico's Response
 
 66. Mexico believes that there is difference between  the phrase "investigation" as used in Article 3.3 
and "investigation phase."  Article 3.3 specifically references a circumstance in which "Imports of a 
product from one or more countries are simultaneously s ubject to anti-dumping investigations . . . ," and 
then specifically references the de minimis standards in Article 5.  Article 5, in turn, deals specifically 
with the initiation of an investigation begins with an application filed by or on behalf of a domestic 
industry.  In Mexico's view, Article 3.3 and the cr oss-reference to Article 5.8 signifies that the WTO 
Members had very clearly in mind that they were allowing cumulation during the process of an investigation as described in Article 5.  67. By contrast, the reference in Article 2.4.2 is more general.  It states:  "The existence of margins of dumping during the investigation phase shall normally be established on the basis of the comparison of weighted-average normal value . . . ."  There is no refe rence to Article 5, and the use of the phrase "during 
the investigation phase" refers to the process of "inve stigating" the facts necessary to calculate a dumping 
margin.  This investigative pro cess occurs each time an investigating authority calculates a dumping 
margin, whether in the context of an Article 5 investig ation, or an Article 9 or Article 11 review.  If the 
WTO Members intended to limit Article 2.4.2 to an Ar ticle 5 investigation, it could have done so in a 
manner similar to that in Article 3.3.  68. Mexico would like to take this opportunity to remind the Panel that the phrase "during the 
investigation phase" does not condition in any manner th e principal obligation of Article 2.4 that a fair 
comparison shall be made between the export price and the normal value.  
Question 16.
 The Panel notes Mexico's view that a dum ping margin used in the context of a 
sunset review must be, itself, consistent with th e requirements of the AD Agreement.  Is Mexico of 
the view that, if the dumping margin in an origin al investigation was calculated consistently with 
the requirements of the AD Agreement, that dumping  margin may be used in the context of a 
subsequent sunset review? 
 
Mexico's Response  
 69. Any dumping margin used in the context of a sun set review must be the result of the application 
of the WTO Anti-Dumping Agreement, and it also must  be consistent with the Agreement.  These are 
two, independent requirements that arise directly from the Agreement. 
                                                     
 
13 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 178, 191. WT/DS282/R 
Page E-17 
  
 70. Article 18.3 of the WTO Anti-Dumping Agreement states:  
… the provisions of this Agreement shall apply to
 investigations, and reviews  of existing 
measures, initiated pursuant to applications whic h have been made on or after the date of 
entry into force for a Member of th e WTO Agreement. (Emphasis added) 
71. The fact that the dumping margin used by the De partment is not the result of the application of 
the WTO Anti-Dumping Agreement is clear in this case.  The Department stated in its Issues and 
Decision Memorandum  :  
 
The Department continues to find that the ma rgin rates from the original investigation  
are the appropriate rates to report to the Commission. (page 5) (emphasis added). 
72. Because the imposition of the anti-dumping duty in  this case was the result of an investigation 
that was initiated prior to the entry into force of the WTO Agreement, it is obvious that the margin of 
dumping determined at that time cannot be the result of the application of the provisions of the WTO Anti-Dumping Agreement.  73. A separate question is whether a pa rticular dumping margin is consistent
 with the terms of the 
Agreement.  Article 1 of the Anti-Dumping Agreem ent requires that any anti-dumping measure must be 
"pursuant to investigations initiate d and conducted in accordance with the provisions of this Agreement." 
In Mexico's view, Article 1 give rise to a separ ate obligation that anti-dumping measures must be 
consistent with the terms of the Agreement.  74. Hypothetically, the margin of dumping from a pre-WTO original investigation may, by coincidence, be consistent with Article 2 of th e WTO Anti-Dumping Agreement, even though it did not 
arise from the application of the Anti-Dumping Agreem ent (because it preceded the Agreement).  In such 
a case, use of such a margin  in an Article 11.3 review would violate both Article 11.3 and Article 18.3.   
Such a margin is not the result of the applicati on of the WTO AD Agreement, which is required by 
Article 18.3. "Application" and "c onsistency" are two different requi rements, and any dumping margin 
relied upon in sunset reviews must satisfy both
. 
 75. In this case, the dumping margin relied upon by Commerce satisfied neither
.  It was not the result 
of the application of the Anti-Dumping Agreement, but  rather the consequence of the SPB, Section II.B.1 
instruction to report to the Commission the margin of dumping that was determined in the original 
investigation.  As indicated at the end of the Memorandum:  
Further, as stated in our Policy Bulletin, the investigation rate
, reflecting the behavior of 
exporters without the discipline of an order in place, is the appropriate rate to report 
regardless of whether it is based on a compan y's own information or on best information 
available (i.e., facts available). (Emphasis added) 
76. Had the Department determined the margin lik ely to prevail by applying the provisions of the 
Agreement (i.e. using any of the margins found in the three post-WTO administrative reviews), it would 
have found that the margin likely to prevail woul d be zero.  In other words, there was no positive 
evidence of "continuation" or "recurrence" b ecause dumping was not found in any of the three 
administrative reviews (lack of continuation) and no other information supported the conclusion that 
dumping would occur again (that is, nothing suggested recurrence).  77. The 21.7 per cent margin also is inconsistent
 with the Agreement.  By mechanically using a 
margin of dumping that was determined in the final de termination in the original investigation (that is, WT/DS282/R 
Page E-18   outside the purview of the scope of the Anti-Dumping Agreement), the Department did not apply the provisions of Article 2 or Article 6, which expressl y applies to Article 11 reviews through Article 11.4. 
 78. The Department's reliance on a flawed margin for purposes of its likelihood of dumping determination, and its reporting of a flawed marg in of dumping likely to prevail to the Commission, 
tainted both the Department's and the Commission's lik elihood determinations.  As the Appellate Body 
stated in Japan Sunset : 
 
If a likelihood determination is based on a dumping margin calculated using a methodology inconsistent with Article 2.4,  then this defect taints the likelihood 
determination too. 
79. In the instant case, the Commission's likelihood de termination of injury has been tainted (i.e., 
rendered inconsistent with Article 11.3), by the WTO-inconsistent dumping margin that was determined 
and reported to the Commission by the Department as an integral part of the Article 11.3 review.  See US 
First Submission, paras. 315-316.  
Question 17.
 Could Mexico explain what, in its view, is the alternative to the use of the dumping 
margin calculated in the original investigation in th e context of a sunset review?  Is it Mexico's view 
that an updated or more recently calculated margin mu st always be used?  If so, how would Mexico 
consider that an investigating authority could conduct a sunset review in a case in which imports from the sources found to be dumping ceased  after the imposition of the order? 
 
Mexico's Response
 
 80. Mexico considers that other information could be relevant to an analysis in an Article 11.3 
review. For example, in Question 40, the Panel identif ies certain types of information that the Appellate 
Body considered to constitute "positive evidence" for purposes of an analysis under Articles 3.1 and 3.2.  
Mexico submits that this kind of information ("critical aspects of the market, conditions of competition, production characteristics, and statistical data relati ng to the volume, prices, and effects of imports"
14) 
might be considered by the administering authority to  be relevant to the authority's determination of 
likelihood in the context of a review under Article 11.3.  81. Mexico does not consider that an update d or more recently calculated dumping margin 
necessarily must always be used.  The point for Mexico is that whatever information
 is used by the 
administering authority, that information must  be relevant to the question of "likelihood of dumping."  In 
this respect, it may often be the case (although not always) that dumping margins calculated after the original determination are more probative of like lihood of dumping.  But other information – whether 
company-specific data, country-specific information,  macro-economic conditions, for example – might be 
as probative or more probative than dumping margins for a particular sunset review, depending upon the 
specific facts.  82. At the same time, Mexico would reitera te the Appellate Body's conclusions from Japan Sunset , 
that if an administering authority relies on a marg in – whether from the original investigation or a 
subsequent administrative review – or undertakes to calculate a new margin for purposes of the sunset 
review, then the administering authority must satisfy itself that any such margin is consistent with the 
Anti-Dumping Agreement generally, a nd with Article 2 in particular.
15 
 
                                                      
14 See Panel Question 40, citing 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, paras. 129-130 and fn. 
162. 
15 See Appellate Body Report, Sunset Review of Steel from Japan , paras. 127-132. WT/DS282/R 
Page E-19 
  
83. Finally, in this case, as Mexico's Exhibit MEX-64 shows, Mexico submitted positive evidence demonstrating that the dumping margin from the original investigation was not a reliable basis
 given the 
unique circumstances (peso devaluation and high US dolla r indebtedness) that lead to the Department's 
use of facts available in that case, and the positiv e evidence provided by the Mexican producers that 
showed that circumstances would not arise again in the event of termination.  (Mexico refers the Panel to 
its Answer to question 5 above.)  In this case, th e three zero margins calculated since the original 
investigation were more probative than the margin fro m the original investigation with respect to the 
question of likelihood.  Indeed, the only relevant pos itive evidence before the Department demonstrated 
that Mexican OCTG was not being dumped.  All c oncluded reviews resulted in findings of no dumping, 
and there was no other positive evidence suggesting that dumping was likely to recur.  
Question 18
. Could Mexico explain why, in its view, it is relevant to the sunset determination that 
the original anti-dumping measure was imposed on the basis of a dumping calculation based in part 
on facts available? 
 
Mexico's Response  
 84. It is relevant because it highlights the lack of substantive analysis in the Department's likelihood 
determination.  A finding based on extraordinary, historical circumstances, linked to one point in time in the past, was used as evidence of what would be "lik ely" to occur in the future.  The dumping calculation 
from the original determination was based on the app lication of facts available that resulted from unique 
circumstances involving the 1994 Mexico peso devaluation and one company's high US dollar indebtedness.  Thus, facts available in the original i nvestigation reflected the information available at that 
time; that is in 1994 and 1995. 
 85. By contrast, the determination under Article 11. 3 must be prospective.  This means that the 
evidence supporting a determination under Article 11. 3 must be probative of the likelihood of dumping 
continuing or recurring in the future.  86. The margin from the original investigation, ther efore, should have been given very little (if any) 
weight for purposes of the Department's likelihood determination.  The Mexican exporters provided 
positive evidence that the application of facts availa ble for the final determination in the original 
investigation resulted from unique circumstances (the  1994 Mexican peso devaluation coupled with the 
high US dollar indebtedness of the company) and that  these circumstances would not be repeated in the 
event of termination.  Indeed, as the EC Third Pa rty Submission stated:  the margin resulted from a 
"‘freak' occurrence."
16  Hence, the dumping margin that resulte d from the use of facts available in the 
original investigation was in no way relevant to the prospective analysis required by Article 11.3. 
 87. Since the original investigation, the Depa rtment conducted three administrative reviews and 
calculated a zero margin in each of those reviews.  The consecutive no dumping determinations is positive 
evidence which is more recent and is based on the co mpany's sales data and is therefore more probative 
for purposes of the Department's likelihood determination.   
Question 19
. Does Mexico consider that the determination of "likelihood of continuation or 
recurrence of injury" under Article 11.3 is identical in nature and scope to the "determination of 
injury" under Article 3?  Could Mexico please address,  in this context, the views of the Appellate 
Body in United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat 
Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R, at paragraph 87, that "original 
investigations and sunset reviews are distin ct processes with different purposes" and that the 
"nature of the determination to be made in a sunset review differs in certain essential respects from the nature of the determination to be made in an original investigation"?  
                                                     
 
16 Third Party Submission of the European Communities, para. 3. WT/DS282/R 
Page E-20    WT/DS282/R 
Page E-21 
  
Mexico's Response
 
 88. Mexico believes that "injury" is the same in Artic le 3 and Article 11.3.  That is, the scope of an 
injury determination is injury, and this remains the same whether the need for th e injury analysis arises 
under Article 5 or Article 11.3.  89. As to the determination of the injury, it may be  different in an Article 11.3 review than it is 
another context, such as an Article 5 investigation.  For example, if, in an Article 5 investigation an 
investigating authority is considering whether current  material injury exists, it will review information 
regarding the past and the present to determine whet her the information supports the view that injury 
currently results from the dumped imports.  In an Artic le 11.3 review, the investigating authority will be 
investigating current and past information to determine whether injury currently exists (which is required in order to determine whether injury is likely to "con tinue"), or if it does not exist currently, whether it is 
likely to recur in the future.  Howe ver, this difference in the nature of the injury inquiry arises from the 
specific type of injury being reviewed, not from the source of the obligation to demonstrate injury, be it 
Article 5 or Article 11.3.  For example, in Mexico's  view, the difference in the nature of the injury 
investigation diminishes significantly, and may not exist,  if the investigating authorities in an Article 5 
injury investigation are analyzing the threat of material  injury.  The inquiry will be similar to that of the 
injury determination under Article 11.3.  Likewise, it is possible that, in the context of an Article 11.3 
injury investigation, an authority might analyze wh ether the specific type of injury known as "threat of 
injury" might recur in the future.  This would be di fferent in nature than the current material injury 
analysis in an Article 5 injury investigation.  Ho wever, it does not mean that "injury" is different. 
 90. Mexico believes that these views are completely consistent with the Appellate Body's statements 
in the above-referenced quotations.  Mexico obviously agrees that original investigations and sunset 
reviews are distinct processes and that  they serve different purposes.  As stated above, Mexico also agrees 
that the nature
 of the analysis and the determination may diffe r in an Article 5 injury investigation and in 
an Article 11.3 injury investigation, although as discu ssed above, such differences may not be significant 
(such as in the case in which the investigating authority  is reviewing threat of material injury in both 
contexts, or threat of injury in an Article 5 context and any of the three types of injury in an Article 11.3 
review).  However, Mexico consider s that the Appellate B ody was not addressing the specific issue of the 
injury determination, but rather was commenting on the prospective nature of the analysis that arises from 
the words "likely" and "continue or recur."  This pros pective nature of the inquiry is always important to 
the nature of an Article 11.3 review, and some times relevant to an Article 5 investigation. 
 
Question 20 . Footnote 9 of the AD Agreement depends from  the title of Article 3, "Determination 
of Injury".  That footnote provides  
 
"Under this Agreement the term "injury" sha ll, unless otherwise specified, be taken 
to mean material injury to a domestic industry, threat of material injury to a 
domestic industry or material retardation of the establishment of such an industry 
and shall be interpreted in accordance with the provisions of this Article." 
Does Mexico consider that the phrase "be interpret ed in accordance with the provisions of this 
Article" means that factors that are set out in th e various provisions of Article 3 for "examination" 
or "consideration" define injury?  If so, could Mexico explain how the volume of dumped imports, 
or the prices of dumped imports, which are elements  on which a determination of injury is to be 
based, are pertinent to the concept of injury?  Or is Mexico of the view that only some of the 
elements set out in Article 3 define the concept of injury?  If this is the case, could Mexico specify 
which elements it considers relevant in the context of sunset reviews? 
 WT/DS282/R 
Page E-22   Mexico's Response
 
 91. Mexico does not consider that the phrase "be in terpreted in accordance with the provisions of this 
Article" defines
 injury.  To Mexico, the definition is in the first part of footnote 9, which reads:  "Under 
this Agreement, the term "injury" shall, unless otherwi se specified, be taken to mean material injury to a 
domestic industry, threat of material injury to a domestic injury, or material retardation of the 
establishment of such an industry . . . ."  This porti on of the footnote specifically says what injury is, and 
therefore defines the term for the pur poses of the Anti-Dumping Agreement. 
 92. In Mexico's view, the phrase that follows the defi nition in Article 9 – "injury shall be interpreted 
in accordance with the provisions of this Article" – tells the WTO Members that they must apply Article 3 
in any determinations concerning injury (as define d above).  Therefore, the requirements of positive 
evidence and an objective examination found in Artic le 3 will always be required when determining 
injury (in any of its forms).  Any determination of in jury also must be guided by Article 3.1 and include a 
consideration of the volume of dumped imports and th e effect of dumped imports on prices, as stipulated 
by Article 3.2.  Any determination of injury must include an evaluation of the factors listed in Article 3.4.  Finally, any determination of injury (in any of its forms) must include a demonstration that dumping is 
the cause of injury (in any of its forms).  93. As to the second question, Mexico is afraid th at it may not understand the question given that the 
pertinence of the volume and price of dumped imports to the concept of injury cannot be in doubt.  In fact, 
they are required elements of any injury dete rmination under the Agreement under the terms of 
Articles 3.2, 3.4, 3.5, and footnote 9.  Mexico is of the view that the volume of dumped imports and the 
price of dumped imports are equally pertinent to a de termination of injury under Article 11.3 as they are 
to an injury determination under Article 5.  The nature  of the injury investigation in Article 11.3 reviews 
requires the authority, on a prospective basis, to assess the impact of likely volume and likely price effects on the domestic industry.  However, as explained above, this does not alter the scope of the "injury," only 
the nature of the analysis and determination.  94. As to the third and fourth questions, Mexico belie ves that "injury" is defined by the first part of 
footnote 9, and that therefore it is well established that  there are three types of injury for the purposes of 
the Anti-Dumping Agreement.  As to the elements that Mexico considers relevant in assessing injury 
under Article 11.3, they are the same factors included in Article 3; that is, volume and price (Article 3.2), 
all the individual factors relating to the impact of dumped imports (Article 3.4) , causation (Article 3.5), 
and the specific elements required in the case of a threat  of injury determination (Article 3.7).  Mexico 
notes that paragraph 7.56 of the recent Panel decision in United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada  (WT/DS277/R) supports Mexico's view that the 
first part of footnote 9 contains the definition of inju ry, and that the factors set out in Article 3.4 and 3.7 
are elements that must be considered in making the injury determination (para. 7.105).  
Question 36
. At paragraph 247 of its first submission, the United States asserts that "Article 11.3 
does not contemplate determinations of a cont inuation or recurrence of threat or material 
retardation as a basis for continuing to apply an  anti-dumping duty after a sunset review."  Does 
Mexico agree with this position?  Do the parties consider that the ba sis of the finding of injury in 
the original investigation, that is, present material  injury, threat of material injury, or material 
retardation of the establishment of a domestic i ndustry, has consequences for the evaluation, in a 
sunset review, of the likelihood of continuation or recurrence of injury? 
 
Mexico's Response  
 95. As is apparent from Mexico's other responses,  Mexico does not agree with this position.  In 
Mexico's view, an injury determination under any part of the Anti-Dumping Agreement may be based on any of the three enumerated types of injury; that is, ma terial injury, threat of material injury, or material WT/DS282/R 
Page E-23 
  
retardation of the establishment of a domestic injury .  The precise manner in which the analysis may be 
done for each of these three types may vary from case to case and may vary depending on the source of the obligation to examine the injury under the Agreement.  However, the view that certain types of injury 
cannot support an injury finding under Article 11.3 simply  is contrary to the text of the Anti-Dumping 
Agreement.  96. As to the second question, Mexico's view is th at the phrase "continuation or recurrence" refers to 
the word "injury" in any
 of its three forms, and that it does not require a finding that the injury supporting 
an Article 11.3 injury determination be the precise type  of injury found in the original investigation.  Once 
one accepts that the term "injury" refers to injury in  any of its three forms (and not exclusively to one of 
the three), there are no particular interpretive problem s posed by the words "continuation or recurrence" in 
Article 11.3.  
Question 37
. Looking only at the provisions of Article 11, is there any requirement in that Article 
regarding causation in the context of reviews?  Could an investigating authority decide to continue the measure solely on the basis that there is a likelihood of continuation or recurrence of dumping 
and injury, without considering whether the cont inuation or recurrence of injury is through the 
effects of continued or recurred dumping? 
 
Mexico's Response
 
 97. Yes.  Article 11.1, which establishes the "over-a rching principle" of Article 11, specifically states 
that "anti-dumping duties shall remain in force onl y as long as and to the extent necessary to counteract 
dumping which is causing injury
."  This specific reference to cau sation makes complete sense in the 
context of the fact that the causation requirement has been fundamental to the regulation of dumping in international agreements since 1947.  98. Also, Mexico is of the view that Article 11 should not
 be interpreted in isolation.  Such an 
interpretation is not c onsistent with the general principles of treat y interpretation.  In this case, the specific 
terms of footnote 9, which define "injury" under this Agreement, provide important context.  Therefore, 
"injury" in Article 11.3 must be interpreted in acco rdance with Article 3, as required by footnote 9, and 
Article 3.5 requires a causal link between the dumping and injury.  Also, GATT Article VI is relevant 
context for all dumping determinations, and the causation requirement is explicit in Article VI:1 and VI:6: 
 
"The contracting parties recognize that dumpi ng . . . is to be condemned if it causes or 
threatens material injury to an established industry . . . . " 
. . .  No contracting party shall levy any anti-dumping . . . duty . . . unless it determines that 
the effect of dumping . . . is such as to cause or threaten material injury . . . ." 
Question 38
. Mexico argues at paragraph 98 of its first submission, citing the Appellate Body's 
views in, US – Corrosion-Resistant Steel Sunset Review , that "provisions that create irrebuttable 
presumptions run the risk of being found inconsistent with an obligation to make a particular determination in each case using positive evidence. "   Would the parties consider that a provision 
that creates a rebuttable presumption may be inconsis tent with an obligation to make a particular 
determination in each case based on positi ve evidence?   Please explain your views. 
 
Mexico's Response
 
 99. Any presumption would have to be evaluated on a case-by-case basis.  For example, the context in which the presumption is employed, the manner in which the presumption shifts the burden of proof, WT/DS282/R 
Page E-24   and the nature of the evidentiary burden needed to  overcome the presumption all may affect whether the 
presumption is WTO-inconsistent.  100. In this case, there can be little doubt that th e presumption established by the US system for 
determining likelihood of dumping in sun set reviews is WTO-inconsistent.  
 101. There are several problems with the presumption cr eated by the statute, SAA, and SPB.  First, in 
responding to the Department's notice of initiation of a sunset review, the Department's sunset regulations 
require an exporter to supply information regard ing its pre- and post-order import volumes and the 
company's dumping margin from the original investigation and any subsequent administrative reviews.
17  
The regulations limit the required substantive informa tion to these two factors, and require a showing of 
"good cause" to convince the Department to even consider other information.18  The effect of the 
Department's "good cause" provision effectively bl ocks the ability of respondents to overcome the 
presumption created by the statute, the SAA, and the SPB.  102. Second, in the weight given to these factors,  the presumption establishes a very high evidentiary 
standard by treating the existence of historic dumping margins or post-order volume declines will be 
"highly probative" that a foreign producer cannot  export to the United States without dumping. 
 103. Third, the reversal of the burden to require th e exporters to provide information or evidence that 
would warrant consideration of othe r relevant factors is by itself in consistent with the Article 11.3 
obligation to undertake a case-specific analysis of the factors other than dumping margins and import 
volumes that are necessary to determine the likelihood of  future dumping.  Indeed, in effect once the 
presumption is in place, the system then limits the info rmation that the Department will consider.  In the 
end, rather than examining all the factors relevant to the Article 11.3 obligation, the Department requires 
exporters to provide information or evidence that, s ubject to the Department's discretion, would warrant 
consideration of such factors.  104. Finally, under the terms of the statute, the SAA, and the SPB, a decline in import volume after the imposition of an anti-dumping order and the existence of  historic dumping margins are considered to be 
highly probative of likely dumping.  MEX-62 demonstrates that, in fact, the presumption is irrebuttable and that in every full and expedited sunset review no party has ever been able to overcome the Sunset 
Policy Bulletin criteria.    
Question 39
. In the recently adopted report of the Panel in United States – Investigation of the 
International Trade Commission in Softwood Lumber from Canada  (WT/DS277/R), adopted 
26 April 2004, at paragraphs 7. 104-7.112, the Panel found that, in a threat of material injury case, 
the investigating authority is not required to conduct a predictive analysis of the Article 3.4 factors 
in assessing threat.  Could the part ies please address the implications of  this decision in the context 
of the Article 11.3 determination of likelihood of continuation or recurrence of injury? 
 
Mexico's Response  
 105. The referenced Panel Report confirms Mexico's  claim that the Commission violated Article 3.4. 
There is nothing in the Softwood Lumber from Canada  Panel Report that contradicts Mexico's claims and 
arguments as stated in Section VIII.D.4, paragr aphs 221 to 238 of Mexico's First Submission. 
 106. The portion of the Panel's determination in that  case that is most relevant to an Article 11.3 
review appears in paragraph 7.105.  The Panel finds that the investigating authority is not required to 
analyze the impact of dumped imports twice
.  The Panel found that the Commission already had analyzed 
                                                      
17 19 C.F.R. 351.218(d)(3)(iii). 
18 19 U.S.C. 1675a(c)(2); 19 C.F. R. 351.218(d)(3)(iv); Sunset Policy Bulletin, Section II. WT/DS282/R 
Page E-25 
  
the impact of dumped imports in reaching its finding that imports were not the cause of present material injury to the relevant US industry.  Only after that analysis did the Commission proceed to a threat 
analysis.  The Panel considered that the Commission did not  need to revisit all of the factors of Article 3.4 
and to conduct a predictive analysis of those factors because it had already considered those factors in its 
determination that material injury did not exist.  107. The issue in this case is not whether the Commission must consider the impact of dumped imports twice; rather, it is whether the Commission must exam ine the impact of imports it has considered are 
likely to be dumped, and whether it must examine factors mentioned in Article 3.4 as part of that analysis. 
 Mexico believes that the investigating authority do es have such an obligation.  For this reason, in 
paragraph 221 Mexico argued that: "The fact that Ar ticle 11.3 requires a prospective analysis does not 
relieve the investigating authority of its obligation to evaluate all the factors and indices contained in 
Article 3.4 of the Anti-Dumping Agreement."  108. The obligation to consider the Article 3.4 fact ors arises from the use of the term "injury" in 
Article 11.3.  Nothing in the Panel's Report in DS 277 contradicts this.  
Question 40
. In its recent decision in European Communities – Anti-Dumping Duties on Imports of 
Cotton-Type Bed Linen from India, Recou rse to Article 21.5 of the DSU by India , WT/DS141/AB/RW, 
the Appellate Body addressed the question of how an  investigating authority is to determine what 
proportion of imports attributable to foreign producers or exporters for which a dumping margin 
was not calculated during the investigation is to be considered as "dumped imports" in the injury 
analysis.  The Appellate Body concluded that th ere must be a determination, based on positive 
evidence and an objective examination, of the volume of dumped imports.  The Appellate Body 
stated that evidence of dumping margins estab lished for other producers is relevant positive 
evidence, and noted that there may be different and a dditional types of evidence that properly could 
be considered as positive evidence and relied upo n in making the required determination of the 
volume of dumped attributable to such producers.  In this context, the Appellate Body noted that 
evidence such as witness testimony and different types of documentary evidence about critical 
aspects of the market, conditions of competition, production characteristics, and statistical data 
relating to the volume, prices, and effects of imports,  could form part of the "positive evidence" that 
an investigating authority might properly take into account when determining whether or not imports from non-examined producers are being dumped.  (See paragraphs 129-130 and fn. 162).  
Could the parties address the implications, if any, of  this finding in the context of whether evidence 
other than the calculation of a margin of dumping consistent with the requirements of Article 2 of 
the AD Agreement might suffice as positive evidence in  making a determination as to the likelihood 
of continuation or recurrence of dumping under Article 11.3? 
 
Mexico's Response
 
 109. Mexico refers the Panel to its response to question 17.  
Question 41
. Do the parties agree with the proposition that it is within a Panel's purview to 
examine municipal law to determine its meanin g in assessing its consistency with a Members' 
obligations under the relevant WTO Agreements? 
 
110. Yes, Mexico agrees with this proposition.  The Panel is not required to take as "fact" a Member's 
explanation as to the meaning and/or operation of its municipal law.  The DSU rules and the Panel's terms of reference do not require that such deference be accorded.  Mexico respectfully submits that the Panel 
must analyze a challenged measure – including, if needed, municipal law – in discerning whether that 
measure (by its terms and/or effect) is compatible with WTO obligations. 
 WT/DS282/R 
Page E-26   
Question 42
. The Panel notes that US law states that the Department of Commerce "shall 
consider" certain factors in making it s determination in sunset reviews, inter alia , the margin of 
dumping determined in the original investigation.   The Panel also notes that the United States 
argues that the Department of Commerce did not, in the sunset review at issue here, "rely" on the 
margin of dumping determined in the original in vestigation.  Could the parties explain what, in 
their view, is the distinction between the concepts  of "consider" and "rely" in this context? 
 
Mexico's Response  
 111. In Mexico's view, the Department relied
 on the margin from the original determination for 
purposes of its determination of likely injury in the sunset review.  112. Webster' Dictionary defines the word "consider" to mean:  
"1.  To think seriously.  2.  To regard as.  3.   To believe after deliberation: Judge.  4.  To 
take into account: bear in mind.  5.  To show  consideration for.  6.  To regard highly: 
esteem.  7.  To look at thoughtfully;  To think carefully: reflect."
19 
113. Webster's Dictionary defines the word "rely" to mean: 
 
"1.  To depend.  2.  To trust confidently."20 
 114. Consistent with these dictionary definitions, fo r Mexico, "consideration" suggests action.   To 
"consider" something would require the authority to th ink "seriously," "thoughtfully," and "deliberately" 
about it, and to form a "judgment" it.  Thus, as WTO Pa nels have confirmed, the mere recitation of facts 
would not constitute "consideration."
21  That means, for example, in connection with an Article 11.3 
review, to "consider" the margin from the origin al investigation for purposes of the Article 11.3 
determination would necessarily entail an exercise by the administering authority to determine whether 
the margin was probative with respect to the questi on of likelihood of dumping in the event of termination 
of the measure.  In the end, the amount, if any, of we ight to be given to the original margin for purposes 
of the Department's likelihood determination must be  based on the Department's "consideration" of the 
probative value that that margin has for the likelihood of dumping determination.  115. Reliance means a belief in or confidence in some thing.  While "consideration" suggests an active 
process, "reliance" is the formation of a belief and or  confidence in a particular conclusion.  While that 
belief or confidence can be based on "consideration" of the factors relevant to forming the belief or 
gaining the confidence, "reliance" can also occur w ithout "consideration" of the factors that one would 
reasonably expect to be part of an the evaluation.  In addition, reliance can occur despite a scenario where "consideration" of the relevant factors would lead to  a conclusion not to have confidence in a particular 
outcome.  116. Thus, with respect to the margin of dumping fro m the original investigation, the Department's 
reliance on that margin meant that the Departme nt did nothing to assess whether that margin was 
probative to the question of likelihood of dumping.  Ra ther the Department used  that as a basis for the 
Article 11.3 determination.  117. In fact, the Department's reliance meant that the weight given to the margin proved to be outcome determinative.  The Department's reliance was based on the standard established by the statute, the SAA, 
the regulations, and the SPB.  As di scussed in several of Mexico's ear lier responses, under the terms of the 
                                                     
 
19 Webster’s II New College Dictionary 241. 
20 Webster’s II New College Dictionary 937. 
21 Panel Report, Thailand – H-Beams , para. 7.161; Panel Report, United States – Investigation of the 
International Trade Commission in Softwood Lumber from Canada, DS277. para. 7.61. WT/DS282/R 
Page E-27 
  
statute, the SAA, the regulations, and the SPB, a decline in import volume after the imposition of an anti-dumping order and the existence of historic dumping margins are considered to be highly probative of 
likely dumping.  "Consideration" of "other factors" is contingent upon an inter ested party demonstrating 
"good cause" for the Department to even c onsider other information or evidence. 
 WT/DS282/R 
Page E-28   
 
 
ANNEX E-2 
 
 
ANSWERS OF THE UNITED STATES TO QUESTIONS  
OF THE PANEL – FIRST MEETING 
 
 
(18 June 2004) 
  
Questions to United States: 
 Q21. At paragraph 146 of its first submission, the United States asserts that "US law also provides for an additional review mechanism, an  administrative review on a company-specific 
basis, which goes beyond the WTO obligations of th e United States."  Assuming that such reviews 
are not required under the WTO AD Agreement, could the United States indicate whether it has 
any obligations under the WTO AD Agreement in th e conduct of such reviews and the resulting 
determinations, and if so, what those obligations are? 
 
1. The only issue considered and decided in a company-specific revocation proceeding is whether or not to revoke the duty with respect to a particular  company.  Because Article 11.2 of the AD Agreement 
does not require company-specific proceedings and de terminations, the decision of the United States to 
conduct such a proceeding cannot give rise to any ob ligations under the AD Agreement with respect to 
how such proceedings are conducted or the resulting de terminations.  More specifically, because there is 
no obligation to revoke on a company-specific basis, a determination not to revoke an order with respect 
to a particular company can not be inconsistent w ith the AD Agreement, regard less of what requirements 
are established to initiate the proceeding, what procedur es are followed, or what factors are considered in 
making the decision.  We are not suggesting that Members can avoid obligations in the AD Agreement to conduct certain pro ceedings by establishing other proceedings that  are not required.  The United States, in 
fact, fulfills its obligations in the AD Agreement by providing for order-wide revocation proceedings 
conducted in accordance with the obligations in Artic le 11 of the AD Agreement.  Because nothing more 
is required, however, no additional  opportunities for revocation that authorities may provide can give rise 
to any breach under the AD Agreement.  By doing more than is required under the Agreement, a Member does not create for itself obligations that do not otherwise exist.  
Q22. Could the United States indicate wheth er the right under US law to request a company-
specific annual review of the amount of the duty (annual administrative review), and to request 
revocation in the context of such reviews, may be  exercised concurrently with the right to request 
the revocation review required to be provide d for by Article 11.2 of the AD Agreement? 
 
2. Yes.  In conjunction with an annual administrative review, Commerce can also examine whether the measure as a whole remains necessary or whethe r it should be revoked, provided that such an 
examination is "warranted."  Specifically, such an examination can be made in accordance with either 
section 351.222(b)(1) or section 351.222(g) of Commerce's regulations.  With respect to the fourth review 
of the order on OCTG from Mexico, however, no interest ed party requested such an examination, and no 
demonstration was made that such an examination was warranted.  To the contrary, TAMSA and Hylsa 
each requested only company-specific revocation.
1  This choice on the part of the requesting companies 
ensured that, if TAMSA and/or Hylsa were to achie ve revocation from the anti-dumping order, the benefit 
                                                      
1  See US First Written Submission, para. 150 and the exhibits cited therein.  WT/DS282/R 
 Page E-29 
  would be restricted to that party or parties, rather than being extended to other Mexican competitors in the 
US OCTG market.  
Q23. Could the United States indicate how ofte n, in Commerce's experience since the coming into 
force of the WTO Agreement, Article 11.2 "changed  circumstances" reviews have been requested 
together with, or in addition to, the "non-WTO " company-specific reviews provided for under US 
law? 
 3. Nothing in US law prohibits one or more  interested parties from requesting a changed 
circumstances review with, or in addition to, the company-specific revocation reviews provided for under 
section 351.222(b)(2) of Commerce's regulations.  In Commerce's experience, however, companies do not normally request both a company-specific revocation proceeding and an order-wide changed circumstance review.   Instead, such parties normally seek either one or the other.   Unless a company has a domestic 
monopoly on exports to the United States of the product covered by an anti-dumping order, for example, 
it is often in that company's business interest to seek  company-specific revocation.  In addition to the 
companies that have achieved revocation unde r section 351.222(b), many Article 11.2 changed 
circumstances reviews have been requested to consid er whether an order should be revoked entirely and 
have resulted in such revocations.    
Q24. How does the analysis set forth in the SPB, quoted in paragraph 94 of Mexico's first 
submission and paragraph 96 of the US first submission, reconcile with the statement of the Appellate Body in United States – Sunset Review  of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan ("US – Corrosion-Resistant Steel Sunset Review "), WT/DS244/AB/R, at paragraph 105 that "[t]he likelihood determination is a prospective
 
determination.  In other words, the authorities must undertake a forward-looking  analysis and seek 
to resolve the issue of what would be likel y to occur if the duty were terminated." 
 
4. There is no discrepancy between th e analytical guidance outlined in the Sunset Policy Bulletin  
and the findings of the Appellate Body in Japan Sunset .  As the Panel in Japan Sunset  noted, "to the 
extent it will rest upon a factual foundation, the pros pective likelihood determination will inevitably rest 
upon a factual foundation relating to the past and present."2  The United States agrees, believing that past 
behavior is indicative of future behavior.  In pred icting whether dumping is likely to continue or recur, 
Commerce begins with an assessment of whether compan ies subject to the order have been able to 
participate meaningfully in the market without dumping.   If they have been unable to do so – either they 
have continued to have margins during the life of th e order or their exports have dropped significantly – 
then this actual behavior is evidence of what futu re behavior may be if the order is terminated. 
 5. In Japan-Sunset the Appellate Body further stated "[w]e see no problem, in principle, with the 
United States instructing its investigating authorities to examine, in every sunset review, dumping margins 
and import volumes.  These two factors will often be pertinent to the likelihood determination . . . ."
3  The 
Appellate Body in Japan-Sunset  found that evidence of past behavior, in that case dumping margins and 
depressed import volumes, can form an adequate basi s for an affirmative likelihood determination under 
Article 11.3.4  Accordingly, here, Commerce's examination of all the record evidence, including import 
volumes, is pertinent and supports Commer ce's affirmative likelihood determination. 
 
                                                      
2  United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan , WT/DS244/R ( "Japan Sunset Panel") , para. 7.279. 
3  See United-States Sunset Review of Anti-Dumpi ng Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan,  WT/DS244/AB/R, adopted 9 January 2004  ("Japan Sunset AB") , para. 175. 
4  Japan Sunset  AB, para. 205. WT/DS282/R 
Page E-30   
Q25. Regarding paragraph 99 of the US first submission, could the United States explain how 
Commerce can evaluate whether exporting firms are "capable of competing fairly" if the 
determination is based solely on the volume of the imports? 
 6. Paragraph 135 of the US first submission refers  to a determination made "solely" on the volume 
of the imports, but that statement was intended to i ndicate that, in this case, Co mmerce did not rely on the 
existence of dumping margins in concluding that dumping was likely to continue or recur.  As is clear 
from that paragraph, the statement was not intended to  indicate that this was the only evidence examined. 
 Commerce evaluates all of the evidence on the record  to assess whether firms are "capable of competing 
fairly."  In this case, the eviden ce on the record indicated that the drop in import volumes indeed meant 
that dumping was likely to continue or recur.  
Q26. In paragraph 112 of its first submission, the United States asserts that "Commerce may 
depart from its policy bulletin in any particular case so long as it explains the reasons for doing so". Could the United States provide examples of s unset reviews where Commerce has departed from 
the policy bulletin? 
 
7. In fact, there are few sunset reviews where interested parties have submitted argument and information concerning factors other than historical dumping margins and import volumes.  In Canada-
Sugar , however, Commerce did not base its likelihood determination on dumping margins or import 
volume data.  Rather, it based the final affirma tive likelihood determination on a dumping calculation 
using production costs, pricing data , and other information (some curre nt, some predicted) submitted by 
the interested parties.  The Canada-Sugar  sunset review is discussed more  fully in the US response to 
Panel question 31 below.   8. In addition, in the sunset review of Brass Sheet and Strip from the Netherlands, Commerce had 
preliminarily made a negative likelihood determinati on because the exporter argued convincingly that its 
newly acquired US subsidiary (which produced the s ubject merchandise) and its unique position in the US 
market served to explain why the exporter did not have  pre-order levels of imports since imposition of the 
order.  Although Commerce ultimately made an affi rmative likelihood determination based on additional 
evidence, this case serves to illustra te that the likelihood of dumping analysis undertaken by Commerce 
may include more than dumping margins and import volume data when information regarding other 
factors is submitted by an interested party in a sunset review.  
Q27. What is the relevance of the margin repor ted by Commerce to the ITC in the determination 
of likelihood of continuation or recurrence of injury? 
 9. The "margin likely to prevail" is a construct of US law.  Section 752(c)(3) of the Act directs that 
Commerce "shall provide
" to the ITC a "margin likely to prevail" in the event of revocation.  
Section 752(a)(6) of the Act, however, provides that the ITC "may consider " the "margin likely to 
prevail" in making the likelihood of continuation or recu rrence of injury determination.  Thus, the statute 
leaves it to the ITC's discretion whether to consider or use the reported likely margin in its analysis.5  
 10. The "margin likely to prevail" has not been u sed in any degree as a basis for the determination 
whether it is likely dumping will continue or recur if the order were revoked.  Rather, Commerce has first 
made the likelihood determination, then determined th e "margin likely to prevail" in the event of an 
affirmative order-wide likelihood determination.  
Q28. Is the Panel correct in its understanding that  a single company can, under applicable US 
law and regulations, request order-wide revocation?   If so, can such order-wide revocation be 
requested by a single company only in the contex t of a changed circumstances review, or can it be 
                                                     
 
5  See SAA at 890-91 (Exhibit MEX-26).  WT/DS282/R 
 Page E-31 
  
requested by a single company in the context of  a periodic review of the amount of duty (annual 
administrative review)? 
 
11. Yes, a single company can, under US law and regulations, request order-wide revocation under 
section 351.222(g) of the regulations (changed circum stances review).  Furthermore, a single company 
can request order-wide revocation, pursuant to section 351.222(b)(1) of the regulations, in the context of a 
request for an annual assessment review.  Norm ally, however, an order-wide request under 
section 351.222(b)(1) would only occur if the industry in the exporting country consisted of a single 
company or group of companies.  Like requests fo r company-specific revocation, such requests must 
comply with the terms of section 351.222(d) and (e) of the regulations.
6  In the course of considering a 
request for order-wide revocation under section 351. 222(b)(1), Commerce would have to consider 
"[w]hether all exporters and producers covered at th e time of revocation by the order or the suspension 
agreement have sold the subject merchandise at not l ess than normal value for a period of at least three 
consecutive years; and [w]hether the continued app lication of the anti-dumping duty order is otherwise 
necessary to offset dumping."   
Q29. Could the United States explain the status of the Sunset Policy Bulletin under US law, and 
its role and function in the conduct and determination of sunset reviews? 
 
12. Under US law, the Sunset Policy Bulletin  is a non-binding statement that provides the general 
understanding of Commerce's Assistant Secretary for Import Administration of issues not expressly addressed by the sunset review statute and regulations .  The Assistant Secretary is the decision-maker at 
Commerce for anti-dumping and countervailing duty cases.    13. The Sunset Policy Bulletin  does nothing other than provide guidance as to how the Assistant 
Secretary anticipates exercising the discretion provided in the statute and its regulations (and the Anti-Dumping Agreement).  Neither the Assistant Secr etary nor Commerce as a whole is bound to follow the 
guidance in the Sunset Policy Bulletin.  By contrast, under US law, Commerce is
 bound to follow the 
requirements of statutes and regulations.    14. Significantly, the Sunset Policy Bulletin  was issued prior to the actual conduct of any sunset 
reviews – in other words, it was issued before the public could draw guidance from how Commerce had 
already conducted these reviews.  Recognizing that the statute provided Commerce with discretion that could be exercised in a number of ways, the Assist ant Secretary considered it useful, as a matter of 
transparency, to provide the public with guidance on hi s thinking with respect to a variety of issues, in 
light of the lack of case results that would typically provide such guidance.  Its role and function in the 
conduct and determination of sunset reviews is to provide interested parties with a guide as to how 
Commerce may evaluate certain facts and therefore to provide those parties with an opportunity to 
anticipate and respond to what Commerce "may" or "normally will" do.  It also provides a convenient reference point for the Assistant Secretary when maki ng decisions that follow the principles set forth in 
the Sunset Policy Bulletin , in lieu of restating in each decision the logic underpinning the principles set 
forth in the Sunset Policy Bulletin .  
 15. It should be noted that if there were no Sunset Policy Bulletin,  the results of each sunset review 
would be the same; the Sunset Policy Bulletin and the decision in each review reflect
 the Assistant 
Secretary's thinking – the Sunset Policy Bulletin  does not dictate  the Assistant Secretary's thinking in 
general or in a particular review.  
                                                     
 
6  See e.g. Notice of Preliminary Results of Anti-Dumping Duty Administrative Review and Intent to Revoke 
Order: Brass Sheet and Strip from the Netherlands , 64 FR 48760 (8 September 1999) and Notice of Final Results of 
Anti-Dumping Duty Administrative Review and Intent No t to Revoke Order: Brass Sheet and Strip from the 
Netherlands , 65 FR 742 (6 January 2000) (Exhibit MEX-62).   WT/DS282/R 
Page E-32   
Q30. Could the United States please provide a ta ble or chart setting forth all the "review" 
provisions of US law, with a reference for each as to what provisions of the AD Agreement, if any, 
each such provision is intended to implement? 
 
16. Attached as Exhibit US-28.  
Q31. The Panel notes that, in the Canada-Su gar sunset review, the Department of Commerce 
appears to have estimated a future dumping margin and taken that into account in concluding that 
Canadian producers could not sell in the US market without dumping and that therefore there was a likelihood of continuation or recurrence of dumping.  Could the United States explain why a similar analysis was not undertaken in the case at hand, where it appears that the United States was 
the largest single market for OCTG  in the world, with relatively higher prices than other markets, 
which would seem to indicate that dumpi ng in the US market was not likely?  
 17. In the Canada-Sugar  sunset review, interested parties,  both domestic and respondent, submitted 
argument and factual information concerning the like lihood that Canadian producers could sell sugar in 
the United States without dumping if the duty were to be  removed.  This factual information and analysis 
concerned, inter alia , the respondent interested party's costs for producing the subject merchandise, 
pricing data from the respondent interested party, the US Sugar programme's two-tiered tariff-rate-quota 
system, and an analysis of past and future world sugar prices.
7    
 18. Interested parties, both domes tic and respondent, have submitted additional factual information in 
only a handful of sunset reviews, even though Commerce's Sunset Regulations provide for the submission 
of argument and factual information concerning the likely effects of revocation and for the submission of any other information an interested party may choose to submit.
8  Notwithstanding the handful of other 
sunset reviews in which additiona l information was submitted, the Canada-Sugar  sunset review is unique 
with respect to the volume and complexity of the a dditional information, analysis, and argument supplied 
by the interested parties in that sunset review.  19. In the sunset review of OCTG from Mexico, none  of the interested parties availed themselves of 
the opportunities to provide such information or to make any arguments regarding the market conditions 
for OCTG in the United States.  Therefore, there was no basis in this case to conduct an analysis like that 
undertaken in Canada-Sugar . 
 
Q32. The Panel notes that statement of the United States at paragraph 246 of its submission that  
 
"(i) "material injury," (ii) "threat of material injury," (iii) "material retardation of the establishment of a domestic industry," and (iv) the likelihood of "continuation 
or recurrence of . . . injury" are each separ ate conditions, with separate elements, 
some of which are specified in the AD Ag reement and some of which are implied.  
The drafters of the AD Agreement had the option of including the "likelihood of continuation or recurrence of injury" condition  in footnote 9, but chose not to do 
so." 
Could the United States clarify whether, in its view, continuation or recurrence of injury is, in 
effect, another kind or category of injury?  Further, could the Unites States explain whether, in its view, "injury" as used in Article 11.3, is conceptua lly the same as "injury" as defined in footnote 9 
                                                     
 
7  See Final Results of Full Sunset Review: Sugar and Syrups from Canada , 64 Fed. Reg. 48362 
(3 September 1999) (Exhibit MEX-62). 
8  See section 351.218(d)(3)(ii)(F) and section 351.218(d)(iv)(B) of Commerce’s Sunset Regulations 
(Exhibit  MEX-25).   WT/DS282/R 
 Page E-33 
  
of the AD Agreement, and it is the concept of "c ontinuation or recurrence" that distinguishes the 
Article 11.3 determination from a determination under Article 3?   
 20. Footnote 9 indicates that injury should be interp reted to include the three categories recognized in 
Article VI of GATT 1994 "unless otherwise specified."  The contextual reference in Article 11.3 to the 
"continuation or recurrence of dumping and injury" constitutes such a specification.   21. Footnote 9 derives from the Article 3 heading "D etermination of Injury."  Consistent with the 
heading of Article 3, Article 3.1 begins by referri ng to "[a] determination of injury for purposes of 
Article VI of GATT 1994."  In turn, Article VI of GATT 1994 contemplated only original determinations of  dumping and injury.  The requirement for investigating authorities to conduct sunset reviews was first imposed in the WTO Agreement, specifically by Artic le 11.3 of the AD Agreement.  The "definition" of 
injury set out in footnote 9 lists the three types of injury that were recognized under GATT 1994:  Present 
material injury, threat of material injury, and ma terial retardation to the establishment of a domestic 
industry.  See Article VI.1, GATT 1994 ("dumping . . . is to be condemned if it causes or threatens 
material injury to an established industry in the terr itory of a contacting party or materially retards the 
establishment of an industry").  22. While present injury, threat of injury, and ma terial retardation are each a possible basis for 
establishing injury, for purposes of Article 3, each of those findings is different and involves, at least in part, some distinct considerations.  For example, th e requirements of Article 3.7 apply only to threat of 
injury determinations.  The various categories of injury/injury determinations cannot be considered 
identical, with the one exception that any of the three findings can provide the basis, when combined with 
a finding of dumping, for the issuance of an anti-dumping duty order.  23. By providing a "definition" of injury, footnote 9 provides a concise shorthand that is used in place of restating in each applicable instance "material injury to a domestic industry, threat of material injury to 
a domestic industry or material retardation of the estab lishment of such an industry."  The text of various 
provisions of the Agreement demonstrates, however, th at the shorthand spelled out in footnote 9 is not 
intended to be substituted in every instance in wh ich the Agreement uses the term "injury."  If the 
shorthand provided by footnote 9 were extended to apply in every such in stance, this would result in some 
obvious absurdities.    24. For example, Article 3.7, which discusses the crite ria for a determination of threat of material 
injury, contains the language that "[t]he change in circumstances which would create a situation in which the dumping would cause injury
 must be clearly foreseen and imminent."  (Emphasis supplied).  If one 
were to blindly apply the three-fold definition of inju ry set out in footnote 9, this sentence would come to 
mean that there can be a threat of a threat of mate rial injury to the domestic industry, or a threat of 
material retardation to the establishment of a domestic industry.  Such notions plainly are out of the purview of Article VI of GATT 1994 and would not form a sustainable basis for issuance of an original affirmative injury determination.  Th e rote application of the footnote 9 definition of injury to Article 11.3 
sunset reviews would create similar difficulties.    25. The text of the Agreement suggests that the determination
 contemplated by Article 3 is different 
from the determination  contemplated by Article 11.3.  It follows that the nature of the injury  that is 
assessed in each respective type of determination refl ects the same differences.  Just as there are three 
types of injury findings that support a determination of injury in an original investigation, there is a fourth type of injury finding that supports a determination of likely continuation or recurrence of injury in a 
sunset review.  Each of the three types of injury not ed in footnote 9 is distinguished by various factors, 
including some with temporal dimensions. Thus, a de termination of injury may be based on a finding of 
present material injury to an established domestic industr y, an "imminent" threat of material injury to an 
established domestic industry (see Article 3.7), or ma terial retardation to the establishment of a new 
industry.  The concept of "continuation or recurrence . . . of injury" addressed  in Article 11.3 refers to a WT/DS282/R 
Page E-34   fourth type of analysis, one which is counterfactual in  nature in that the investigating authorities look not 
to see if trends in economic factors and indices will c ontinue or accelerate, but instead what the effect 
would be of changing a condition of competition,  i.e., the discipline imposed by the order. 
 
Q33. If the United States accepts that "injury" as used in Article 11.3, is conceptually the same as 
"injury" as defined in footnote 9 of the AD Agreem ent, could it explain how it reconciles this view 
with the argument that neither threat of mat erial injury nor material retardation of the 
establishment of a domestic industry can form the ba sis of a decision that there is a likelihood of 
continuation or recurrence of injury in a sunset review? 
 26. As discussed in response to question 32, the United States is of the view that "injury" as used in 
Article 11.3 is conceptually different  from that addressed in Article 3. 
 
Q34. The arguments of the EC in connection with the two "aspects " of US periodic assessment of 
duty proceedings appear to indicate that the EC considers those proceedings to be consistent with 
Article 9.3.1 of the AD Agreement insofar as they  concern the assessment of duties on shipments 
during the period reviewed, but inconsistent with eith er Article 11.2, or Article 2, or both, insofar as 
they concern the establishment of a cash deposi t rate for future shipments.  Assuming this 
understanding is correct, could the United States expl ain its views with respect to this argument?   
 
27. Consistent with Article 9.3.1 of the AD Agreem ent, as explained in the answer to question 30, 
Commerce conducts a periodic administrative review under section 751(a) of the Act for retrospective 
assessment to determine the final liability for anti-dumping duties after merchandise is imported.   The amount of duties to be assessed is determined in a revi ew covering a discrete period of time. Based on the 
actual shipments during the period of review, Comme rce calculates an appropriate assessment rate for 
each customer or importer of subject imports during th at period.   In an administrative review, Commerce 
calculates the assessment rate on an importer-specific basis by dividing the aggregate of the dumping 
margins found on the export transactions (determined c onsistent with Article 2.4 of the AD Agreement) 
by the entered value of such merchandise for norma l customs purposes.  Commerce uses an aggregate of 
the producer/exporter specific results to set a new cash  deposit rate for future shipments of subject 
merchandise into the United States.  28. In accordance with Article 11.2 of the AD Agreement, Commerce considers requests for 
revocation on an order-wide basis in the context of  either a changed circumstances review or an 
administrative review.  Order-wide revocation was not  requested in the fourth review of OCTG from 
Mexico; instead, TAMSA and Hylsa each requ ested a company-specific revocation under 
section 351.222(b)(2) of Commerce's regulations.  Acco rdingly, as requested, Commerce only considered 
whether company-specific revocation, which is not governed by Article 11.2 of the AD Agreement, was 
warranted.  29. In this fourth review of OCTG from Mexico , Commerce conducted an administrative review to 
determine duties to be assessed on imports of the s ubject merchandise during the period of August 1, 
1998, through 31 July 1999.  The review was conducted cons istent with  the obligations in Article 9.3.1 
and Article 2.4 of the AD Agreement, and Mexico has made no claims to the contrary.  30. Commerce will consider a company-specific revocation request, which is not required by the Agreement, during an administrative review rather th an requiring a separate proceeding.   By utilizing a 
single proceeding for two distinct inquiries, however, Commerce does not create obligations that do not exist in the Agreement.  As discussed previously in response to question 21, because the Agreement does 
not require company-specific revocation, the United Stat es is not in violation of its WTO obligations in 
considering a company-specific revocation request, rega rdless of whether it did so concurrently with an 
Article 9.3.1 assessment proceeding or in a separate proceeding.  WT/DS282/R 
 Page E-35 
  31. Commerce's calculation of the cash deposit rate is part of its retrospective assessment process, 
which is the subject of Article 9.3.1, not Article 11. 2.  The EC's attempt to base an argument about the 
calculation of cash deposits on Article 11.2 is entirely without foundati on.  Nothing in Article 11.2, which 
is the sole basis for Mexico's claim, has any beari ng whatsoever on setting cash deposits in a retrospective 
system.  The calculation of the assessment and cash de posit rates are therefore beyond the scope of the 
Panel's terms of reference.   
Q35. Could the United States address, with referen ce to Table 1 of the EC's submission, whether 
the "Zeroing by transaction" it considers that th is column sets out the amounts by which normal 
value exceeded export price on the respective shipment s?  Does the United St ates consider that these 
figures represent amounts by which these sales were dumped?  If yes, could the United States 
respond to the proposition that, if zeroing is pr ohibited, a Member assessing duties on the basis of 
the calculation represented in that column would not be entitled to collect duties in the amounts of 
actual dumping, but must offset actual dumping during the period of existence of an order by the amounts by which normal value was exceeded on other sales? 
 
32. The "Zeroing by transaction" column in Table 1 of the EC's submission sets out a transaction-specific comparison of export price to normal value;  where the normal value exceeds export price, that 
represents a margin of dumping consistent with th e definition of dumping in Article 2.1 of the AD 
Agreement.    33. In accordance with Article 9.3 of the AD Agr eement, the United States ensures that the anti-
dumping duty collected from importers does not exceed the actual margin of dumping.  The United States is entitled to assess the margin of dumping on a retrosp ective basis pursuant to Article 9.3.1 of the AD 
Agreement.  Commerce calculates the appropriate ma rgin of dumping consistent with the applicable 
Article 2 provisions of the AD Agreement, e.g., the fair comparison requirement of Article 2.4.  
 34. As noted in the United States' answer to question 34, the United States assesses anti-dumping 
duties on an importer-specific basis, and thus woul d aggregate the last column in Table 1 on an 
importer/customer specific-basis.  For example,  the United States would collect dumping duties from 
importer/customer 1 in total equal to 25 (5+15+5).  By contrast, sales to customer 4, not dumped, would 
be assessed at zero, and Customs would return to importe r/customer 4, with interest, any deposits made.   
 35. Neither Mexico nor the EC cites to any langua ge in the AD Agreement that requires a reduction 
or offset to the anti-dumping duties properly assessed on im porter/customer 1's entries to reflect the fact 
that importer/customer 4 paid more than normal value for its imports.  
Questions to both: 
 Q36. At paragraph 247 of its first submission, the United States asserts that "Article 11.3 does not contemplate determinations of a continuation or  recurrence of threat or material retardation as a 
basis for continuing to apply an anti-dumping duty after a sunset review."  Does Mexico agree with this position?  Do the parties consider that the basis of the finding of injury in the original 
investigation, that is, present material injury, threa t of material injury, or material retardation of 
the establishment of a domestic industry, has conseque nces for the evaluation, in a sunset review, of 
the likelihood of continuation or recurrence of injury?  
 
36. The United States does not consider that the b asis for the finding of injury in the original 
investigation distinguishes the type of examination that should be conducted dur ing the sunset review.  
Irrespective of the original basis for the determination,  the investigating authorities will in a sunset review 
be examining the conditions that exist after the order has been in place for five years and the likely impact that revocation of that order w ill have on the domestic industry. 
 WT/DS282/R 
Page E-36   
Q37. Looking only at the provisions of Article 11, is there any requirement in that Article 
regarding causation in the context of reviews?  Could an investigating authority decide to continue the measure solely on the basis that there is a likelihood of continuation or recurrence of dumping 
and injury, without considering whether the cont inuation or recurrence of injury is through the 
effects of continued or recurred dumping? 
 
37. Under Article 11.3, an order can be maintained only if there is a link between the expiry of the 
duty and the likelihood of continuation or recurren ce of both dumping and injury.  Under US law, as 
demonstrated by its analysis in the OCTG sunset re view, the ITC meets this obligation by examining the 
likely volumes, price effects, and impact of likel y dumped imports if the orders were revoked.   
 
Q38. Mexico argues at paragraph 98 of its first s ubmission, citing the Appellate Body's views in, 
US – Corrosion-Resistant Steel Sunset Review, that "provisions that create irrebuttable 
presumptions run the risk of being found inconsistent with an obligation to make a particular determination in each case using positive evidence. "   Would the parties consider that a provision 
that creates a rebuttable presumption may be inconsis tent with an obligation to make a particular 
determination in each case based on positi ve evidence?  Please explain your views. 
 
38. The United States notes at the outset that, unlik e Article 3 of the AD Agreement, there is no 
"positive evidence" standard in Article 11.3.  Nevert heless, the existence of a rebuttable presumption and 
the an obligation to make a determination based on positive evidence are not incompatible.  Certain 
factual scenarios may reasonably give rise to presumptions , but if the decision in a particular case is made 
based on the facts of that case – the positive evidence on the record – then a rebu ttable presumption is not 
inconsistent with an obligation to make a par ticular determination based on positive evidence.  
 
Q39. In the recently adopted report of the Panel in United States – Investigation of the 
International Trade Commission in Softwood Lumber from Canada (WT/DS277/R), adopted 26 April 2004, at paragraphs 7.104-7.112, the Panel found that, in a threat of material injury case, the investigating authority is not required to conduct a predictive analysis of the Article 3.4 factors 
in assessing threat.  Could the part ies please address the implications of  this decision in the context 
of the Article 11.3 determination of likelihood of continuation or recurrence of injury? 
 
39. The panel report in ITC Lumber  reinforces the view of the Un ited States that the Agreement 
contemplates several different types of injury and dete rminations of injury, each of which must be viewed 
in its own unique context.  Just as the context and text ual references to a determination of threat of injury 
distinguish that type of injury determination from a determination of present injury, a determination of 
likelihood of continuation or recurrence of injury unde r Article 11.3 is distinguished both textually and 
contextually from a determination of either present injury or threat of injury.  40. In ITC Lumber , the panel found that "the text, contex t, object and purpose of the relevant 
provisions  do not lead to" the interpretation that Articles 3.2 and 3.4 of the Anti-Dumping Agreement and 
Articles 15.2 and 15.4 of the SCM Agreement apply directly  in the context of threat of injury, such that a 
predicted "impact" with respect to each of the listed factors must be assessed.
9  The panel noted that, for 
the purposes of an investigation , consideration of ADA Article 3.4 factors was necessary in order to 
establish a background against which the authorities c ould evaluate whether imminent further dumped 
imports would affect the industry's condition in such a manner as to threaten it with material injury as 
defined by the Agreement in Article 3.7.10  As the panel found, there is nothing in the text of the 
                                                      
9  United States – Investigation of the Internati onal Trade Commission in Softwood Lumber from Canada , 
Report of the Panel, WT/DS277/R, adopted 26 April 2004 (" ITC Lumber, Panel Report"), para. 7.104. 
10  ITC Lumber , Panel Report, paras.7.105-7.107. WT/DS282/R 
 Page E-37 
  Agreement "setting out an obligation to conduct a second analysis of the injury factors in cases involving 
threat of material injury."
11 
 41. The reasoning of the ITC Lumber  Panel with respect to the absence of any requirement to conduct 
a second analysis of the Articles 3.2 and 3.4 factors for the purposes of finding threat of material injury applies all the more in the context of a sunset review .  First, as explained in the first written submission of 
the United States at paras. 310-316, there is nothing in the text of the Agreement to suggest that 
authorities are required to consider Article 3.4 f actors even once in conducting sunset reviews.  
Nonetheless, in this respect, the United States notes that  its sunset statute requires the ITC to conduct the 
equivalent of an Article 3.4 examinati on, as relevant to sunset reviews.  See 19 U.S.C. § 1675a(a)(4).  As 
applied in the OCTG review, the ITC conducted the re quired statutory analysis of the relevant economic 
factors likely to have a bearing on the state of the domestic OCTG industry, a nd against this background, 
assessed the likely impact of future dumped imports.  42. Aside from consideration of the relevant econom ic factors concerning the current condition of the 
domestic industry, the ITC Lumber  report reinforces that there most certainly is nothing in the text of the 
Agreement that would require the authorities to c onduct "an assessment of the likely impact of future 
imports by reference to a consideration of projecti ons regarding each of the [Article 3.4] factors."
12  This 
reasoning applies equally whether the future imports ar e those likely to result from expiry of the duty in 
the context of a sunset review or those likely to c ontinue to enter unchecked in the imminent future 
relevant to an original investigation.  Indeed, the te xtual argument applies all the more in the context of a 
sunset review given the lack of cross-reference in Article 11.3 to the Article 3 requirements.  
 43. In addition to the textual demonstration of why application of an Article 3.4 examination is not 
required in future-looking assessments, the ITC Lumber  report further explains that the information 
necessary to conduct an Article 3.4 analysis woul d not be available in many instances.  The ITC Lumber  
reports cites, as examples, the likely absence of n ecessary information concerning projected productivity, 
return on investment, and projected cash flow.
13   The reasoning of the ITC Lumber  panel in this respect is 
even more on point in the context of a sunset review , given the counterfactual na ture of a review.  In a 
review, not only is much of the data concerning Article  3.4 factors unavailable in any meaningful fashion; 
even the projected data that can be provided reflects conditions during a time when the restraining effects of the anti-dumping duty order are in place, making it that  much more difficult to extrapolate to the likely 
conditions that would prevail upon expiry of the duty.  44. The findings of the ITC Lumber  panel concerning the inapplicability of Article 3.2 factors to 
threat determinations also fully support the view of the United States that such factors do not apply directly to sunset reviews.  The ITC Lumber  panel found that the provisions of Article 3.2 "require the 
investigating authorities to consider events in th e past, during the period investigated, in making a 
determination regarding present material injury."
14  As the panel explained, Article 3.2 refers to 
consideration of whether there "has been" a signi ficant increase in imports, whether there "has been" 
significant price undercutting, or whether the effect of imports is otherwise to depress prices or prevent price increases that otherwise "would have occurred. "  These considerations allow the authorities to 
examine the effects of the dumped imports during th e period where they were unchecked by the anti-
dumping duty order.  The focus of the Article 3.2 te xt on conditions that have occurred during the past 
period demonstrates not only the inapplicability of an Article 3.2 analysis to the future-looking threat 
determination, but also to sunset reviews.  45. Finally, the ITC Lumber panel noted that, in an original investigation, "consideration of the 
Article 3.2/15.2 factors forms part of the backgr ound against which the investigating authorities can 
                                                     
 
11  ITC Lumber , Panel Report, para. 7.105. 
12  ITC Lumber , Panel Report, para. 7.105. 
13  ITC Lumber , Panel Report, para. 7.105.  
14  ITC Lumber , panel report, para. 7.111. WT/DS282/R 
Page E-38   evaluate the effects of future dumped and/or subsidized imports."
15  In the view of the United States, 
consideration of Article 3.2 factors is not necessar ily required even as background for the purposes of a 
sunset review.  Nonetheless, the US statute requir es the ITC in conducting a sunset review to examine 
likely volumes and price effects, as well as to consid er the original determination, in which an 
examination under Article 3.2 would have been c onducted.  As demonstrated in our first written 
submission, at paras. 268-293 (volume) and 294-305 (p rice effects), the ITC made its OCTG sunset 
determination in a manner that took these factors into acc ount to the extent applicable in a sunset review. 
 
Q40. In its recent decision in European Comm unities – 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, the Appellate Body addressed the question of how an investigating authority is 
to determine what proportion of imports attributab le to foreign producers or exporters for which a 
dumping margin was not calculated during the in vestigation is to be considered as "dumped 
imports" in the injury analysis.  The Appellate Body concluded that there must be a determination, based on positive evidence and an objective exam ination, of the volume of dumped imports.  The 
Appellate Body stated that evidence of dumping margins established for other producers is relevant positive evidence, and noted that there may be different and additional types of evidence that 
properly could be considered as positive ev idence and relied upon in making the required 
determination of  the volume of dumped attributab le to such producers.  In this context, the 
Appellate Body noted that evidence such as wi tness testimony and different types of documentary 
evidence about critical aspects of the market, conditi ons of competition, production characteristics, 
and statistical data relating to the volume, prices, and effects of imports, could form part of the 
"positive evidence" that an investigating authority might properly take into account when determining whether or not imports from no n-examined producers are being dumped.  (See 
paragraphs 129-130 and fn. 162).  Could the parties address the implications, if any, of this finding in the context of whether evidence other than the calculation of a margin of dumping consistent 
with the requirements of Article 2 of the AD Agreement might suffice as positive evidence in 
making a determination as to the likelihood of continuation or recurrence of dumping under Article 
11.3? 
 
46. The Appellate Body in European Communities – Anti-Dumping Duties on Imports of Cotton-Type 
Bed Linen from India, Recourse to Article 21.5 of the DSU by India  observed that in some anti-dumping 
investigations, there could be evidence, such as mark et conditions, prices, sales volumes, and others, that 
was probative of the existence of dumping by non-exam ined producers.  While the issue of the dumping 
margins of non-examined producers is not applicable here, and although Bed Linen  related to an original 
investigation, it supports the principle that inferences may be drawn from existing facts in order to draw a 
conclusion about something which is not known.  Ther e is an added level of complexity in a sunset 
review because the administering authority must use th e existing facts to make pr edictions, not just about 
unknown facts, but concerning facts that are likely to exis t in the future.  The administering authority in a 
sunset review must necessarily draw inferences about  future conduct on the basis of past and present 
information because the inquiry is necessarily forward-l ooking or predictive.  Thus, the Appellate Body's 
reasoning supports the conclusion that relevant informa tion for the determination of likelihood in a sunset 
review is not limited to dumping margins calculated in  accordance with Article 2 of the AD Agreement.  
To the contrary, other information on costs, prices, import volumes and other market conditions may also 
provide a reasonable basis for a likelihood of dumpi ng determination.  Section 751 (c)(2) of the Act 
provides for the examination of other factors, such as price, cost, and market conditions in a sunset review 
and section 351.218(d)(2)(iv)(B) of Commerce's Sunset Regulations provides interested parties the 
opportunity to submit this type of informa tion for consideration in a sunset review. 
 
                                                     
 
15  ITC Lumber , panel report, para. 7.111. WT/DS282/R 
 Page E-39 
  
Q41. Do the parties agree with the proposition th at it is within a Panel's purview to examine 
municipal law to determine its meaning in assessi ng its consistency with a Members' obligations 
under the relevant WTO Agreements? 
 
47. The Appellate Body has noted the need for panels  to examine municipal law in order to determine 
the meaning of a measure, for the purpose of assessing the measure's compliance with a Member's WTO 
obligations.
16  Indeed, in cases in which the meaning of the measure is central to the issue of whether a 
Member is meeting its WTO obligations, not only is it within the Panel's purview to examine municipal 
law, but in fact a Panel generally must  examine municipal law.  To do otherwise risks making an 
erroneous finding with respect to that Member's compliance with its WTO ob ligations (because such a 
finding would be based on an erroneous understanding of the measure at issue). 
 48. Questions concerning municipal law, such as the meaning of the Sunset Policy Bulletin , are 
questions of fact.  As the party advancing claims concerning the meaning of the Sunset Policy Bulletin , 
Mexico bears the burden of proving its assertions.  Mexi co has failed to do so.  It has offered no evidence 
that the Sunset Policy Bulletin  is an instrument with legal effect.  For this reason, Mexico resorts to 
arguing that the allegedly cons istent application of the Sunset Policy Bulletin  is evidence that it is a 
measure that mandates a breach.    49. The Panel cannot properly evaluate Mexico's argument, however, without examining the status of the Sunset Policy Bulletin under US law.  Under US law, even if the Sunset Policy Bulletin were referred 
to ad infinitum  in numerous reviews, this would not be su fficient to transform it into a measure that 
mandates a breach.  It is not a measure because it has no operational life of its own; whether it is applied 
once or a thousand times, it has no legal effect.
17   Mexico has not, and cannot, demonstrate that the 
Sunset Policy Bulletin  itself has legal force.  As such, Mexico has not sustained its burden of proving that 
the Sunset Policy Bulletin  is a measure. 
 50. In addition, under US law, the Sunset Policy Bulletin  does not and cannot mandate a breach.  As 
noted above, regardless of the terms of the Sunset Policy Bulletin , the nature of this document under US 
law is such that it simply cannot mandate a breach.  It  has no legal authority to mandate anything at all.  
Instead, by its very terms, it provides guidance as to general factual situations.  The principles reflected in the Bulletin are applied in the context of the specific f acts of each case.  Again, Mexico resorts to 
evidence of agency practice – the outcomes of X number of cases – to argue that the Sunset Policy 
Bulletin mandates a breach.  However, as a matter of US law, this evidence does not and cannot prove that 
the Sunset Policy Bulletin mandates anything that might or might not constitute a WTO breach.  The 
outcomes in any number of cases are simply outcomes.  In essence, all Mexico has offered is evidence 
that the Sunset Policy Bulletin  accurately and transparently describes Commerce's current thinking;  this is 
perfectly logical, given that the decision-maker in those cases is the decision-maker who decides whether 
to keep, modify, or withdraw the Sunset Policy Bulletin. What Mexico has not
 done is demonstrate that 
                                                      
16  India - Patent Protection for Pharmaceutical and Agricultural Chemical Products , WT/DS50/AB/R, 
Report of the Appellate Body, para. 66. 
17  Thus, the panel in US - Steel Plate concluded that US anti-dumping "practice" is not a measure, 
reasoning that "repetition" does not turn a "practi ce into a ‘procedure,’ and hence into a measure."  United States - 
Anti-Dumping and Countervailing Measures on Steel Plate from India,  WT/DS206/R, Report of the Panel adopted 
29 July 2002, para. 7.22 (citation omitted).  The panel went on to note,  
That a particular response to a particular set of circumstances has been repeated, and may be 
predicted to be repeated in the future, does not, in our view, transform it into a measure . . . .  
Moreover, we do not consider that merely by repe tition, a Member becomes obligated to follow its 
practice.   
 Id. WT/DS282/R 
Page E-40   the Sunset Policy Bulletin  mandated
 the outcomes in question.  Mexico cannot do so; the Sunset Policy 
Bulletin does not dictate what the Assistant Secretary, or Commerce, must do.   
 51. If the Panel examines municipal law, it will find that Mexico cannot prove that the Sunset Policy 
Bulletin is a measure, nor does it mandate a breach.  To find otherwise would be an error of fact with 
respect to US law.  
Q42. The Panel notes that US law states that  the Department of Commerce "shall consider" 
certain factors in making its determination in s unset reviews, inter alia, the margin of dumping 
determined in the original investigation.  The Panel also notes that the United States argues that the 
Department of Commerce did not, in the sunset rev iew at issue here, "rely" on the margin of 
dumping determined in the original investigation.  Could the parties explain what, in their view, is 
the distinction between the concepts of "c onsider" and "rely" in this context? 
 
52. Commerce "considers" or "examines" all the evidence on the administrative record when making 
a determination in any proceeding, whether an admini strative review or a sunset review.   In making a 
determination, Commerce may "rely" or base its dete rmination on certain facts in evidence.  "Consider" 
means "to look at attentively; survey; scrutinize."
18  "Rely" means "to be dependent on."19  Therefore, 
Commerce is statutorily obligated to "look attentively"  at the margin, but Commerce's determination need 
not be "dependent on" that margin.  In Commer ce's  determinations, including this one, Commerce's 
finding with regard to likelihood is not  "dependent" on the margin.  In this case, for example, other record 
evidence, including the depressed import volumes, led Commerce to conclude that continuation or recurrence of dumping was likely.  In other words, Commerce relied upon the fact that import volumes had significantly declined after the imposition of the duty and remained depressed throughout the five-
years sunset review period as the basis for the affi rmative likelihood determination.  We note in this 
regard that the Appellate Body has found that admi nistering authorities are not obligated to make a 
finding about a particular magnitude of dumping
20, but simply whether dumping is likely to continue or 
recur.   
                                                     
 
18  New Shorter Oxford English Dictionary,  p. 485 (Exhibit US-29). 
19  New Shorter Oxford English Dictionary, p. 2539 (Exhibit US-30). 
20  See Japan Sunset AB,  para 123. WT/DS282/R 
Page E-41 
  
 
ANNEX E-3 
 
 
 
ANSWERS OF THE UNITED STATES TO QUESTIONS  
OF MEXICO – FIRST MEETING 
 
 
(18 June 2004) 
  
The Department's Sunset Review of OCTG from Mexico 
 Q1. How can a WTO Member obtain revocation of an anti-dumping duty in a US sunset proceeding in circumstances in wh ich there are no exports to the United States during the period 
under review?  
 
1. As an initial matter, the United States wishes to point out that revocation occurs if either
 the 
Department or  the ITC makes a negative finding with respect to likelihood.  Therefore, revocation will 
always be possible if the ITC makes a negative determination, notwithstanding any Commerce findings regarding the presence or absence of exports.    2. In conducting sunset reviews under US law, Commer ce and the ITC each conduct sunset reviews 
pursuant to sections 751(c) and 752 of the Act.  Co mmerce has the responsibility for determining whether 
revocation of an anti-dumping duty order would be lik ely to lead to continuation or recurrence of 
dumping.  If Commerce makes an affirmative determination of likely dumping, the ITC conducts a review to determine whether revocation of the anti-dumping duty order would be likely to lead to continuation or 
recurrence of material injury.  In a sunset review where there was an absence of imports during the five-
year period prior to the sunset review, the like lihood determinations made by Commerce and the ITC 
respectively would be based on a totality of the ci rcumstances presented in the sunset review and not 
necessarily on the absence of imports.  The United Stat es notes that the "no exports" scenario described 
by Mexico is not a factual circumstance present in this dispute.   
Q2. There can be no dispute that dumping stoppe d after the imposition of the anti-dumping 
order on OCTG from Mexico and that there was no evidence of current dumping during the sunset review period. 
 
3. Mexico's premise that dumping stopped after the imposition of the order is false.  Although 
Commerce did not consider the Final Results of the Fourth Administrative Review of OCTG from Mexico (1998-1999 period of review) in the sunset review (because the Final Results were issued after the 
completion of the sunset review), Commerce did fi nd dumping during that period of review, which is 
within the five-year period examined in the sunset review.  See US First Written Submission, para. 43.  
 
(a) In such circumstances, does the fact of  lower export volumes mean that a Member 
could never obtain revocation? 
 
4. No.  WT/DS282/R 
Page E-42   
(b) If not, please explain how a Member coul d obtain revocation, even hypothetically. 
 
5. As explained in the answer to ques tion 1 above, revocation occurs if either
 Commerce or  the ITC 
makes a negative determination.  In a sunset review  where there was a significant reduction in imports of 
the subject merchandise during the five-year period prior to the sunset review, the likelihood determinations made by Commerce and the ITC respectively would be based on a totality of the circumstances presented in the sunset review and not necessarily on the reduction of imports.   
Q3. In paragraph 122 of its First Submission, the United States says that the original margin is 
the "only" evidence of the behavior of the respo ndents without the discipline of the anti-dumping 
order.  This statement is consistent with the SAA and the SPB.  If the nature of the Article 11.3 
analysis is to determine what would happen in the absence of an anti-dumping order, and the United States says that the "only" probative evidence of an exporter's behavior without the 
discipline of the order is the original margin , then doesn't the US approach guarantee an 
affirmative determination of likely dumping?  If not,  can the United States provide an example that 
shows that this is not always the outcome? 
 
6. The reference to paragraph 122 in this questi on ignores the opening statement of that paragraph, 
in which the United States stated that the margin of dumping determined in the original investigation is 
only "the starting point for making its likelihood dete rmination in a sunset review" and that Commerce 
then "examine[s] any subsequent ev idence, such as the final results of  administrative reviews."  This 
statement makes it clear that the Department takes in to account evidence suggesting that what is likely to 
occur in the future may differ fro m what has occurred in the past.  Commerce makes its determination 
whether dumping is likely to continue or recur in a sunset review based on all the evidence on the record 
of that sunset review.  
Q4. The United States seems to argue that the Department does apply certain presumptions in 
the conduct of sunset reviews, but that these presump tions are rebuttable.  In particular, Mexico 
would point to the United States' treatment of the existence of dumping margins and post-order 
declines in volume.  
(a) Have respondents ever been able to  overcome the Departments presumptions 
relating to historic dumping marg ins and pre-order/post-order volume 
comparisons? 
 
7. Commerce does not apply presumptions in maki ng its likelihood of dumping determination in a 
sunset review.  Commerce considers all the evidence,  including any information submitted by interested 
parties, on the record of the sunset review in making the likelihood of dumping determination. 
 8. In its Panel Request and its First Written S ubmission, Mexico advanced arguments regarding 
Commerce's alleged application of a presumption in favor of continuing an anti-dumping order, which the 
United States has refuted.  Mexico now asserts th at the United States "seems to argue" that the 
Department applies certain presumptions, without explaining what these presumptions may be or providing a citation thereto, and then poses the question based on that assumption.  In the absence of more 
concrete references to the "presu mptions" about which the United States "seems to argue" it "applies,"  the 
United States is unable to address this question more fully.  
(b) The Department's regulations shift the burden of considering additional 
information (apart from margins and volume) on the exporter.  What is the basis in for doing so?  How is this consistent wi th the Appellate Body reaffirmation of the 
Article 11.3 obligation to conduct a review, undertake a "rigorous examination" of the record, and make a determination of likelihood on the basis of positive evidence? WT/DS282/R 
Page E-43 
  
 
9. Nothing in Commerce's Sunset Regulations "shift[s] the burden of considering additional 
information" to an exporter.  Commerce's Sunset Re gulations provide all interested parties with the 
opportunity to address the likely effects of revocati on.  Interested parties may include any factual 
information, argument, and reason to support such statements.  See section 351.218(d)(3)(ii)(F) of Commerce's Sunset Regulations.   In addition, any interested party, domestic or respondent, may submit 
any information it chooses in a sunset review, as provided by section 351.218(d)(3)(iv)(B) of Commerce's 
Sunset Regulations.  Commerce then bases its likeli hood determination on all the record evidence in every 
sunset review.  As the Appellate B ody in Japan Sunset found, Commerce's analysis in the sunset review of 
Corrosion-Resistant Steel from Japan, based solely on historical dumping margins and import volumes, was not inconsistent with th e obligations of Article 11.3.
1 
 
(c) The United States also takes the position  that Article 11.3 contains few substantive 
disciplines – only those in Article 11.3, a nd that authority therefore is free to make 
its likely determination in any manner it considers appropriate.  Combining this interpretation of Article 11.3 together with the presumptions employed by the Department, and the Department's pla cement of the burden on exporters to 
convince the Department to consider info rmation apart from historic dumping 
margins and volume, under what circumstan ces will the Department determine that 
dumping would not be likely to continue or recur? 
 
10. Mexico's question is prefaced with assertions for which Mexico has provided no citations and 
which have little, if any, basis in the record of this dispute.  Nevertheless, the likelihood determination in 
each sunset review is based on the facts developed in the particular sunset review.  Therefore, Commerce 
will make a negative likelihood determination whenever the record evidence in a sunset review supports 
such a determination.   
Q5. It is clear that the Department requires that import volume be at pre-order levels.  But in 
the US retrospective system of duty assessment, the importer assumes the risk of assessment.  
Mexico asks whether it is not reasonable to a ssume that importers would reduce the volume that 
they purchase in order to lower their risk?  Ho w does the Department take this factor into 
consideration? Did the Department consider this factor in the sunset review of OCTG from 
Mexico? 
 
11. It is not "clear" to the United States that "the Department requires that import volume [sic]" be at pre-order levels, nor does Mexico provide support for th is statement.  Regardless,  Commerce's analysis 
of the likelihood or continuation or recurrence of dumpi ng in a sunset review does not require that import 
volumes be at any particular level.  A significan t and continued reduction in imports following the 
imposition of the duty, however, is considered hi ghly probative evidence that the exporters cannot 
participate in the market at or near pre-order levels  without dumping and, therefore, are likely to resume 
dumping.  Nevertheless, any interested party, dom estic or respondent, may submit any information it 
chooses in a sunset review, as provided by section 351.218(d)(3)(iv)(B) of Commerce's Sunset Regulations, to explain why a reduction in import volum es is not relevant to, or highly probative evidence 
for, the likelihood determination.    12. Commerce considered TAMSA's and Hylsa's e xplanations for their respective reductions in 
import volumes after imposition of the duty and addressed these explanations for the Final Results in the 
sunset review of OCTG from Mexico.
2  
 
                                                      
1 See United States – Sunset Review of Anti-Dumpi ng Duties on Corrosion-Resistant Carbon Steel Flat 
Products from Japan, WT/DS244/AB/R, adopted 9 January 2004 ("Japan Sunset AB"), paras. 205-207. 
2 See Commerce Sunset Final Decision Me morandum at 5-6 (Exhibit MEX-19). WT/DS282/R 
Page E-44    
Q6. The Department determined that the margin "likely to prevail" would be 21.7 per cent.  
This is consistent with the US statute, the S AA, and SPB, which direct the Department to consider 
and assign a highly probative value to the origin al margin as the best indication of exporters' 
behavior.  Does the United States agree that this ma rgin was not calculated through the application 
of Article 2 of the Anti-Dumping Agreement, since the original investigation was initiated prior to 
entry into force of the Agreement?  In reaching it s determination that 21.7 per cent was the margin 
likely to prevail, did the Department take any step s to ensure that the margin was consistent with 
the WTO Anti-Dumping Agreement, including Articles 2 and 6? 
 
13. As the United States previously has explained, Commerce's determination of likelihood of continuation or recurrence of dumping is distinct from its reporting of a "margin likely to prevail" to the 
ITC.  Furthermore, the SAA and Sunset Policy Bulletin do not and cannot "direct" Commerce to take any action because neither the SAA nor the  Sunset Polic y Bulletin have the force of law.  Commerce did 
determine that the margin likely to prevail would be  21.7 per cent and did report that number to the ITC, 
which had the discretion to consider it or not in making the determination of the likelihood of 
continuation or recurrence of injury.  Commerce did not base its affirmative likelihood determination in 
the sunset review on any particular magnitude of dumping, but instead based its affirmative likelihood 
determination solely on evidence concerning the significant reduction in import volumes since the imposition of the duty on OCTG from Mexico.  There is no obligation in Article 11.3 or elsewhere in the 
AD Agreement to calculate a margin of dumping or to report a margin of dumping for use in making a determination of the likelihood of continuation or recu rrence of injury determination in a sunset review. 
 
The Commission's Sunset Review of OCTG from Mexico 
 Q7. Assuming that the Panel finds that the De partment's determination of likely dumping is 
inconsistent with Article 11.3, what effect woul d this have on the Commission's determination of 
likely injury?  If there would be no effect, please explain why?  
14. Given the purely hypothetical nature of this qu estion and the many variables that could underlie 
the finding alluded to by Mexico, the United States is unable to answer this question.  The answer would 
depend on the basis for any such finding of inconsistency.  
Q8. Does the United States consider that it is po ssible to find injury in the absence of dumping? 
If the answer is yes, please explain how that woul d be compatible with the following provisions of 
the GATT and the Anti-Dumping Agreement:  
(a)   GATT Article VI:6(a):  No contra cting party shall levy any anti-dumping … unless 
it determines that the effect of the dumping  or subsidization, as the case may be, is 
such as to cause or threaten material inju ry to an established domestic industry, or 
is such as to retard materially the establishment of a domestic industry." 
 (b)  Anti-Dumping Agreement, Article 3.5:  It must be demonstrated that the dumped 
imports are, through the effects of dumping , as set forth in paragraphs 2 and 4, 
causing injury within the meaning of this Agreement." 
 (c)   Anti-Dumping Agreement, Article 11.1:  An anti-dumping duty shall remain in 
force only as long as and to the extent  necessary to counteract dumping which is 
causing injury. 
 (d)   The Appellate Body's statement in Steel  from Germany (para. 81):  "It is unlikely 
that very low levels of subsidization co uld be demonstrated to cause ‘material' 
injury." WT/DS282/R 
Page E-45 
  
 
15. Under US law, the ITC will not assess injury in  the absence of an affirmative dumping finding.  
Under the US statute, the ITC will not make an inju ry determination in an original investigation unless 
Commerce has made an affirmative dumping determinati on.  Likewise, in a sunset review, the ITC will 
not make a likely injury determination unless Commer ce has made an affirmative determination with 
respect to likely dumping.  
Q9. Does the United States consider that it is possible to find that injury would likely to continue 
or recur in the absence of a finding that dumping would be likely to continue or recur?  If the 
answer is yes, please explain how that would be compatible with the above GATT and Anti-
Dumping provisions?  In particular how likely injury could be determined without any likely dumping. 
 
16. See the answer to question 8.  
Q10. Please indicate if in the OCTG sunset rev iew of Mexico the ITC relied on: (a) the likely 
margin of dumping to prevail that was reported by the USDOC; (b) any other margin of dumping, 
or (c) no margin of dumping at all?  
17. The ITC did not rely on a margin of dumping. 
 
Q11. Section 752(a) (6) of the Tariff Act provide s:  "In making a determination under section 751 
(b) or (c), the Commission may
 consider the magnitude of the margin of dumping or the magnitude 
of the net countervailable subsidy." (Emphasis a dded).  Does it mean that the Commission may 
make determinations under those two sections withou t considering the magnitude of the margin of 
dumping?  How does the Commission proceed in its in jury analysis when it chooses not to consider 
the margin of dumping?  
18. Neither the AD Agreement nor the US statute re quire the ITC to consider the magnitude of the 
margin of dumping in a sunset review.
3  In its sunset reviews, the ITC conducts a thorough analysis of 
numerous statutory factors, as demonstrated by its determination in the OCTG review. 
 19. Although the Agreement does not require investig ating authorities to consider any particular 
factors at all, the US statute imposes requirements beyond those of the Agreement by providing that the ITC must consider "the likely volume, price effect and impact of imports of the subject merchandise on the industry if the order is revoked," as well as other c onsiderations such as prior injury determinations.
4  
Further, for each of these considerations, the stat ute sets out specific criteria the ITC shall and does 
consider in its determination.  20. For example, in examining likely volume, the statute requires the ITC to consider any likely 
increase in production capacity or unused capacity in the exporting country; existing inventories of subject merchandise, or likely increases in the merchandi se; the existence of barriers to the importation of 
such merchandise into countries other than the United States, and the potential for product shifting if the 
production facilities in the exporting country that are currently used for production of other products can 
be used to produce the subject merchandise.
5  
 
                                                      
3 In Japan Sunset , the Appellate Body recognized that Article  11.3 does not even require investigating 
authorities to rely on dumping margins in making their determination of likelihood of continuation or recurrence of dumping
.  Japan Sunset AB , para. 127.  Likewise, there is nothing in Article 11.3 that creates an obligation for 
investigating authorities to rely on dumping margins in ma king their determination of likelihood of continuation or 
recurrence of injury .   
4  19 U.S.C. § 1675a(a)(1) (Exhibit MEX-24).     
5  19 U.S.C. § 1675a(a)(2) (Exhibit MEX-24). WT/DS282/R 
Page E-46   21. In evaluating the likely price effects, the ITC considers whether there is likely to be significant 
price underselling by the subject merchandise or whether imports of the subject merchandise are likely to enter the United States as prices that otherwise would have price depressing or suppressing effects.
6  
 22. Finally, in evaluating the likely impact, the st atute requires the ITC to consider all relevant 
economic factors which are likely to bear on the state of the industry in the United States, including likely 
declines in output, sales, market share, profits, productivity, return on investments, and utilization of capacity; likely negative effects on cash flow, inventor ies, employment, wages, growth, ability to raise 
capital, and investment; and likely negative effects on the existing development and production efforts of 
the industry.
7  
 
Q.12 Section 752(a)(1) of the Tariff Act states:  "That the Commission shall  take into account …. 
(D) in an anti-dumping proceeding under section 751(c), the findings of the administering authority regarding duty absorption under section 751(a)(4)." (Emphasis added). Why does the United States consider that the Department's duty absorpti on finding is relevant to the Commission's 
determination of the likelihood of injury?  How can the mandatory statutory requirement to 
consider the duty absorption finding be reconciled with the discretionary statutory provision that gives the commission discretion to consider the magnit ude of the margin of dumping in making the 
likelihood of injury determination?  
23. This question addresses matters that are outside th e terms of reference of this dispute.  There were 
no duty absorption findings made with respect to the review of OCTG from Mexico, and Mexico has not 
challenged the statutory provisions regarding consideration of duty absorption findings.  
 
Q13. Please compare paragraphs 315 and 316 of the US First submission.  Paragraph 315 
indicates that "the Commission considered each of  the factors enumerated in article 3.4, and the 
chart included by the Commission specifically indi cated that the Commission included the margin 
of dumping reported by the Department.  In paragr aph 316, however, the United States responds to 
Mexico's claim that the commission considered th e wrong dumping margin by asserting that that 
"Mexico's assertion pertains to the commerce determinat ion, not to the ITC's.  Mexico's assertion is 
addressed at section B.3."  Can the United Stat es please reconcile these statements?   Did the 
Commission consider the margin of dumping in its analysis?  
24. To the extent Mexico has challenged the pr opriety of the likely margin of dumping that 
Commerce reported to the ITC, this argument has been addressed in portions of the US submission 
concerning Commerce's review.  To the extent Mexico claims that the alleged problems with the margin 
reported by Commerce tainted the ITC's determinati on, this cannot be so, because irrespective of the 
worthiness of the reported margin likely to prevail,  the ITC did not rely on or otherwise factor the 
reported likely margin into its analysis.  
Q14. In the sunset review of OCTG from Me xico, did the Commission ever consider Mexican 
exports on an individual basis, that is, without cu mulating the Mexican exports with those of other 
countries?   If not, does the United States cons ider that Mexico has an independent right to 
termination under Article 11.3?  
25. The ITC considered Mexican exports on an indi vidual basis in connection with its analysis of 
whether it was appropriate to cumulate the volume and e ffect of imports from the five countries subject to 
the sunset reviews.  First, the ITC examined subject imports from each of the individual countries 
(including Mexico) in addressing whether imports fro m any of the countries were likely to have no 
                                                     
 
6  19 U.S.C. § 1675a(a)(3) (Exhibit MEX-24). 
7  19 U.S.C. § 1675a(a)(4) (Exhibit MEX-24). WT/DS282/R 
Page E-47 
  
discernible adverse impact on the domestic industry.
8  The ITC did not find that  subject imports of casing 
and tubing from any of the subject countries were "likely to have no discernible adverse impact on the domestic industry."  26. The ITC then found that there likely would be  a reasonable overlap of competition between the 
subject imports (including imports from Mexico) and domestically produced casing and tubing, and 
among the subject imports themselves, sufficient to warrant cumulation.  27. The United States does not consider that Mexi co has a right to termination under Article 11.3 
premised on the examination only of whether the re vocation of the anti-dumping duty order relating to 
subject imports from Mexico will lead to a continuati on or recurrence of injury.   Imports from a group of 
countries may cumulatively cause injury even if impor ts from individual countries in the group may not.
9  
Accordingly, it would be illogical to require that the injury analysis in sunset reviews be conducted only 
on a country-specific basis.  Such a requirement would require Members to allow anti-dumping duties to expire even though the expiry of the duty would be likel y to lead to continuation or recurrence of injury. 
 
Q15. It is self-evident that injury cannot be both likely to continue and likely to recur at the same 
time.  These two outcomes are mutually exclusive because for injury to recur, injury must not 
currently exist.  At the same time, injury can only continue if injury currently exists.  With this in 
mind, please clarify whether the Commission determ ined that injury was likely to continue or 
whether injury was likely to recur?  If the Co mmission determined that injury was likely to 
continue, please explain how such a determinatio n would be compatible with the Department's 
determination that dumping was likely to recur (not to continue).  
28. Contrary to the underlying premise of Mexi co's questions, nothing in Article 11.3 requires 
Members to distinguish between the likely continuation of injury and the likely recurrence of injury.  Nor does Article 11.3 require investigating authorities to  make current dumping or injury determinations; 
rather it requires them to make determinati ons about whether injury and dumping are likely
 to continue or 
recur.  Both Commerce and the IT C based their respective determinations on their findings that dumping 
and injury, respectively were likely to continue or recur .  Commerce did not, as Mexico asserts, make a 
separate finding that dumping was likely to recur.  (In fact, Hylsa was found to be dumping while the order was in place.)  29. Likewise, the ITC found that revocation of the anti-dumping duty orders from the five subject countries, and the countervailing duty order on imports of casing and tubing from Italy, would be likely to 
lead to continuation or recurrence of material  injury to an industry in the United States.
10  Such a finding 
is consistent with Article 11.3.11  
 
The Department's Determination Not to Revoke the Order:  The Article 11.2 Review 
 Q16. The United States takes the view that Article 11.2 does not create an obligation to terminate a measure on a "company-specific" basis.  
                                                     
 
8 The cumulation provision of the US sunset law pr ovides that the ITC may not cumulatively assess the 
volume and effects of the subject merchandise in a case in which it determines that "such imports are likely to have 
no discernable adverse impact on the domestic i ndustry."  19 U.S.C. § 1675a(a)(7) (Exhibit MEX-24). 
9 See, European Communities - Anti-Dumping Duties on Malle able Cast Iron Tube or Pipe Fittings from 
Brazil, WT/DS219/AB/R, Report of the Appellate Body, adopted 18 August 2003  ("EC Pipe Fittings") , para. 116. 
10 ITC Report at 1. 
11 See, United States – Definitive Safeguard Measures on Im ports of Circular Welded Carbon-Quality Line 
Pipe From Korea , WT/DS202/AB/R, Report of the Appellate Body,  adopted 8 March 2002, para. 167 (unnecessary 
to make a discrete finding of "serious injury" or "threat of serious injury" when making a determination whether to 
apply a safeguard measure). WT/DS282/R 
Page E-48   
(a) Would the United States explain its vi ew as to "interested parties" and "any 
interested party" in Article 11.2? 
 
30. The reference to "any interested party" in Ar ticle 11.2 is to an interested party, domestic or 
respondent, who may request a review by submitting  pos itive information to substantiate the need for the 
review.  The term "interested parties" is plural, mean ing many or multiple interested parties have the right 
to request the authorities to exam ine whether the continued imposition of the duty is necessary to offset 
dumping, or whether the injury would be likely to conti nue or recur if the duty were removed or varied, or 
both.  Language concerning who can request that i nquiry does not establish any obligations regarding 
how the inquiry is conducted.  
(b) Does the United States agree that Article 11.2 obligates Members to conduct a 
review under Article 11.2 when an interested  party submits positive information 
warranting such a review? 
 
31. Article 11.2 of the AD Agreement requires the administering authority of the Member to review 
the need for the continued imposition of the duty, wh ere warranted.  Article 11.2 requires that, after a 
reasonable amount of time passed since the imposition of the anti-dumping duty, any interested party may request such a review by submitting positive informa tion that substantiates the need for the review. 
 
(c) In the view of the United States what is the purpose of allowing individual exporters 
to request a review under Article 11.2 if it cannot lead to termination of the measure for that exporter? 
 
32. Article 11.2 of the AD Agreement allows indi vidual exporters to request a review of the 
continuing need for "the duty," as a whole, i.e., the need for the anti-dumping duty order, before 
the 
obligations under Article 11.3 are triggered.  In ot her words, Article 11.2 recognizes that revocation may 
be warranted at some time earlier than five years.  Article 11.2 does not address, and does not explicitly 
require, termination on a company-specific basis.  If the entire order is revoked, however, the duty will be 
revoked for the requesting respondent interested party, as well as all other exporters.   Article 11.2 further 
states that the reviewing authorities have the discre tion to determine whether review of the challenged 
duty is "warranted" and whether an interested part y "submits positive information substantiating the need 
for a review."  After determining the review is wa rranted, based on positive info rmation substantiating the 
need for a review, authorities conducting an Artic le 11.2 review examine whether the continued 
imposition of the duty is necessary to offset dumping or wh ether the injury would be likely to continue or 
recur if the duty were removed.  If the authorities determine that the anti-dumping duty is no longer warranted, they are obligated to terminate the duty immediately.  
Q17. Does the United States believe that TA MSA and Hylsa were the only known Mexican 
exporters of OCTG?  If not, what information in  the record provides a basis to believe that there 
were other Mexican exporters of OCTG?  
33. TAMSA and Hylsa are not the only Mexican exporters of OCTG known to Commerce.  For 
example, in the original investigation, Mexican e xporters Tubacero S.A. de C.V. and Villacero Tuberia 
Nacional, S.A. de C.V., as well as Hylsa, were sent anti-dumping surveys.
12  In the first administrative 
review, Commerce received requests for an administ rative review for not only TAMSA and Hylsa, but 
also Tuberia Nacional S.A. de C.V.13   Lastly, during the sunset review of OCTG from Mexico, 
information on the record indicated that TAMSA and Hylsa represented only a portion of all Mexican 
                                                      
12 See 60 Fed. Reg. 6510 (2 February 1995) (MEX-3) 
13 See Initiation of Anti-Dumping and Countervailing Duty Administrative Reviews and Requests for 
Revocation, 62 Fed. Reg. 50292 (25 Sept ember 1997)("Initiation of First Administrative Review") (Exhibit US-9). WT/DS282/R 
Page E-49 
  
exports of OCTG to the United States.
14  Because no order-wide request for revocation was made during 
the fourth administrative review, there was no r eason for Commerce to determine the need for the 
continuation of the order for Mexican e xporters other than TAMSA and Hylsa.  
  
Q18. Did the Department consider that the individual requests of TAMSA and Hylsa for 
revocation of the order were a sufficient basis to conduct a review and make a determination on an 
order-wide basis?  If not, why?  
34.  Both TAMSA and Hylsa requested revocation on a company-specific basis.  Each of their letters 
requested that Commerce revoke the anti-dumping duty or der with respect to each company, pursuant to 
section 351.222(b)(2) of Commerce's Regulations.
15  Pursuant to section 351.222(b)(2) of Commerce's 
Regulations, Commerce determined whether to revoke  the anti-dumping duty order in part, as to the 
requesting producer or exporter.  Therefore, Commer ce considered each of their requests for a company-
specific revocation review, not a request for an order-wide revocation review.  35.  Section 351.222(b)(1) of Commerce's Regulati ons governs requests for revocation on an order-
wide basis and would require Commerce to investig ate the industry as a whole.  Given the order-wide 
nature of the determination, such a review also w ould require information for all producers and exporters 
covered by the duty at the time of the revocation revi ew.  Commerce did not seek such information during 
the fourth administrative review because neither TA MSA nor Hylsa requested an order-wide revocation 
review pursuant to section 351.222(b)(1) of Commerce's Regulations.   
Q19. Under what US procedure can an individua l company request revocation on an order-wide 
basis?  Has this ever occurred?  Can you provide  examples since the entry into force of the WTO 
Anti-Dumping Agreement? 
 
36.  An individual company may request revo cation on an order-wide basis through a changed 
circumstances review under section 751(b) of the Act and section 351.222(g) of Commerce's regulations.  Examples include Coumarin from the People's Repub lic of China, 69 Fed. Reg. 24122 (3 May 2004); 
Porcelain-on-Steel Cookware from Mexico, 67 Fed.  Reg. 19553 (22 April 2002);  Large Newspaper 
Printing Presses and Components Thereof, Whether A ssembled or Unassembled from Germany, 67 Fed. 
Reg. 19551 (22 April 2002); Certain Fresh Cu t Flowers from Ecuador, 64 Fed. Reg. 56327 
(19 October 1999).  This list is not exhaustive.  S ection 351.222(b)(1) of Commerce's regulations provides 
a second option for an individual company to request revocation on an order-wide basis, so long as all 
exporters and producers covered at the time of th e revocation have not dumped for at least three 
consecutive years.  
Q20. Mexico notes that TAMSA argued before the Department that the reasonableness of a 
particular sales-transaction of OCTG should not be measured on the basis of tonnage due to the 
influences that product characteristics have on weight.  See MEX-54 at 15-16.  Specifically, TAMSA 
explained that the 44.7 tons shipped during the four th review amounted to more than four miles of 
tubes, which TAMSA considered to be in significan t "commercial quantities."  What weight did the 
Department give to this transaction?  
37. Commerce considered but rejected TAMSA's ar gument of using the length or number of pieces, 
as evidence for purposes of the commercial quantities threshold criteria for TAMSA's request for a 
revocation review.  Commerce evaluates the commerc ial quantity standard on a case-by-case basis, with 
the goal of basing the revocation determination on a company's normal commercial practice.  Sales of 
                                                     
 
14 See Adequacy Memorandum (Exhibit US-31).    
15 TAMSA’s request for review and revocation (E xhibit MEX-10); Hylsa’s request for review and 
revocation (Exhibit MEX-11).   WT/DS282/R 
Page E-50   OCTG from Mexico by TAMSA, in the original investig ation and in the previous two reviews, as well as 
in this fourth administrative review, were consiste ntly measured in terms of volume (metric tons) and 
value (US dollars).  Accordingly, Commerce examin ed TAMSA's overall record of sales to the United 
States during these three years, in terms of compar able, common measurements of both volume and value, 
and concluded that TAMSA did not sell OCTG in th e United States in commercial quantities in each of 
the three years.
16 
 
Q21. Does the United States agree that the 0. 79 per cent dumping margin relied on by the 
Department was calculated as set forth in MEX-63?   
38. Commerce did not rely upon any margin for the purposes of its likelihood determination in the 
sunset review.  The United States agrees that A ttachments 1-12 of MEX-63, which are all record 
documents from the fourth administrative review, reflect the calculation methodology used by Commerce to calculate the 0.79 per cent dumping margin.  The first 21 pages of Exhibit MEX-63 reflect Mexico's characterization of Commerce's methodology.  The United States does not agree with this characterization and notes that it was not part of the record before  Commerce in the fourth administrative review.  
 
Q22. Does the United States agree with Mexico's  description of the calculation methodology in 
Exhibit MEX-63 and paragraphs 289- 292 of Mexico's First Submission. 
 
39. No. 
 
Q23. Does the US agree that the extent to whic h the net price of sales to the United States 
exceeded the normal value is not reflected  in the numerator of this calculation? 
 
40. The numerator used to calculate the overa ll margin of dumping aggregates all margins of 
dumping found as a result of comparisons between export price and normal value.  When the export price is greater than the normal value, consistent with  Article 2.1 of the AD Agreement, dumping has not 
occurred with respect to that comparison.   
Q24. Was the 0.79 per cent margin relied on by  the Department for purposes of its likelihood 
determination in the sunset review established on th e basis of a fair comparison in light of the 
Appellate Body's decisions in Bed – Linens (p aras. 55, 61, 62) and Japan Sunset (paras. 126-132)? 
 
41. Commerce did not rely upon any margin for the purposes of its likelihood determination in the 
sunset review.  Rather, Commerce relied upon the declining import volumes to establish its likelihood 
determination in the sunset review.  42. To the extent that Mexico's question relates to the calculation of  the overall margin of dumping in 
the fourth administrative review, that margin w as established on the basis of a fair comparison and 
Mexico has not established otherwise.    
                                                     
 
16 See Fourth Review Issues and Decision Memorandum  at Comment 1 (Exhibit MEX-9).  WT/DS282/R 
 Page E-51 
    
ANNEX E-4 
 
 
ANSWERS OF ARGENTINA TO QUESTIONS OF THE PANEL – 
THIRD PARTIES SESSION 
 
 
(18 June 2004) 
  
 QUESTIONS TO THIRD PARTIES FOLLOWING THE FIRST MEETING  
Questions to all third parties: 
 Question 1
. Could the third parties explain their understanding of how a determination 
consistent with the requirements of Article 3 could be made in a sunset review, in a case in which 
there were, for example, no imports during the period  of effectiveness of the anti-dumping measure 
from the sources originally found to be dumped.  How in such a case could, for example, the 
requirement of Article 3.2 regarding consideration of the volume of dumped imports be satisfied? 
 
Argentina's Response  
 
1. Argentina considers that the requirements of  Article 3 apply to an Article 11.3 injury 
determination.  The fact that there may have b een no imports following the imposition of the order does 
not affect the applicability of the requirements of Article 3 to Article 11.3 reviews.  The key to the Article 11.3 determination is that the administering authority  is investigating "injury," which is defined in 
footnote 9 of Article 3.  Footnote 9 requires
 that "injury" "shall be interpreted in accordance with the 
provisions of [Article 3]."  2. In the Panel's hypothetical example – where there are no imports during the period following the imposition of the measure, Argentina does not see any problems in applying Article 3 to the injury 
determination required by Article 11.3.  The absence of imports would require the administering authority 
to determine why
 the imports are absent.  The administering authority cannot be passive and simply draw 
inferences based on historical data.  Rather, the au thority must determine, based on positive evidence, 
whether it is likely that they would return to the ma rket and cause injury to the domestic industry.  If so, 
then the authority can proceed with its analysis, appl ying Article 3 without major difficulties.  In the end, 
if there is no positive evidence of likelihood,  then the measure must be terminated. 
 3. The Appellate Body made clear that terminati on of the measure is the principal obligation of 
Article 11.3, and continuation based on a finding of lik ely dumping and likely injury is the exception.  In 
the absence of imports, the requisite analysis under Article 11.3 would still require compliance with the 
requirements of Article 3.  The Appellate Body confirmed that "a case-specific analysis of the factors behind a cessation of imports or a decline in im port volumes (when dumping is eliminated) will be 
necessary to determine that dumping will recur if the duty is terminated."
1 
 
                                                      
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, adopted 9 January 2004, para. 177 (" Japan Sunset "). WT/DS282/R 
Page E-52   4. Argentina submits that the Commission's injury de termination in this case violated Article 3, and 
that the Commission failed to determine "injury" in acco rdance with Article 3, as required by footnote 9.  
The Commission's determination is based on conjecture and a number of possibilities that arise from its analysis.  The flaws with the Commission's analys is stem from the Commission's failure to apply a 
"likely" standard, and its failure to assess objectivel y information on the record.  These are not problems 
arising from the terms of Article 3, or any particul ar difficulty in applying Article 3 to Article 11.3 
reviews.  
Question 2
. Do the third parties consider that the det ermination of "likelihood of continuation 
or recurrence of injury" under Article 11.3 is identica l in nature and scope to the "determination of 
injury" under Article 3?  Could the third parties pl ease address, in this context, the views of the 
Appellate Body in United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel 
Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R, at paragraph 87, that "original 
investigations and sunset reviews are distin ct processes with different purposes" and that the 
"nature of the determination to be made in a sunset review differs in certain essential respects from the nature of the determination to be made in an original investigation"?   
Argentina's Response
 
 5. Argentina believes that "injury" is the same in Article 3, Article 11.1, and Article 11.3.  Argentina 
reads footnote 9 to mean that the scope of an injury determination is "injury" and that footnote 9 tells the 
Members that "injury" remains the same whether the need for an injury analysis arises under Article 5 
investigation or under an Article 11.3 review.  6. As to the determination of the injury, it may be different in an Article 11.3 review than it is in 
another context, such as an Article 5 investigation.  For example, if, in an Article 5 investigation an 
administering authority is considering whether current  material injury exists, it will review information 
regarding the past and the present to determine whet her the information supports the view that injury 
currently results from the dumped imports.  In an Artic le 11.3 review, the authority will be investigating 
current and past information to determine whether inju ry currently exists (which is required in order to 
determine whether injury has "continued") , or if it do es not exist currently whether it is likely to recur in 
the future.  However, this difference in the nature of  the injury inquiry arises from the prospective nature 
of the inquiry, and not from the source of the obligati on to demonstrate injury, be it Article 5 or Article 
11.3.  7. Argentina believes its position is  consistent with the Appellate Body's statements in the above-
referenced quotations.  Argentina agrees that original  investigations and sunset reviews are distinct 
processes and that they serve different purposes.  Argentin a also agrees that the nature of the analysis and 
the determination may differ in an Article 5 inju ry investigation and in an Article 11.3 injury 
investigation, such differences may not be significant.  This predictive nature of the inquiry is always 
important to the nature of an Artic le 11.3 review, and sometimes relevant  to an Article 5 investigation (for 
example, when "injury" is based on a "threat of injury").  
Question 3
. Could the third parties explain why, in their view, it is relevant to the sunset 
determination that the original anti-dumping measure was imposed on the basis of a dumping 
calculation based in part on facts available?  Are th e third parties of the view that, in such a case, 
there is a requirement that the investigating authorit y undertake some particular action or analysis 
in determining whether there is a likelihood of continuation or recurrence of dumping in a sunset review, and if so, what do they consider is required?   WT/DS282/R 
 Page E-53 
  Argentina's Response
 
 8. The determination under Article 11.3 must be prospective.  Consequently, the circumstances that gave rise to the margin from the original investigati on demonstrated that that margin should not have been 
relevant for the Department's likelihood determination.  9. In the absence of the peso devaluation, ther e would not have been a dumping margin in the 
original investigation.  The preliminary determina tion in the original investigation was based on the 
company's sales and cost data alone and resulted in a zero dumping margin.  Mexico's First Submission shows that the application of facts available for th e final determination in the original investigation 
resulted from the 1994 Mexican peso devaluation coupl ed with the high US dollar indebtedness of the 
company.  As Mexico's First Submission demonstr ates, these circumstances were unique and would not 
be repeated in the event of termination.  Hence, Ar gentina is of the view that the dumping margin that 
resulted from the use of facts availabl e in the original investigation w as not relevant to the prospective 
analysis required by Article 11.3.  10. Moreover, there was more probative positive evid ence before the Department at the time of the 
sunset review. Since the original investigation, the Department conducted administrative reviews and 
calculated a zero margin in each review.  Th ese subsequently calculated zero dumping margins 
constituted positive evidence that was more recent than  the margin from the original determination.  
Consequently, the subsequent zero margins should have  been given more weight by the Department, as 
they were more probative for purposes of th e Department's likelihood determination. 
 11. For Argentina, this case highlights that the Depa rtment does not engage in the analysis required 
by Article 11.3, but rather mechanistically relies on hi storical margins and volume declines.  In fact, the 
United States went as far as to say that findings from th e original investigation were the "only evidence" 
of a company's behavior in the absence of an order:  
As the starting point for making its likeli hood determination in this sunset review, 
Commerce considered the findings concerning dumping made in the original investigation.  The rationale for this appr oach is that the findings in the original 
investigation provide the only evidence of th e behavior of the respondents without the 
discipline of an anti-dumping order in place.
2 
12. Argentina does not accept this assertion, as it is inconsistent with the requirements of Article 11.3 
to conduct a review and make a determination, based  on positive evidence, that termination of the order 
would be "likely" to lead to continua tion or recurrence of dumping and injury. 
 
Question 4 . Do the other third parties agree with the view of the EC that there must be an 
intervening calculation of dumping margins, consis tent with Article 2, in order to make a proper 
determination of likelihood of continuation or recurrence of dumping? 
 
Argentina's Response  
 13. Argentina is of the view that there must be positive evidence of likelihood
 in order for the 
authority to make an affirmative determination under Article 11.3.  So, while the calculation of Article 2 
margins is not a prerequisite for an Article 11. 3 determination (as the Appellate Body states in Japan 
Sunset 3), such margins are the type of positive evidence that an authority w ould be expected to look to in 
rendering a determination under Article 11.3.  
                                                     
 
2  US First Submission, para. 122. 
3 Appellate Body Report, Japan Sunset , para. 123. WT/DS282/R 
Page E-54   14. However, in Argentina's view, the Departme nt's likely dumping determination in OCTG from 
Mexico was not supported by positive evidence.  In th at case, the original determination was shown to 
have almost no probative value because it was based on unique market circumstances that would not be repeated.  (See discussion above in response to ques tion 3.)  In addition, the Department did conduct 
administrative reviews subsequent to the original investigation.  The Department calculated separate zero 
dumping margins, which, in Argentina's view, w as the most probative evidence on the question of 
likelihood.  
Question 5
. Could the third parties indicate whic h provision(s) of the AD Agreement govern 
company-specific revocations of the type at issue in this dispute? 
 
Argentina's Response  
 15. Argentina is of the view that Article 11. 2 creates obligations to terminate an anti-dumping 
measure on a company-specific basis.  Argentina disa grees with the US position that Article 11.2 does not 
create company-specific obligations for several reasons.  16. First, the US position is inconsistent with the text  of Article 11.2, which refers to "any interested 
party" and "interested parties."  With these references, the text is explicit that the Article 11.2 obligations 
to conduct a review and/or to terminate an anti-dumping duty are company-specific.  17. Second, Argentina understands that the US revocation regulation, 19 C.F.R. 351.222(b), that 
implements the United States' obligations under Ar ticle 11.2 does not permit individual exporters to 
request "order-wide" revocations.   By limiting the ab ility of the company to request revocation only as it 
pertains to itself, the regulations are consistent with Argentina's view that Article 11.2 contemplates 
company-specific revocations.  18. Third, DRAMs from Korea  confirms that Article 11.2 relates to obligations that are company-
specific.  Both of the principal US measures cha llenged by Korea were company-specific.  The anti-
dumping measure at issue was entitled:  "Notice of Final Results of Anti-dumping Duty Administrative Review and Determination Not to Revoke Order in Part
:  Dynamic Random Access Memory 
Semiconductors of One Megabyte or Above From the Republic of Korea" (Emphasis added.)  Korea also 
challenged "as such" the US revocation regulati on governing company-specific regulations, claiming 
specifically that it violated Article 11.2.  Absent from the US position in that case was any argumentation 
that Article 11.2 does not create company-specific obligations.  19. Fourth, the manner in which the United States amended its revocation regulation suggests that the 
United States was of the view that its regulation with respect to company-specific regulations was subject to the disciplines of Article 11.2.  For example, the Department explained in the Federal Register notice 
that the regulatory modifications were made to bring the United States into compliance with Article 11.2:  
We have formulated the final rule in a way th at clarifies that the Secretary must make an 
affirmative finding of necessity in order to retain an anti-dumping or countervailing duty 
order.  While this reformulation does not affect the process by which the Department considers revocation, the reformulated regul ation more closely tracks the wording of 
Article 11.2 of the Anti-dumping Agreement and Article 21.2 of the SCM Agreement.
4 
20. Fifth, the US position is inconsistent with the position recently taken by the United States in 
DS268.  There, the United States asserted that sunset reviews are conducted on an "order-wide" basis.  
Based on this approach, the United States considered the relevance of the individual exporter participation 
                                                      
4 64 Federal Register at 51238.  WT/DS282/R 
 Page E-55 
  to be limited.
5  The result of such an approach is that c ontinuation of an anti-dumping order can be based 
on circumstances wholly unrelated to any one indivi dual company.  At the same time, the United States 
repeatedly emphasized throughout that proceeding that  US procedures were consistent with the Anti-
dumping Agreement because they enabled a company to  have an order revoked as it pertains to that 
company by obtaining zero margins in th ree consecutive administrative reviews.6 
 21. Finally, even assuming arguendo  that Article 11.2 reviews impose "order-wide" obligations only, 
the evidence presented by both TAMSA and Hlysa – the only known Mexican producers of OCTG – provided the requisite degree of positive information sufficient not merely to warrant a "review" under 
Article 11.2, but also sufficient to demonstrate th at the continued imposition of the duty was no longer 
"necessary to offset dumping."  
Question to Argentina  
 
1. The Panel notes that US law establishes a time-frame for the USITC's consideration of 
likelihood of continuation or recurrence of injury. Co uld Argentina clarify whether it considers that 
an investigating authority must specify when it considers that injury will continue or recur – that is, how far into the future it is looking in making it s determination? If so, could Argentina indicate 
where in the text of the AD Agreement it finds support for this view?    
 
Argentina's Response
 
 
22. Section 1675(a)(1) directs the Commission to determine whether injury would be likely to 
continue or recur "within a reasonably foreseeable  time."  The SAA explains that  "‘reasonably 
foreseeable time' . . . normally will exceed the ‘imminent ' timeframe applicable in a threat of injury 
analysis."7  Section 1675(a)(5) further mandates that the Commission "shall consider that the effects of 
revocation or termination may not be  imminent, but may manifest themselves only over a longer period of 
time."  23. Article 11.3, however, requires the authority to  determine whether termination of an anti-dumping 
measure would be likely to lead to the continuation or recurrence of injury upon termination of the 
measure .  Thus, the authority's likelihood of injury dete rmination must not be based on speculation about 
possible market conditions several years into the fu ture, but rather must be based upon the likelihood of 
injury upon "expiry" of the measure.  By defining a "reasonably foreseeable time" as longer than an "imminent" time, the US statutory provisions are in consistent with Article 11.3, which requires the 
determination to be based upon injury upon "expiry" of the duty.  24. The US position assumes that Article 11.3 is sile nt on the question of the relevant time frame in 
which injury would be likely to continue or recur.  This position, however, ignores the immediate context 
of Article 11.3.  WTO Members adopted Article 11.3 to  enforce the underlying principle of Article 11.1:  
                                                     
 
5 See, e.g.,  DS 268 US Answers to Argentina’s First Set of  Questions (8 Jan. 2004), para. 12; DS 268 US 
Answers to Panel’s First Set of Questions (8 Jan. 2004), paras. 3 and 19; US Answers to Panel’s Second Set of 
Questions (13 Feb. 2004), para. 3 (docum ents available on USTR’s website). 
6 US Second Written Submission, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268 (8 Jan. 2004), paras. 13-15. 
7 SAA at 887. WT/DS282/R 
Page E-56   that anti-dumping measures "shall remain in for ce only as long as and to the extent necessary to 
counteract dumping which is causing injury."  Accord ingly, when read together with its umbrella 
provision, Article 11.1, it is evident that the time frame  in which injury would be likely to continue or 
recur under Article 11.3 must be as curtailed as po ssible to ensure that anti-dumping measures are 
maintained only as long as necessary
 to counteract injurious dumping.  Equally important, from 
Argentina's perspective, the failure to define the rele vant time frame is not consistent with the "likely" 
standard of Article 11.3, and even less so when considered in light of Article 11.1.  WT/DS282/R 
 Page E-57 
    
ANNEX E-5 
 
 
ANSWERS OF CHINA TO QUESTIONS OF THE PANEL – 
THIRD PARTIES SESSION 
 
 
(18 June 2004) 
 
 
QUESTIONS TO THIRD PARTIES FOLLOWING THE FIRST MEETING  Questions to all third parties:  1. Could the third parties explain their understa nding of how a determination consistent with 
the requirements of Article 3 could be made in a sunset review, in a case in which there were, for 
example, no imports during the period of eff ectiveness of the anti-dumping measure from the 
sources originally found to be dumped.  How in su ch a case could, for example, the requirement of 
Article 3.2 regarding consideration of th e volume of dumped imports be satisfied? 
 
Answer
 
 
1.1 First of all, provisions of Article 3 "Determination of Injury" of the Anti-Dumping Agreement 
apply to determination of continua tion or recurrence of injury in sunset reviews under Article 11.3. 
 1.2 The phrase "[u]nder this Agreement" in Foot note 9 ensures that, whenever the Anti-Dumping 
Agreement uses the term "injury," the provisions of Artic le 3 define the term.  To find "injury," therefore, 
when applicable, the provisions in Article 3 setti ng forth requirements for finding "injury" must be 
satisfied.  1.3 The texts of the individual provisions of Articles 3 further clarify that the requirements in these provisions apply to a determination of "injury."  Article 3.1 sets forth general requirements for a 
determination of "injury."  The phrase "a determina tion of injury for purposes of Article VI of GATT 
1994" clarifies its cross-reference that the provisions of Article 3 apply to an "injury" determination 
throughout the Anti-Dumping Agreement to determine circumstances in which anti-dumping measure can be applied.
1   
 1.4 The Panel in US-Sunset Review of Steel from Japan states that: 
 
Article 3 is entitled "Injury".  This title is linked to footnote 9 of the Anti-Dumping 
Agreement… This seems to demonstrate that the term "injury" as it appears throughout 
the Anti-Dumping Agreement-including Article 11- is to be construed in accordance with 
this footnote, unless otherwise specified.  This would seem to support the view that the 
provisions in Article 3 concerning inju ry may be generally applicable throughout the 
Anti-Dumping Agreement and are not limited to the application to investigations.  
Article 11 does not seem to explicitly spec ify otherwise in the case of sunset 
review.(emphasis added ) 
                                                      
1 See Article 1 of the AD Agreement, which defines that "[a]n anti-dumping measure shall be applied under 
the circumstances provided for in Article VI of GATT 1994." WT/DS282/R 
Page E-58   1.5 The Article 3.2 of the Anti-Dumping Agreement requires the investigating authorities to consider 
the import volume and effect of the dumped imports on prices.  It is notable that the last sentence of Article 3.2 states:  
 No one or several of these factors ca n necessarily give decisive guidance 
 
 Anyhow, the Article 3.1 illustrates the nature  of injury decision shall be based on positive 
evidence and involve an object examination.  Whether the imports volume increasing or not itself alone shall not constitute a decisive factor for injury decision.  1.6 However, China would emphasis that volume of dumped imports is critical in the initial investigations, i.e., the Article 3.2 requires that the investigating authorities shall consider whether there 
has been a significant increase in dumped imports.  Norm ally, in order to make decision of injury, the 
investigating authorities shall have sufficient evidence to prove that the imports increased significantly in 
the initial anti-dumping investigations.  1.7 With regard to sunset review proceeding, the investigating authorities are required to make 
determination based on positive evidence and involve an  object examination.  How to involve an object 
examination of dumped import volume under Article 3.2 depends on different facts of the determination 
and situation during the past five years of the duty period.  Again, since no one or several of these factors can necessarily give decisive guidance, the inves tigating authorities are required to go through overall 
examination of each related factors to reach the decision.  1.8 For example, if the domestic producers continuously suffer injury during the five years of duty application period, the investigating authority is jus tified to determine that the injury would likely to 
continue after fulfilling obligation under Article 11. 3, without giving consideration to whether the 
dumped imports increased or decreased.  1.9 For example, if the domestic producers are r ecovered and perform well,  and conditions of the 
domestic producers are sustainable at the time of sunset review and in a reasonable foreseeable time, even if the dumped imports increased during the past year s, the investigating authorities may terminate the 
duty.  1.10 For example, if the domestic producers are recovere d due to no imports for the past five years, the 
investigating authorities shall conduct the examina tion whether such recovering is sustainable or 
vulnerable and whether lifting anti-dumping duty would likely to recur the injury.  If the evidence proves that the injury would likely to recur, even if ther e were no imports due to anti-dumping duty for the past 
five years, the investigating authorities are justified to  make decision that the injury would likely to recur. 
 
2. Do the third parties consider that the determination of "likelihood of continuation or 
recurrence of injury" under Article 11.3 is identical in nature and scope to the "determination of 
injury" under Article 3?  Could the third parties pl ease address, in this context, the views of the 
Appellate Body in United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel 
Flat Products from Germany ("US – Carbon Steel
 "), WT/DS213/AB/R, at paragraph 87, that "original 
investigations and sunset reviews are distin ct processes with different purposes" and that the 
"nature of the determination to be made in a sunset review differs in certain essential respects from the nature of the determination to be made in an original investigation"?   
Answer
 
 
2.1 First of all, provisions of Article 3 of the Anti-Dumping Agreement apply to the sunset review 
with regard to the determination on the likelihood of  continuation or recurrence of injury under Article 
11.3.  For example, the investigating authority sha ll follow Article 3.1, Article 3.4 and 3.5 to make  WT/DS282/R 
 Page E-59 
  determination based on positive evidences, to evaluate all 15 relevant economic factors and indices and to 
demonstrate the causal link between dumped imports and injury.    2.2 The Appellate Body in US-Carbon Steel viewed that  "the nature of determination to be made in a 
sunset review differs in certain essential respects from th e nature of the determination to be made in an 
original investigation".  The Appellate Body furt her illustrates this issue by giving an example: 
 
For example, in a sunset review, the authoriti es are called upon to focus their inquiry on 
what would happen if an existing countervailing duty were removed.  In contrast, in an original investigation, the authorities must in vestigate the existence, degree and effect of 
any alleged subsidy in order to determin e whether a subsidy exists and whether such 
subsidy is causing injury to the domestic industry as to warrant the imposition of a 
countervailing duty"
2 
2.3 However, the Appellate Body immediately fo llowed paragraph 87 and i ndicated in paragraph 88 
that:  
The continuation of a countervailing duty is the rule and its continuation is the 
exception.  The continuation of a countervailing duty must therefore be based on a properly conducted review and a positive determination that the revocation of the countervailing duty would "be likely to lead to continuation or recurrence of subsidization and injury".
3 
2.4 Further, the Appellate Body stated that  
 
Mere reliance by the authorities on the injury determination made in the original investigation will not be sufficient.  Rather, a fresh determination, based on credible 
evidence, will be necessary  to establish that the continuation of the countervailing duty 
is warranted to remove the injury to the domestic industry.(emphasis added). 
2.5 It is clear that the Appellate Body requires "a fresh determination" regarding injury in the sunset 
review.  When applicable, to make a "fresh" inju ry determination would request the investigating 
authorities to follow rules and provisions of Article 3 of the Anti-Dumping Agreement.  2.6 Therefore, we do not see the different between the nature and scope of injury determination under 
Article 3 and the "injury" under Article 11.3.  Howe ver, the purpose may be different, as the Appellate 
Body stated in the first se ntence of Paragraph 87 in the  US-Carbon Steel,  "we further observe that original 
investigations and sunset reviews are distinct processes with different purposes
.   (emphasis added). 
 2.7 Since the purposes are different, for determina tion of injury, the investigating authorities may 
focus on different aspects.  But the fundamental b asis shall be the Article 3 of the Anti-Dumping 
Agreement, i.e., to determine injury would likely to continue, the investigating authority shall determine 
that the injury is existing at the time of determinati on, and to determine injury would likely to recur, the 
investigating authorities shall determine that th e injury ceased at the time of determination. 
 
3. Could the third parties explain why, in their view, it is relevant to the sunset determination 
that the original anti-dumping measure was impose d on the basis of a dumping calculation based in 
part on facts available?  Are the third parties of the view that, in such a case, there is a requirement that the investigating authority undertake some particular action or analysis in determining whether there is a likelihood of continuation or recu rrence of dumping in a sunset review, and if so, 
what do they consider is required? 
                                                     
 
2 Appellate Body Report, (" US – Carbon Steel "), WT/DS213/AB/R, at paragraph 87. 
3 Id, paragraph 88. WT/DS282/R 
Page E-60   
 
Answer
 
 
3.1 Article 11.3 of the Anti-Dumping Agreement requests the importing authority to determine  
whether expiry of the duty would be likely to lead to continuation or recurrence of dumping.  Based on 
Article 2 of the Anti-Dumping Agreement, the authority  would need to use evidences that can prove that 
dumping continued at the time of the sunset review or that dumping has ceased at the time of the sunset review but is "likely" to recur. (emphasis added)  3.2 Therefore, in any event, no matter the origin al anti-dumping measure was imposed on the basis of 
a dumping calculation based in part on facts available or on the basis of fully cooperating company data, 
the importing authorities are required to conduct a rigorous examination
 in a sunset review before the 
continuation of the duty can apply. (emphasis added).  3.3 The Appellate Body in US-sunset review of steel from Japan made the following statement, 
4 
which upheld the Panel Report.  
"In order to continue the imposition of th e measure after the exp iry of the five-year 
application period, it is clear that the investigating authority has to determine, on the basis of positive evidence, that termination of the duty is likely to lead to continuation or recurrence of dumping and injury.  An investigation authority must have a sufficient factual basis to allow it to draw reas oned and adequate conclusions concerning the 
likelihood of such continuation or recurrence."
5 
3.4 In sunset review, the investigating authorities are required to determine whether the termination 
of the duty is likely to lead to continuation or r ecurrence of dumping.  This is normal obligation under 
article 11.3 of the Anti-Dumping Agreement, not particular action.    3.5 To determine whether dumping would continue or  recur, the investigating authority must follow 
the rules defined by the Article 2 of the Anti-Dumping Agreement.  3.6 The first phrase "[f]or the purpose of this Agr eement" of the Article 2.1 of the Anti-Dumping 
Agreement demonstrates drafter's clear intent to apply the obligation of Article 2 throughout the Anti-Dumping Agreement, wherever the word "dumping" appears.  The basic concept of "dumping" under 
Article 2 thus applies to all "dumping" determ inations throughout the Anti-Dumping Agreement, 
including sunset review under Article 11.3.  3.7 Therefore, the phrase "likely to lead to continuation or recurrence of dumping" in Article 11.3 does not change the core concept of "dumping," nor do es it affect the applicability of Article 2 to Article 
11.3.  To find "continuation of dumping," the authorities must find the existence of dumping at the time of the sunset review.  To find "recurrence of dumping," the authorities must first find that dumping has ceased by the time of sunset review.  
4. Do the other third parties agree with the view  of the EC that there must be an intervening 
calculation of dumping margins, consistent with Article 2, in order to make a proper determination of likelihood of continuation or recurrence of dumping?  
Answer
 
 
                                                      
4  Appellate Body Report, US-Sunset Review of Steel from Japan , p. 41.  
5  Panel Report,  US-Sunset Review of Steel from Japan , para. 7.271.  WT/DS282/R 
 Page E-61 
  4.1 First of all, pursuant to Article 11.3 of the Anti-Dumping Agreement, the investigating authorities are required to conduct an examination to determin e whether the dumping would likely to continue or 
recur.  Therefore, the investigating authoriti es are required to conduct dumping examination being 
consistent with Article 2 the Anti-Dumping Agreement.  4.2 To determine the dumping would likely to conti nue, the investigating authorities must determine 
that the dumping is existing at the time of conducting s unset review proceedings.  It is not proper to use 
the original anti-dumping duty calculation five years a go, therefore, the author ities are required to conduct 
dumping margin examination.  4.3 To determine the dumping would like to recur, the investigating authorities must determine that 
the dumping has ceased at the time of conducting sun set review proceedings.  The dumping has ceased 
may have two scenarios, the first, there was no impor ts after the original final determination, and 
secondly, the company did not dump by the most recent result of administrative review.    4.4 However, to determine dumping would likely to  recur requires "forward-looking analysis.  "In 
Sunset Review of Steel from Japan , the Appellate Body illustrated that "[t]he likelihood determination is a 
prospective determination.  In other words, the authorities must undertake a forward-looking analysis
 
and seek to resolve the issue of what would be  likely to occur if the duty were terminated."6 (emphasis 
added) .  4.5 In conclusion, in order to make a proper dete rmination of likelihood of continuation or recurrence 
of dumping, the investigating authorities are require d to determine dumping whic h shall be consistent 
with Article 2 of the Anti-Dumping Agreement.  
5. Could the third parties indicate which provision(s) of the AD Agreement govern company-
specific revocations of the type at issue in this dispute?  
Answer
 
 
5.1 China believes that the Anti-Dumping Agreemen t does not address the issue regarding company-
specific revocations of duty.  5.2 However, the investigating authorities may base on Article 11.2 to conduct such revocations, 
especially for those investigating au thorities, which adopts the retroactive duty collections regime such as 
the United States.  5.3 Article 11.2 of the Anti-Dumping Agreement states:  
The authorities shall review the need for th e continued imposition of the duty, where 
warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive inform ation substantiating the need for a review. 
5.4 Article 11.2 requires a review of continuing need  for the duty.  Such review may include changed 
circumstance review, administrative review/interim revi ew.  The purpose of such review is to constrain 
the duty remain in force only as long as and to the extent necessary to counteract dumping which is causing injury which requires by Article 11.1 of the Anti-Dumping Agreement.  
                                                     
 
6  Appellate Body Report, Sunset Review of Steel from Japan, para.105. WT/DS282/R 
Page E-62   5.5 China agrees with the United States that "the dut y read in the context described above, refers to 
the anti-dumping duty order as a whole, not applied to individual companies.
7 
 5.6 The United States adopts retroactive duty coll ection regime, which has the most significant 
characteristics of administrative review or annual re view.  The annual review system imposes tremendous 
workload to the foreign exporters  even they receive consecutive zero dumping margin at the previous 
annual reviews, i.e., if the importing member domes tic industry insists annual review during the duty 
period, the review proceeding is automatic, the fore ign exporters have to respond the Department of 
Commerce questionnaire and may go through the on-the-spot verification every year.  Therefore, to create 
a company-specific revocation system is to relieve  the burdensome to those companies who has ceased 
dumping after the original final determination.  5.7 The requirement for revoking company-specific duty is not mandated under the Anti-Dumping Agreement.  However, if the investigating aut horities have such rules under its domestic laws and 
regulations, such rules shall be consistent with the Anti-Dumping Agreement, for example, as required by 
Article 11.2, if, as result of the review under this paragraph, the authorities determine that the anti-
dumping duty is no longer warranted, it shall be terminated immediately.     
                                                     
 
7 US First Submission, paragraph 147.  WT/DS282/R 
 Page E-63 
    
ANNEX E-6 
 
 
ANSWERS OF THE EUROPEAN COMMUNITIES TO 
QUESTIONS OF THE PANEL – 
THIRD PARTIES SESSION 
 
 
(18 June 2004) 
 
 Questions to all third parties
 
 
1.  Could the third parties explain their understa nding of how a determination consistent with 
the requirements of Article 3 could be made in a sunset review, in a case in which there were, for 
example, no imports during the period of eff ectiveness of the anti-dumping measure from the 
sources originally found to be dumped.  How in su ch a case could, for example, the requirement of 
Article 3.2 regarding consideration of th e volume of dumped imports be satisfied ? 
 
1. Article 11.3 Anti-Dumping Agreement  requires a determination of likely continuance or 
recurrence of injury.  If there would have been no im ports from the original source, it would hardly be 
possible, in the opinion of the European Communities, to make a finding of likely continuance.  That is 
because the approximately five years that would have  elapsed between any such imports and the current 
state of the domestic industry would almost certainly indicate the absence of causation.  That is, the five 
year old imports could not be considered to be r esponsible for causing the current state of the domestic 
industry.  Thus, the determination that would have to be made in the example set out in the question 
would be a determination of likely recurrence  of injury. 
 2. In such a case the investigating authority would have to take account of any intervening changes 
in the Anti-Dumping Agreement .  For example, if price undercutting would have been a key factor in the 
original injury determination, and the new version of the Agreement  established specific rules in that 
respect, then the investigating authority would have to take that into consideration. Similarly, if the new 
version of the Agreement  would have introduced new factors to be  considered when examining the state 
of the domestic industry, that would also have to be  taken into account.  The i nvestigating authority could 
not content itself with determining that what happened before, that is, "injury" within the meaning of the 
old Agreement , would be likely to recur.  The investigating authority would have to determine that injury 
within the meaning of the new Agreement  would be likely to recur. 
 3. As regards the volume of imports, the investig ating authority could consider, for example : the 
capacity situation in the original source countries (i s there existing overcapacity, what is the position as 
regards stocks, what is the capacity utilisation rate ); the pattern of exports from the original source 
countries to other countries (what are the volumes and the trends and could these be diverted to the 
importing Member); and the consumption and capacity situation in the importing Member (is it such as to draw in further imports).  4. As regards prices, the investig ating authority could likewise consider current pricing levels in the 
original source countries (are they low or high in re lation to the importing Member); the pattern of prices 
of exports from the original source countries to other countries (are they low or high in relation to the 
importing Member and/or in relation to the exporting Member); and the current price situation in the 
importing Member (is it relatively depressed or relatively buoyant). WT/DS282/R 
Page E-64    5. As regards the state of the domestic industry, the investigating authorities could consider whether 
it is robust or fragile, for example, by referring to the factors set out in Article 3.4 Anti-Dumping 
Agreement , including the kinds of financial ratios usually used by the markets for the purposes of 
investment decisions.  6. As regards causation, the investigating author ities could take into consideration known factors 
other than dumping.  For example, if there had r ecently been an increase in imports of the product from 
third countries at prices lower than those of the domestic  industry, that might be expected to contribute to 
any injury.  
2.  Do the third parties consider that the determination of "likelihood of continuation or 
recurrence of injury" under Article 11.3 is identical in nature and scope to the "determination of 
injury" under Article 3? Could the third parties plea se address, in this context, the views of the 
Appellate Body in United States – Countervailin g Duties on Certain Corrosion-Resistant Carbon 
Steel Flat Products from Germany ("US-Carbon Steel"), WT/DS213/AB/R, at paragraph 87, that 
"original investigations and sunset reviews are distinct processes with different purposes" and that the "nature of the determination to be made in  a sunset review differs in certain essential respects 
from the nature of the determination to be made in an original investigation" ?  
7. The European Communities considers that the hi storical injury finding on which the investigating 
authority will necessarily have to rely for the purposes of Article 11.3 Anti-Dumping Agreement  must be 
consistent with Article 3.  It w ill have to be identical in nature and scope to a determination made 
pursuant to Article 3.  If the Agreement  has changed, the investigating authority must take that into 
account.  8. As regards the prospective part of the injury de termination – the likely recurrence of injury -  the 
European Communities agrees that it is different fro m the original determination, insofar as it is 
prospective, whereas the determination in the original investigation will, in most cases, be historical. The 
legal fact remains, however, that Article 3 defines injury, and, unless otherwise specified, that is the 
defined concept from which the investigating authority mu st start for the recurrence of injury analysis in a 
sunset review.  The European Communities has indicated  in its answer to the previous question some of 
the ways in which the investigating authority might go about that task.  9. The quotations from US-Carbon Steel from Germany  are only part of the overall picture that 
emerges from that case.  The Appellate Body made those statements in the context of reaching the 
conclusion that there are some differences between an original investigation and a sunset review 
investigation – specifically it found that the de minimis  rule was by its own terms restricted to original
 
investigations, that finding only  being possible because of the words "unless otherwise specified" in the 
injury definition.  However, at the same time, the A ppellate Body also observed, and has since confirmed, 
that there are also important similarities between the two types of investigations – for example the fact 
that Article 3 defines injury and Article 2 dumping, for the purposes of the Agreement , and that a 
definition goes beyond a mere cross-reference.1 
 
3.  Could the third parties explain why, in their view, it is relevant to the sunset determination 
that the original anti-dumping measure was impose d on the basis of a dumping calculation based on 
the facts available ? Are the third parties of the view that, in such a case, there is a requirement that the investigating authority undertake some particular action or analysis in determining whether there is a likelihood of continuance or recurrence of dum ping in a sunset review, and if so, what do 
they consider is required ?  
                                                     
 
1 Appellate Body Report, US-Carbon Steel from Japan , para. 126.  WT/DS282/R 
 Page E-65 
  10. The European Communities respectfully refers to paras. 41 to 46 of its written submission.   11. The use of "facts available" is a leg itimate approach, expressly provided for in the Anti-Dumping 
Agreement .  The investigating authority does not need to r econsider the original determination.  It does 
not need to reconsider whether or not the use of fact s available was justified. However, if, as in this case, 
the investigating authority contents itself with (alle gedly) finding that what happened in the original 
investigation is likely to happen again (that is, to recur), then the nature of the original events is relevant.  
If the original events were exceptional or linked to exceptional circumstances (a freak storm or earthquake or an exceptional financial crisis), then that is relevant to the determination of likelihood.  An 
investigating authority cannot reasonably assert that an exceptional
 event is "likely " to recur, without 
offering some further detailed justification for such a finding.  
4.  Do the other third parties agree with the view  of the EC that there must be an intervening 
calculation of dumping margins, consistent with Article 2, in order to make a proper determination of likelihood or continuation or recurrence of dumping?  
12. The European Communities respectfully refers to  paras. 22 to 30 of its written submission, with 
reference to a dumping determination, rather than calculation.  
5.  Could the third parties indicate which provision(s) of the AD Agreement govern company-
specific revocations of the type at issue in this dispute ?  
13. Other than in the context of a sunset review, the provision of the Anti-Dumping Agreement  that 
deals with revocation, or rather "termination", is Article 11.2 Anti-Dumping Agreement .  In this respect, 
the European Communities respectfully refers to pa ra. 139 of its written submission.  The European 
Communities considers that the Anti-Dumping Agreement  does not provide for company specific 
revocations of an order, and that this view  is supported by the Appellate Body Report in US-Carbon Steel 
from Japan , at paras. 149 to 158.   
 
Questions to the European Communities:
 
 1.  In paragraph 41 of its submission, the EC indicates that the reasoning for a determination 
in Article 11.3 reviews assumes particular impo rtance.  Assuming that Commerce in this case 
addressed all the evidence before it and the arguments of the parties, is it the EC's position that 
Commerce was obligated to seek out, on its own vo lition, additional information and arguments 
before making its determination? If so, could the EC explain where, in the text of the Agreement, it finds support for the existence of such an obligation ?  
14. The European Communities considers that, in th e conduct of a sunset review, the investigating 
authority may publish a notice and solicit evidence or ar guments from known interested parties, but that it 
is not generally obligated to seek out additional info rmation proactively.  It must, however, examine all 
the evidence and arguments placed before it.  It mu st also conduct an investigation, based on objective 
evidence, in an even-handed and unbiased manner.  It  cannot ignore facts that are known to it.  If issues 
are unclear, it should take steps to attempt to clarify them.   15. The European Communities considers that th e evidence and argument to be considered by 
USDOC includes, by definition, the original dum ping determination and any intervening reviews. 
 16. The European Communities does not comment on whether USDOC in this particular case in fact addressed all the evidence before it and the arguments of the parties – the question inviting this to be 
assumed.  WT/DS282/R 
Page E-66   17. However, the European Communities does not c onsider that it is enough for an investigating 
authority merely to address  all the evidence and arguments placed be fore it.  The investigating authorities 
must make a determination  that dumping and injury are likely  to recur if the duty is terminated.  The 
"likely" standard is a higher standard that me rely addressing the evidence and argument – it indicates 
something that is probable, rather than merely possible.  18. The Panel must therefore do more than merely verify whether or not the investigating authority addressed all the evidence and argument before it.  Th e Panel must examine that evidence and argument.  
If the Panel finds that the evidence and argument does no more than support a finding that dumping and injury might possibly  recur, then it must find inconsistency with Article 11.3 Anti-Dumping Agreement . 
 19. Thus, whilst the European Communities accepts th at investigating authorities may proceed on the 
basis that interested parties may have some initia l burden of presenting evidence and argument to support 
termination of the duty (as occurred in this case), once such evidence and argum ent has been presented, 
investigating authorities must then rebut such evidence and argument if the duty is not to be terminated.  
Because of the "likely" standard, this rebuttal is not a mere formality.  It requires reference to persuasive 
evidence and reasoning.  Reference only to the origin al dumping determination and its effects on imports 
is insufficient.  20. The European Communities' essential point is that, based on the USDOC approach, it will always 
be possible to extend the duty indefinitely.  USDOC  finds dumping in the original investigation and 
imposes an anti-dumping duty.  It comes as no surprise that imports decrease or cease.  When it comes to 
a sunset review, USDOC reasons that imports decr eased or ceased because of the duty, so if the duty 
would be terminated, dumping and injury w ould be likely to recur.  This is a possibility  that is inherent in 
the USDOC approach right from the first day on which duties are imposed and imports decrease or cease, regardless of what happens over the next 5 years.  That possibility  then subsists and is maintained 
throughout the 5 year period, and forms the basis of USDOC's reasoning in the sunset review.  Based on such reasoning, it is clear from the moment the original duty is imposed, that it could possibly  be 
maintained in place indefinitely, and essentially only on the basis of the original dumping determination 
and its inevitable immediate effect.  Thus, at the most, USDOC's method amounts to a finding that recurrence of dumping and injury are a possibility  – but that cannot be sufficient to meet the likely 
standard of Article 11.3 Anti-Dumping Agreement .  In the opinion of the European Communities, 
USDOC's approach deprives Article 11.3 Anti-Dumping Agreement  of any effective meaning.  The 
Appellate Body has stressed that an automatic time-bound termination is at the heart of this provision, and 
that extension is the exception . A decrease or ceasing of imports after the imposition of an anti-dumping 
duty is not exceptional – it is the norm, occurring in most, if not all, cases.  
2.  Following from the statement in paragra ph 48 of its submission, does the EC intend to 
suggest that in a dispute involving an Article 11.3 review, the original determinations of dumping and injury are always subject to scrutiny by the Panel ?  
21. The European Communities refers to paras. 47 and 48 of its written statement. 
 22. The consistency of the original dumpi ng and injury determinations with the Anti-Dumping 
Agreement  in force at the time of the original determina tion cannot be considered by the Panel.  Nor can 
the Panel consider, as such, whether or not the origin al dumping and injury determinations are or are not 
consistent with the Anti-Dumping Agreement  in force at the time of the sunset review. 
 23. However, the European Communities does consider  that the "phenomena" that the investigating 
authority must determine are likely to continue or recur must be dumping and injury, as those terms are used in the Anti-Dumping Agreement  in force at the time of the sunset review.  The problem in the 
particular case before this Panel is that USDOC mere ly contented itself with finding that what happened 
in 1994 was likely to recur.  But what happened in  1994 is not necessarily dumping and injury within the  WT/DS282/R 
 Page E-67 
  meaning of the Anti-Dumping Agreement currently in force.  USDOC shoul d have considered whether or 
not what happened in 1994 would, should it happen again, constitute dumping and injury within the 
meaning of the current Anti-Dumping Agreement .  USDOC did not consider this matter at all, and the 
United States thus acted inconsistently with Article 11.3 Anti-Dumping Agreement .  As indicated in the 
Appellate Body Report in US-Carbon Steel from Japan , at para. 130, this issue would only arise in 
circumstances where the likelihood determination is based on the original dumping determination; and 
where the complainant has invoked this point (as it has in the present case) – otherwise the point would 
not automatically be before the Panel.  24. Furthermore, the European Communities does c onsider that, in determining whether or not 
something is likely to recur, it is germane to consider  whether the original even t, when it first occurred, 
was a common occurrence, or an excep tional occurrence.  An investigating authority must consider this 
point, because it goes to the question of likelihood.  If the original event was an exceptional occurrence, it must be less likely to recur than if it was a common occurrence.  In this particular case, there were 
exceptional circumstances surrounding the original determ ination – notably the Mexican financial crisis 
and the exporters' currency exposure.  In the face of  these facts, recorded in  USDOC's record of the 
original investigation, the most that might be said is that recurrence is possible – but these facts cannot 
support the finding that recurrence is likely . 
 
3.  Could the EC clarify, with reference to paragraph 73 of its submission, whether it considers 
the US Statement of Administrative Action accompanying the Uruguay Round Agreements Act a 
measure which is, itself; subject to challenge in this dispute ?  
25. Following the Appellate Body Report in US-Carbon Steel from Japan , the European 
Communities considers that a measure need not be "m andatory", in the sense that it has the binding force 
of law in the municipal jurisdiction, in order to be challenged before a Panel. 
 26. The European Communities considers that, if the SAA contains a measure that is "as such" 
inconsistent with an obligation contained in the Anti-Dumping Agreement , the Panel may make findings 
and recommendations in that respect.  27. The European Communities notes th at the SAA has a particular status in United States law, that 
may make it relevant, together with other measures, when determining whether or not there may be an 
inconsistency with the WTO Agreements . 
 28. The European Communities further considers,  also following the Appellate Body Report in US-
Carbon Steel from Japan , that it is possible that the consistent practice of the United States on a specific 
point could, considered in the context of a specific provision of the SAA, give rise to an inconsistency 
with a specific provision of the WTO Agreements , which inconsistency only arises because of the 
consistent practice.  29. In this particular case, the European Commun ities has not commented further on whether or not 
any specific provision of the SAA is or is not inconsistent with the Anti-Dumping Agreement . 
 
4.  Could the EC explain what it considers th e appropriate benchmark in making the statement 
that "the total margin or amount of dumping calculated during the period of review is inflated" in paragraph 85 of its statement — that is, infl ated by comparison to what benchmark ? 
 
30. The European Communities refers to table 2 to its written observations, which shows the 
calculation of 3 "dumping margins" in increasing orde r of ascendancy : without zeroing (the true dumping 
margin calculated in conformity with the Anti-Dumping Agreement ); model zeroing; and simple zeroing.  
All other things being equal, this  pattern will generally be repeated : the model zeroing margin will 
always be greater than the true margin calculated without zeroing; and the simple zeroing margin will WT/DS282/R 
Page E-68   always be greater than the model zeroing margin.  The Appellate Body stated in EC-Bed Linen  that model 
zeroing inflated the true dumping margin.  The European Communities observes that simple zeroing must also therefore necessarily inflate – or in fact super inflate - the true dumping margin, in the same way and 
for the same reasons.  31. The benchmark is that which results from the only true and permissible interpretation of the Anti-
Dumping Agreement , notably Articles 2.4 and 2.4.2, as set out at length in the written submission of the 
European Communities.  32. The benchmark is also, at least in this partic ular case, the benchmark fixed by the investigating 
authority itself, when it established the parameters of its investigation.  Particularly, the investigating 
authority will determine for which products and over which period it will investigate whether the imports 
from another country are dumped.  As in the presen t case, USDOC will thus generally have decided to 
impose a dumping duty in relation to the whole period; to impose a dumping duty at the same rate  
throughout the relevant period; to impose a dumping duty on all export transactions during the relevant 
period (whether above or below normal value); to conduct the investigation in relation to the whole 
territory of the United States; and so on.  In othe r words, the investigating authority itself set the 
benchmark, and thenceforth was bound by its own logic not to use simple zeroing in the way that it did, 
since this results in not duly taking into account expor t transactions that fall within the relevant category 
of transactions, even though the investigating author ity had considered these transactions relevant to 
determine if there was dumping.  
5.  Does the EC consider that the US peri odic reviews of the amount of duty (annual 
administrative review) constitute reviews under Article 11.2 ? Article 11.3 ?  
33. The European Communities refers to paras. 86 to 90 of its written submission. 
 34. The European Communities considers that a Un ited States periodic review of the amount of duty 
must comply with the obligations set out in Article 9.3.1 Anti-Dumping Agreement .  The attached table 
details the relationship between United States periodi c reviews of the amount of duty and Article 9.3.1 
Anti-Dumping Agreement ; and United States changed circumstances reviews and Article 11.2 Anti-
Dumping Agreement . 
 35. Thus, the European Communities does not consid er that, in the United States, a new cash deposit 
rate resulting from a periodic review of the amount of duty has any autonomous  existence. 
 36. In any event, the European Communities has analysed both Article 9.3.1 and Article 11.2 in its 
written observations, and reached the same conclusions.  It  being temporal considerations that are at the 
heart of Article 11.2 Anti-Dumping Agreement , it does not provide investigating authorities with an 
excuse to ditch the basis principles on wh ich the entire dumping calculation is based. 
 
6.  Does the EC consider that the United States  practice of comparing weighted average normal 
value to individual export prices in determining the amount of duty to be assessed for a previous 
period in a periodic review of the amount of duty (annual administrative review) violates the AD Agreement ?  
37. Absent the conditions and explanations set  out in the second sentence of Article 2.4.2 Anti-
Dumping Agreement  – yes.  We have requested a Panel in rela tion to this matter, and respectfully refer to 
the explanations set out at length in our written subm ission in the present case, particularly paras. 91 to 
123.   WT/DS282/R 
 Page E-69 
  
7.  In paragraph 132 of its submission, the EC appears to argue that the use of the word 
"continued" in the text of Article 11.2 refers to th e amount of the margin calculated. Could the EC 
please explain this view, in light of the textual reference to the "continued imposition of the duty" ? 
 
38. The European Communities does not argue that th e use of the word "continued" in Article 11.2 
Anti-Dumping Agreement  supports the view that the amount  of the dumping margin calculated in a review 
under that provision must be the same as that calculate d prior to such review. Rather, we argue that it 
indicates a degree of continuity in relation to somethi ng.  To state the obvious, an investigating authority 
could not, for example, completely change the product sc ope of the original investigation in a review.  We 
argue that the continuity that is referred to must have  something to do with the "duty" – since that is what 
the phrase says.  If it is not the amount  of the duty that is referred to, it must be something else, the only 
other possibility being the method  by which the duty is to be calculated.  We therefore conclude that, it 
being temporal considerations that are at the hear t of this provision, this provision does not afford 
investigating authorities an opportunity to abandon co mpletely the basic methods used for calculating a 
dumping margin, in original investigations and otherwise, defined in Article 2 Anti-Dumping Agreement .  
At least any change in method would have to be cl early justified and explained, by reference to any 
changed circumstances.  To conclude otherwise woul d be to render the choice of the word "continued" 
redundant, which would not be a permi ssible interpretation of Article 11.2 Anti-Dumping Agreement.  
 
8.  The EC asserts that the establishment of the cash deposit rate for future shipments in the 
US periodic review of the amount of duty (annual ad ministrative review) context is "an up-date of 
the temporal frame of reference for the investigat ion" (paragraph 131 of the EC submission), and 
that therefore it constitutes part of the "investigat ive phase" of the investigation.  However, Article 
5.10 specifies that investigations must be comp leted within, at most 18 months.  Does the EC 
therefore suggest that the US system is, overall, inconsistent with that provision ?  
39. The European Communities does not consider th at the establishment of the cash deposit rate is 
part of the original or initial or Article 5 investiga tion phase.  We do not therefore consider that there is 
any inconsistency with Article 5.10 of the Anti-Dumping Agreement . 
 40. The European Communities only means to say th at, while in a prospective system the rate 
calculated during the original investigation will serve  as a basis for the calculation of the duty to be 
collected, subject to refund, in the United States retros pective system, this rate is subsequently "updated" 
following a method inconsistent with the Anti-Dumping Agreement  (asymmetry and zeroing).  In this 
way, the relationship between the two systems of co llection, which should be just different means of 
arriving at the same result, is severely distorted.  41. The European Communities considers that a Un ited States periodic review of the amount of duty 
involves, objectively, an assessment of duty and/or a type  of investigation – not an original or initial or 
Article 5 investigation – but an investigation nonetheless.  The Anti-Dumping Agreement  contains no 
definition of the word "investigation" and in fact, under the Anti-Dumping Agreement  that word is used in 
different senses, and there may thus be different types of  investigation.  We refer in this respect to paras 
115 to 123 of our written submission.  
 
9.  The arguments of the EC in connection with the two "aspects" of US periodic assessment of duty proceedings appear to indicate that the EC considers those proceedings to be consistent with 
Article 9.3.1 of the AD Agreement insofar as they  concern the assessment of duties on shipments 
during the period reviewed, but inconsistent with eith er Article 11.2, or Article 2, or both, insofar as 
they concern the establishment of a cash deposit rate for future shipments.  Is this understanding 
correct? If so, could the EC clarify how it justifi es this position in light of the fact that a 
retrospective system of assessment of the amount of anti-dumping duties is permitted under the AD 
Agreement and such a system would seem to enta il some updating of the amounts deposited in 
advance of the ultimate assessment of duty amounts.  Does the EC agree that without such updating, WT/DS282/R 
Page E-70   
the result would be indistinguishable from the result under a prospective system of duty 
assessment?  
42. There is a threshold issue about which provisions of the Anti-Dumping Agreement  govern a 
United States periodic review of the amount of duty : Article 9.3.1 or Article 11.2 Anti-Dumping 
Agreement , or both ? The European Communities is certain that most, and possibly all, of United States 
periodic reviews of the amount of duty are governed by Article 9.3.1 Anti-Dumping Agreement .  As 
indicated in paras. 86 to 90 of the European Co mmunities written submission, the cash deposit rate may 
be governed, or also governed, by Article 11.2 Anti-Dumping Agreement  (please see the response to 
question 5).  43. In any event, the European Communities considers that, because of the simple zeroing 
methodology, United States periodic reviews of the amount of duty are certainly inconsistent with Article 
2 Anti-Dumping Agreement ; certainly inconsistent with Article 9.3.1 Anti-Dumping Agreement ; and 
certainly inconsistent with Article 11.2 Anti-Dumping Agreement .  Thus, to be clear, the first sentence of 
the question does not reflect the position of the Eu ropean Communities – we consider USDOC's final 
assessment of the amount of duty to be inconsistent with the above provisions of the Anti-Dumping 
Agreement . 
 44. The European Communities does not assert that a retrospective system of duty collection is, per 
se, inconsistent with any provision of the Anti-Dumping Agreement . 
 45. The European Communities does not necessarily agree that such a retrospective system " entails " 
an up-dating of the cash deposit rate with each asse ssment exercise.  The European Communities finds no 
such obligation in Article 9.3.1 Anti-Dumping Agreement .  However, this question is  not before the Panel.  
 46. The European Communities does not agree that  whether or not a prospective system and a 
retrospective system produce the same result hinges on wh ether or not the cash deposit rate is up-dated.  
The cash deposit rate is part of the measure that is, at least potentially, temporary or provisional – the final 
definitive measure is the final duty assessment.  What determines the outcome in the final duty assessment 
are the rules that apply to the fina l assessment exercise – or in a prospective system, the rules that apply to 
the refund exercise.  47. It is not the up-dating of the cash deposit rate per se  that the European Communities objects to.  It 
is the fact that in the final assessment the rate of dut y is super-inflated by the use of simple zeroing, and 
that unlawful distortion is also reflected in the up-dated cash deposit rate.  
10.  Is the Panel correct in understanding, with reference to Table 1, the EC considers that the 
"Zeroing by transaction" column represents an unfair practice?  
48. The European Communities refers to paras. 92 to 102 of its written submission.  That is correct as 
regards, first, the method of comparison used and, second, the use of simple zeroing, other than in the 
circumstances provided for in the second sentence of Article 2.4.2 Anti-Dumping Agreement . 
 
 Is the Panel correct in understanding that th is column sets out the amounts by which 
normal value exceeded export pr ice on the respective shipments? 
 
49. This column reflects the amount by which a weighted average normal value (NV) as calculated by 
the United States exceeds the price of a specific export transaction (EP) as calculated by the United States. 
 However, the European Communities considers th at the methodology used by the United States to 
compare NV and EP is inconsistent with the Anti-Dumping Agreement , since it relies on an asymmetrical 
method of comparison with zeroing, without there being any basis for using such a method under the Anti-
Dumping Agreement .  WT/DS282/R 
 Page E-71 
   
 Is the Panel correct in understanding that  these figures represent amounts by which these 
sales were dumped? 
 
50. No - These figures do not represent the amounts by which these sales are "dumped" within the 
meaning of the Anti-Dumping Agreement .  This is because the comparison of NV and the EP is not 
completed on a symmetrical basis (NV is established on a weighted average basis while export prices are 
established on a transaction by transaction basis) and the negative amounts of "dumping" are zeroed.  51. In other words, this question seems to imply that dumping can be established for each and every 
transaction.  That assumption is in contradiction with the fact that a determination of dumping must fully 
reflect all export transactions falling within the scope of the investigation defined by the investigating 
authority, and not in respect of part of that unive rse (without prejudice to Article 2.4.2, second sentence, 
which permits, under very specific circumstances, the use of zeroing and hence that some transactions 
may not be fully reflected in the determination of dumping, see the reply to questions 14 and 15). 
 
 Is it the EC's position that a Member is not entitled to collect duties in the amounts of actual 
dumping, i.e., the amounts by which export pri ce is less than normal value on particular 
sales, but must offset actual dumping during the period of existence of an order by the 
amounts by which export price exceed s normal value on other sales? 
 
52. Essentially, this encapsulates the point.  Howe ver, the European Communities would have the 
following observations.  
53. "Actual dumping" : in the European Communities' view, "dumping" is a legal concept defined in 
the Anti-Dumping Agreement .  Anything that does not conform to th at definition is not "dumping" within 
the meaning of the Anti-Dumping Agreement .  The fact that the price of a particular export is less than a 
weighted average normal value does not mean that it is "dumped" or that there is "dumping".  The Anti-
Dumping Agreement  contains precise rules on when an individual export price can be compared to a 
weighted average normal value.  If the required circum stances are not present, this type of comparison is 
simply utterly irrelevant
 for the purposes of determining whether or not there is dumping, as that legal 
concept is defined in the Anti-Dumping Agreement . 
 
54. "collect duties … on particular sales" : this does not properly describe the United States system 
of collection of duties.  The United States does not  collect duties on the basis of transaction-based 
margins.  Rather, in a periodic review of the amount of duty, the United States establishes a new dumping margin for sales taking place during a certain period of time (following more or less the same discipline as in an original investigation, except  for the asymmetrical method of comparison and the use of simple 
zeroing).  On the basis of this super inflated marg in, the United States calculates a similarly inflated 
assessment rate (see paras. 84 to 85 of the European Co mmunities' written submission).  This inflated rate 
is then applied to all
 transactions that are subject to the review including those for which no positive 
amount of "dumping" was established.  55. Once again this nicely illustrates the inherent  unfairness of the United States approach, which 
consists in saying : this transaction is "dumped" so  we assess a duty; this transaction is "not dumped" so 
we … assess a duty anyway.  56. In conclusion, USDOC defines the universe of export transactions for which final liability and a 
new cash deposit rate will be determined.  The Eur opean Communities considers that once this universe 
has been established (product, period of time, etc.) the investigating authority is bound to respect the 
parameters of such universe and to duly reflect the va lue of the export transactions that fall within this 
universe; otherwise, it would fail to make a fair compar ison.  This is consistent  with the Appellate Body 
findings in EC-Bed Linen  where it was held that the Anti-Dumping Agreement  obliges an investigating WT/DS282/R 
Page E-72   authority to define one single margin of dumping fo r the whole of the subject product as defined by the 
investigating authority.  Zeroing by transaction as performed by the United States in periodic reviews of the amount of duty results in calculating specific margins for each transaction (this is the most 
disaggregated level possible since it may result in sev eral margins for the same exporter, importer, like 
product, sub-product types and period - in fact as many distinct margins as there are transactions…).  57. Once the margin of dumping has been established in conformity with the Anti-Dumping 
Agreement , in particular Article 2, duties must be collected  on the basis of that margin pursuant to Article 
9.3.  The United States simple zeroing practice will in evitably lead to a collection of duties in excess of 
the margin of dumping calculated under Article 2, as the example below clearly shows (this example is 
based on the same data as those used in the written submission).  
Model Customer EP NV Amount of 
dumping Amount of dumping 
based on simple zeroing 
 
A 1 95 100 5 5 
A 2 110 100 -10 0 
A 2 95 100 5 5 
A 3 110 100 -10 0 
A 4 115 100 -15 0 
B 1 95 110 15 15 
B 2 90 110 20 20 
B 3 100 110 10 10 
B 4 125 110 -15 0 
C 1 115 120 5 5 
C 3 95 120 25 25 
C 4 120 120 0 0 
TOTAL  1265  35 85 
Margin    2.8% 6.7% 
 
58. In the example above, the margin of dumping for the whole set of transactions is 2.8 per cent (dumping amount: 35 - no zeroing).  When applying the simple zeroing by transaction, the United States will calculate a total dumping amount of 85, on the basi s of which the margin to be applied across the 
board to all transactions will be based on a rate of 6.7 per cent (instead of the 2.8 per cent).  The European 
Communities considers that this constitutes a blatant violation of Article 9.3.  59. The EC recognises that a prospective collec tion of duty may also result in an initial duty 
collection in excess of the actual margin of  dumping.  That is why Article 9.3.2 Anti-Dumping Agreement  
provides for a prompt refund mechanism which will lead  to the refund of the duty collected in excess of 
the actual margin of dumping.  
11.  The Panel notes the view of the EC that while  cumulation is permitted in sunset reviews, it 
may only be used if the conditions for cumulati on set out in Article 3.3 of the AD Agreement are 
satisfied, either at the time of the sunset revie w, or within the reasona ble foreseeable future. Does 
the EC include, in this context, the condition s regarding de minimis levels of dumping and 
negligible imports which are contained in Arti cle 3.3? If so, could the EC please address the 
implications for this view of the Appellate Body's findings in United States — Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat  Products from Germany ("US — Carbon Steel"), 
WT/DS2I3/AB/R regarding the inapplicability of de minimis in sunset reviews?  
60. The European Communities refers to  para. 64 of its written observations. 
  WT/DS282/R 
 Page E-73 
  61. There is a certain tension between tw o legal facts : on the one hand, Article 3 Anti-Dumping 
Agreement  defines
 injury for the purposes of the Agreement , including sunset reviews (and the Appellate 
Body has said that a definition goes beyond a mere cr oss-reference); and, on the other hand, Article 3.3 
refers to Article 5.8 Anti-Dumping Agreement, which relates only to original or initial or Article 5 
investigations, and thus not to sunset review inves tigations under Article 11.3.  The "safety-valve" that 
resolves this potential contradiction is the phr ase "unless otherwise specified" in footnote 9 Anti-Dumping 
Agreement .  
 62. Thus, the issue of the de minimis  rule is a special case, in r espect of which it is "otherwise 
specified", because Article 3.3 refers expressly to Article  5.8, which in turn expressly applies to original 
or initial or Article 5 investigations.  63. The other conditions set out in Article 3.3 (the volume of imports and conditions of competition) are not so qualified.  64. Thus, the balanced approach, capable of reconciling these two propositions, is that cumulation is possible, at least subject to these other conditions.  
12.  Could the EC explain where in the AD Agreemen t it finds support for the proposition that 
periodic reviews of the amount of the duty, which it considers the United States conducts under 
Article 9.3.1, must be consistent with the requirements of Article 2, including Article 2.4.2?  
65. Article 9.3 Anti-Dumping Agreement  provides in relevant part: 
 
The amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2. 
66. The European Communities considers that the words "Article 2" in this provision must be 
interpreted as referring to the whole of Article  2, including Article 2.4 and Article 2.4.2. 
 67. Further contextual support is provided for that pr oposition by the fact that Article 9.3.3 also refers 
to paragraph 3 of Article 2.  68. The European Communities would also point out that Article 2 Anti-Dumping Agreement  defines  
dumping for the purposes of the Agreement  (and the Appellate Body has confirmed that a definition goes 
beyond a mere cross-reference).  Thus, when Article  9 refers to "dumping" it must be referring to 
dumping as defined by Article 2.  69. This is also common sense.  There would be no point in having detailed and precise rules for the 
determination of the dumping margin, if, when it actually came to assessing duties, the investigating 
authority would be free to do as it wished.  That would largely empty the Anti-Dumping Agreement  of any 
effective meaning.  
13.  The Panel notes the EC's view that the "d isaggregated analysis" it discusses in the context 
of "simple zeroing" produces a super-inflated dumpi ng margin.  However, Ar ticle 2.4.2 allows for 
"disaggregated analysis" in original investigat ions, when it establishes that transaction-to-
transaction comparisons are permitted.  Assuming a Member undertakes transaction-by-
transaction comparisons, is it the position of the EC that, when calculating the overall dumping 
margin in such a proceeding, zeroing is prohibited? If so, could the EC specify where, in the text of 
the Agreement, it finds support for this view? In this context, could the EC please address 
specifically the contention that the phrase "all comparable export transactions" is limited to the 
case of a weighted-average to weighted-average comparison.  WT/DS282/R 
Page E-74   70. As a preliminary point, the European Communiti es notes that Article 2.4.2, first sentence, does 
not refer to "original" investigations.  It refers to "investigations", which has a broader meaning. The 
Panel should not read into Article 2.4.2 Anti-Dumping Agreement  words that are not there, and for which 
there is no supporting context or purpo se.  We refer, in this respect, to paras. 115 to 123 of our written 
submission.  71. As regards the substance of the questi on, the European Communities has the following 
observations.  72. First, the question of zeroing in transaction-to-t ransaction cases is not before this Panel, so the 
Panel need make no findings in this respect.  73. Second, the European Communities would observe  that it considers that zeroing would be unfair 
in that context.  We refer in this respect to Article  2.4 and to the findings of the Appellate Body and the 
Lumber  Panel, as set out at para. 101 of our written submission.  Because zeroing results in giving more 
weight to "dumped" transactions than to "non-dumped"  transactions, it is intrinsically biased and unfair. 
 74. Third, even if the Panel would consider that zeroing in a transaction-to-transaction context might in certain circumstances be "fair" (a point that the European Communities does not concede, and a finding 
that it considers would constitute an error of law), then the European Communities would submit, in the 
alternative, that it could never be fair in circum stances such as the present case,  where the investigating 
authority itself defined the parameters of its review investigation, in terms of : subject product; period of 
review; use of weighted average normal values; calculation of single dumping margin; application of a single rate of duty; investigation by reference to the whole territory; and so on.  The investigating 
authority thereby became bound by its own logic, to which it should have  adhered throughout its 
investigation and assessment.  75. Fourth, the phrase "all comparable export transacti ons" is indeed relevant for the prohibition of 
zeroing when applying the first method of comparison because zeroing also
 violates the mathematical 
rules provided by the first sentence of 2.4.2.  Ho wever, this is not the only reason why zeroing is 
prohibited by the Anti-Dumping Agreement .  Zeroing is also prohibited because it unduly adjusts the 
value of export transactions and ther eby gives without justification more weight to "dumped" transactions 
than to "non-dumped" transactions in the calculation of the margin of dumping of the like product.  As 
held by the Appellate Body, this is inherently unfai r.  The fact that the tr ansaction-by-transaction method 
could be interpreted as meaning that the inves tigating authority may base its calculations on a 
representative sample of export transactions as opposed to all export transactions (a position that the 
European Communities does not necessar ily share as such method would fail to reflect the actual amount 
of dumping practised during the period of reference – rather, the European Communities considers that 
the transaction-by-transaction method may lead to a selection of the domestic sales that are used for 
individual comparison with export transactions under investigation), does not mean that the investigating authority once it has selected the representative sam ple of export transactions would be entitled to 
disregard in one way or another the "non-dumped" transactions for the computation of the overall margin of dumping, as zeroing implies.  Indeed, the use of the second method does not exempt the investigating authority from the obligation to calculate a margin of dumping in relation to the subject product in a 
manner consistent with Article 2 Anti-Dumping Agreement , or in a manner that is consistent with the 
parameters the investigating authority has itself established.   
14.  The Panel notes that the EC argues that, if  there is targeted dumping, Article 2.4.2 allows 
the use of the third method of comparison, weighted-average normal value to individual export transactions.  Is it the EC's position that zeroin g is prohibited when the third methodology is used? 
 
76. Zeroing is not prohibited when the third method is  used in conformity with the provisions of 2.4.2 
Anti-Dumping Agreement , second sentence.  Indeed, as held by the Appellate Body in EC-Bed Linen , the  WT/DS282/R 
 Page E-75 
  Anti-Dumping Agreement  explicitly recognises that certain types of targeting (regions, time periods and 
customers) may be addressed in the way the inves tigation is structured.  The European Communities 
considers that zeroing is an appropriate tool against th e types of targeting identified in Article 2.4.2.  The 
Appellate Body also indicated that the Anti-Dumping Agreement  does not authorise investigating 
authorities to address any other type of alleged targ eting.  This therefore excludes zeroing outside the 
circumstances provided for in Article 2.4.2 Anti-Dumping Agreement , second sentence.  If zeroing is 
prohibited in such a calculation, then the resulting dum ping margin is likely to be the same as the margin 
that would result from application of either of the other two methodologies (with no zeroing). 
 
 How then does this third methodology allow a Member to effectively address the problem of 
targeted dumping? Would this result not render the third methodology meaningless? 
 
77. As indicated above, the European Communities agr ees with the Panel that, all things being equal, 
the first and the third method would normally yield the same result absent "zeroing" (in the second method, normal value could be established on the basis of individual domestic prices).  The fact that "zeroing" is the discriminating factor between the first and the third method, demonstrates, in the European Communities' view, that the Anti-Dumping Agreement  restricts the use of "zeroing" to a well 
circumscribed set of circumstances, i.e. the types of  targeting identified in the second sentence of Article 
2.4.2, and to the conditions defined therein.  Absen t the conditions specified in 2.4.2, "zeroing" is 
prohibited by Anti-Dumping Agreement . 
 WT/DS282/R 
Page E-76     
ANNEX E-7 
  
ANSWERS OF JAPAN TO QUESTIONS OF THE PANEL – 
THIRD PARTIES SESSION 
 
 
Questions to all third parties: 
 1. Could the third parties explain their understa nding of how a determination consistent with 
the requirements of Article 3 could be made in a sunset review, in a case in which there were, for 
example, no imports during the period of eff ectiveness of the anti-dumping measure from the 
sources originally found to be dumped.  How in su ch a case could, for example, the requirement of 
Article 3.2 regarding consideration of th e volume of dumped imports be satisfied? 
 
Answer
 
 1. The analysis of the authorities under Article 11.3 of the AD Agreement involves both the current state of the domestic industry, and the future state of the industry.    2. Article 11.3 requires the authorities to determ ine likelihood of "continuation or recurrence" of 
injury.  The words "continuation or recurrence" indicate that the analysis of injury under Article 11.3 must 
be in two folds, the current state of the domestic industr y, and the future state of the domestic industry.  In 
order for the injury to "continue," the authorities mu st first find that the domestic industry is currently 
injured, and then the injury will continue.  In order for the injury to "recur", the authorities must find that 
the domestic industry is not injured at the time of the sunset review proceeding, but will be injured at a 
point in the future.  3. The analysis under Article 11.3 has no differen ces from the analysis required under Article 3.7.  
Article 3.7 requires the authorities to determine like lihood of injury based on analyses set forth in all 
provisions of Article 3.  The panel in US – Softwood Lumber ITC Investigation  agreed with our 
interpretation.  It stated "there must, in every case in  which threat of material injury is found, be an 
evaluation of the condition of the industry in light of the Article 3.4/15.4 factors to establish the background against which the impact of future dumpe d/subsidized imports must be assessed, in addition 
to an assessment of specific threat factors."
1  The panel also stated, "[a]s with the consideration of the 
Article 3.4/15.4 factors, the consideration of the Article 3.2/15.2 factors forms part of the background 
against which the investigating authorities can evaluate  the effects of future dumped and/or subsidized 
imports."2   
 4. In case of no imports at the time of a sunset review, the authorities would find that the domestic industry was not injured by imports.  The authorities then must consider the volume of future dumped 
imports and its effects on the price of the domestic industry in accordance with Article 3.2 to find the 
impact of these imports on the state of the domestic industry and the causation under Articles 3.4 and 3.5. 
   
                                                     
 
1 Panel Report, United States – Investigation of the International Trade Commission in Softwood Lumber 
from Canada  ("US – Softwood Lumber ITC Investigation ") (WT/DS277/R), adopted 26 April 2004, para. 7.105. 
2 Id., para. 7.111.  WT/DS282/R 
 Page E-77 
  
2. Do the third parties consider that the determination of "likelihood of continuation or 
recurrence of injury" under Article 11.3 is identical in nature and scope to the "determination of 
injury" under Article 3?  Could the third parties pl ease address, in this context, the views of the 
Appellate Body in United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel 
Flat Products from Germany ("US – Carbon Steel
 "), WT/DS213/AB/R, at paragraph 87, that "original 
investigations and sunset reviews are distin ct processes with different purposes" and that the 
"nature of the determination to be made in a sunset review differs in certain essential respects from the nature of the determination to be made in an original investigation"?  
 
Answer
 
 5. As discussed in the answer to question 1 above , the determination of lik elihood of continuation or 
recurrence of injury in a sunset review differs from the determination of the material injury in an original 
investigation with respect to the point of time at which the injury may be found.  In this sense, the 
determination in the original investigation differs from the determination in the sunset review, as the 
Appellate Body has stated.  Indeed, the Appellate Body in US – Carbon Steel  has further explained at the 
same paragraph 87:    
…  For example, in a sunset review, the au thorities are called upon to focus their inquiry 
on what would happen if an existing counter vailing duty were to be removed.  In 
contrast, in an original investigation, th e authorities must investigate the existence, 
degree and effect of any alleged subsidy in order to determine whether a subsidy exists 
and whether such subsidy is causing injury to  the domestic industry so as to warrant the 
imposition of a countervailing duty. 
6. This qualitative difference, however, does not affect to the basic requirements under the AD 
Agreement for the determination of injury.  The au thorities must examine all factors as set forth in 
provisions of Article 3 to determine the likelihood of  continuation or recurrence of injury in sunset 
reviews.  
3. Could the third parties explain why, in their view, it is relevant to the sunset determination 
that the original anti-dumping measure was impose d on the basis of a dumping calculation based in 
part on facts available?  Are the third parties of the view that, in such a case, there is a requirement that the investigating authority undertake some particular action or analysis in determining whether there is a likelihood of continuation or recu rrence of dumping in a sunset review, and if so, 
what do they consider is required? 
 
Answer
 
 7. The fact that a determination in an original  determination was based on the facts available does 
not necessarily diminish its evidentiary value for the s ubsequent sunset review.  However, the authorities 
should not give too much weight on the determin ation in the original investigation because the 
determination was based on information which has been collected at least six years before at the time of 
the sunset review (one-year period for the proceeding of the original investigation plus five years of 
imposition of anti-dumping duties).  As explained by  the Appellate Body, "[m]ere reliance by the 
authorities on the injury determination made in th e original investigation will not be sufficient.
   Rather, a 
fresh determination, based on credible evidence, will be  necessary to establish that the continuation of the 
countervailing duty is warranted to remove  the injury to the domestic industry."3 
 
                                                      
3 Appellate Body report, US – Carbon Steel , para. 88. (footnote omitted.) WT/DS282/R 
Page E-78   
4. Do the other third parties agree with the view  of the EC that there must be an intervening 
calculation of dumping margins, consistent with Article 2, in order to make a proper determination of likelihood of continuation or recurrence of dumping? 
  WT/DS282/R 
 Page E-79 
  Answer
 
 8. The authorities must rely on margins of dumping to make a determination of dumping under Article 11 of the AD Agreement.  Dumping occurs when  the export price is lower than the normal value, 
as defined in GATT Article VI:1 and the Article 2.1 of  the AD Agreement.  This difference is the margin 
of dumping.  The margin of dumping is, thus, alwa ys involved in the determination of dumping.   
 9. As discussed in the answer to question 1 above , the words "continuation or recurrence" indicate 
that the analysis of dumping under Article 11.3 must be in two folds.  It is also clear that the provisions of Article 2.1 apply to a dumping determination under Article 11.3.
4  Because the margin of dumping is 
necessarily involved in a determination of dumping in  accordance with Article 2.1, the authorities are 
required to examine the margin of dumping at the time of the sunset review and at a point in the future to 
make a dumping determination in a sunset review.  10. The provisions of Article 11.1 also require the analysis of the margin of dumping.  Article 11.1 is a provision overarching other provisions of Article 11, providing that an anti-dumping duty "shall remain in force only as long as and to the extent necessary to counteract dumping."  The Appellate Body explained "the general rule of  Article 21.1 underlines the requirement for periodic review of 
countervailing duties and highlights the factors that must inform such reviews".
5  As such, Article 11.1 
requires that a sunset review confirm the existence and the degree of dumping to counteract.  The existence and the degree of dumping can be shown onl y through the margin of dum ping.  The authorities, 
therefore, are required to examine the margin of dum ping in a sunset review in accordance with Article 
11.1.    11. In sum, Article 11.1 and 11.3 require that the authorities assess the margin of dumping at the time 
of the sunset review and at a point in the future  to make dumping determination in a sunset review. 
 
5. Could the third parties indicate which provision(s) of the AD Agreement govern company-
specific revocations of the type at issue in this dispute? 
 
Answer
 
 12. Articles 2.1, 6.10 and 9.2 of the AD Agreement provide the sufficient basis for the authorities to 
make company-specific revocation determination.  Article  2.1 sets forth the general rule applicable to all 
provisions of the AD Agreement that dumping may be found where the export price is less than the normal value, i.e., where the positive margin of dumping is found.  Article 6.10 then sets forth the basic 
rule of the evidentiary basis that  the margin of dumping must be established on a company-specific basis. 
 Article 9.2 allows the authorities to collect anti-dumpi ng duties by specifying "the supplier or suppliers of 
the product concerned."    
                                                     
 
4 See Appellate Body report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Carbon Steel Flat Products from Japan , (WT/DS244/AB/R), adopted 9 January 2004, para. 126 ("the word 
’dumping‘ as used in Article 11.3 has the meaning described in Article 2.1.")   
5 See Appellate Body report, US – Carbon Steel ., para 70. WT/DS282/R 
Page E-80     
ANNEX E-8 
 
 
ANSWERS OF THE SEPARATE CUSTOMS TERRITORY OF  
TAIWAN, PENGHU, KINMEN AND MATSU TO QUESTIONS 
OF THE PANEL – THIRD PARTIES SESSION 
 
 
(18 June 2004) 
 
Question:   1. Could the third parties explain their understa nding of how a determination consistent with 
the requirements of Article 3 could be made in a sunset review, in a case in which there were, for 
example, no imports during the period of eff ectiveness of the anti-dumping measure from the 
sources originally found to be dumped.  How in su ch a case could, for example, the requirement of 
Article 3.2 regarding consideration of th e volume of dumped imports be satisfied? 
 
Reply
 
 
In our third party written submission, we argued that Article 3 of ADA should apply to sunset 
reviews, "because it represents the agreed disciplin es for the determination of injury, and no other 
provisions of ADA exist upon which Members may make their determination of injury."1  We concluded 
that, "even in the case of prospective injury analys is pursuant to Article 11.3, the authorities must 
necessarily apply, wherever appropriate, Article 3."2 
 
While it may be possible that no imports exist during the period of effectiveness of the anti-
dumping measure from the sources originally found to be dumped, investigating authorities should not 
automatically excuse themselves fro m the positive obligations of making injury determinations in 
accordance with Article 3, unless a reasonable decision in  accordance with Article 3 is impossible.  Even 
under this scenario, the fact that there is no import in itself needs to be examined, as required by the 
obligations under Article 11.3.  A simple conclusi on that dumping and injury would likely recur because 
there was no import cannot satisfy Article 11.3. 
 
As Article 11.3 requires a prospective analysis of future injury, it would therefore be appropriate 
for investigating authorities to adopt the threat of inju ry analysis, which is also prospective in nature, as 
provided for in Article 3.7.  Article 3.7 contains an indicative list of factors for consideration, e.g., freely 
disposable capacity, inventories, and has been designe d in a flexible way to accommodate the need for a 
prospective injury analysis, as Article 3.7 does not rest rict the authorities' ability to consider other factors 
for its determination of the likelihood of continuation or  recurrence of injury, as long as they are reasoned 
and justified.  
Question:  
 2. Do the third parties consider that the determination of "likelihood of continuation or recurrence of injury" under Article 11.3 is identical in nature and scope to the "determination of 
                                                     
 
1 Third Party Submission of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, 
28 April 2004, para. 24. 
2 Id.  WT/DS282/R 
 Page E-81 
  
injury" under Article 3?  Could the third parties pl ease address, in this context, the views of the 
Appellate Body in United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel 
Flat Products from Germany  ("US – Carbon Steel "), WT/DS213/AB/R, at paragraph 87, that 
"original investigations and sunset reviews are distinct processes with different purposes" and that the "nature of the determination to be made in  a sunset review differs in certain essential respects 
from the nature of the determination to be made in am original investigation"?  
Reply
 
 
In arguing that the disciplines in Article 3 injury  determination apply to the determination of 
"likelihood of continuation or recurrence of injury" under Article 11.3, we are not asserting that the two 
are identical in nature and scope.  The contexts under which the two determinations are conducted are 
different, as are their places in the overall anti-dumping process.  Presumably, in an Article 11.3 investigation, the anti-dumping measure has been impo sed, and the subject imports have very likely been 
affected, sometimes to a significant degree, by the du ties imposed.  The effect of the duties, and other 
intervening events, must be properly and car efully examined in the sunset review. 
 
Even recognizing the differences in nature and sc ope of the two determinations, the Appellate 
Body nevertheless found that Article 11.3 requires the authorities to take an active role in conducting a 
sunset review, and that the determina tions should be based on positive evidences.
3  The text of Article 
11.3 places on the authorities an obligation to examine dumping and injury.  As Article 3 is the only article providing a consistent discipline on injury, th e investigating authorities should therefore follow, 
when appropriate, the relevant provisi ons of that article in order meet  the requirements set forth by the 
Appellate Body with regard to Ar ticle 11.3, and to reach a reasonable conclusion on injury analysis in 
sunset reviews. 
 
Question 3-5:  [no comment]. 
 
 
                                                     
 
3 US - Carbon Steel , Appellate Body Report, WT/DS244/AB/R, para. 111. WT/DS282/R 
Page E-82     
ANNEX E-9 
 
 
ANSWERS OF MEXICO TO QUESTIONS OF THE PANEL –  
SECOND MEETING 
 
 
(13 September 2004) 
  
Questions to Mexico: 
 Question 1. Could Mexico clarify its argument at paragraph 72 of its second oral statement that 
"there would be no way for the United States to correct retroactively a violation of the time-bound 
obligation of Article 11.3 to terminate after five year s".  In particular, could Mexico distinguish this 
case from a dispute involving an original investigation and the obligation under Article 5.10 of the AD Agreement to conclude an investigation within one year, or in special circumstances 18 months? 
 
Answer to Question 1
 
 
1. Mexico's position is based on the unique nature of  the obligation in Article 11.3.  The text of 
Article 11.3 imposes a temporal limitation that requires  termination at a specific point in time unless  the 
investigating authorities make certain findings.  T hus, if a Member wants to invoke the exception and 
maintain the measure beyond the specified time, it bears the burden of conducting a review and making 
the findings required by Article 11.3.  If it fails to do so, or if it does so improperly, it has no right to 
maintain the measure.  2. The Appellate Body's interpretations of Artic le 11.3 support this view .  The Appellate Body 
reaffirmed the time-bound nature of the obligation to terminate anti-dumping duties after five years, and 
the consequences for failing to comply with the stringent conditions for invoking the exception to 
maintain an anti-dumping measure:  
Article 11.3 imposes a temporal limitation
 on the maintenance of anti-dumping duties.  
It lays down a mandatory rule with an exception.  Specifically, Members are required  to 
terminate an anti-dumping duty within five years of its imposition " unless " the 
following conditions are satisfied:  first, that a review be initiated before the expiry of 
five years from the date of the imposition of the duty; second, that in the review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping ; and third, that in the review the authorities determine that the 
expiry of the duty would be likely to lead to continuation or recurrence of  injury .  If any 
one of these conditions is not satisfied, the duty must be terminated .1 
3. The Appellate Body's statement reaffirms the pl ain meaning of Article 11.3.  If the administering 
authority has failed to satisfy any  of the conditions for continuing a measure, the "mandatory rule" of 
Article 11.3 applies, and "the duty must be terminated."  
                                                     
 
1 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion Resistant 
Carbon Steel Flat Products From Japan , DS 244, para. 104 (" Japan Sunset ") (emphasis added).  WT/DS282/R 
 Page E-83 
  4. Giving a Member a second opportunity to invoke the exception would not only undermine the five-year temporal limitation for which Members nego tiated, it would also violate another temporal 
limitation specified in Article 11.3 for the time by which any Member must initiate and conclude the 
review.  Article 11.3 provides that any review c onducted in order to determine whether the measure 
should continue must be "initiated be fore that date," a reference to th e date five years from the imposition 
of the measure.  Article 11.3 also establishes as an a dditional exception to the general rule that "The duty 
may remain in force pending the outcome of such a review ."  In light of the temporal limitations in Article 
11.3, after a sunset review determination has been f ound to be inconsistent with Article 11.3, there is 
simply nothing that the violating Member can do within the temporal limitations specified in Article 11.3 to bring that measure into conformity with the An ti-Dumping Agreement.  The granting of a reasonable 
period of time to bring a measure into conformity may be used to cure non-time bound obligations only.  
Otherwise, it would create absurd results or rende r several provisions of the Agreement meaningless, 
which is not permitted by the Vienna Convention on the Law of Treaties . 
 5. The circumstances of this dispute highlight th e unique nature of the Article 11.3 obligation and 
the significance of the Appellate Body's interpre tations.  The United States imposed the anti-dumping 
measure in this case in August 1995.  Therefore, it had an Article 11.3 obligation to terminate the measure in August 2000 unless US authorities made certain findings in a manner consistent with the Article 11.3.  
A determination by the Panel that the United States di d not meet the conditions to allow the continuation 
of the measure would mean that the United Stat es improperly extended the measure beyond August 2000 
and beyond the requisite temporal limitation for conducting a review.  Viewed from a different 
perspective, Mexico had the right under Article 11.3 to  have its exports of OCTG enter the United States 
without anti-dumping duties as of August 2000, unless the United States properly invoked the limited exception in Article 11.3.  If the United States maintains the measure without properly invoking the exception, then Mexico's right to export without the application of anti-dumping duties must be restored 
immediately.  6. If the Panel finds that the United States acted  inconsistently with Article 11.3 and nonetheless 
allows the United States to continue the measure , Mexico's rights under the Anti-Dumping Agreement 
will be diminished, rather than restored.  Mexico's  exports will continue to be subject to anti-dumping 
measure for a tenth years following imposition of the measure, without any proper invocation of the exception in Article 11.3.  Mexican exports also will continue to be subject to the US administrative 
review process.
2  Soon, the United States will have to begin its second Article 11.3 review of this order, 
which would be absurd in light of a finding that the United States did not properly continue the measure in 2001.  7. With respect to the Panel's specific question relating to Article 5.10, there is a significant 
difference between the obligation in Article 11.3 and th e obligation in Article 5.10.  The obligations in 
Article 11 arise after
 anti-dumping duties have been imposed and ha ve remained in effect for some time.  
The very title of Article 11 indicates that the disciplines imposed by Article 11 relate to the "duration" of 
an anti-dumping measure that is in effect.  Article  11.1 and 11.2 impose obligations to terminate the 
measure immediately under certain circumstances, and Ar ticle 11.3 imposes an obligation to terminate the 
measure at a specific point in time unless certain speci fic findings are made.  No other provision of the 
Anti-Dumping Agreement contains the affirmative obligation to terminate a measure at a specific point in 
time.  The nature of this unique obligation is the basis for Mexico's view that the consequence of a 
violation of Article 11.3 must be termination of the measure.  8. Article 5.10 refers to the length of time to conduct an investigation that may lead to the 
imposition of anti-dumping measures in the first instance.  Thus, the context is very different from that of 
                                                     
 
2 Just two weeks ago, the US industry requested th at the US Department of Commerce conduct another 
review of the 1994 anti-dumping duty order with respect to TAMSA.  The mere filing of this request will imply administrative proceedings, questionnaires, and potentially verifications. WT/DS282/R 
Page E-84   Article 11.  However, Article 5.10 has a similar struct ure to Article 11.3, in that it establishes a specific 
time frame in which the Member must act (12 or 18 months), subject to an exception (an explanation 
justifying more time).  If a Member fails to comply  with the temporal limitation in Article 5.10 and 
imposes duties after the 18-month period, Mexico cons iders that the Member would have violated its 
obligation under Article 5.10.  Indeed, if a member  breaches the time-bound obligation in Article 5.10 by 
imposing a duty after the maximum period of 18 months, it would be absurd to recommend that such Member brings its measure into conformity with the Agreement by granting that Member still more time (a "reasonable period of time") to do so.  9. Termination of the measure is even more compelling in the case of a violation of Article 11.3 because Article 11.3 contains the substantive disciplin es relating to the duration of anti-dumping duties.  
Allowing a Member to extend the duration of the measure  in order to cure a violation that already caused 
the measure to be in place longer than the time expressly permitted by the Anti-Dumping Agreement
 
would serve only to further undermine Mexico's rights under Article 11.3.  10. As stated in its submissions to the Panel, Mexi co's position on this point is an issue of law that 
affects Mexico's rights under the Anti-Dumping Agreem ent and is consistent with the several reports 
adopted by the DSB that recognized that the nature of  the obligation, as well as the nature and extent of 
the violation, justified a specific suggestion or finding to restore the rights of the affected member.
3  In the 
absence of an immediate termination of the US measu re as part of the Panel recommendation, Mexico's 
rights under the Agreement would be diminished in c ontravention of Article 3.2 and 21.2 of the Dispute 
Settlement Understanding.  
Question 2. Could Mexico clarify its argument at paragraph 32 of its second oral submission 
that "By failing to evaluate whether the Commission  applied the right standard, and then making 
its own assessment of whether the facts would support a finding of "likely" injury, the Panel [in the 
OCTG from Argentina  dispute] seriously undermined the substantive obligation in Article 11.3, 
which places the burden of establishing likely injury on the investigating authority".  In this regard, the Panel notes the statement in the Panel's report in OCTG from Argentina , at paragraph 7.285, 
that "the standard set out in Article 11.3 of the Agreement for the investigating authorities' sunset 
determination is "likely".  This standard appli es to the likelihood of continuation or recurrence of 
dumping as well as injury determination in sunset  reviews, and this is precisely the standard that 
the USITC applied". (emphasis added).  In additi on, Mexico's statement seems to assert that there 
is some burden of proof on the investigating authorit y – could Mexico clarify if this is its view, and 
if so, the basis for that view.    
11. The Panel in OCTG from Argentina  stated several times that it did not consider Argentina to be 
challenging directly the standard that must be applie d in Article 11.3 reviews.  In paragraph 7.280, the 
Panel stated that it considered that the "crux of Argen tina's claim is that the USITC either did not establish 
facts properly or did not evaluate them objectively or did not base them on a sufficient factual basis."  In 
                                                     
 
3 The Panel in Argentina – Poultry from Brazil  reasoned that "in light of the nature and extent of the 
violations in this case" the Panel "could not perceive how Argentina could properly implement its recommendations 
without revoking the anti-dumping measure" (Panel Report, DS 241, para. 8.7);  the Panel in Guatemala – Cement II  
found that "the violations to be of a "fundamental" and "per vasive nature" and "in light of the nature and extent of 
the violations in this case" that the measure should be revoke d (Panel Report, para. 9.6); se veral Panels have said that 
under certain circumstances "compliance could best be achie ved" and the "more appropriate and/or effective" way 
for a Member to comply with DSB recommendations would be through the repeal of the measure (See, e.g., Panel 
Report, US – Byrd Amendment 8.6; Panel Report, US – Cotton Yarn 8.5; US – Underwear, para. 8.3);  the Panel in 
Guatemala – Cement I  suggested the revocation of the existing anti-dumping measure based on the substantive 
violation of the standards for initiation in Article 5.3 of the Anti-Dumping Agreement (Panel Report, para. 8.6);  the 
Panel in US – Lead Bars  noted that the United States had continued to apply the violating measure in other cases 
during the course of the dispute, and therefore suggested th at the United States take "all appropriate steps, including 
a revision of its administrative practices," to prevent the same violation in the future (Panel Report, para. 8.2).  WT/DS282/R 
 Page E-85 
  paragraph 7.285, the Panel stated that the "essence of Argentina's claim is not that the USITC applied the 
wrong standard, but that it erred in determining that the likely standard was met."  12. Mexico has explained that it is challenging both
 the standard  used by the Commission, and  the 
Commission's establishment and evaluation of the facts to determine whether the standard was satisfied.4  
The requirement to use the correct standard is f undamental to a Member's ability to satisfy its WTO 
obligation, and it is related directly to the Panel's st andard of review in this case.  Using the wrong legal 
standard in an Article 11.3 review taints the pr ocess from the inception – it affects the investigating 
authority's ability to establish the requisite facts, its ability to objectively evaluate  the facts, and its ability 
to determine whether the facts it has developed cons titute positive evidence of what is likely to occur. 
 13. The Panel cannot restrict its analysis to the fact  that the US statute used  the same word – "likely" 
– as Article 11.3.  The Panel must consider:  1) whether US law gives the statutory term "likely" a meaning that is consistent with the meaning of "lik ely" in Article 11.3, which is "probable;"  and 2) 
whether the Commission in fact applies a standard th at complies with the common meaning of "likely," 
which again is "probable."  14. Mexico submits that the statute must be interp reted in conjunction with the SAA.  According to 
the Commission's own statements, the SAA precl udes the Commission from applying the "likely" 
standard required by Article 11.3.  In fact, th e Commission explained this position to a NAFTA Panel 
examining the very same sunset de termination, so there can be no doubt that the Commission's position is 
relevant to the claim presented by Mexico in this case.
5   
 15. As for the Panel's question rega rding the burden of proof, Mexico's view is based on the text of 
Article 11.3 and the statements of the Appellate Body.
6  As stated in response to question 1 above, Article 
11.3 imposes a temporal limitation, which requires  termination at a specific point in time unless  the 
investigating authorities make certain findings.  T hus, if a Member wants to invoke the exception and 
maintain the measure beyond the specified time, it bears the burden of proving that its authority 
conducted a proper review and made th e determination required by Article 11.3.  If it fails to do so, it has 
no right to maintain the measure.  16. The US is the party attempting to invoke an  exception.  Mexico understands that the party 
invoking the exception has the burden of proof.  Therefore, the United States is the party that has to prove that it complied with the requirements of Article 11.3.   In any event, in this  case, the Panel's decision 
should not hinge on the question of which party has the burden of proof.  Mexico only asks that the Panel, in analyzing Mexico's claims and arguments and the US responses, takes into consideration that Article 
11.3 clearly establishes an
 obligation  to terminate an anti-dumping measure, and an  exception  to continue 
the measure.  
Questions to both: 
 Question 7. Could the parties please address the impo rt, in specific terms, of the decision of the 
Panel in the Argentina – OCTG dispute for the issues, and the decision, in this dispute? 
 
Answer to Question 7
 
 
17. As indicated in its Closing Statement in the Pa nel's Second Substantive Meeting with the Parties, 
Mexico reiterates that the appeal presented by the United States on 31 August 2004 should not affect 
                                                      
4 See Mexico’s First Oral Statement. 
5 See Mexico’s First Submission, para. 171 (citing MEX- 47); Mexico’s Second Submission, paras. 83 – 85. 
6 See Mexico’s Second Oral Statement, paras. 2 – 3. WT/DS282/R 
Page E-86   Mexico's proceeding.  Mexico did not present wr itten arguments in that case.  Nor was Mexico a 
complaining or disputing party.  The Panel's ruling in that case cannot diminish Mexico's rights.  18. Mexico's statement quoted in the Panel's questi on 2 is a reflection of Mexico's concern with the 
possibility of unduly linking two different dispute settlement procedures that have not yet been 
completed.  The use of reasoning from a Panel or A ppellate Body Report that has been adopted by the 
DSB is one thing, but to link two pending disputes is a nother. Even when disputes may be similar, or may 
challenge the same measure, Article 11 of the DSU ma kes clear that "a panel should make an objective 
assessment of the matter before it, including an objective assessment of the facts of the case."  Mexico has 
no doubt that the Panel will make an objective assessmen t of the matter before it, including an objective 
assessment of the facts.  However, without having a ll the elements, evidence and arguments submitted by 
the parties in DS 268, Mexico does not know if that  panel arrived to certain findings because of the 
evidence, the arguments of the parties, or any other f actor that may be substantially different than those 
presented in this case.  19. For this reason and the reasons previously expressed, Mexico again respectfully asks that the 
Panel not delay its consider ation of Mexico's claims. 
 20. With respect to the Panel's question, and ba sed on Mexico's reading of the Panel's report in OCTG 
from Argentina , it is clear that many of the claims and arguments presented by Mexico to this Panel are 
different than the claims and arguments presented in  that case.  At the same time, it is important to 
analyze the issues that were appealed by the parties.  In this resp ect, it is important to point out that the 
issues to be presented on appeal have not even b een identified at this point as Argentina has until 
September 15 to present its cross appeal relating to the fi ndings of the Panel.  For this reason, in order to 
provide a complete response, Mexico respectfully asks that the Panel provide it an opportunity to 
elaborate on its response to this question in the co mments to the responses provided by the United States, 
once all of the bases for appeal have been identified.  21. Mexico provides the following chart in order to facilitate the work of the Panel in identifying the 
differences between both cases:  
Claims and Arguments Presented by Mexico Compared to DS 268 
As applied claims related to the Department's 
likely dumping determination in the Article 11.3 
review The United States did not appeal the findings 
related to the "as applied" claims in the Argentine case.  Also, Mexico's claims involve:  exporters who participated in several administrative reviews; several findings in the reviews that the exporters were not dumping; a full sunset review; the Department's reliance on a decrease in volume to disregard positive evidence that dumping was not likely; the Department's reliance on the original dumping margin despite positive evidence that conditions had changed so dramatically that it would be nearly impossible to have dumping of this magnitude in the future. 
Certain as applied claims related to the 
Department's likely dumping determination in 
the Article 11.3 review (reliance on a decrease 
in volume to disregard positive evidence) Panel exercised judicial economy 
As such and as applied claims related to the 
Commission's determination of likely injury in Different arguments  WT/DS282/R 
 Page E-87 
  
Claims and Arguments Presented by Mexico Compared to DS 268 
the Article 11.3 review 
As such claims related to Article 11.2 No claim presented 
As applied claims related to Article 11.2 No claim presented 
Certain as applied claims related to Article 11.2 
(specifically, zeroing of dumping margins) Panel exercised judicial economy and did not 
address Argentina's claim that reliance on a zeroed margin for purposes of the likely dumping determination violates Articles 11.3 and 2. 
Certain As such claims related to the 
Department's likely dumping determination in 
the Article 11.3 review (specifically, the 
Department's "consistent practice" violates 
Article 11.3, and the alternative argument that 
the Department's consistent practice violates 
Article X:3(a) of GATT1994 Panel exercised judicial economy 
 WT/DS282/R 
Page E-88     
ANNEX E-10 
 
 
ANSWERS OF THE UNITED STATES  
TO QUESTIONS OF THE PANEL – SECOND MEETING 
 
 
(13 September 2004) 
 
Questions to United States: 
 Q3. Could the United States clarify whether, in co nsidering declines in imports in the context of 
a sunset review, there is any applicable benchmar k, relative or absolute, for determining whether 
such declines are significant? 
 
1. There is no absolute benchmark for determ ining whether a decline in import volumes is 
significant.  Commerce's assessment of wh ether a decline is "significant" is made on a case-by-case basis, 
and the question of whether the decline is "significant" has not been an issue.  For example, in the vast 
majority of sunset reviews where Commerce has found that import volumes have declined "significantly," the declines in import volumes had been on the magnitude of 85 to 99 per cent and, in a number of cases, imports of the subject merchandise ceased entirely after imposition of the order.  See
 Exhibit MEX-62.  
These declines are significant by any standard. Furtherm ore, in some cases, respondent interested parties 
have explained successfully that the "significant" dec line in post-order import volumes was attributable to 
factors other than the imposition of the order.  See, e.g. , BS&S Netherlands .  Companies have also been 
able to demonstrate that they were able to sell in  significant volumes (at or near pre-order volumes) in 
sunset reviews notwithstanding the discipline of the order.  See, e.g. , Canada – Sugar . 
 
Q4. The anticipated result of imposition of an anti-dumping duty order would be a decline in the 
volume of imports, or an increase in import prices, or both.  Thus, it would seem that consideration 
of declines in import volumes from pre-order levels  in considering likelihood of continuation or 
recurrence of dumping is based on the view that a foreign producer or exporter subject to an anti-
dumping order will, if the order is revoked, revert  to making dumped sales at volumes similar to 
those prior to the order.  Is this in fact the theory  underlying the consideration of declines in import 
volumes from pre-order levels in US sunset reviews?  Is there another basis underlying the 
consideration of declines in import volumes fr om pre-order levels in US sunset reviews? 
 
2. The comparison of pre-order to post-order import volumes gives an indication of the volume of 
subject merchandise foreign interested parties sold wit hout the discipline of the order in place.  The issue 
is not whether there has a been any d ecline at all in the volume, but whether that decline is significant.  If 
an importer's volume drops significantly, then – if no othe r explanation is offered – it is an indication that 
the product in question is only competitive if sold at dumped prices.  Therefore, if the importer wishes to 
increase the volume of sales (and he will have more incentive to do so the more significantly the sales 
have dropped), then, in the absence of the order, he will likely resort to dumping to do so.   3. Parties are permitted to place any information they choose on the administrative record of the 
sunset review, including information to demonstrat e that the existence of dumping and reduced or 
depressed import volumes does not indicate that dumping is likely to continue or recur in the particular case.  Thus, notwithstanding a significant decline in post-order volumes, foreign interested parties may provide an explanation of the reduc tion of imports during the sunset review.  Commerce considers "other 
factors," such as price, cost, market, or other economic factors in determining the likelihood of  WT/DS282/R 
 Page E-89 
  continuation or recurrence of dumping and, in this regard, Commerce also would consider information or argument concerning reasons for declines in import vol umes after imposition of the order.  As explained 
above, respondent interested parties can explain and have explained that reduced post-order volumes are 
meaningful in the commercial sense and have not declin ed post-order simply in response to the discipline 
imposed by the order.  See, e.g.
, BS&S Netherlands .  
 
Q5. Could the United States clarify whether,  in considering the question of commercial 
quantities in the context of a company-specifi c revocation review, there is any applicable 
benchmark, relative or absolute, for determining wh ether volumes are in commercial quantities?  It 
appears from the comments at the second meeting that  the level of sales by the company prior to the 
imposition of the anti-dumping order is one, or even the major, relevant consideration.  Could the 
United States in this context address the basis for linking the issue of "co mmercial quantities" to 
the prior level of sales of the particular company in question? 
 
4. It is important to consider the context in which the commercial quantities requirement is made.  
Companies subject to an order seek revocation of the order because in three consecutive administrative 
reviews, they have not engaged in dumping.  Commer ce is evaluating whether, if  the order were revoked, 
dumping would be likely to continue or recur.  Assu me, for example, that those companies each had made 
one token sale at a high price to achieve a zero margin.  The question is how probative those sales are of the companies' conduct if the order were revoked.  Would those companies continue to sell at the high 
price, or were they able to do so only because of the token quantity sold?   The principle behind the 
commercial quantities requirement is simply to assess whether the sales made were in sufficient quantities 
to be meaningful in terms of predicting the comp anies' behaviour if the order were revoked.   
 5. In this context, the volume of sales a company made during the period of investigation ( i.e., the 
examined period prior to the existence of the discipline of an antidumping duty order) serves as a 
benchmark for whether the volumes of the sales made during three "non-dumping" years in a revocation request were made in commercial quantities.  This benc hmark is further considered in the context of the 
market conditions (e.g., supply and demand) for the sp ecific industry and the subject merchandise, and is 
not used simply as a benchmark for analysis of volume of sales in isolation from the facts of case at hand. 
 6. This benchmark is relative, not absolute.  Th e United States has previously demonstrated that 
companies which sold during the basis years at less th an their pre-order volumes, and even at significantly 
less than their pre-order volumes, were found to have made sales in commercial quantities and revoked 
from the order.
1  
 
Q6. It would seem that pre-order import volumes mi ght be considered artificially high, in light 
of dumped prices.  Why is a significant decline fr om such a level considered relevant in determining 
whether continuation or recurrence of dumping is likely? 
 
7. As noted above, the commercial quantities requirement should not be viewed as an assessment as 
to whether any drop in pre-order volumes occurred; rather, it is an assessment as to whether a small 
amount of sales has sufficient predictive value with respect to companies' conduct in the event of 
revocation.  The mere fact that a company has made a few token non-dumped sales as part of a process of seeking revocation is not sufficient to provide eviden ce of how that company would likely react if the 
order were revoked.   8. More specifically, the "commercial quantities" standard is applied to determine whether a 
company is participating meaningfully in the market.  Most companies will seek to place as much of their production as possible at the most profitable overall combination of sales volume and price because 
                                                     
 
1 See US Second Written Submission, para. 61, and repres entative cases cited therein (Exhibits US 32, 34, 
36, 37, 38). WT/DS282/R 
Page E-90   pricing decisions are governed by the market forces of supply and demand.  Thus, a company, which has demonstrated its ability to produce and sell into a ma rket (e.g., the US market) with given quantity of 
merchandise, may be expected to sell comparable quantities in the same market absent the constraints 
imposed by an order and absent an indication that  the underlying dynamics of that relationship would 
vary significantly in a post-revocation period as compared to the pre-order period.    9. A significant decline from pre-order volumes is considered relevant because it may indicate the 
extent or degree to which an exporter may be able pa rticipate in the US market  where the order ensures a 
fair market price.  In other words, there may be a financial incentive for a company to sell limited 
volumes at higher, non-dumped, prices while an order is  in effect (so as to avoid paying dumping duties, 
yet continue to supply its regular customers, for ex ample).  Yet there is very little, if any, financial 
incentive once an order has been re voked for a company to forego "additional sales that can only be made 
by dumping."  Thus it is important to determine the ex tent to which an exporter's ability to participate in 
the US market may be dependent upon such sales.  10. The volume of an exporter's pre-order sales in the US market is a relevant consideration because it provides baseline information on what volumes of merchandise that company is capable of producing and selling into the US market absent an order, and th e extent to which those volumes are associated with 
dumped sales.  Thus, it provides a rough estimate of what volumes the exporter could likely sell to the US market in the future, were the market conditions  (including the presence or absence of a dumping order) 
favourable for making sales there.  If an exporter can sell the subject merchandise in the US market at 
higher non-dumped prices and, thus, retain a signi ficant portion of US sales without dumping, that 
exporter is less likely to dump in the US market were  the order to be revoked.  Conversely, a company 
whose US sales are so intrinsically linked to dumping that more than three years after the order it still 
cannot sell even 1 per cent of the volume it sold when  it was dumping, such as TAMSA and Hylsa in this 
case, is more likely to dump.     11. It is important to note that the party seeking revocation of an order under Article 11.2 bears the 
burden of establishing that review for this purpo se is "necessary."  An exporter must make a positive 
demonstration that its position in the US market (even if smaller than in pre-order periods) is sufficiently 
assured with non-dumped sales that it will not seek  "additional sales that can only be made by dumping" in that market.  TAMSA and Hylsa have not met that burden.  The mere fact that it is possible to make a few non-dumped sales under an antidumping order may be positive evidence that it would also be "possible" for a company to make the same few non-dumped sales in the same market after
 an order has 
been removed.  It is not, however,  positive evidence th at it is "likely" to do so and that the companies 
requesting revocation would be content to leave their market penetration at the same minuscule level that 
was possible without dumping.    
Questions to both: 
 
Q7. Could the parties please address the import, in sp ecific terms, of the decision of the Panel in 
the Argentina-OCTG dispute for the issues, and the decision, in this dispute?  
 
12. As the United States noted in its closing statement at the second panel meeting, prior panel decisions are not binding with respect to subsequent pa nels.  To the extent that the reasoning in a panel 
report is persuasive, then of course that reasoning may also be persuasive in a dispute involving an issue 
to which that reasoning would apply.  13. The panel in Argentina – OCTG  made a number of findings that the United States believes are in 
error and are under appeal.   For example, th e panel's finding that the Appellate Body in Japan Sunset  
found that Commerce's Sunset Policy Bulletin is a "measure" and, thus, subject to dispute settlement is 
simply incorrect.  In addition, the panel's finding that the Sunset Policy Bulletin  mandates a breach of 
Article 11.3 was also error because it was based on an erroneous finding of fact with respect to  WT/DS282/R 
 Page E-91 
  US municipal law.  As the United Stat es has noted, the question of whether the Sunset Policy Bulletin 
requires Commerce to  take action inconsistent with Article 11.3 can only be evaluated in the context of 
US municipal law.  Under US law, the Sunset Policy Bulletin  is merely guidance and cannot require – or 
prohibit – Commerce from taking action.  Therefore, as a matter of US law, the Sunset Policy  Bulletin 
cannot mandate a breach, and the panel's finding is e rroneous.  Moreover, the Panel's reliance on the so-
called "consistent application" of the Sunset Policy Bulletin  as evidence that Commerce "perceived" it to 
be mandatory is equally flawed.  Commerce did not apply the Sunset Policy Bulletin;  Commerce cited to 
it.  Either way, "consistent application" or repeated citation to a non-binding document cannot, under 
US law, render it binding.  Therefore, the entire anal ytical framework underpinning the panel's analysis of 
the Sunset Policy Bulletin  was egregiously erroneous. 
 14. The remaining findings made by the panel in Argentina – OCTG  with respect to the determination 
of likelihood of recurrence or continuation of dumping are otherwise inapplicable to the present dispute 
because the issues regarding the US law and regulations (e.g. interested party waiver and expedited sunset reviews) are not present in this dispute.  15. The panel's conclusions with respect to issues re lating to the determination of injury were correct, 
and because the panel's reasoning is persuasive the Un ited States believes this Panel should take it into 
consideration.  16. First, the panel correctly concluded that sec tions 752(a)(1) and (5) of the Tariff Act are not 
inconsistent with Article 11.3 of the Antidumping Agr eement.  More specifically, the ITC's assessment as 
to whether injury is likely to continue or recur w ithin a "reasonably foreseeable time" is not inconsistent 
with Article 11.3    17. The panel based its conclusion on the fact that Article 11.3 does not "mention the time-frame" on which the determination should be made, nor does it re quire the investigating authority to specify the 
time-frame on which a given determination was based.
2  As a result, the ITC's use of a "reasonably 
foreseeable time" is not inconsistent with Article 11.3.   18. Second, the panel also correctly reasoned that Article 3 does not per se apply to sunset reviews.  
First, the panel noted the absence of cross -references between Article 3 and Article 11.3.
3  The panel also 
recognized that the "nature of the inquiries in investigations and sunset reviews is significantly different," referencing the Appellate Body's views to the same effect in Japan Sunset .
4  I n  Japan Sunset, the 
Appellate Body concluded that an investigating authority is not required to make a dumping 
determination in a sunset review; the panel in the Argentina dispute applied the corollary and concluded 
that an investigating authority is therefore not requi red to make an injury determination in a sunset 
review.5   
 19. Third, the panel correctly concluded that cumu lation is permitted in sunset reviews.  The panel 
noted that Article 3.3 is the only provision that men tions cumulation and explored whether the reference 
to cumulation in that Article is meant to author ize cumulation or establish conditions for its use in 
investigations.
6  The panel, consistent with principles of  treaty interpretation embodied in the Vienna 
Convention, found that the lack of a clear provision in the Agreement on this issue means that cumulation 
                                                      
2 United States – Sunset Reviews of Anti-dumping Measur es on Oil Country Tubular Goods from Argentina, 
WT/DS268/R, Report of the Panel circulated 15 June  2004 ("Argentina Panel Repor t"), para. 7.184, 7.187. 
3 Argentina Panel Report, para. 7.270. 
4 Argentina Panel Report, para. 7.272, citing 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, paras. 106-
107. 
5 Argentina Panel Report, para. 7.274. 
6 Argentina Panel Report, para. 7.331. WT/DS282/R 
Page E-92   is permitted.
7  The panel further noted that Article 3 refe rs in various paragraphs to the phrase "dumped 
imports" without specifying that such imports come from a particular country;8 the panel also rejected 
Argentina's argument that the use of the word "duty" in  Article 11.3 was meant to indicate that the drafters 
intended cumulation to be prohibited in sunset reviews.9  
 20. Fourth, the panel correctly concluded that th e ITC applied the "likely" standard in this 
determination.  The panel noted that the US statut e and the determination in question both use the term 
"likely."
10  The panel also evaluated the evidence upon wh ich the ITC relied in the investigation and 
concluded that the ITC determination was based on an objective examination of the evidence in the 
record.   
                                                     
 
7 Argentina Panel Report, para. 7.332. 
8 Argentina Panel Report, para. 7.333. 
9 Argentina Panel Report, para. 7.334. 
10 Argentina Panel Report, para. 7.277.  WT/DS282/R 
 Page E-93 
    
ANNEX E-11 
 
 
ANSWERS OF THE UNITED STATES  
TO QUESTIONS FROM MEXICO – SECOND MEETING 
  
(13 September 2004) 
 
 
Q1. Suppose that an investigating authority completes an antidumping duty investigation at a time after 18 months of initiation of the investigation, the investigating authority offers no explanation for the delay, and an antidumping duty is imposed in month 19.   a. Would the United States consider there to be a violation of Article 5.10 of the 
Antidumping Agreement in these circumstances? 
  b. If so, how does the United States cons ider that a Member could bring its measure 
into conformity with its WTO obligations? 
 
1. Mexico's questions introduce a hypothetical s ituation involving neither legal issues nor facts 
present in this dispute.  Also, Mexico has not made  a claim based on Article 5 generally or Article 5.10 
specifically in this dispute and therefore, any such cl aim at this time would not be within the Panel's terms 
of reference. 
 
Q2. In DRAMs from Korea (DS 99), Korea challeng ed, both as such and as applied, 19 CFR 
section 353.25(a)(2) of the Department's regulations  as inconsistent with US obligations under 
Article 11.2 of the Antidumping Agreement   a. Does the United States dispute that that provision (section 353.25(a)(2)) is the 
predecessor provision of the revocation regulation, 19 CFR section 351.222(b)(2), under which both TAMSA and Hylsa sought revocation in this case? 
 
2. No. 
 
 b. Following the ruling of the Panel in DS 99, DRAMs from Korea, what actions did 
the United States takes to bring the challe nged measure into conformity with US 
WTO obligations? 
 
3. As the United States stated in its second written submission, the question of whether company-
specific revocation reviews are required by Article 11.2 was not directly before the panel in DRAMs from 
Korea .
1  The United States further noted that the issue of whether company-specific reviews are subject to 
Article 11.2 is a question of treaty interpretation and not whether a member emphasized a particular 
argument in a previous dispute.2 
 
                                                      
1 US Second Written Submission, para. 52. 
2 US Second Written Submission, para. 53. WT/DS282/R 
Page E-94   
 c. Did the United States submit to the WTO a written status report of US progress in 
the implementation of the recommendations or rulings of the DSB made in DS 99?  If so, please identify any such report(s). 
 
4. It is not clear to the United States the relevan ce of this question, unless Mexico is attempting to 
have the United States include in the record a documen t Mexico sought to introduce, in contravention of 
paragraph 14 of the Working Procedures for the Panel , at the second substantive meeting of the Panel. 
 
Q3. Are there any cases in which the Department revoked an entire antidumping duty order on 
the basis of a request submitted under 19 CFR sect ion 351.222(b)(2)?  If so, does the Department 
always know that the exporter or exporters request ing revocation account for all of the exports 
from the country?  
 
5. There are no cases in which the Department re voked an entire order on the basis of a request 
submitted under 19 CFR section 351.222(b)(2).  
 
Q4. What happens if US importers or customers will not buy subject imports once an antidumping duty order is imposed?  How does the Department take into account that exporters do 
not have complete control over wh ether post-order import volumes w ill be equal to those prior to 
the imposition of the order? 
 
6. Nothing in the Department's statute and regulati ons requires exporters to have "complete control" 
over the volumes in which they sell into a given market.  Further, the quesion implies that the 
United States requires post-order impor t volumes to be equal to pre-orde r volumes, which is erroneous, as 
the United States has demonstrated.
3  
 
Q5. Does the United States accept that "injury" in Article 11.3 means "material injury of a domestic industry, threat of material injury to a domestic industry or material retardation of the 
establishment of such an industry" as defined in footnote 9? 
 
 a. If no, what does "injury" mean in Article 11.3? 
 
 b. If yes, what is the basis for not givi ng meaning to the second clause of footnote 9 
that "the term injury ... shall be interpreted in accordance with the provisions of" Article 3. 
 
7. The United States has provided its views on this  issue in response to Questions 32 and 33 posed 
by the Panel after the first substantive meeting.  The United States refers Mexico to the responses filed by 
the United States on 18 June 2004.  
 
Q6. During the sunset review, did the United States consider that TAMSA requested that there was "good cause" for the Departme nt to consider information apart from the statutorily required 
factors of import volumes and historical dumping margins? 
 
8. Yes.  TAMSA stated that the dumping rate calculated in the original investigation was 
inapplicable for a sunset review because it was based, in part, on a sever e devaluation of the peso.  See
 
TAMSA Substantive Response at 5, 8 (Exhibit MEX-16); and Preliminary Issues and Decision Memorandum at 4 (Exhibit US-13).  Commerce considered this argument.  Further, Commerce found that dumping was eliminated during the two most recently completed administrative reviews.  However, Commerce's likelihood determination was ultimately based on the significant decline in imports of OCTG from Mexico since the imposition of the order.  See
 Preliminary Issues and Decision Memorandum at 6 
                                                      
3 See, e.g., US Second Written Submission, para. 59 and cases cited therein.  WT/DS282/R 
 Page E-95 
  (Exhibit US-13).  (TAMSA argued that the reduction in import volumes was part of TAMSA's "necessary 
business strategy" in response to the deposit ra te for OCTG from Mexico.  Commerce addressed 
TAMSA's import volume arguments in the Issues and Decision Memorandum for the final sunset determination.  See
 Issues & Decision Memorandum at 5, 8 (Exhibit MEX-19).) 
 
 a. As MEX-16 shows, TAMSA submitted evidence (in the form of its financial 
statements) to show that its exposure to currency devaluation has been significantly reduced, and that this information consti tuted positive evidence that dumping was 
not likely.  Where in the Issues and Deci sion Memorandum did the Department 
consider this evidence? 
 
9. Commerce addressed this argument in the  Issues and Decision Memorandum .  See
 Issues & 
Decision Memorandum at 6 (Exhibit MEX-19). 
 
Q7. What was the positive evidence developed by  the Commission for the sunset review (apart 
from information from the original investigation)  that imports from other countries subject to the 
review were likely to be simultaneously present in the US market?  When did the Commission 
believed that this was likely to recur?  
 
10. As an initial matter, the United States reiterat es that there is nothing in the Agreement requiring 
investigating authorities to apply the criteria set out in  Article 3.3 to an Article 11.3 review.  Moreover, 
even the Article 3.3 "conditions of competition" require ment for cumulation in an original investigation 
does not require a finding of simultaneous presence.    11. As the United States has explained in its previ ous submissions, the US statute nonetheless allows 
the ITC to conduct a cumulative analysis in a sunset review only if, inter alia , the imports from each 
subject country would be likely to compete with one  another and with the domestic like product in the 
United States market.
4  Among the various factors the Commission looked to in order to address this 
question was whether the imports are or are likel y to be simultaneously present in the market.5 
 12. The evidence in this review demonstrated the past, present, and likely future simultaneous 
presence of imports of casing and tubing from each of the subject countries.  As Mexico appears to acknowledge in its question, positive evidence in the r ecord relied on by the ITC in this review showed 
that imports from each of the subject countries were simultaneously present in the market during the last 
period in which they were in the market without restra ints (i.e., in each of the three years of the original 
investigation).
6  Moreover, imports of casing and tubing from each of the subject countries continued to 
be present in the US market after the orders were  imposed and throughout the sunset period of review, 
albeit at lower levels than those prior to entry of the order.7  Mexico's question as to when simultaneous 
presence was "likely to recur" seems to presume a di fferent factual situation than the one at hand. 
 
Q8. Did the Commission make a determination th at injury would likely continue, or did the 
Commission make a determination that injury would likely recur? 
 
13. The United States has already answered the same question posed by Mexico in connection with 
the first substantive meeting.  The United States refe rs Mexico to the response to Mexico question 15 in 
the Answers of the United States of America to Questi ons from Mexico in Connection with the First 
Substantive Meeting  filed on 18 June 2004. 
                                                      
4 Section 752(a)(7) of the Act; 19 U.S.C. § 1675a(a)(7)  (Exhibit MEX-24).  See United States Second 
Written Submission, para. 28. 
5 See Oil Country Tubular Goods from Argent ina, Italy, Japan, Korea, and Mexico , USITC Pub. 3434, Inv. 
Nos. 701-TA-364, 731-TA-711, and 713-716 (June 2001) (Exhib it MEX-20) ("ITC Report"), pp. 7, n.33 and 13-14. 
6 ITC Report, p. 14 (Exhibit MEX-20). 
7 ITC Report, p. 14, n.82; PR at Table IV-1 (Exhibit MEX-20). WT/DS282/R 
Page E-96    
Q9. In paragraph 3 of its closing statement, the US tells the Panel that "Without a commercial 
quantities requirement, companies could easily have antidumping orders eliminated and then 
simply resume dumping."  Given that Mexico is only challenging the Article 11.2 decision "as 
applied" (as opposed to an "as such" claim), co uld the US explain the relevance of this general 
comment to its decision in this case?  Specifically, 
 
 a. Was the rationale expressed in par agraph 3 applicable to the requests for 
revocation made in this case? 
 
 b. If so, what is the factual basis for this concern with respect to the two Mexican 
exporters that requested revocation in this case? 
 
 c. If so, could the US explain the procedures  completed by the Department to arrive at 
its decisions in the second, third and fourth reviews of TAMSA and Hylsa?  Specifically, does the volume of US sales affect in any way the scope of the Department's review? 
 
14. The comment was an effort to be responsive the Panel's interest in the commercial quantities 
requirement.  The Panel's line of questioning has not been  limited to the application of that requirement in 
this determination.   
 
Q10. In accordance with the US legislation, the Commission "may" rely on the "margin of 
dumping to prevail" reported by the Department.  On the other hand, in the ITC's Determination 
such margin is mentioned twice, one in footnote  51, the other in Part V ("Pricing and related 
information, Characteristics of likely dumping").  In Part V it is also indicated that "Commerce 
likely margins of dumping are the same as the original orders ..." In light of these elements, 
 
 a. Could the US indicate if there is any guideline, document or criteria that is or may 
be used to guide the Commission when d eciding whether or not to rely on the 
"margin of dumping to prevail" reported by the Department.  If yes, please explain and, if possible, attach a copy of it? 
 
15. No, there is no guideline for this purpose.  
 b. Is there any internal guideline within the Commission that is or may be used 
directly or indirectly by the Commission  as a whole or by the Commissioners 
individually to decide when the Commission  should rely on the "margin of dumping 
to prevail" reported by the Department a nd when not to rely on such margin?  If 
yes, please explain and, if possible, attach a copy of it? 
 
16. No, there is no guideline for this purpose. 
 
 c. If the answer to a) and b) above is negative, could the US please explain how the 
Commission ensures on a case by case basi s that its decisions concerning whether or 
not to rely on the "margin of dumping to prevail" reported by the Department is 
not, and cannot be perceived, as arbitrary and unreasonable? 
 
17. This question has no bearing on this dispute.  Mexico's claim in this regard was limited to the 
ITC's determination in this sunset review and was not an "as such" challenge.  Therefore, this question 
pertains to matters beyond the terms of reference of th is dispute.  Further, the United States notes that the 
Antidumping Agreement does not provide for findings based on "perceptions."   WT/DS282/R 
 Page E-97 
  
 d. What has the Commission decided in  the OCTG case under dispute?  Has the 
Commission relied or not on the "margin of dumping to prevail" reported by the Department.  Please, if possible, an swer yes or no and then explain. 
 
18. The United States has already answered the same question posed by Mexico in connection with 
the first substantive meeting.  The United States refe rs Mexico to the response to Mexico questions 10 and 
11 in the Answers of the United States of America to Questi ons from Mexico in Connection with the First 
Substantive Meeting  filed on 18 June 2004. 
 
 e. If the Commission decided not to rely on the "margin of dumping to prevail" 
reported by the Department, please explain if the Commission relied on any other margin or not.  If it relied on anoth er margin, please indicate which one and on 
what basis and its relationship with the ITC statement in Part V that "Commerce 
likely margins of dumping are the same as the original orders ...". 
 
19. See above response.  
 f. If the Commission decided not to rely on the "margin of dumping to prevail" 
reported by the Department, please explain if the Commission did not rely on such 
margin just for Mexico or with respect to all cumulated countries?  If the answer is 
only Mexico, please explain why only Mexico and why not the others. 
 
20. The Commission did not rely on margins of dumping with respect to all cumulated countries.  
 g. If the Commission did not rely on any margin of dumping, actual or potential, with 
respect to any cumulated country, plea se explain the compatibility of such 
procedure with the causation obligation co ntained in Article VI of GATT94 and the 
WTO Antidumping Agreement, excluding Arti cle 3.5.  Is the US position that 
sunset reviews are exempted from the caus ation?  If yes, please explain why and 
what is the legal basis that supports it? 
 
21. The United States fails to see the connection that Mexico is making between reliance on the 
margin of dumping and causation requirement s.  Even Article 3 does not require reliance  on a margin of 
dumping, and indeed, only requires an evaluation  of the actual margin of dumping for the purposes of an 
original investigation (not a sunset review) under Article 3.4.  
 
Q11. In paragraph 15 of its 2nd Opening Statement, the United States asserted that "an 
agreement regarding reinstatement of the order"  is "always" required, under section 351.222 of the 
Department's regulations, whenever an exporter re quests revocation only with respect to itself.  
However, Section 351.222(b)(2)(B) of the Department 's regulations explicitly provides that an 
agreement regarding reinstatement is only re quired from an exporter "that the Secretary 
previously has determined to have sold the subject merchandise at less than normal value.  There is nothing in the Department's regulations that re quires an exporter that has not previously been 
found to have "sold at less than normal value" to submit an agreement regarding reinstatement 
when it requests revocation with respect only to it self.  (Thus, for example, Hylsa was not required 
to submit an agreement regarding reinstatement of  the order when it requested revocation with 
respect to itself in the fourth administrative revie w.).  Could the US explain this mischaracterization 
of its laws? 
 
22. The United States has not made any "mischaracter izations" of US law in its submissions to the 
Panel in this dispute.  Mexico has failed to s upport its overly limited reading of the regulation by 
providing any evidence that Commerce has ever deni ed a (b)(1) revocation because it was sought by one 
exporter rather than all.  Nor can it provide such ev idence, as this has never occurred.  Moreover, this WT/DS282/R 
Page E-98   discussion is not relevant to the outcome of this  dispute because a company can also seek order-wide 
revocation through a changed circumstances review.  WT/DS282/R 
 Page E-99 
    
ANNEX E-12 
  
COMMENTS OF MEXICO ON THE UNITED STATES' ANSWERS TO THE 
PANEL'S AND MEXICO'S QUESTIONS – SECOND MEETING 
 
 
(4 October 2004) 
 
 
1. The Government of Mexico comments below on the answers provided by the United States to 
questions following the Second Meeting.  Mexico lim its its comments below to certain issues that it 
considers to be especially important at this stage of the proceeding.  The fact that Mexico does not 
comment on a particular answer does not mean that Mexico  agrees or is satisfied with the answer given by 
the United States.  
Comments Regarding US Response to Questions from Mexico Question 3:
 
 
2. The United States indicates that "there are no cases in which the Department revoked an entire 
order on the basis of a request submitted under 19 CFR Section 351.222(b)(2)."1 
 3. Mexico believes that the answer is not correct, or  at least not complete.  In its review of the US 
practice, Mexico found that in the case of  Furfuryl Alcohol from South Africa , the Department proceeded 
on the basis of a review under Section 351.222(b)(2), a nd then decided to revoke the order as a whole.  
For the Panel's convenience, Mexico includes in Annex MEX-69 to these comments relevant documents 
obtained from the public record in the case, as well as the preliminary and final revocation decisions as 
published in the Federal Register . 
 4. Based on these documents, Mexico concludes the following:  
 •  The South African producer requested revocati on "with respect to" the exporter, ISL, on 
the basis of three consecutive administrative reviews resulting in a finding that ISL was 
not dumping.
2 
 
 •  The Department of Commerce took the position that the "reinstatement" certification 
required by 351.222(b)(2)(iii) of the regulations was necessary.3  The South African 
exporter requesting revocation took the position that such a certification should not have 
been required because it was the only known exporter.  However, the Department pointed to import statistics and information indicating that there were other exporters, 
and on this basis, the Department requested the certification that the exporter requesting 
revocation would agree to be reinstated into the anti-dumping order if found to be 
dumping in the future.  The South African exporter acceded to the Department's demands.
4 
 
                                                      
1 US Answers to Questions from Mexico in Connecti on with the Second Substantive Meeting, para. 5. 
2 MEX-69, page 6 (column 3). 
3 While slightly different in form from the current regul ations and those in effect when the Mexico exporters 
requested revocation, the 1999 regulation referenced in th is case was identical in all relevant respects.   
4 See Preliminary Determination, page 7 of Annex 1 (column 3). WT/DS282/R 
Page E-100   
 •  In the preliminary determination, the Department determined that: 
 
 It is not likely in the future that ISL will sell the subject 
merchandise in the United States at less than normal value.  Therefore, if these preliminary findings are affirmed in our final results, we intend to revoke the order with respect to merchandise produced and exported by ISL.
5 
 •  In the comments filed by the South African producer on the basis of the preliminary 
determination, the South African producer ar gued that the Department should revoke the 
order as a whole.  The argument was based on:  1) the insignificant nature of the other exports; and 2) the South African producer's vi ew of the requirements of Article 11.2 of 
the WTO Agreement.
6 
 
 •  In its final determination, the Department stated: 
 
 We have determined to revoke the order in full for the 
following reasons:  (1) ISL has not sold the subject merchandise at less than normal value (NV) for three consecutive review periods, including this review; (2) there is no evidence to indicate that ISL or other persons are likely to sell the subject merchandise at l ess than NV in the future; and 
(3) the exports in question, which occurred over two years ago, represent isolated shipments of insignificant quantities of subject merchandise.  We also note that there were no comments filed by any other party on this issue, with respect to either our preliminary results of ISL's case brief.  Accordingly, we determined that a full revocation of the order is warranted under 19 C.F.R. § 351.222(b)(1) and Section 751(d)(1) of the Act.
7 
 •  In addition, the Department explained that  the petitioner did not oppose revocation of the 
order.  The public file includes a memorandum documenting the fact that the US industry "was aware of the preliminary decision to revoke this case in part" and that the Department also discussed with the US indus try "the possibility that the case could be 
revoked in whole" in the final determination.
8 
 5. To Mexico, the inaccuracy of the US response should be  important to this Panel for the following 
reasons:   a. First, it casts doubt on the US position before the Panel.  The US h as stated repeatedly 
that requests under Section 351.222(b)(2) ar e a WTO-plus mechanism under US law and 
that they do not lead to revocation of the or der as a whole.  The US also has blamed the 
Mexican exporter for their failure to request revocation under the correct provision.  This case shows that those positions are not credible. 
  b. Second, the Department's actions in that case undermined the credibility of the US 
position that the existence of other Mexican  OCTG imports precluded revocation based 
                                                     
 
5 MEX-69, page 7 (column 3). 
6 MEX-69, pages 12-17  Mexico is including only relevant excerpts of the exporter’s brief. 
7 MEX-69, page 20 (columns 1, 2). 
8 See MEX-69, page 20 (footnote 1) and page 18.  WT/DS282/R 
 Page E-101 
  
on the requests filed by the only two exporte rs that DOC had ever reviewed (TAMSA 
and Hylsa).  In the Furfuryl Alcohol  case, the existence of similar imports did not 
preclude revocation of the order as a whole.  The Department investigated the nature of the imports and dismissed them as insignificant.   In the OCTG case, the US explains to 
the Panel that the existence of other impor ts precluded revocation.  The position is not 
credible. 
  c. Third, by exposing the lack of credibility of the United States, the Furfuryl Alcohol  case 
clarifies the issue for the Panel with resp ect to Mexico's Article 11.2 claims.  The 
Department's decision not to revoke the orde r with respect to TAMSA was based solely 
on declining import volumes, and the decision not to revoke the order with respect to Hylsa (or the order as a whole) was based solely on the positive margin calculated for 
Hylsa on the basis of zeroing. 
 
Question 7
 
 
6. Paragraphs 10 and 11 of the US answer are not  responsive to Mexico's question.  Mexico's 
question did not refer to Article 11.3 or Article 3.3 of the Agreement.  Mexico 's question requested the 
United States to identify the positive evidence that the Commission relied on to find that imports from the 
five countries subject to the cumulative injury analysis were likely to be simultaneously present in the US market.  Mexico also asked the Unite d States to identify the time period. 
 7. Paragraph 12 of the US is not consistent w ith the Commission's Sunset Determination.  The 
Commission concluded in its sun set determination is that: 
 
Nothing in the record of these review s suggests that if the orders are 
revoked subject imports and the domestic like product would not
 be 
simultaneously present in the domestic market. (Emphasis added)9 
8. This statement demonstrates that the Commissi on did not apply the correct legal standard in 
connection with its assessment of likelihood of simulta neity.  By requiring a demonstration that the 
imports "would not" be simultaneously in the market, the Commission used a standard that a previous WTO Panel rejected as being inconsistent  with the requirements of Article 11.
10  In addition, it is clear 
that the Commission's conclusion is not based on positive evidence.  That there is  "nothing in the record" 
to suggest that imports "would not be simultaneous ly present" is not positive evidence sufficient for 
purposes of Article 11.3.  9. The US answer states that "imports of casing and tubing from each of the subject countries continued to be present in the US market after the orders were imposed and throughout the sunset period 
of review."  Even if this assertion were factually  accurate, the statement cannot be equated with a 
prospective analysis, based on positive evidence, of whether imports from the five cumulated countries 
are likely to be simultaneously present in th e market in the event of termination. 
 10. With respect to the second part of Mexico's question, the United States did not identify the time 
frame within which dumping or injury would likely occur.  11. Because the Commission's Determination does not c ontain any prospective analysis of the "likely 
future simultaneous presence of imports of casing and tubing from each of the subject countries," nor an 
analysis of the continued simultaneous presence of subject  imports in the US market after the orders were 
imposed and throughout the sunset period of review , the sole basis for the Commission's conclusion on 
                                                     
 
9 Commission’s Sunset Determination at 14 (emphasis added) (MEX-20). 
10 See Panel Report, DRAMS from Korea , paras. 6.48, 6.52-6.58. WT/DS282/R 
Page E-102   simultaneity is the original investigation.  As th e Appellate Body has clarified, determinations under 
Article 11.3 that rest solely on findings from the orig inal investigation are an  insufficient basis for a 
likelihood determination.
11 
 12. A conclusion that is not supported by positive evidence, that is based on an incorrect legal 
standard ("not likely"), and which rests wholly on the r esults of the original investigation is inconsistent 
with Article 11.3, and cannot be in accord with Ar ticle 17.6(i) of the Anti-Dumping Agreement, which 
requires the Panel to ensure that the authority has established the facts properly and evaluated those facts 
in an unbiased and objective manner.  13. Finally, irrespective of the application of Article 3. 3 to sunset reviews, the fact is that if imports 
are not simultaneously present in the market, an administering authority cannot assess their cumulative 
effects for purposes of an injury determination.  Consequently, because the Commission's analysis was 
based on a cumulative assessment of the imports, th e entire basis for Commission's likely injury 
determination is flawed. 
 
Question 8
 
 
14. The United States did not respond to Mexico's  question.  Rather, the United States referred 
Mexico to its response to a question asked by Mexico  following the Panel's first substantive meeting with 
the Parties.12  In so doing, the United States once again fails  to respond to the question posed by Mexico.  
Following the First Panel Meeting, rather than answer  Mexico's specific factual question of whether the 
Commission made a determination of that injury was likely to continue, or that injury was likely to recur, the United States stated that "nothing in Article 11. 3 requires Members to distinguish between the likely 
continuation of injury and the likely recurrence of injury."
13  
 15. Mexico's question, however, is not directed at  the US interpretation of the obligations arising 
from Article 11.3.  Rather, Mexico's question requested  the United States to identify the factual basis for 
the Commission's likelihood determination.  That is , whether the Commission determined, as a factual 
matter, that injury would likely continue or, that injury would likely recur.  For Mexico, the facts of a case cannot support both a continuation of injury and a recurrence of injury under the same determination
.  For 
there to be continuation, there must have been injury during the sunset period.  For there to be recurrence, injury must have ceased during the sunset period.  Hence, apart from the nature of the obligations 
imposed by Article 11.3, unless the United States can demonstrate the factual basis for the Commission's 
determination – whether continuation or recurren ce –the Panel can have no confidence that the 
Commission's determination is in accord with Article 17.6(i) of the Anti-Dumping Agreement.  Indeed, 
how can an authority establish the facts properly a nd evaluate those facts in an unbiased and objective 
manner when it cannot even state definitively whether its  analysis showed that injury would be likely to 
continue or that injury would be likely to recur?  16. Finally, in the answer referred to by the Unite d States, United States stated that "Commerce did 
not, as Mexico asserts, make a separate finding that dum ping was likely to recur.  (In fact, Hylsa was 
found to be dumping while the order was in place.)"
14  The US answer is inconsistent with the Issues and 
Decision Memorandum , which provides without ambiguity:  
 
Because we continue to find that Mexican export volumes in the post-order period were significantly lower than pre-order levels, we also 
                                                     
 
11 See Appellate Body Report, Steel from Germany , para. 88. 
12 See US Answers to Mexico’s Questions in Connecti on with the Second Substantive meeting, para. 13. 
13 US Answers to Mexico’s Questions in Connecti on with the First Substantive Meeting, para. 28. 
14 US Answers to Mexico’s Questions After the First Meeting, para. 28.  WT/DS282/R 
 Page E-103 
  
continue to find that recurrence 
of dumping of OCTG from Mexico is 
likely if the order were to be revoked.15 
17. It is clear that the Department's Issues a nd Decision Memorandum does not contain any reference 
to Hylsa having been found to be dumping.  This is not surprising because, as explained in Mexico's submissions, Hylsa was wrongly found to be dumping in an Article 11.2 review that had been completed 
after
 the sunset review was concluded. 
 18. Notwithstanding the US refusal to indicate wh ether the Commission determined that injury was 
likely to continue or that injury was likely to recu r, several facts show that the Commission determined 
that injury was likely to recur.  First, since th e Commission found that "The evidence on the most current 
condition of the domestic industry is positive" and th at "we do not find the industry to be currently 
vulnerable", it is clear that the Commission's dete rmination cannot be based on a "continuation" of 
injury, because injury did not exist during all or part of the sunset review period.  Second, since the Department's Issues and Decision Memorandum  determined that dumping was "likely to recur", it is 
also clear that any injury that might be caused by such dumping would also necessarily be "likely to 
recur".  A determination that injury is likely to r ecur, rather than likely to continue, has important 
consequences on issues such as the lack of a time frame  within which injury is "likely," as well as whether 
imports will be competing in the market simultaneously.  
Question 10
 
 
19. In paragraphs 15 and 16 of its answer, the United States confirms that the Commission enjoys 
discretion to either consider or disregard the "mar gin of dumping likely to prevail" that, pursuant to 
statutory mandate,16 the Department is required to report to the Commission in connection with every 
sunset review.  20. In paragraph 17, the US answer provides no indication of the circumstances under which the Commission would rely on dumping margins.  Hence, the US answer fails to demonstrate that the Commission's reliance on (or its failure to consider) a dumping margin is not arbitrary and unreasonable.  
 21. Also, while the United States asserts that Mexico 's question "has no bearing in this dispute,"
17 the 
United States cannot credibly argue that the context within which the Commission decided whether or not 
to consider the "margin of dumping likely to prevail" was not highly relevant to the Commission's likelihood determination.  As a result, the question is very much within the terms of reference of this 
dispute and very relevant to th e consistency of the Commission's sunset determination with US 
obligations under the Agreement.  22. In its answer to a question posed by Mexico following the Panel's first meeting, the United States 
asserts categorically that "The ITC did not rely on a margin of dumping."
18  However, this statement 
cannot be reconciled with paragraph 315 of the US First Submission, in which the United States takes the 
position that: "In this review, the Commission's staff report clearly addresses each of the factors 
enumerated in Article 3.4 " (emphasis added).  Because the "magnitude of the margin of dumping" is one 
of the mandatory factors included in Article 3. 4, one of the two US assertions cannot be true. 
 23. Irrespective of which position the Panel believes,  the United States violat ed its obligations under 
Article 11.3.  
                                                     
 
15 Department’s Issues and Decision Memorandum (MEX-19), page 4 (emphasis added). 
16 See 19 U.S.C. 1675a(c)(3). 
17 US Answers to Mexico’s Questions In Connecti on With the Second Substantive Meeting, para. 17. 
18 US Answers to Mexico’s Questions In Connection W ith the First Substantive Meeting, para. 17 (response 
to question 10). WT/DS282/R 
Page E-104   24. If the Commission relied on the likely margin of dumping reported by the Department, then the Commission's likelihood determination would be flawed to  the extent that the Department's determination 
was also flawed.
19  As explained in Mexico's submissions to the Panel, the DOC Determination is flawed 
because, among others, it merely incorporated the anti-dumping duty of the original investigation into the result of the sunset review after having disregarded all other evidence because of  an inference drawn from 
the decline in import volumes.  25. On the other hand, if the Commission did not consider any likely margin of dumping to prevail, then its determination would be flawed to the extent that investigating authorities are required to evaluate 
all relevant economic factors and indices having a bear ing on the state of the industry in Article 3.4 for 
purposes of all injury determinations, in cluding those of a prospective nature.
20 
 26. Alternatively, if the Commission did not rely on any
 likely margin of dumping to prevail "with 
respect to all cumulated countries" as the US affirms in paragraph 20, then the Commission's 
Determination is also flawed because under Article  VI of GATT 1994 and the Anti-Dumping Agreement, 
"injury" (irrespective of being actual, potential or  likely) could not have a meaning without dumping 
(actual, potential or likely).   27. Finally, paragraph 21 of the US answer sugg ests that the United States either misunderstood 
Mexico's question or declined to provide an answ er.  Although Mexico referred to "causation", the US 
answer referred to Article 3.4 only.  The United St ates has not answered whether US authorities must 
satisfy the causation requirements of the GATT 1994 a nd the Anti-Dumping Agreement in the conduct of 
sunset reviews. 
 
Questions from the Panel
 
 Questions 4, 5, 6:
 
 
28. The Panel asked several questio ns of the United States regarding the US reliance on lower import 
volumes in the Article 11.3 and Article 11.2 reviews.  In its answers, the United States reinforces the 
inconsistency of its decisions with the WTO requi rement, and exposes contradi ctions in its position. 
 29. In paragraph 2, the United States asserts:  
If an importer's volume drops significantly, then – if no other explanation is offered – it is an indi cation that the product in question is 
only competitive if sold at dumped prices.  Therefore, if the importer wishes to increase the volume of sales (and he will have more incentive to do so the more significantly the sales have dropped), then, in the absence of the order, he will likely resort to dumping to do so.
21 
30. This statement exposes the inconsistency of the US position with regard to Article 11.3.  The US 
position is very clear:  significant volume decreases mean that the product can only be competitive if sold 
at dumped prices, which means that revocation of the or der will "likely" lead to a recurrence of dumping.  
This reasoning relies on speculation and is not based on positive evidence demonstrating "likelihood."  It 
is not consistent with the commitment to "revie w" and "determine" whether dumping is "likely." 
 
                                                      
19 See Mexico’s First Submission, paras. 150-155, 233- 238; Mexico’s Second Submission, paras. 48-59, 
154-156. 
20 See Panel Report, HFCS From Mexico , WT/DS132/R, paras. 7.127-7.128,  7.131-7.133;  Panel Report, 
United States – Investigation of the Internati onal Trade Commission in Softwood Lumber from Canada , 
WT/DS277/R, para. 7.105. 
21 US Answers to Mexico’s Questions in Connec tion with the Second Panel Meeting, para. 2.  WT/DS282/R 
 Page E-105 
  31. Also, the response mixes up the role of importer a nd exporter.  The response is drafted in terms of 
the importer's
 decision to decrease volume, which is a new focu s in the US responses.  Certainly, the final 
determination in this case never even mentioned the acti ons of the importer.  To Mexico, it is telling that 
the US is acknowledging, through its discussion of the importer, that there may be several reasons for the 
exporter  to reduce its volume, and that relying on the exporter's decision to decrease volume may not 
support the inferences that the US drew in this case.  The same is true of the importers:  they may decide 
to decrease their volumes because they do not want to  accept the uncertainty of the open, contingent 
liability which exists in the US system of Article 9 reviews.  The exporter and/or the importer may decide 
that the administrative burden and uncertainty of the US system simply are not worth the trouble, which 
says nothing about whether dumping is "likely" to continue or recur.  Indeed, the Appellate Body warned against the investigating authority drawing any infe rence solely based on import volume declines in the 
conduct of an Article 11.3 review.
22  The switch in focus to the importer may be the result of Mexico's 
Question 4, which the United States did not answer satisfactorily.  32. Further, the United States mentions that it will infer that dumping is likely "if no other explanation is offered."  As Mexico demonstrated in these proceedings, the Department used the volume 
decrease to disregard all other evidence and "explanation. "  The Department's action in this case belies the 
impression the United States creates of a decision maker that is open to consider objectively all information provided.  33. Mexico also would like to draw the Panel's a ttention to the differences in the US answers in 
paragraph 2 and paragraph 9.  In paragraph 9, the US indicates that a volume decline "may" indicate that 
the exporter is not able to participate in the US market without dumping, and that there "may" be a financial incentive for a company to change its pri ces during the existence of the order.  This more 
realistic approach is inconsistent with the strident position taken in pa ragraph 2, and it reveals the precise 
problem of the Department's reliance on volume dec lines:  the fact that a volume decline "may" be 
explained by certain facts implies that it may have  other explanations, and these explanations may not 
have any probative value whatsoever as to whether dumping is "likely" to continue or to recur.  This is the 
basis for the Appellate Body's clarification that  the investigating authority must in every case
 investigate 
the reasons for a volume decline, and that the investigating authority cannot simply rely on a volume decline as positive evidence of likely dumping.
23 
 34. Paragraphs 9 and 10 are also interesting from th e perspective of the type of analysis that the 
United States now tries to do, but which the Departme nt did not do during the s unset review of OCTG 
from Mexico.  In paragraph 9, the United States asserts that:  "Yet there is very little, if any, financial 
incentive once an order has been revoked for a company to forego ‘additional sales' that can only be made 
by dumping.  Thus, it is important to determine the ex tent to which an exporter's ability to participate in 
the US market may be dependent upon such sales."  The United States is correct that the additional 
investigation should be done, but the Department certain ly engaged in no such investigation in this case, 
and an inference of what a company's financial incentiv es may be is not a sufficient basis for its "likely" 
dumping determination.  35. In paragraph 10, the United States says that  "Conversely, a company whose US sales are so 
intrinsically linked to dumping that more than thr ee years after the order, it still cannot sell even one 
percent of the volume it sold when it was dumping, such  as TAMSA and Hylsa in this case, is more likely 
to dump."  Again, the Department made no findings whatsoever that TAMSA's and Hylsa's US sales "are so intrinsically linked to dumping."  In fact, the statem ent stands in stark contrast to the findings by the 
Department after full administrative reviews that th e companies were not dumping.  The final phrase of 
the statement – that a company is more likely to dump – again assumes the conclusion of the review.  
                                                     
 
22 Appellate Body Report, Japan Sunset , para. 177. 
23 Appellate Body Report, Japan Sunset , para. 177. WT/DS282/R 
Page E-106   Assuming that sales are "so intrinsically linked to dumping" and that a company is "likely to dump" is inconsistent with Article 11.3.  36. Finally, the United States ends its response to Question 6 by noting that the "parties seeking revocation of an order under Article 11.2 bears the bur den of establishing that review for this purpose ‘is 
necessary.'"  Three comments are in order.  37. First, in this paragraph, the US seems to concede a point that it has denied throughout the 
proceeding:  this was, in fact, an Article 11.2 review.  38. Secondly, it is not correct that an exporter re questing a review under Article 11.2 bears the burden 
of establishing that the review is "necessary."  Article  11.2 gives exporters the "right to request the 
authorities to examine whether the continued imposition of the duty is necessary to offset dumping . . . ."  
The authorities, in turn, "shall review the need for the continued imposition of the duty, where warranted . 
. . ."  Article 11.2 says nothing about a burden of proof  imposed on the exporter; rather, the investigating 
authority has the obligation to make the types of de terminations required under Article 11.2, and it must 
do so on the basis of positive evidence.  39. Thirdly, the US response mixes the concepts of wh at is "likely" to happen after the expiry of the 
order, and the actual obligation under Article 11.2, which is to revoke the measure unless "it is necessary 
to offset dumping."   WT/DS282/R 
 Page E-107 
    
ANNEX E-13 
  
COMMENTS OF THE UNITED STATES ON MEXICO'S RESPONSES TO 
QUESTIONS FROM THE PANEL – SECOND MEETING 
 
 
(4 October 2004) 
  
Q1. Could Mexico clarify its argument at paragraph 72 of its second oral statement that "there 
would be no way for the United States to correct  retroactively a violation of the time-bound 
obligation of Article 11.3 to terminate after five years."  In particular, could Mexico distinguish this case from a dispute involving an original investigation and the obligation under Article 5.10 of the AD Agreement to conclude  an investigation within one year, or in 
special circumstances 18 months? 
 1. Mexico's reasoning in response to this question is not persuasive.  Mexico states that giving a 
Member a "second opportunity to invoke the excepti on ... would ... violate another temporal limitation 
specified in Article 11.3 for the time by which any Member must initiate and conclude  the review."
1  
However, the obligation under Article 11.3 is not for a Member to conclude a review before the expiry of 
the five-year period, but to initiate  a review before then.  Mexico argue s that "Article 11.3 also establishes 
an additional exception to the general rule that ‘T he duty may remain in force pending the outcome of 
such a review'"2 yet does not state what the additional exception is .  Therefore, even if the review in this 
dispute were found inconsistent with Article 11.3, it will remain true that the United States timely initiated 
the review.  As a result, termination of the measure is not an appropriate recommendation.  
 2. Even were it incorrectly concluded that the Un ited States breached Article 11.3, there is no reason 
why such a breach could not be corrected.  To address the Panel's question, there is no difference between 
a Member's correcting a flawed investigation and a flaw ed review.  Under the logic in Mexico's answer to 
this question, any measure that contains a WTO inc onsistency must be terminated.  For example, with 
regard to the Panel's reference to an original investigation, if a dut y were imposed pursuant to a measure 
that was ultimately found not to comport with the Antidumping Agreement, then the "conditions 
precedent" to the imposition of that measure would lik ewise not have been met and the measure would, 
under the logic that Mexico presented in this answer, have to be terminated.
3  Mexico argues that it "had 
the right to have its exports of OCTG enter th e United States without antidumping duties as of August 
2000;"4 yet the same argument could be made with respect to a flawed original investigation.  Mexico 
states that the "obligations in Article 11 arise after  antidumping duties have been imposed and have 
remained in effect for some time," as if this distin ction supports the notion that sunset reviews cannot be 
remedied but original investigations can.  Mexico does not explain how this difference is meaningful. 
 
                                                      
1 Mexico’s Answers to the Panel’s Questions Followi ng the Second Meeting ("Mexico’s Answers"), para. 4 
(emphasis added). 
2 Mexico’s Answers, para. 4. 
3 Needless to say, this is not the approach that Mexico took when the WTO found Mexico’s own anti-
dumping measure against US high fructose corn syrup to  be in breach of the Anti-Dumping Agreement.  See Dispute 
Settlement Body: Minutes of Meeting Held on 20 March 2000 , WT/DSB/M/77, para. 30 (statement by Mexico:  "In 
accordance with the DSU provisions, Mexico would require a reasonable period of time to be able to comply with 
the DSB’s rulings and recommendations in this case."). 
4 Mexico’s Answers, para. 5. WT/DS282/R 
Page E-108   3. Mexico also asserts that "the granting of a reasonable period of time to bring a measure into conformity may be used to cu re non-time bound obligations only."
5  Inasmuch as Mexico has failed to 
provide a citation for this proposition, the United States  assumes that Mexico is referring to the reasonable 
period of time provided in Article 21.3 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU").  Yet the plain language of Article 21.3 provides as follows:  "If it is 
impracticable to comply immediately with the reco mmendations and rulings, the Member concerned shall 
have a reasonable period of time in which to do so."   Article 21.3 makes no distinction between "time-
bound" and "non-time bound" obligations.  Indeed, the term "time-bound" does not appear in this provision, or in any other provision of the DS U, and is wholly of Mexico's invention.
6  M e x i c o ' s  
assertion, therefore, has no basis in the text of the DS U.  Moreover, Article 21.3 inherently recognizes that 
Members may require time to implement recommendations  – for example, in the case of a sunset review 
in which the Member might have to correct procedural or analytical flaws.   4. More importantly, Mexico's request is at odds with a Member's right to retain flexibility on how 
to implement DSB recommendations and rulings.  In r ecognition of this right, prior panels – including the 
panels in Argentina OCTG and German Sunset
7 – have declined to make sugge stions on implementation.  
There is no reason to deviate from that approach he re.  Whether Article 11.3 has a so-called "time-bound" 
obligation is immaterial; Mexico has offered no logi cal or legal justification as to why Members cannot 
correct breaches of so-called time-bound provisions as they do breaches of any other obligation.    5. Furthermore, Mexico makes the rather star tling claim that: "If the Panel finds that the 
United States acted inconsistently with Article 11.3 and nonetheless allows the United States to continue 
the measure, Mexico's rights under the Antidumping Agreement will be diminished, rather than 
restored."
8  Mexico thus appears to claim that something in Article 11.3 of the Antidumping Agreement 
overrides the plain language of Article 19.1 of the DSU which specifies the only recommendation that a panel or the Appellate B ody is permitted to make.
9  Again, however, Mexico offers no basis for this claim 
– nor could it.  As noted above, Article 11.3 of the ADA is not listed as a "special or additional rule" for 
purposes of Appendix 2 of the DSU.  Accordingly, there is no basis for Mexico's claim that it is entitled to 
more than what is provided under Article 19.1 of the DSU.  
Q2. Could Mexico clarify its argument at par agraph 32 of its second oral submission that "By 
failing to evaluate whether the Commission applied the right standard, and then making its own assessment of whether the facts would support  a finding of "likely" injury, the Panel ... 
seriously undermined the substantive obligation in  Article 11.3, which places the burden of 
establishing likely injury on the investigating au thority."  In this regard, the Panel notes the 
statement in the Panel's report in OCTG from  Argentina, at paragraph 7.285, that "the 
standard set out in Article 11.3 of the Agreemen t for the investigating authorities' sunset 
determination is "likely".  This standard a pplies to the likelihood of continuation or 
recurrence of dumping as well as injury determinat ion in sunset review, and this is precisely 
the standard that the USITC a pplied."  (Emphasis added).  In addition, Mexico's statement 
                                                     
 
5 Mexico’s Answers, para. 4. 
6 In addition, Article 11.3 of the Antidumping Agreem ent is not listed in Appendix 2 of the DSU as a 
"special or additional rule or procedure" to  which the provisions of the DSU are subject. 
7 See Report of the Panel, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina, WT/DS268/R (" Argentina OCTG") , circulated 15 June 2004, para. 7.283;  see also  
Appellate Body Report, United States – Countervailing Duties on Certain Corrosion Resistant Carbon Steel Flat 
Products from Germany, WT/DS213/AB/R, adopted 19 December 2002, ("German Sunset "). 
8 Mexico’s answers, para. 6. 
9 Mexico is clearly not arguing for a "suggestion" wh ich is permitted by Article 19.1 of the DSU, since 
Mexico speaks about "allowing" the United States to mainta in the measure.  A "suggestion" under Article 19.1 is not 
mandatory and cannot compel a Member.  Nonetheless, for the reasons explained above, such a suggestion would be 
inappropriate in this case as well.  WT/DS282/R 
 Page E-109 
  
seems to assert that there is some burden of proof on the investigating authority – could 
Mexico clarify if this is its view, and if so, the basis for that view. 
 
6. Mexico's critique of the panel's reasoning in Argentina  OCTG is unavailing.  The panel in that 
dispute stated that the ITC used the phrase "likely" in making its overall determination.
10  Therefore, the 
panel (and Argentina) recognized th at, on its face, the determination referenced the likely standard.11  The 
panel then evaluated whether the evidence Argentina presented demonstrated that the ITC did not have 
sufficient evidence to reach that likelihood conclusion.12  The panel correctly reasoned that, inasmuch as 
the ITC made a determination which it stated was based  on the likely standard, then the standard for the 
panel's review of that conclusion had to be whethe r the ITC assessed the evidence objectively – otherwise, 
how could the ITC have concluded that recurrence or continuation of injury was likely?  Therefore, the 
panel properly evaluated whether the ITC's findings  were based on an objective examination of the 
record.  Whether Mexico calls it "evaluating whether the ITC applied the wrong standard" or whether it is 
put in the terms used by the Argentina panel – " assessing the basis of the evid ence" -- it amounts to the 
same thing, and the question is ultimately whethe r the ITC's establishment and assessment of the facts 
supported its finding that continuation or recurrence of injury was likely.  The pa nel examined that issue 
and correctly concluded that the ITC's establishment and assessment of the facts did support its 
conclusion that injury was likely to continue or recur.  7. Mexico also states that it is challenging "bot h the standard used by the Commission, and the 
Commission's establishment and evaluation of the f acts to determine whether the standard was 
satisfied."
13  Again, Mexico makes an assertion without explaining why that assertion is relevant.  It is 
worth noting that Argentina challenged both the likely standard and the evidentiary standard as well.  
Therefore, if a distinction is implied between Mexico 's and Argentina's claims, such distinction simply 
does not exist.  8. Mexico offers a further argument:  that the IT C's use of the "wrong standard" "taints the process 
from its inception – it affects the investigating authority 's ability to establish the re quisite facts, its ability 
to objectively evaluate the facts, and its ability to de termine whether the facts its  has developed constitute 
positive evidence of what is likely to occur."
14  Mexico has provided no evidence to support this 
proposition.  The statute establishes a likelihood standa rd, and the determination itself cites to a likelihood 
standard.  Mexico has not clarified how the ITC c ould have failed to establish the facts properly.  
Moreover, with respect to Mexico's allegation that the ITC's use of the "wrong standard" affected the 
ITC's ability to evaluate the facts, it should be noted that this is precisely what the panel in Argentina 
OCTG  examined and only confirms that evaluating wh ether the standard was properly applied and the 
evaluating whether the facts supported the conclusion reached are the same. 
 9. Finally, Mexico's discussion of the "burden of proof" is incorrect in a number of respects.  Mexico says (without citation) that it "understands" that the party "invoking the exception has the burden 
of proof."
15  In fact, this statement reflects Mexico's mis understanding of the relevant principles.  In the 
first place, as the Appellate Body explained in its report in the EC Hormones  dispute, simply describing a 
provision as an "exception" does not shift the burden of proof to the responding party;16 a party to a 
dispute does not have the burden of proof unless it asserts the affirmative of a claim or defense.17  
                                                      
10 Argentina OCTG , Panel Report, para. 7.283. 
11 Argentina OCTG, Panel Report, para. 7.283. 
12 Argentina OCTG, Panel Report, paras. 7.285 - 7.312. 
13 Mexico’s Answers, para. 12. 
14 Mexico’s Answers, para. 12. 
15 Mexico’s Answers, para. 16. 
16 Appellate Body Report, EC Measures Concerning Meat and Meat Products  ("EC Hormones "), 
WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, para. 105. 
17 See Appellate Body Report, United States - Measures Affecting Imports of Woven Shirts and Blouses 
from India ("US Wool Shirts") , WT/DS33/AB/R, adopted 23 May 1997, p. 14. WT/DS282/R 
Page E-110   Furthermore, the United States is not invoking an "excep tion" (or an "affirmative defense") in this dispute. 
 Article 11.3 is part of the overall balance of ri ghts and obligations agreed to under the Antidumping 
Agreement.  It provides a positive rule that aut horizes Members to continue antidumping duties under 
certain circumstances.  It is Mexico that is asserti ng that the United States violated Article 11.3 of the 
Antidumping Agreement by (allegedly) conducting a re view improperly.  Having made that assertion, 
Mexico has the burden of proving it – a burden that it has not met.  In this dispute, Mexico has failed to 
make a prima facie case that the ITC failed to use the correct sta ndard under Article 11.3.  The statute and 
the determination use the word "likely" and the ev idence, properly established, more than supports the 
conclusion that injury was likely to recur.  Th erefore, not only has Mexico failed to make its prima facie  
case, but Mexico will be unable to do so.  
Q7. Could the parties please address the import, in sp ecific terms, of the decision of the Panel in 
the Argentina - OCTG dispute for the issues, and the decision, in this dispute?  
 10. The United States is surprised that Mexico w ould express "concern with the possibility of unduly 
linking two different dispute settlement proce dures that have not yet been completed."
18  Indeed, it is 
Mexico that "unduly" linked them by apparently pr oviding Argentina with information from this dispute 
to use in the very dispute settlement proceeding  Mexico now contends should not be "unduly" linked to 
this one.   For example, the "Exhibit" Mexico sought to in troduce at the second Panel meeting – an alleged 
summary of arguments and evidence already before this  Panel – was submitted by Argentina in its appeal 
as an alleged critique of that pane l's legal reasoning.  Moreover, secti ons of Mexico's submissions seem, 
in many instances, to be copied straight out of Argen tina's submissions.  This is not surprising, as Mexico 
and Argentina share outside counsel.  (This fact also  calls into question Mexico's assertion in response to 
a question from the Panel that Mexico could not fu lly address the arguments advanced and conclusions 
reached by the Argentina OCTG panel.)  In any event, Mexico is attempting to have it both ways:  It is 
supplying Argentina with "evidence and argument" from this dispute and then arguing that it is the Panel 
that is "unduly linking" them.   11. Mexico further asserts that "many of the claims and arguments presented by Mexico to this Panel 
are different than the claims and arguments presented in that case."
19  This assertion is too general.  While 
some of the claims are different – for example, Me xico here has made claims regarding administrative 
reviews, and Argentina made claims regarding expe dited waivers – the Panel's question implicitly is 
concerned with the claims that overlap, not the claims th at are unique to one of the disputes.  In that sense, 
Mexico's answer seems to avoid the Panel's question.   12. Furthermore, Mexico has failed to identify even one relevant difference regarding these 
overlapping claims.  Mexico provides a chart of facts and assertions, but no analysis.  For example, Mexico states that its "claims" involve exporters who pa rticipated in several administrative reviews.  This 
is simply a fact and is neither a claim nor an argument.   Further, Mexico's statement that this review was 
full rather than expedited only confirms that this pa nel need not trouble itself with the Argentina panel's 
discussion of the waiver provisions of US law.  Me xico then notes its arguments regarding Commerce's 
reliance on the decrease in volume and the original dumping margin – yet those arguments were also 
advanced in the Argentina dispute.
20  
 13. Significantly, the one place where Mexico affirmatively asserts – without more – that its arguments were "different" is with respect to the likel y injury claim.  That claim is one where the panel 
found against Argentina – and involved the exact same ITC determination as the one here.  One can only 
infer that Mexico is hoping that this Panel will not ev aluate the persuasive value of the Argentina panel's 
                                                     
 
18 Mexico’s Answers, para. 17. 
19 Mexico’s Answers, para. 20. 
20 See, e.g.,  Argentina OCTG , First Written Submission of Argentina, Annex A-1, para. 181.  WT/DS282/R 
 Page E-111 
  conclusions regarding this claim because of Mexico's  unsupported allegation that it has made "different" 
arguments.   14. As the United States made clear in its ow n response to this question, the panel in Argentina 
OCTG  made certain analytical errors regarding US la w, as such and as applied, regarding the likelihood 
of dumping determination.  It is for those r easons, and not because of vague and unsubstantiated 
allegations that "different argumen ts" were advanced in that disput e, that this Panel should not be 
persuaded by some of the conclusions the Argentina panel reached. 
 WT/DS282/R 
Page E-112     
ANNEX E-14 
  
COMMENTS OF MEXICO ON THE APPELLATE BODY'S REPORT IN 
UNITED STATES – SUNSET REVIEW S OF ANTI-DUMPING MEASURES 
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA, DS268 
 
(10 December 2004) 
  
 
I.  INTRODUCTION 
1. The Panel requested the parties to comment
1 on the Appellate Body's Report in United States – 
Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina , 
WT/DS268/AB/R, circulated on November 29, 2004 (" OCTG from Argentina ").2  Mexico submits these 
comments pursuant to the Panel's request. 
2. Mexico prefaces these comments with three pr eliminary observations.  First, Mexico has 
maintained during the course of this proceeding that it did not believe that the OCTG from Argentina  
dispute should be "linked" with Mexico's case – ot her than in the same way in which WTO panels 
ordinarily view other panel or A ppellate Body reports.  As the Pane l is well aware, recommendations of 
the DSB (based on the findings of a panel or the Appella te Body in a particular dispute) are binding only 
on the parties to the dispute and the doctrine of st are decisis does not apply.  Consistent with the 
requirements of the DSU, the Panel must evaluate each  of Mexico's claims independently and based on its 
merits.  Second, although Mexico's comments follow th e circulation of the Appellate Body's report in 
OCTG from Argentina ,3 the Panel will find that Mexico's comments are fully consistent with the manner 
in which Mexico has presented its claims and argumen ts during the course of this proceeding.  Finally, 
Mexico's decision not to comment on certain aspect s of the Appellate Body's report should not be 
interpreted by the Panel as meaning that Mexico endorses or otherwise takes a position regarding the 
Appellate Body's reasoning or findi ngs related to any such aspects. 
3. Section II of this submission explains that none of Mexico's claims related to the Department of 
Commerce's ("Department") fourth administrative review  determination not to re voke the order have been 
affected by the Appellate Body's ruling in OCTG from Argentina .4  Section III explains why Mexico's "as 
applied" claim regarding the Department's sunset re view determination – that dumping would be likely to 
recur violates Article 11.3 – is, if anything, only bolster ed by the Appellate Body's decision.  Section IV 
explains why the Appellate Body's findings regarding the Sunset Policy Bulletin ("SPB")5 do not diminish 
in any way Mexico's claim that the SPB violates Artic le 11.3.  Section V reiterates that the Panel should 
reject the preliminary objection raised by the United States in this case.  In OCTG from Argentina , the 
                                                      
1 United States – Anti-dumping Measures on Oil Country Tubular Goods from Mexico , DS282, Request of 
the Panel for Comments on the Appellate Body's Report in OCTG from Argentina , DS268, Nov. 22, 2004. 
2 Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country 
Tubular Goods from Argentina , WT/DS268/AB/R, circulated November 29, 2004 (" OCTG from Argentina "). 
3 Mexico understands that the Panel Report and the Appellate Body Report in DS268 will be adopted by the 
Dispute Settlement Body at its next meeting, scheduled for December 17, 2004. 
4 See generally Mexico's First Submission, Secti on IX;  Mexico's Second Submission, Section IV. 
5 Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Anti-dumping and Countervailing 
Duty Orders , 63 Fed. Reg. 18,871 (Dep't Commerce Apr. 16, 1998)(" Sunset Policy Bulletin ")(MEX-32).  WT/DS282/R 
 Page E-113 
  Panel rejected similar claims from the United States, and the Appellate Body affirmed all of the Panel's 
findings under Article 6.2 of the DSU.  Section VI highlights that certain arguments advanced by Mexico, which were not addressed by the Panel in OCTG from Argentina , are central to Mexico's claims regarding 
the inconsistency of the International Trade Co mmission's ("Commission") likely injury determination 
with the Anti-Dumping Agreement.  Section VII disc usses Mexico's arguments regarding the exceptional 
nature of Article 11.3 and the failure of the United Stat es to satisfy its burden of proof to show that that it 
complied with the strict requirements for invoking the limited exception to the time-bound obligation to terminate the measure under Article 11.3.  This issu e was raised by Mexico, but not addressed by the 
Appellate Body in OCTG from Argentina .  Finally, Section VIII reiterates that Mexico has made a 
specific request that the Panel find that there is no le gal basis for the United States to have continued the 
measure in the absence of strict compliance with the requirements of Article 11.3.  Nothing in the 
Appellate Body's report in OCTG from Argentina  eliminates the need for the Panel to rule on Mexico's 
request in this regard. 
II.  MEXICO'S ARTICLE 11.2 CLAIMS ARE UNAFFECTED 
4. None of Mexico's claims based on the Departme nt's fourth administrative review determination 
not to revoke the order have been affect ed by the Appellate Body's ruling in OCTG from Argentina . 
5. Mexico requested that the Panel find: 
 •  The Department violated Article 11.2 of  the Anti-Dumping Agreement because the 
Department did not terminate the anti-dumping duty on OCTG from Mexico immediately upon the demonstration by Me xican respondents that the continued 
imposition of the duty was not necessary to offset dumping;
6 
 •  The Department's determination not to  revoke the anti-dumping duty on OCTG from 
Mexico was not based on positive evidence that  the continued imposition of the duty was 
necessary to offset dumping;7 
 •  With respect to TAMSA, the Department's de termination not to revoke violated Article 
11.2 of the Anti-Dumping Agreement because th e Department:  (i) applied a standard 
which required a demonstration that dumping was "not likely" in the future;  (ii) arbitrarily imposed a "commercial quantities" requirement test which is inconsistent 
with, and has no basis in, Article 11.2;  and (iii) ignored positive evidence that demonstrated that the measure was no longer necessary to offset dumping;
8 
 •  The Department violated Article X:2 of the GATT 1994 because the Department 
imposed conditions on TAMSA for the termination of the anti-dumping duty in advance of the official publication of such conditions;
9 and 
 •  With respect to Hylsa, the Department's determination not to revoke the duty violated 
Articles 11.2, 2.4, and 2.4.2 of the Anti-Dumping Agreement because the Department failed to make a fair comparison between e xport price and normal value, by "zeroing" 
Hylsa's negative margins.  By relying on the positive margin that resulted from this 
unlawful methodology as justification for not revoking the anti-dumping duty on OCTG 
                                                     
 
6 See Mexico's First Submission, paras. 279-288;  Mexico's Second Submission, paras. 225-236. 
7 Mexico's First Submission, paras. 312-319;  Mexico's Second Submission, paras. 225-236. 
8 Mexico's First Submission, paras. 301-319;  Mexico's Second Submission, paras. 237-265. 
9 Mexico's First Submission, paras. 320-349;  Mexico's Second Submission, paras. 266-270. WT/DS282/R 
Page E-114   
from Mexico with respect to Hylsa, the De partment did not determine whether the duty 
was necessary to offset dumping.
10 
6. Mexico submits that none of these claims has b een affected by the Appellate Body's decision in 
OCTG from Argentina . 
III.  MEXICO'S "AS APPLIED" CLAIM THAT THE DEPARTMENT'S SUNSET REVIEW 
DETERMINATION VIOLATES ARTICLE 11.3 WAS NOT AFFECTED AND IS, IF ANYTHING, BOLSTERED BY THE APPELLATE BODY'S DECISION 
7. Mexico's "as applied" claim – that the Depart ment's sunset determination that dumping would be 
likely to recur in this case is inconsistent with Article 11.3 of the Anti-Dumping Agreement – has not 
been affected by the Appellate Body's ruling in OCTG from Argentina . 
8. In this case, Mexico has argued that the De partment relied on the Mexican OCTG import volume 
decline and the existence of the dumping margin from the original investigati on as the bases for its likely 
dumping determination.  In particul ar, Mexico argued that the Department violated Article 11.3 of the 
Anti-Dumping Agreement because the Department:  (i) focused exclusively on past import volumes to the 
exclusion of other relevant factors;  (ii) failed to appl y the "likely" standard requi red by Article 11.3;  (iii) 
failed to conduct a prospective analysis;  and (iv) fa iled to make a determination of likelihood of dumping 
on the basis of positive evidence.
11 
9. Mexico's submissions demonstrate that the Department ignored positive evidence on the record 
that demonstrated that dumping would not be likely,  and rejected Mexican respondents' explanations 
regarding the volume decline and why the original dumping margin could not constitute positive evidence 
that dumping would be likely.12  Mexico explained why this was cont rary to the requirements of Article 
11.3.13  As the Appellate Body explained in OCTG from Argentina , "affirmative determinations [would 
be] flawed [where] the USDOC made its decisions rely ing solely on one or more of the scenarios of the 
SPB, even though the probative value of other factors outweighed it."14 
10. This is precisely such a case.  As Mexico deta iled in this proceeding, the positive evidence before 
the Department during the sunset review demonstr ated that the original anti-dumping duty order on 
Mexican OCTG resulted from the unique circumstances  prevailing at the time of the 1994 investigation.15 
 Mexican respondents also argued that the Departme nt's "no dumping determinations" and calculation of 
zero margins for TAMSA and Hylsa in the subse quent administrative reviews constituted positive 
evidence demonstrating that dumping would not be likel y.  Hence, in the absen ce of a recurrence of the 
unique circumstances in 1994, and in light of the zer o margins and findings of no dumping, there was no 
factual basis for the Department to determine that dumping could "continue or recur" after revocation of 
the order.16 
11. Mexico also requested the Panel to find that, separate and independent of other violations, the 
Department violated Article 11.3 by mechanica lly relying for purposes of its likelihood of dumping 
determination on a dumping margin that was determined in a pre-WTO original investigation.17  Mexico 
claims that the Department also violated Article  2 of the Anti-Dumping Agreement by using as the 
"margin likely to prevail" a margin that was not the result of the application of the Anti-Dumping 
                                                      
10 See Mexico's First Submission, paras. 289-300;  Mexico's Second Submission, paras. 271-296. 
11 See Mexico's First Submission, Section VII.C;  Mexico's Second Submission, Section II.B. 
12 See Mexico's First Submission, paras. 123-149;  Mexico's Second Submission, paras. 67-78. 
13 See Mexico's First Submission, Section VII.C;  Mexico's Second Submission, Section II.B. 
14 Appellate Body Report, OCTG from Argentina , para. 211. 
15 See Mexico's First Submission, paras. 123-149;  Mexico's Second Submission, paras. 67-78. 
16 See Mexico's First Submission, paras. 123-149;  Mexico's Second Submission, paras. 67-78. 
17 See Mexico's First Submission, paras. 150-155;  Mexico's Second Submission, paras. 48-59.  WT/DS282/R 
 Page E-115 
  Agreement nor calculated in accordance w ith the requirements of the Agreement.
18  The Department also 
violated Article 6 of the Agreement by failing to pr ovide the Mexican exporters with the opportunity to 
present evidence and defend their interests with respect to the "margin likely to prevail."19 
12. In OCTG from Argentina , Argentina prevailed at the panel stage with its claim that the 
Department's determination of likely dumping was in consistent with Article 11.3 of the Anti-Dumping 
Agreement.  The Panel found the likelihood determination inconsistent with Article 11.3 for two reasons:  1) there was no factual basis for the Department's determination that dumping continued over the life of 
the order based solely on the existence of the dumping margin from the original investigation;
20  and 2) 
the Department's application of the waiver provisions  invalidated the factual basis for the overall country-
wide likelihood determination.21  The United States did not appeal these findings. 
13. For these reasons, the Appellate Body's decision in OCTG from Argentina  has no direct impact on 
Mexico's "as applied" challenge to the Department's  likely dumping determination.  If anything, Mexico's 
"as applied" claim has been strengthened by the Un ited States' failure to appeal the finding of the 
Department's likely dumping determination in OCTG from Argentina , and by the Appellate Body's 
reaffirmance of the fundamental requirement in Article 11.3 to examine the evidence provided by 
respondents. 
IV.  THE APPELLATE BODY'S FINDINGS DO NOT DIMINISH MEXICO'S CLAIM THAT 
THE SUNSET POLICY BULLETIN IS INCONSISTENT "AS SUCH" WITH ARTICLE 11.3 
A. T
HE APPELLATE BODY CONFIRMED THAT THE SPB  IS A MEASURE , AND THE DEPARTMENT 'S 
APPLICATION OF THE TERMS OF THIS MEASURE "STRONGLY SUGGESTS " IT IS INCONSISTENT 
WITH ARTICLE 11.3 
14. The Appellate Body's ruling in OCTG from Argentina  confirms that the SPB is a measure that is 
subject to WTO challenge, and the Department's app lication of the terms of the SPB "strongly suggests" 
that the measure is inconsistent with Article 11.3 of the Anti-Dumping Agreement.22 
15. First, all doubt has been eliminated that the SPB is a measure that is subject to WTO dispute 
settlement.  The Appellate Body reaffirmed an earlier finding23 that the SPB is a measure, thus leaving 
open only the question of the consistency of the SBP with US WTO obligations.24 
16. Second, it is critical to emphasize that the A ppellate Body reversed the Panel on very narrow 
grounds related to the Panel's  error in evaluating Argentina's claim, based on the standard of Article 11 of 
the DSU.  Although the Appellate Body found that the empirical evidence "strongly suggests that these 
scenarios are mechanistically applied[,]" it reasoned that  it was not possible to definitively conclude that 
the Department treats the scenarios as determinativ e of likely dumping without a "qualitative assessment" 
of the likelihood determinations in individual cases.25  Because, in the Appellate Body's view, the Panel 
                                                      
18 See Mexico's First Submission, paras. 150-155;  Mexico's Second Submission, paras. 48-59. 
19 See Mexico's First Submission, paras. 150-155;  Mexico's Second Submission, paras. 48-59. 
20 Panel Report, United States – Sunset Reviews of Anti-Dum ping Measures on Oil Country Tubular Goods 
from Argentina , WT/DS268/R, circulated 16 July 2004, paras.7.219-7.221 (" OCTG from Argentina "). 
21 Panel Report, OCTG from Argentina , para. 7.222.  On grounds of judicial economy, the Panel declined to 
rule on Argentina's other claim that the Department's lik elihood determination was inc onsistent with Article 11.3 
because it was based on the decline in import volume following the imposition of the order.  OCTG from Argentina , 
para. 7.212. 
22 Appellate Body Report, OCTG from Argentina , para. 189. 
23 Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant 
Steel Flat Products from Japan , WT/DS244/AB/R, adopted 9 January 2004, paras. 99-100 (" Japan Sunset "). 
24 Appellate Body Report, OCTG from Argentina , paras. 189, 190-215. 
25 Appellate Body Report, OCTG from Argentina , para. 212. WT/DS282/R 
Page E-116   had not conducted such a qualitative assessment of at l east some of the individual cases, the Appellate 
Body reversed the Panel's conclusion that Section II.A. 3 was inconsistent, as such, with Article 11.3.  The 
Appellate Body explicitly held, however, that it had " not thereby concluded that Section II.A.3 of the SPB 
is consistent, as such, with Article 11.3 " (emphasis added): 
We wish to emphasize that we have not thereby concluded that Section 
II.A.3 of the SPB is consistent, as such, with Article 11.3 of the Anti-Dumping Agreement.  Rather, we have found that the Panel's conclusion to the contrary must be re versed due to its failure to comply 
with Article 11 of the DSU.  Thus, our reasoning here does not exclude the possibility that, in another case, it could be properly concluded that the three scenarios in Section II. A.3 of the SPB are regarded as 
determinative/conclusive of the lik elihood of continuation or recurrence 
of dumping.  However, such a conc lusion would need to be supported 
by a rigorous analysis of the evidence regarding the manner in which Section II.A.3 of the SPB is applied by the USDOC.26 
17. Third, the Appellate Body's decision "strongly s uggests" that, with appropriate analysis by the 
Panel in the next case, a Panel could well conclude  that the Section II.A.3 criteria of the SPB are 
inconsistent as such with Article 11.3: 
The Panel failed to undertake any su ch qualitative assessment and relied 
exclusively on the overall statistics or aggregated results of Exhibit ARG-63.  The fact that affirmative determinations were made in reliance on one of the three scenarios in all the sunset reviews of anti-
dumping duty orders where domestic interested parties took part strongly suggests that these scenarios are mechanistically applied.  
However, without a qualitative examination of the reasons leading to such determinations, it is not possible to conclude definitively that these 
determinations were based exclus ively on these scenarios in disregard 
of other factors.
 27 
B.  THE PANEL MUST UNDERTAKE A "QUALITATIVE ASSESSMENT " OF MEX-62  AND MEX-65,  AND 
THE ENTIRE RECORD IN THIS PROCEEDING  
18. The Appellate Body's reversal of the Panel's finding related to the SPB was based on DSU Article 
11:  it was a Panel error , not a defect in Argentina's substa ntive claim, the evidence presented by 
Argentina, or an incorrect interpretation of a WTO decision, that caused the reversal.  The main lesson 
from the case, then, is that this Panel should not commit the same error. 
19. In Mexico's view, it is unlikely that this Pa nel would commit such an error due to the record 
developed during this proceeding.  Mexico has provided to the Panel all the necessary evidence and 
argumentation for the Panel to undertake the qualitative assessment that the Panel in OCTG from 
Argentina  failed to undertake (according to the Appellate Body).  The Panel has asked specific questions 
about specific cases included in Exhibit MEX-62 and MEX-65, and both Mexico and the United States responded substantively to these questions. Thus, the in formation already developed by the Panel in this 
case provides it with a basis to determine both quantita tively and qualitatively that in every case in which 
                                                     
 
26 Appellate Body Report, OCTG from Argentina , para. 215. 
27 Appellate Body Report, OCTG from Argentina , para. 212 (footnote omitted). Mexico notes that footnote 
300 is completely consistent with Mexico's explanation of Sugar and Syrups From Canada :  the Appellate Body 
recognized that this case falls outside of the cases releva nt to prove the SPB "as such" claim because none of the 
three SPB scenarios was present.  WT/DS282/R 
 Page E-117 
  one of the scenarios in the SPB is present, the Depa rtment mechanistically invokes the SPB and decisively 
relies on import volume declines and/or the existence of historical dumping margins. 
20. Mexico reiterates that it has thoroughly analyzed every sunset review conducted by the 
Department through June 2004, and that in every case th e Department treats the satisfaction of at least one 
of the Section II.A.3 scenarios as determinative of the likelihood of dumping.  The Department gave the Section II.A.3 scenarios decisive weight regardless of the degree to which import volumes declined or 
dumping margins continued, regardless of trends in su ch data over time, and regardless of the presence of 
contrary evidence.  Indeed, a qualitative review of the Department's sunset determinations evinces a 
purely mechanistic application of the Section II.A.3 s cenarios, and not the reasoned and rigorous analysis 
of all relevant informati on required by Article 11.3. 
21. Both Mexico and the United States have analyzed individual cases in numerous submissions in 
this proceeding and in response to questions from the Panel.  These case examples demonstrate that the 
Department treats the Section II.A.3 scenarios as determinative/conclusive of a likelihood of dumping: 
 •  Naturally, Mexico and the United States have each focused on the sunset review at issue 
in this dispute: OCTG from Mexico .  The facts surrounding this sunset review are 
particularly egregious and show that the Department treats the Section II.A.3 scenarios as determinative of the likelihood of dumping.   The Department based its likelihood 
determination solely on the margin calculated in the original investigation and a decline 
in volume, to the exclusion of positive evidence – including consecutive zero dumping margins and arguments that circumstances giving rise to the original margin would not be repeated – that demonstrated that dumping would not be likely.  Both Mexico and the United States have discussed the facts of this case thoroughly.
28 
 •  Mexico discussed the sunset review of Industrial Nitrocellulose from Yugoslavia  (MEX-
62, Tab 145), in which the Department a pplied the Section II.A.3 scenarios and found 
that dumping would be likely despite the f act the sole Yugoslavian producer/exporter 
was no longer capable of exporting to th e United States because the company's only 
factory was destroyed in war.29  The United States took the position that the 
Department's determination in this case was reasonable.30 
 •  Mexico pointed to the sunset review of Stainless Steel Wire Rod from Spain  (MEX-62, 
Tab 295), in which the Department mechanis tically found that dumping would be likely 
on the sole basis of a decline in imports during the year that the order was imposed, 
despite the evidence that dumping margin d eclined to 0.80 per cent and import volumes 
subsequently resumed to pre-order levels.31 
                                                      
28 For Mexico's analysis of the sunset review of OCTG from Mexico , please see:  Mexico's First 
Submission, Section VII.C;  Mexico's Opening Statement for the First Panel Meeting (25 May 2004),  paras. 17-34;  
Mexico's Responses to the Panel's Questions Following th e First Meeting (18 June 2004), paras. 1-8, 21, 83;  
Mexico's Second Submission, Section II.B;  Mexico's Op ening Statement for the Sec ond Panel Meeting (17 August 
2004), paras. 19-26.  For the US analysis of the sunset review of OCTG from Mexico , please see:  US First 
Submission, Section V.B;  Executive Summary of the US First Submission (3 May 2004), para. 5;  US Responses to the Panel's Questions Following the First Meeting (18 June  2004),  para. 52;  US Opening Statement at the Second 
Panel Meeting (17 August 2004), paras. 11-12;  US Respons es to Mexico's Questions Following the Second Meeting 
(13 September 2004), paras. 8-9. 
29 See Mexico's First Submission, paras. 115-116. 
30 See US Second Submission at n.12. 
31 See Mexico's Second Submission, para. 34 n.45;  Issues and Decision Memorandum for the Expedited 
Sunset Review of the Anti-dumping Order on Stainless Steel Wire Rod from Spain , 68 Fed. Reg. 68,866 (Dep't 
Commerce Dec. 10, 2003)(MEX-62, Tab 295). WT/DS282/R 
Page E-118   
 •  The United States discussed the sunset review of Porcelain-on-Steel Cooking Ware from 
Mexico  (MEX-62, Tab 194), in which the De partment relied on the Section II.A.3 
scenario of continued dumping in rendering an affirmative likelihood determination.
32 
22. Although the so-called "good cause" provisions purpor tedly allow for the consideration of factors 
other than historical dumping margins and import volumes, the provisions impermissibly place the burden on interested parties to provide information or ev idence warranting the consideration of such other 
factors, which the Department may dismiss at its sole discretion.
33  The Department's regulations further 
limit the consideration of other factors to full sunset reviews only.34  By restricting the Department's 
likelihood "analysis" to the Section II.A.3 scenarios,  the "good cause" provisions effectively and, more 
importantly, in actual practice, block the ability of r espondents to overcome the decisive weight given to 
volume reductions and the existence of dumping margins. 
23. The Department has relied on "good cause" in formation as the basis for its final sunset 
determination in only four cases, and, in each of these cases, the Department did so because none of the 
Section II.A.3 scenarios was satisfied.35  Thus, the Department has only relied on other factors in the 
handful of instances where the SPB required a negativ e likelihood determination in order to nevertheless 
justify an affirmative result.  Conversely, the Depa rtment has never relied on other factors to conclude 
that dumping would not be likely to continue or recur in a fi nal determination (nor has the Department 
ever, in fact, made a final determination that dumping would not be likely).  
 •  Mexico analyzed the sunset review of Sugar from Canada  (MEX-62, Tab 261), in which 
the Department relied on an abbreviated cost  test based on limited data in rendering an 
affirmative likelihood, despite the fact that after imposition of the order there were significant volumes of non-dumped imports.
36  The United States also discussed this 
case.37  The Appellate Body's observation in footnote 300 suggests that it concurs with 
Mexico's view that the case is not relevant to Argentina's and Mexico's claims because 
none of the three criteria in Section II.A.3 of the SPB was satisfied.38 
 •  The other three cases in which the Department used good cause information involved 
reviews of agreements to suspend the anti-dumping investigations.39  The SPB instructs 
                                                      
32 See US Second Submission, para. 19. 
33 See Mexico's Second Submission, paras. 19-30;  see also 19 U.S.C. § 1675a(c)(2) (MEX-24);  19 C.F.R. 
§§ 351.218(d)(3)(iv) & (e)(2) (MEX-25);  Sunset Policy Bulletin , Section II.C (MEX-32). 
34 See Mexico's Second Submission, paras. 20;  see also  19 C.F.R. § 351.218(e)(2)(iii)(MEX-25)("The 
Secretary normally will consider such other factors onl y where it conducts a full sunset review . . . ."). 
35 See Sugar from Canada , 64 Fed. Reg. 48,362 (Dep't Commerce 3 September 1999)(final results of sunset 
review)(MEX-62, Tab 261);  Gray Portland Cement and Cement Clinker from Venezuela , 65 Fed. Reg. 41,050 
(Dep't Commerce 3 July 2000) (final results of sunset review) (MEX-62, Tab 125);  Uranium from Russia , 65 Fed. 
Reg. 41,439 (Dep't Commerce 5 July 2000)(final re sults of sunset review)(MEX-62, Tab 282);  Uranium from 
Uzbekistan , 65 Fed. Reg. 41,441 (Dep't Commerce 5 July 2000)(fina l results of sunset review) (MEX-62, Tab 284);  
see also Mexico's Closing Statement for the First Panel Mee ting (26 May 2004) at 1;  Mexico's Second Submission, 
paras. 25-26, 34 n.45. 
36 See Mexico's Closing Statement for the First Panel Meeting (26 May 2004) at 1;  Mexico's Second 
Submission, paras. 25-26, 34 n.45. 
37 See US Responses to the Panel's Questions Following th e First Meeting (18 June 2004), paras. 7, 17-19;  
US Second Submission (9 July 2004) at n.9;  US Open ing Statement for the Second Panel Meeting (17 August 
2004), para. 10;  US Responses to the Panel's Questions  Following the Second Meeting (13 September 2004), para. 
1. 
38 Appellate Body Report, OCTG from Argentina , n. 300.  Mexico notes that footnote 300 is completely 
consistent with Mexico's explanation of Sugar and Syrups From Canada :  the AB recognized that this case falls 
outside of the cases relevant to prove the SPB "as such" claim because none of the three SPB scenarios was present. 
39 See Gray Portland Cement and Cement Clinker from Venezuela  (MEX-62, Tab 125);  Uranium from 
Russia  (MEX-62, Tab 282);  Uranium from Uzbekistan  (MEX-62, Tab 284).  WT/DS282/R 
 Page E-119 
  
that the Department will be more likely to entertain good cause arguments in sunset reviews of suspended investigations.
40 
24. In cases where the Department has purportedly considered other factors raised by a respondent, 
the Department has routinely rejected such arguments  and relied on the satisfaction of any of the Section 
II.A.3 scenarios to render an affirmative likelihood determination.  For example: 
 •  Mexico discussed the sunset review of Brass Sheet and Strip from the Netherlands  
(MEX-62, Tab 32), in which the Department concluded that dumping would be likely to 
recur solely on the basis of a decline in impor ts, despite the sole respondent's explanation 
that it limited its exports to the United Stat es following imposition of the order because it 
had acquired a US facility from which to supply the US market.41  The United States also 
discussed this case.42 
25. Mexico submits that the above case analyses undertaken by Mexico and the United States provide 
the Panel with a basis upon which to perform the qua litative assessment of individual cases that the Panel 
failed to perform in OCTG from Argentina (according to the Appellate Body). 
26. If the Panel finds that the referenced examina tions of individual cases are, for whatever reason, 
not sufficient to enable it to properly determine whether the Section II.A.3 scenarios are regarded as 
determinative/conclusive, then the Panel must unde rtake a more thorough "qualitative analysis" in order 
to decide the issue.  Indeed, as the Appellate Body made clear in OCTG from Argentina , the Panel's 
failure to do so would be inconsistent with the Pa nel's obligation to make an "objective assessment of the 
matter," as required by Article 11 of the DSU.43 
27. In this regard, Mexico invites the Panel to examine the sunset reviews contained in MEX-62 and 
MEX-65.  Mexico is confident that, upon doing so, th e Panel will conclude – as did Mexico (and as the 
Appellate Body "strongly suggests") – that the Depart ment indeed treats the satisfaction of any of the 
Section II.A.3 scenarios as conclusive of likely dumping.  In particular, Mexico recommends that the Panel review the following cases – in addition to the cases cited above: 
 •  In Aspirin from Turkey , (ARG-63, Tab 14), the Department explained its reasoning as 
follows: 
As set forth in the Sunset Policy Bulletin (Section II.A.3), and consistent 
with the SAA at 889-90 and the House Report at 63, the Department normally will find that revocation of the anti-dumping duty order likely will lead to continuation or recurrence of dumping when dumping margins continued at any level after the issuance of the order or when 
dumping was eliminated after the issuance of the order and import 
                                                     
 
40 Because suspension agreements are generally intended to eliminate dumping while allowing for 
continued imports, the Section II.A.3 scenarios are less likely to be met in sunset reviews of suspended 
investigations.  Recognizing this, Section II.A.3 states: 
 
[I]n the context of a sunset review of a susp ended investigation, the data relevant to the 
criteria under paragraphs (a) through (c) [(i.e., the three scenarios)] may not be conclusive with 
respect to likelihood.  Therefore, the Department may be more likely to entertain good cause arguments . . . in a sunset review of a suspended investigation. Sunset Policy Bulletin , Section II.A.3 (MEX-32). 
41 See Mexico's Second Submission (9 July 2004), paras. 27-30. 
42 See US Responses to the Panel's Questions Followi ng the First Meeting (June 18, 2004), para. 8;  
US Opening Statement for the Second Panel Meeting (17 August 2004), para. 10;  US Responses to the Panel's 
Questions Following the Second Meeting ( 13 September 13, 2004), paras. 1, 3. 
43 Appellate Body Report, OCTG from Argentina , para. 212 (footnote omitted). WT/DS282/R 
Page E-120   
volumes of the subject merchandise declined significantly or ceased.  With respect to Atabay, although dumping was eliminated in 1997, shipments of the subject merchandise have declined dramatically.  Further, with respect to all other Turkish producers/exporters, anti-dumping duty deposit rates remain in effect and we have no reason to 
believe that dumping has been eliminated.  On the basis of this analysis, in conjunction with the fact that respondent interested parties have waived their right to participate in this review before the Department, 
and, absent argument and evidence to the contrary, the Department determines that dumping is likely to continue if the order were revoked.
44   
  The Department thus based its analysis  on the volume reduction and continued dumping, 
based solely on the existence of deposit rates.  As OCTG from Argentina  confirms, 
however, the mere existence of an anti- dumping duty deposit rate cannot serve as the 
factual basis for a determination that dumping has continued.45 
 •  In the preliminary phase of Pure Magnesium from Canada (MEX-62, Tab 201), the 
respondent, which had received zero margins in the past four administrative reviews, argued that "good cause" existed for the Depa rtment to consider exchange rates in 
making the likelihood of dumping determination.
46  The Department declined to consider 
this other factor because it found that the decline in import volume conclusively demonstrated a likelihood of dumping:  "G iven that the Department has conducted 
numerous administrative reviews and is satisfi ed that observed patterns regarding import 
volumes are indicative of the likelihood of continuation or recurrence of dumping, we will not consider good cause arguments in this case."
47 
28. Mexico has provided to the Panel all the n ecessary evidence, and argumentation for the Panel to 
undertake the qualitative assessment that the Panel in OCTG from Argentina  failed to undertake. The 
evidence presented by Mexico demonstrates that in its  sunset reviews the Department:  explicitly cited the 
authority of the SPB to justify its determination th at dumping was likely to continue or recur; relied on 
volume decreases or the existence of dumping margins as the basis for its likelihood determinations; and 
disregarded all other evidence and explanations. 
29. In its analysis of the evidence and the decisions  in individual cases, it is important that the Panel 
keep in mind that the United States has a burden to rebut  the evidence provided by Mexico.  The 
Appellate Body noted the United States had argued to  the Panel in DS268 that the information provided 
by Argentina "had no probative value with respect to  the question whether the three scenarios in Section 
II.A.3. of the SPB are determinative/conclusive for pur poses of sunset determina tions," and that "Exhibits 
ARG-63 and ARG-64 ignore the factual circumstances of  the listed sunset reviews ..."  The Appellate 
Body added: 
It is regrettable that the United States did not substantiate these 
assertions with reference to cases whether other factors constituted the basis of the USDOC's determination; it is also unfortunate that the United States did not identify cases wh ere the circumstances were such 
                                                     
 
44 Aspirin from Turkey , 64 Fed. Reg. 36,328, 36,329-330 (Dep't Commerce 6 July 1999)(final results of 
sunset review)(ARG-63, Tab 14). 
45 Panel Report, OCTG from Argentina , paras. 7.219-7.221. 
46 Issues and Decision Memo for the Sunset Review of Pure Magnesium from Canada (Preliminary 
Results )(18 February 2000) at 4. 
47 Issues and Decision Memo for the Sunset Review of Pure Magnesium from Canada (Preliminary 
Results )(18 February 2000) at 7.  WT/DS282/R 
 Page E-121 
  
that the probative value of the identified scenario outweighed that of other factors introduced by interested parties, so as to counter the proposition that the USDOC applies the SPB scenarios in a mechanistic fashion.  Had the United States furnis hed such information, the Panel's 
task would have been facilitated.  Nevertheless, the lack of assistance from the United States cannot excuse the Panel from conducting an "objective assessment of the matter" as required by Article 11 of the DSU.
48 
30. This Panel must hold the United States to the sam e standard in this case.  The United States, in 
fact, has not and cannot identify cases in which at least  one of the SPB scenarios was satisfied, but other 
factors constituted the basis of its likelihood decisi on.  Nor can the United States identify cases in which 
the Department provided in its decisions any subs tantive discussion as to why historic dumping margins 
and volume declines are more probative of likely, future  behaviour than any other evidence.  This is not 
surprising because the United States relies on another pr esumption, namely that the actions of the exporter 
prior to the discipline of the order are always mo re probative than the exporter's actions after the 
imposition of the order.49     
31. The most that the United States can do is point to  the portions of its decisions in which it repeated 
the parties' arguments.  But repeating arguments do es not substitute for the substantive, prospective 
analysis that Article 11.3 requires.  Nor should th e Panel accept empty statements that the Department 
"considers" all the information, even though its written decisions do not reflect that consideration.  The 
extent to which the US mechanistically applies th e SPB in these cases must be judged by the manner in 
which the Department has written its decision, not by what it claims the decision-makers were thinking at the time. 
32. Finally, the detailed substantiv e submissions of Mexico in this case also satisfy the Appellate 
Body's requirement for evaluation of Mexico's altern ative claims regarding the Department's "consistent 
practice" in the conduct of sunset reviews.  Mexico cl aims that the Department's "consistent practice" is 
inconsistent "as such" with Article 11.3 of the Agr eement.  As a second alternative claim, Mexico argues 
that even if the Department's practice is not incons istent as such, then the US administration of its anti-
dumping laws and regulations regard ing the Department's likely dumping determination violates Article 
X:3(a) of the GATT 1994. 
V.  THE APPELLATE BODY REJECTED THE US PRELIMINARY OBJECTIONS BASED 
ON DSU ARTICLE 6.2 
33. The Appellate Body rejected all of the prelim inary objections raised by the United States based 
on DSU Article 6.2.
50  The United States made a similar – but untimely – claim in this case.  The Panel 
should similarly reject the US preliminary objection he re.  Also, there are several additional reasons for 
the Panel to reject the US preliminary objection, as Mexico has explained.51 
                                                      
48 Appellate Body Report, OCTG from Argentina , para. 214. 
49 See SAA 889-890,  SPB Secti ons II.A.3 and II.B.1;  see also  Mexico's Second Submission, paras. 52-53. 
50 See Appellate Body Report, OCTG from Argentina , paras. 155-176. 
51 See Comments of Mexico on the Draft Descriptive Part of the Panel Report (1 November 2004), 
paras. 19-28. WT/DS282/R 
Page E-122   
VI. MEXICO HAS MADE DIFFERENT ARGUMENTS REGARDING THE COMMISSION'S 
LIKELIHOOD DETERMINATION 
A. T
HIS PANEL MUST REACH ITS OWN CONCLUSION ON THE LIKELY STANDARD  
34. This Panel must reach its own conclusions  regarding the relevance and weight of the 
Commission's statements that it did not consider "likely" to mean "probable."  The Panel in OCTG from 
Argentina  considered these statements to be "irrelevant."  The Appellate Body declined to reverse this 
finding because it considered that it could not reweigh th is piece of evidence.  This does not mean that the 
Panel in OCTG from Argentina  was correct in considering the statem ents to be irrelevant.  Mexico has 
argued forcefully that they are relevant – if not dispositive – and the Panel must make its own 
determination. 
35. Mexico has argued that:  a) the Commission did not use the legal standard required by 
Article 11.3;  and b) the Commission did not prope rly establish and objectively evaluate the facts 
necessary to meet the correct standard.52  Notwithstanding OCTG from Argentina , as a first step in this 
case, the Panel must determine whether the Commission applied the right standard in connection with 
Mexico's claim with respect to the likely standard. 
36.  The Appellate Body has clarified that "likely" means "probable.".  Mexico demonstrated that the 
Commission argued vigorously in the NAFTA dispute involving this same sunset review that the SAA precludes the Commission from applying a "probable" standard.
53  The Commission's admission that it did 
not apply a probable standard is conclusive of the issue, and cannot be deemed irrelevant.  Mexico 
specifically asks that the Panel rule on the issue of whether the Commission applied the proper Article 
11.3 standard.  The fact that the Appellate Body deci ded not to reweigh the evidence regarding the Panel's 
decision in OCTG from Argentina  to deem the statements irrelevant does not relieve the Panel in this case  
from making its own assessment of the weight of the Commission's admission in this case that it did not apply "likely" to mean "probable." 
B. T
HERE IS NO LEGAL BASIS FOR THE ITC  TO HAVE ASSESSED "DUMPED IMPORTS " BECAUSE 
THERE IS NO WTO-C ONSISTENT DETERMINATION OF "LIKELY " DUMPING  
37. In light of the Panel and Appellate Body decisions in OCTG from Argentina , the Department's 
"likely dumping" determinations for all  of the countries involved in the Commission's cumulative analysis 
have been effectively voided.  The Panel in OCTG from Argentina  considered that there was no WTO-
consistent basis to consider that imports  from Argentina were likely to be dumped.54  This finding was not 
appealed by the United States.  The strength of Mexico's case in this respect, and the further statements by the Appellate Body, should lead this Panel to a sim ilar conclusion with respect to Mexico.  The likely 
dumping determination with respect to all other cumu lated countries (i.e., Italy, Japan, and Korea) was 
based on the "waiver" provisions,
55 which the Appellate Body confirme d are inconsistent with Article 
11.3.56  Therefore, as a result of the Panel and Appellate Body reports in OCTG from Argentina , and this 
Panel's consideration of the finding with respect to Mexico, there is no WTO-consistent basis for a finding 
that dumping was likely to continue or recur in th is case – not for any cumulated country.  This Panel 
must assess the Commission's determination of the likely volume, price effects, and impact of "dumped imports" in light of the fact that there is no WTO- consistent determination of likely "dumped imports" 
from any of the cumulated countries. 
                                                     
 
52 See Mexico's First Submission, Sections VIII.A & B.;  Mexico's Second Submission, Sections III.A & C. 
53 See Mexico's First Submission, paras. 159-175;  Mexico's Second Submission, paras. 83-89. 
54 Panel Report, OCTG from Argentina , paras. 7.219-7.222. 
55 See OCTG from Argentina, Italy, Japan, and Korea , 65 Fed. Reg. 66,701 (Dep't Commerce 7 November 
2000)(MEX-62, Tab 174). 
56 Appellate Body Report, OCTG from Argentina , paras. 234-235.  WT/DS282/R 
 Page E-123 
  38. This is particularly true in this case because,  as Mexico has argued, Article 11.3 and Article 11.1 
of the Anti-Dumping Agreement, and Article VI of  the GATT, each independently establish a causation 
requirement between the likely dumping and the likely injury.  This requirement exists irrespective of the applicability of the requirements of Article 3 (i ncluding Article 3.5) to Article 11.3 reviews.
57  The 
Appellate Body did not address this issue in OCTG from Argentina . 
39. The invalidation of the Department's likely dumping findings that results from OCTG from 
Argentina  also is relevant to this Panel's assessment of Mexico's claim related to the Commission's 
reliance on the "margin likely to prevail" reported by Department.  If the Commission did not rely on any dumping margins, then it cannot have satisfied the cau sation requirement in Articles 11.1 and 11.3 of the 
Anti-Dumping Agreement, and Article VI of GATT 1994.  If, on the other hand, the Commission relied on margins reported by Department, its analysis is de fective because the basis fo r the Department's likely 
dumping determination with respect to Mexico and a ll of the cumulated cases has been vitiated.  As the 
Appellate Body has found, "if a likelihood determina tion is based on a dumping margin calculated using a 
methodology inconsistent with Article 2.4, then th is defect taints the likelihood determination too."
58 
C. V OLUME , PRICE EFFECTS , AND IMPACT ANALYSIS  
40. The Appellate Body conclu sions regarding the Commission's findings on volume, price, and 
impact are limited to discrete areas: 
 •  the Appellate Body's decision not to reweigh the evidence  (e.g., "[W]e see no reason to 
disturb the Panel's assessment;" "we see no reason to interfere in the Panel's 
conclusion");59 
 •  the Appellate Body's interpretation of th e specific arguments made by Argentina  (e.g., 
"Argentina seems to assume that positive ev idence requires absolute certainty ...;60  
"Argentina does not explain, on appeal, why the Panel could not properly find a relationship of cause and effect ...");
61 
 •  Argentina's failure to persuade the Panel and the Appellate Body regarding specific 
arguments relating to the Commission's volume, price, and impact conclusions .62  The 
Appellate Body findings on these points are necessarily limited to the manner in which Argentina presented its arguments, as percei ved and considered by that Panel. 
41. The Appellate Body's discussion of the likely volume, price, and impact issues shows that Mexico 
has made different arguments on several issues that th e Appellate Body considered to be important in 
evaluating Argentina's claims. 
                                                     
 
57 See Mexico's Second Submission, para. 161. 
58 Appellate Body Report, Japan Sunset , para. 130. 
59 Appellate Body Report, OCTG from Argentina , paras. 334, 346. 
60 Appellate Body Report, OCTG from Argentina , para. 340. 
61 Appellate Body Report, OCTG from Argentina , para. 351;  see also  Appellate Body Report, OCTG from 
Argentina , paras. 342, 348, 352 (addressing volume, price, and impact, respectively). 
62 Appellate Body Report, OCTG from Argentina , paras. 334, 346, 352. WT/DS282/R 
Page E-124   
1.  Product Shifting 
42. Mexico does contest that it was reasonable fo r the Commission to base its determination on an 
analysis of the incentive for subject producers to shift production.
63  Also, Mexico does dispute that 
shifting production was "technically possible." 64   
2.  Mexico Challenged All Five of the Fact ual Bases Purporting to Support the Commission's 
Volume Analysis  
43. The Appellate Body suggests that Argentina only challenged the factual basis of two of the five 
factors on which the Commission based its finding that  the subject producers had an incentive to shift 
production to OCTG, which production-shifting was the basis for the Commission's conclusion that the likely volume of OCTG would be significant in the absence of an order.
65  Mexico has developed detailed 
arguments that demonstrate why the Commission's c onclusions regarding each of the so-called five 
incentives can neither be considered to be an "obj ective examination" of the record, nor constitute 
"positive evidence" of a likely  volume increase in the event of termination.  The Appellate Body report 
addressed only two of the factors (trade barriers and price differences between the US and world market).
66  Mexico challenged the factual and legal basis for the Commission's reliance on all five of these 
factors.67  Mexico has also asserted that these factors taken e ither in isolation or considered together may, 
at best, imply mere possibilities, but not likelihood. 
3.  Positive Evidence of "Likely " Recurrence of Injury 
44. The Appellate Body evidently interpreted Arge ntina's arguments as "Argentina seems to assume 
that positive evidence requires abso lute certainty on what is lik ely to occur in the future."68  Mexico does 
not advance such arguments.  Rather, Mexico argu es that the Commission's Article 11.3 determination 
must be supported by "positive evidence" not simply that injury would be possible, but that injury is "likely" in the event of termination.  As th e Appellate Body stated, "an affirmative likelihood 
determination may be made only if the evidence dem onstrates that dumping would be probable if the duty 
were terminated—and not simply if the evidence s uggests that such a result might be possible or 
plausible."
69 
45. As Mexico summarized in its Second Submission:  The Commission's conclusions regarding the likel y volume of imports, the likely price effects, 
and the likely impact of imports on the domestic industry: 
 o cannot be considered objective and impartial wh en viewed in light of the information on 
the record; 
 o are not based on positive evidence of likely
 injury as required by Article 3.1 and by 
Article 11.3 of the Anti-Dumping Agreement; and 
                                                      
63 Appellate Body Report, OCTG from Argentina , para. 335;  see also  Mexico's First Submission, 
paras. 202-210;  Mexico's Second Submission, paras. 122-127. 
64 Appellate Body Report, OCTG from Argentina , para. 337;  see also  Mexico's First Submission, 
paras. 202-210;  Mexico's Second Submission, paras. 122-127. 
65 Appellate Body Report, OCTG from Argentina , paras. 335-336. 
66 See Appellate Body Report, OCTG from Argentina , paras. 335-342. 
67 See Mexico's First Submission, paras. 202-210;  Mexico 's Opening Statement for the First Panel Meeting, 
para. 42;  Mexico's Second Submission, paras. 120-127;  Me xico's Opening Statement for the Second Panel Meeting, 
paras. 33-35;  and Exhibit MEX-68. 
68 Appellate Body Report, OCTG from Argentina , para. 340. 
69 Appellate Body Report, Japan Sunset , para. 111.  WT/DS282/R 
 Page E-125 
   o could not lead an objective and unbiased decision maker to the conclusion that 
termination of the duty would be likely to l ead to continuation or recurrence of injury.
70 
46. The Appellate Body upheld the Panel's finding that "Argentina has failed to prove" that the 
Commission's determinations concerning the likely volum e, price effect and impact of dumped imports 
were WTO-inconsistent.71  Mexico has put forward different ar guments, and this Panel has developed 
different information through its questions and the substantive meetings.  Mexico has further emphasized that it is the United States, as the party invoking the limited exception in Article 11.3 to maintain the anti-dumping measure, which has the burden of proof.  Theref ore, the Panel must make its own determination 
of Mexico's arguments regarding the Commission's dete rmination of "likely" volume, price effects, and 
impact. 
D. C
UMULATION  
47. In its Report the Appellate Body "disagree[s]  with Argentina that th e USITC's references to 
information gleaned in the original investigation re ndered WTO-inconsistent its decision to cumulate the 
effects of dumped imports."72  Because Mexico's arguments are qualita tively different than Argentina's, 
Mexico's claim should not be affected by this finding. 
48. Mexico has requested the Panel to find that i rrespective of the applicability of Article 3.3 to 
Article 11.3, the Commission failed to satisfy the requirements inherent in the conduct of any cumulative 
injury assessment; specifically, the Commission failed to en sure that cumulation was appropriate in light 
of the conditions of competition between imported OCTG, and between imported OCTG and the domestic like product, which findings required a threshold finding that the injurious effects of the subject imports 
would be simultaneously present in the US market.
73 
49. As Mexico has emphasized, an authority can conduct a cumulative injury analysis only when, and 
only if, it demonstrates that the basic conditions ju stifying the practice of cumulation exist.  The 
Commission's decision to conduct a cumulative injury assessment:  (i) lacks a sufficient factual basis;  (ii) cannot be considered an objective examination of wh ether the injurious effects of the subject imports 
would be simultaneously present in the domestic market;  (iii) employed a WTO-inconsistent "not likely" 
standard in the analysis; and (iv) fails to identif y a time frame within which injury would be likely.
74 
50. As the Panel in OCTG from Argentina  found, based on the reasoning of the Appellate Body in the 
Japan Sunset  case, "even though in the course of a sunset review an authority may not be obliged to 
comply with provisions of Article 3 of the Agreemen t, if the authority decides to conduct an ‘injury 
determination' in a sunset review, or if it uses a ‘past' injury determination as part of its sunset 
determination, that authority is then obligated to make sure that its injury determination, or the past injury 
determination upon which it relies, is consistent with the releva nt requirements of Article 3."75  
Consequently, even assuming arguendo  that the Commission was neither prohibited from, nor required to, 
conduct a cumulative injury assessment,  because it decided to undertake cumulative analysis, then the 
Commission was obliged to make sure that the inhere nt conditions necessary to cumulate were satisfied. 
51. In any event, the express language of the Commission's likelihood determination demonstrates 
that the Commission not only failed to comply with these conditions but also that the Commission relied 
                                                      
70 Mexico's Second Submission, para. 198. 
71 Appellate Body Report, OCTG from Argentina , paras. 342, 348, 352. 
72 Appellate Body Report, OCTG from Argentina , para. 328. 
73 See Mexico's Second Submission, paras. 192-197;  Mexi co's Oral Statement at Second Panel Meeting, 
paras. 49-51. 
74 See Mexico's Second Submission, paras. 192-197; Mexi co's Oral Statement at Second Panel Meeting, 
paras. 49-51. 
75 Panel Report, OCTG from Argentina , paras 7.273 and 7.274. WT/DS282/R 
Page E-126   on a WTO-inconsistent "not likely" standard to conc lude that there likely would be a reasonable overlap 
of competition: 
Nothing
 in the record of these reviews suggests  that if the orders are 
revoked subject imports and the dom estic like product would not be 
simultaneously present in the domestic market . 
Therefore, we conclude that there likely would be a reasonable overlap 
of competition between the subject imports and the domestic like product, and among the subject imports themselves if the orders are revoked. 
76 
E. T IME FRAME FOR DETERMINING LIKELIHOOD OF INJURY  
52. The Appellate Body confirmed that the time fra me within which injury is likely to recur under 
Article 11.3 is not completely open- ended (i.e., "an assessment regarding whether injury is likely to recur 
that focuses ‘too far in the future would be highly speculative'").77  Hence, even assuming arguendo  that 
the standard set forth in the Tariff Act is WTO- consistent, the only way to assess whether the law has 
been applied in a WTO-consistent way (i.e., whethe r the injury assessment has not  focused too far in the 
future) is by knowing the time frame used by the Commission in its assessment regarding likelihood of injury.  Throughout the course of this proceeding, the United States failed to identify any time frame 
considered by the Commission with respect to when injury would be likely to continue or recur. 
53. Independent from whether or not Article 11.3 imposes a time frame for pur poses of likelihood of 
injury in all sunset reviews, the f act that the United States was not able  to indicate the time frame used by 
the Commission in determining whether injury would be likely to continue or recur in this case, further 
demonstrates that the Commission failed to satisfy th e basic conditions to conduct a cumulative injury 
assessment.  In particular, how was the Commission able to conclude that the injurious effects of the 
subject imports would be simultaneously present in the US market, if the Commission did not know the time frame within which injury was likely to continue or recur? 
VII. BURDEN OF PROOF 
54. Irrespective of which party holds the burden of proof in connection with a challenged Article 11.3 
determination, Mexico asserts that it has established a prima facie case that the United States' decision to 
invoke the limited exception in Article 11.3 (to maintain the anti-dumping duties on OCTG from Mexico) was inconsistent with the strict requirements of Article 11.3 and was not supported by sufficient positive 
evidence. 
55. In OCTG from Argentina , the Appellate Body reiterated that  the continuation of an anti-dumping 
duty is an "exception" to the requirement that an anti-dumping measure be terminated after five years.
78  
Previously, in Japan Sunset,  the Appellate Body held that "Artic le 11.3 imposes a temporal limitation on 
the maintenance of anti-dumping duties.  It lays down a mandatory rule with an exception."79  As noted 
above, the Appellate Body in OCTG from Argentina  declined to reverse the Panel's finding that 
"Argentina has failed to prove" that the Commission's determinations concerning the likely volume, price 
effects and impact of dumped impor ts were WTO-inconsistent.  In OCTG from Argentina  the allocation 
of the burden of proof did not appear  to be central to the reasoning of either the Panel or the Appellate 
                                                      
76 See Mexico's Second Submission, para. 193 (quoting  Oil Country Tubular Goods from Argentina, Italy, 
Japan, Korea, and Mexico , USITC Pub. 3434, Inv. Nos. 701-TA-364,  731-TA-711, and 713-716 at 14 (June 2001) 
(emphasis added) (MEX-20). 
77 Appellate Body Report, OCTG from Argentina , para. 360. 
78 See Appellate Body Report, OCTG from Argentina , para. 178. 
79 Appellate Body Report, Japan – Sunset , para. 104.  WT/DS282/R 
 Page E-127 
  Body.  In contrast, in Mexico's case the Panel has ask ed specific questions regarding which party has the 
burden of proof. 
56. In its answer to the Panel's question Mexico  asserted "if a Member wants to invoke the exception 
and maintain the measure beyond the specified time,  it bears the burden of proving that its authority 
conducted a proper review and made th e determination required by Article 11.3.  If it fails to do so, it has 
no right to maintain the measure."
80  Mexico also stated "The US is the party attempting to invoke an 
exception.  Mexico understands that the party invoking the exception has the burden of proof.  Therefore, the United States is the party that has to prove th at it complied with the requirements of Article 11.3"
81 
57. In light of the US comments on Mexico's answer,82 the Panel should decide whether (i) the United 
States has the burden of proving that its authorities comp lied with the strict conditions required by Article 
11.3 so as to maintain the measure beyond the otherwi se-mandated expiry of the duty after five years, or 
(ii) Mexico has the burden of proving that the United States failed to satisfy the requirements of Article 
11.3 and hence has no right to maintain the measure  beyond the temporal limitation contained therein. 
58. According to the United States, "the Unite d States is not invoking an "exception" (or an 
"affirmative defense") in this dispute.  Article 11.3 is  part of the overall balance of rights and obligations 
agreed to under the Anti-Dumping Agreement.  It provides a positive rule that authorizes Members to 
continue anti-dumping duties under certain circumstances."83 
59. Mexico reiterates that:  "Termination of a c ountervailing [or anti-dumping] duty is the rule and its 
continuation is the exception;"84 "the continuation of an anti-dumping duty is an "exception" to the 
otherwise-mandated expiry of the duty after five years;"85  Article 11.3 "lays down a mandatory rule with 
an exception"86, the "authorities must conduct a rigorous examination in a sunset review before the 
exception (namely, the continuation of the duty) can apply;"87 and Article 11.4 "create[s] an additional 
exception to the requirement that anti-dumping duties will be terminated after five years."88 
60. As the Appellate Body stated in  European Communities - Conditions for the Granting of Tariff 
Preferences to Developing Countries:  
In cases where one provision permits, in certain circumstances, 
behaviour that would otherwise be in consistent with an obligation in 
another provision, and one of the tw o provisions refers to the other 
provision, the Appellate Body has found that the complaining party bears the burden of establishing that a challenged measure is inconsistent with the provision permitting particular behaviour only 
where one of the provisions suggests that the obligation is not applicable to the said measure. Othe rwise, the permissive provision has 
been characterized as an exception, or defence, and the onus of invoking 
                                                     
 
80 Mexico's Responses to the Panel's Questions  Following the Second Meeting (13 September 2004), 
para. 15. 
81 Mexico's Responses to the Panel's Questions  Following the Second Meeting (13 September 2004), 
para. 16. 
82 Comments of the United States on Mexico's Respons es to the Questions from the Panel in Connection 
with the Second Substantive Meeting of the Panel, para. 9. 
83 Comments of the United States on Mexico's Respons es to the Questions from the Panel in Connection 
with the Second Substantive Meeting of the Panel, para. 9. 
84 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon 
Steel Flat Products from Germany , WT/DS213/AB/R, adopted December 19, 2002, para. 88. 
85 Appellate Body Report, OCTG from Argentina , para. 178. 
86 Appellate Body Report, Japan Sunset , para. 104. 
87 Appellate Body Report, Japan Sunset , para. 113. 
88 Appellate Body Report, Japan Sunset , para. 113. WT/DS282/R 
Page E-128   
it and proving the consistency of the measure with its requirements has 
been placed on the responding party."
89 (citations omitted). 
61. Mexico also argues that the provision in Article 11.3 that permits Members to continue anti-
dumping duties beyond the five years temporal limitation is not and cannot be considered a "positive rule" 
– as argued by the United States.  The obligation in Ar ticle 11.3 is to terminate the measure after five 
years.  This obligation applies to all members.  Article 11.3 does not obligate Members to continue anti-
dumping duties beyond the explicit five-year temporal limitation.  The obligation in Article 11.3 is to 
terminate the anti-dumping duties, not to continue them.  If anti-dumping duties are continued based on the limited exception in Article 11.3, a Member must firs t satisfy all of the strict requirements of Article 
11.3. 
62. Mexico has argued that the US determina tions under Article 11.3 in this case are based on 
presumptions, inferences, speculation and conjecture and not on positive evidence.
90  For this reason, the 
decisions of the Department and the Commission are insufficient to invoke the limited exception to the 
obligation to terminate the measure, and continue the anti-dumping duty beyond five years under Article 
11.3. 
VIII. LACK OF LEGAL BASIS FOR THE UNITED STATES TO MAINTAIN THE 
 ORDER 
63. Strict compliance with Article 11.3 is require d in order for a Member to extend the anti-dumping 
duties beyond five years.  A finding that the United States did not comply with Article 11.3 would require a finding that the United States impermissibly extende d the anti-dumping measure in  this case beyond five 
years without a legal basis for doing so.  Mexico h as specifically requested such a finding in this case.
91  
The fact that neither the Panel nor the Appellate Body addressed Argentina's similar request does not 
relieve this Panel from addressing this issue substa ntively – separate and apart from Mexico's request 
under DSU Article 19.1.  In this regard, Mexico also specifically invoked its rights as a developing 
country under Article 21.2 of the DSU, and requested that the Panel consider and make a finding on this 
issue.92 
                                                      
89 Appellate Body Report, European Communities- Conditions for the Granting of Tariff Preferences to 
Developing Countries,  WT/DS246/AB/R, adopted April 20, 2004, para. 88. 
90 See Mexico's First Submission, paras. 121-144, 184-220;  Mexico's Opening Statement for the First Panel 
Meeting, paras. 21-34, 41-45;  Mexico's Closing Statement for the First Panel Meeting at 1-3;  Mexico's Responses 
to the Panel's Questions Following the First Meeting, para s. 7, 21, 80-83;  Mexico's Second Submission, Section II 
and III.C.1;  Mexico's Opening Statement for the Second Pa nel Meeting, Sections II a nd III.B;  Mexico's Closing 
Statement for the Second Panel Meeting, para. 6;  Mexico's Comments on US Answers Following the Second 
Meeting, paras. 6-13, 28-33. 
91 See Mexico's First Submission, paras 376-381;  Mexico's Second Submission, paras. 297-310. 
92 See Mexico's Second Submission, para. 310.  WT/DS282/R 
 Page E-129 
  
IX. CONCLUSION 
64. In light of the comments above, Mexico respectfu lly requests that the Panel, consistent with the 
requirements of Article 11 of the DSU, make all necessary findings and reach its own conclusions with 
respect to all of Mexico's claims. 
65. Mexico thanks the Panel for its considera tion of these comments and for its work during the 
course of this proceeding. WT/DS282/R 
Page E-130    
ANNEX E-15 
  
COMMENTS OF THE UNITED STATES ON THE RELEVANCE OF THE 
APPELLATE BODY REPORT IN  
UNITED STATES – SUNSET REVIEW S OF ANTI-DUMPING MEASURES 
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
("ARGENTINA OCTG") 
 
 1. Adopted panel and Appellate B ody reports, while not binding on other panels, nevertheless can 
provide persuasive reasoning and guidance.  This is  particularly true when the specific claims and 
arguments in a dispute have been addressed by a pr evious panel and the Appellate Body, as is the case 
with this dispute.
1  Indeed, the Appellate Body in Argentina OCTG drew three conclusions with respect to 
issues that are identical to those in this dispute:  (1) statistical evid ence does not suffice to prove that the 
Sunset Policy Bulletin is inconsistent with US WTO obligations;  (2) certain statutory provisions related 
to the determination of likelihood of continuation or recurrence of injury are not inconsistent with US 
WTO obligations;  and (3) the likelihood-of-injury determination examined in Argentina OCTG – which 
is the same as the determination at issue in this dispute  – is not inconsistent with US WTO obligations.  In 
addition, the Appellate Body's reasoning that individua l company determinations in sunset reviews are not 
subject to Article 11.3 of the Agreement on Implementation of Article VI of the General Agreement on 
Tariffs and Trade 1994 ("Anti-Dumping Agreement "), although order-wide determin ations are, is equally 
applicable in this dispute with respect to Article 11.2. 
Relevance of the Report on Issues Relating to Likelihood of Dumping  
 
Sunset Policy Bulletin  
 2. The United States has argued, in Argentina OCTG as well as this dispute, that statistical evidence 
of the type offered both by Mexico and Argentina is  not probative on the question of whether the Sunset 
Policy Bulletin is inconsis tent with Article 11.3.
2  The panel in Argentina OCTG  concluded, based on the 
same statistical evidence presented here by Mexico, that  the Sunset Policy Bulletin is inconsistent with 
Article 11.3.3  The Appellate Body reversed the panel a nd concluded that the panel's reliance on this 
statistical evidence was a failure to make an objec tive assessment of the matter, as required by Article 11 
of the Understanding on Rules and Procedures Governing the Settlement of Disputes .4  
3. The evidence and arguments Mexico has presented in this dispute are the same as those presented 
by Argentina.  For example, in its first written submission, Mexico states that it "is prepared to 
demonstrate the existence of a WTO-inconsistent pr esumption" by presenting the "results of its analysis 
of all the Department's sunset reviews."5  The evidence in support of this  statement was "Mexico's Exhibit 
                                                      
1 The panel and Appellate Body reports in United States – Sunset Reviews of Anti-Dumping Measures on 
Oil Country Tubular Goods from Argentina (WT/DS268) (“ Argentina OCTG ”) will be considered by the Dispute 
Settlement Body on December 17, 2004. 
2 Appellate Body Report, Argentina OCTG , circulated November 29, 2004, paras. 204, 214; see, e.g. , US 
First Written Submission, paras. 105-109, US Second Written Submission, paras. 11-21.   
3 Appellate Body Report, para. 
4 Appellate Body Report, para. 215. 
5 First Submission of Mexico, para. 99.  WT/DS282/R 
 Page E-131 
  MEX-62"
6 – the equivalent to the exhibit Argentina pr esented in its dispute, and which the Appellate 
Body rejected as insufficient.  Likewise, Mexico offers  the same analysis of the text of the Sunset Policy 
Bulletin as that offered by Argentina.  The Argentina OCTG panel concluded that the text of the Sunset 
Policy Bulletin did not establish that the three scenario s set out in the SPB are regarded as determinative 
for purposes of Commerce's likelihood determination.7 
4. Mexico has presented the same factual record to this Panel as Argentina offered to the Argentina 
OCTG panel, which the Appellate Body rejected as insuffi cient to establish that the Sunset Policy Bulletin 
is inconsistent with Article 11.3.  The Panel should reach the same conclusion.    
5. The Appellate Body not only rejected Argentin a's Article 11.3 claim because of the lack of 
evidence but also Argentina's GATT Article X:3(a) claim, for the same reason.  The Appellate Body 
stated that "allegations that the conduct of a WT O Member is biased or unreasonable are serious under 
any circumstances.  Such allegations should not be br ought lightly, or in a subsidiary fashion.  A claim 
under Article X:3(a) . . . must be supported by solid ev idence; the nature and scope of the claim, and the 
evidence adduced by the complainant in support of it, should reflect the gravity of the accusations 
inherent in [such] claims."8  The Appellate Body noted that Argentina relied on the same statistical 
evidence for its Article X:3(a) claim as for its claim th at the Sunset Policy Bulletin was inconsistent with 
Article 11.3, and the Appellate Body rejected Arge ntina's Article X:3(a) claim for the same reason it 
rejected Argentina's Article 11.3 claim.9  Mexico has also relied solely on the same statistical evidence in 
support of its Article X:3(a) claim.10  Therefore, Mexico has failed to prove its claim, and that claim must 
be rejected. 
6. With respect to whether Commerce's "consistent pr actice" is inconsistent with Article 11.3, the 
United States reiterates that this claim is not within th e terms of reference of this dispute.  Nevertheless, 
the United States offers the following observations re garding the substance of Mexico's argument.  
Mexico stated that it was "undisputed" that the Appella te Body had already concluded that "practice" is a 
measure subject to dispute settlement.11  Yet the Appellate Body makes it clear in Argentina OCTG that it 
has drawn no such conclusion, stating that it expresses no view as to whether a "practice" may be challenged as a measure.
12  The Appellate Body also rejected sta tistical evidence as sufficient to support a 
claim that this "practice" was inconsis tent with US obligations, even assuming arguendo  that it were a 
measure.13 
Relevance of Report on Issues Relating to Administrative Reviews  
 
7. The Appellate Body in Argentina OCTG analyzed whether company-specific determinations are 
subject to Article 11.3 when a Member conducts its re views on an order-wide basis.  The Appellate Body 
concluded that the correct analysis under Article 11.3 is whether the order-wide determination is 
consistent with that article.14  Company-specific determinations are not subject to Article 11.3, except to 
the extent that they affect the order-wide determination.   
8. As the United States noted in this dispute, Ar ticle 11.2 reviews may be  conducted on an order-
wide basis.  The Appellate Body stated with respect to Article 11.3, "Members are not required by Article 
                                                      
6 First Submission of Mexico, para. 113.   Mexico update d its exhibit to include subsequent reviews, Exhibit 
MEX-65. 
7 Panel Report, WT/DS268/R, circulat ed 16 July 2004, paras. 7.152-7.157. 
8 Appellate Body Report, para. 217. 
9 Appellate Body Report, paras. 218-219. 
10 See, e.g., First Submission of Mexico, paras. 359-366. 
11 See, e.g., First Submission of Mexico, para. 118. 
12 Appellate Body Report, para. 220. 
13 Appellate Body Report, para. 220. 
14 Appellate Body Report, paras. 231-232. WT/DS282/R 
Page E-132   11.3 to make their likelihood-of-dumping determinations on a company-specific basis ...."
15  T h e  
Appellate Body's reasoning with respect to Article 11.3 reviews is equally applicable to Article 11.2 
reviews.  The United States is not required to conduc t Article 11.2 reviews on a company-specific basis, 
and company-specific administrative revocation review s are the only ones requested by Tamsa and Hylsa. 
 These company-specific reviews are not required by Article 11.2.  The Panel should reject Mexico's 
argument that they are.   
Relevance of Report on Issues Relating to Likelihood of Injury  
 
9. With respect to the injury-related clai ms, the panel and Appellate Body in Argentina OCTG  
addressed legal and factual issues that are the same in a ll material respects to those raised by Mexico in 
this dispute.  Indeed, the likelihood of injury determ ination is the same in both disputes.  The Appellate 
Body's analysis of the injury issues is persuasive.  The United States believes that this Panel should, like 
the Argentina OCTG panel and Appellate Body, conc lude that neither the statut e nor the determination is 
inconsistent with US WTO obligations. 
10. At the outset, we note that the Appellate Body upheld all of the Argentina OCTG panel's findings 
on injury, all of which were resolved in favour of the United States.  We addressed the relevance of the 
panel's findings in response to a question from this Panel.16   
Claims Under Article 3 of the Anti-Dumping Agreement  
 11. First, the Appellate Body upheld the panel's finding that the obligations set forth in Article 3 of 
the Anti-Dumping Agreement do not apply to likeli hood-of-injury determinations in sunset reviews.
17  In 
that dispute, Argentina argued, just as Mexico has argued in this dispute, that by virtue of the reference to the definition of "injury" in footnote 9 of the Anti- Dumping Agreement, all re ferences in the Agreement 
to "injury" require a determination made in conformity with the provisions of Article 3.
18  The Appellate 
Body disagreed. 
12. As the Appellate Body found, it does not follow fro m the single definition of  "injury" in footnote 
9 that the provisions of Article 3 are applicab le to sunset determinations under Article 11.3.19  The 
Appellate Body explained that  Argentina was confusing the definition  of injury, which was contained in 
footnote 9, with the determination  of injury, which is addressed by the provisions of Article 3 that lay 
down steps involved and evidence to be examined for the purposes of making a determination  of injury. 
13. Also persuasive is the Appellate Body's findi ng that the Anti-Dumping Agreement distinguishes 
between "determinations of injury" addressed in Article 3 and determina tions of likelihood of 
"continuation or recurrence ... of injury," addressed in Article 11.3.20  As the Appellate Body explained, 
Article 11.3 contains no cross-references to Article 3 that would make Article 3 provisions applicable to 
sunset reviews.  Nor does Article 3 indicate that when ever the term "injury" appears in the Anti-Dumping 
Agreement, a determination of injury must be made following the provisions Article 3. 
14. With respect to the threshold issue of why the pr ovisions of Article 3 do not apply to Article 11.3 
sunset reviews, the Appella te Body concluded that: 
Given the absence of textual cross-re ferences, and given the different 
nature and purpose of these two determin ations, we are of the view that, 
                                                      
15 Appellate Body Report, para. 231. 
16 US Answers to Second Set of Panel Questions, paras. 15-20. 
17 Appellate Body Report, para. 285. 
18 See Appellate Body Report, para. 275. 
19 Appellate Body Report, para. 277. 
20 Appellate Body Report, para. 278.  WT/DS282/R 
 Page E-133 
  
for the "review" of a determination of injury that has already been 
established in accordance with Article  3, Article 11.3 does not require 
that injury again be determined in accordance with Article 3.  We 
therefore conclude that investigating authorities are not mandated to 
follow the provisions of Article 3 when making a likelihood-of-injury determination.
21 
15. This analysis applies equally to the Article 3 claims  raised by Mexico in the instant dispute.  To 
the extent Mexico argues that the United States has failed to comply with Articles 3.2., 3.3, 3.4, 3.5, 3.7, 
and 3.8 of the Anti-Dumping Agreement, the United States submits that the well-reasoned analysis of the Appellate Body leads to the conclusion that the Un ited States has not acted inconsistently with those 
provisions, as there is no requirement that a Memb er apply those provisions in a sunset review. 
16. As the United States has previously noted before this Panel,
22 Article 17.6(i) provides that an 
authority's establishment of the facts in a sunset review  must be "proper," and that the evaluation of those 
facts must be "unbiased and objective."23   
Cumulation  
 17. In the Argentina dispute, the Appellate Body addr essed and rejected a similar claim to that raised 
by Mexico concerning the permissibility of cumulation in sunset reviews.  The Appellate Body recalled 
that Article 11.3 makes no reference to cumulation or to Article 3.3.
24  Rejecting an argument that is 
advanced by Mexico in the instant proceedings, the Appellate Body found that the mere use of the word 
"duty" in the singular in Article 11.3 does not necessa rily suggest that likelihood-of-injury determinations 
must be made on a Member-by-Member basis.25  In this regard, the Appellate Body observed, as the 
United States has pointed out to this Panel, that  even where a Member issues an anti-dumping order 
applicable to products from one country, the order assigns separate duties to individual exporters from 
that country, and that duties may vary from country  to country.  Notwithstanding these variations in 
duties, Article 9.2 of the Anti-Dumping Agreement literally provides for the collection of a "duty," 
although there actually may be variations in the margin s and countries to which such "duty" applies.  As 
the Appellate Body found, the reference to a "duty" in the singular in Article 11.3 may likewise refer to 
duties imposed with respect to multiple sources of the imported product. 
18. Having found that nothing in Article 11.3 itself prohibited cumulation, the Appellate Body 
examined Article 3.3 – the only provision in the Anti- Dumping Agreement that specifically addresses the 
practice of cumulation.26  Consistent with the arguments the Un ited States presented to this Panel, the 
Appellate Body observed that Article  3.3 mentions only the injury analyses undertaken in an original 
investigation,  and that there are no cro ss-references between Articles 3.3 and 11.3. 
19. Citing to the underlying purposes of cumulation discussed in EC – Tube or Pipe Fittings ,27 the 
Appellate Body found that the rationale for cumulati on applies both to original determinations as well as 
to sunset reviews.28  As the Appellate Body noted, "inj ury to the domestic industry – whether existing  
injury or likely future  injury – might come from several sources simultaneously."29  The Appellate Body 
                                                      
21 Appellate Body Report, para. 280 (emphasis in original). 
22 US First Submission (21 April 2004) at para . 234 footnote 247 and at para. 263 footnote 272. 
23 Anti-Dumping Agreement, Article 17.6(i). 
24 Appellate Body Report, para. 292. 
25 Appellate Body Report, para. 293. 
26 Appellate Body Report, para. 294. 
27 Appellate Body Report, European Communities - Anti-Dumping Duties on Malleable Cast Iron Tube or 
Pipe Fittings from Brazil , WT/DS219/AB/R, adopted August 18, 2003, para. 116. 
28 Appellate Body Report, paras. 296-297. 
29 Appellate Body Report, para. 296. WT/DS282/R 
Page E-134   found that cumulation remains a "useful tool" in both inquiries to ensure that all sources of injury and their cumulative impact are taken into account in the i nvestigating authority's original injury and sunset 
likelihood determinations.
30 
20. The United States believes the textual and contextual  analysis of the Appellate Body is correct, 
and urges this Panel to be guided by that analysis and to reject Mexico's contention that the Agreement 
prohibits cumulation in sunset reviews.  Likewise, this Panel should reject Mexico's argument that the 
ITC was required to satisfy the prerequisites for cu mulation as set forth in Article 3.3.  Addressing an 
identical claim made by Argentina, the Appellate B ody noted that there is no textual support for that 
contention, and that the text of Article 3.3 in fact plainly limits its applicability to original investigations.
31 
The Interpretation of Likely  
 21. Mexico has argued to this Panel that the Argen tina panel did not address the WTO consistency of 
the "likely" standard applied by the ITC in the OCTG sunset review.
32  The United States previously 
responded to this assertion by noting that the Argentin a panel addressed this issue, first by recognizing 
that the determination on its face was consistent with the "likely" requirements in Article 11.3 given that 
the ITC used the phrase "likely" in  making its overall determination.33  The panel reasoned that, inasmuch 
as the ITC made a determination which it stated was ba sed on the likely standard, then the standard for the 
Panel's review of that conclusi on had to be whether the ITC assessed  the evidence objectively.  The 
Appellate Body stated that "[w]e agree with th e United States that because the USITC had explicitly 
stated in its final determination that it applied the ‘likely' standard, ‘the only way for the Panel to assess 
whether that standard was in fact applied was to  evaluate whether the facts supported that finding.'"34 
22. In light of the Appellate Body's findings, there is no basis for Mexico to continue to assert that the 
Argentina report does not address both the WTO-consis tency of the ITC's "likely" standard and the 
application of that standard to the facts of the OCTG sunset review. 
23. The Appellate Body also upheld the panel's decision not to resort to statements of the ITC  before 
domestic courts or a NAFTA panel.35  As the Argentina panel reasonably found, such statements were 
"not relevant" to the WTO dispute, because the panel' s role was to assess the meaning of "likely" within 
the WTO legal system.36  Applying the same reasoning, this Panel should likewise decline to rely on 
statements the ITC made in domestic cases concerning compliance with the US statute.  Rather, this 
Panel, like the Argentina panel and the Appellate B ody must focus on the consistency of the standard 
applied by the ITC with the Anti-Dumping Agreement. 
Consistency of ITC's Determination w ith Article 11.3 "Likelihood" Standard  
 24. With respect to the ITC's application of the "lik ely" standard in the OCTG sunset review, the 
Appellate Body upheld the Argentina panel's revi ew of the ITC determination in all respects.
37  
The United States has previously explained to this Pa nel the merits of the Argentina panel's findings on 
                                                      
30 Appellate Body Report, para. 297. 
31 Appellate Body Report, para. 301. 
32 See Mexico's Closing Statement in the Panel's Second Substantive Meeting With the Parties, para. 2; 
Mexico's Response to Questions to the Partie s Following the Second Meeting. paras. 11-14. 
33 See United States Comments on Mexico's Responses to Questions from the Panel in Connection with the 
Second Substantive Meeting of the Panel, paras. 4-6, citing  Argentina Panel Report at paras. 7.283 - 7.284. 
34 Appellate Body Report, paras. 311. 
35 Appellate Body Report, para. 312. 
36 Appellate Body Report, para. 312, citing  Argentina Panel Report , para. 7.285. 
37 Appellate Body Report, paras. 315-352.  WT/DS282/R 
 Page E-135 
  these factual questions.
38  The Appellate Body's discussion confirms that the ITC's OCTG sunset 
determination was consistent with the objectivity and evidentiary requirements of the Anti-Dumping 
Agreement. 
25. The United States reiterates that the ITC determin ation at issue in the Argentina case is exactly 
the same determination that Mexico challenges in this dispute.  Further, Mexico's challenges to the ITC's 
determination echo those arguments that were made by Argentina and rejected by the panel and the 
Appellate Body in the Argentina dispute.  The Un ited States believes the analysis and findings in the 
Argentina dispute are well-founded and based upon the prope r standard of review, and urges this Panel to 
take a consistent approach in its re view of the same ITC determination. 
26. At the outset, the Appellate Body explained that th e Article 11.3 "likely" standard applies to the 
overall determinations regarding dumping and injury, and that the standard "need not necessarily apply to 
each factor considered in rendering the ove rall determinations of dumping and injury."39  The Appellate 
Body upheld the panel's review of the ITC's factual conclusions on all aspects of the ITC's likely injury 
determination, viz., cumulation, likely volume of cumulated dumped imports, likely price effects of the 
dumped imports, and likely impact of dumped impor ts on the domestic industry if the order were 
revoked.40 
27. In addressing these findings, the Appellate Body disagreed with Argentina's contention (and a 
contention that is also raised by Mexi co in this dispute) that the ITC's references to information gleaned in 
the original investigation rendered th e sunset determination WTO-inconsiste nt for failure to make a "fresh 
determination" on the likelihood of future injury.41  The Appellate Body explained that its earlier finding 
in US – Carbon Steel42 does not prohibit investigating authorities from referring in a sunset review to 
information related to the original investigation.43  As the Appellate Body f ound, and as the United States 
has pointed out to this Panel, the information from th e original investigation to which the ITC cited was 
relevant in particular to the cumulation question and in general to the task of assessing whether expiry of 
the orders would be likely to lead to continuation or recurrence of injury. 
28. The Appellate Body upheld the panel's finding th at it was reasonable for the ITC to base its 
determination on an analysis of the incentives for subject producers to devote more of their productive 
capacity to producing and shipping casing and tubing to the United States market.44  In the Argentina 
dispute, as in the instant dispute, the complaining party focused on two of the five factors cited by the ITC 
as supporting its conclusion of likely product shifting.  In particular, Argentina, like Mexico, challenged 
the ITC findings that subject country producers also f ace import barriers in other countries on the same or 
related products, and that prices for casing and tubing sold  in the US market are higher than the prices for 
such products in other world markets.  The Argentin a panel found that there was a sufficient factual basis 
for the ITC's findings;45 this Panel should find so as well.  The Appellate Body saw no need to modify the 
Argentina panel's conclusions.46 
                                                      
38 See, e.g, Opening Statement of the United States at the Second Meeting of the Panel with the Parties   
para. 49;  Answers of the United States of America to Ques tions from the Panel to the Parties in Connection with the 
Second Substantive Meeting (13 September 2004), para. 20;  United States Comments on Mexico's Responses to 
Questions from the Panel (4 October 2004), paras. 6-17. 
39 Appellate Body Report, para. 323. 
40 See Appellate Body Report, paras. 323, 342, 348, 352. 
41 Appellate Body Report, para. 328. 
42 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon 
Steel Flat Products From Germany, WT/DS213/AB/R, adopted 19 December 2002, para. 87. 
43 Argentina OCTG  Appellate Body Report, para. 328. 
44 Appellate Body Report, paras. 334-335. 
45 Argentina Panel Report , paras. 7.290-7.297. 
46 Appellate Body Report, paras. 334-335. WT/DS282/R 
Page E-136   29. This Panel should also find, as did the Argentina panel, that the ITC's determination regarding the 
likely price effects of cumulated dumped imports w as based on an objective examination of the evidence 
in the record.
47  In upholding the panel's findings on this issue, the Appellate Body agreed that the price 
comparisons made by the ITC were adequate a nd supported the ITC's price-underselling analysis.48  This 
Panel should reject Mexico's conten tions regarding the limited number of price comparisons that the ITC 
made; as the Appellate Body found, "the small vol ume of export sales following the imposition of the 
anti-dumping orders limited the number or  comparisons the ITC could make."49 
30. The Appellate Body's affirmance of the Argentina panel's likely impact analysis is also instructive 
for this Panel.  Notwithstanding the positive state of  the domestic industry with the order in place, the 
panel properly upheld the ITC's findings that in the circumstances of this case the likely increased volume and negative price effects of dumped imports woul d also have a negative impact on the domestic 
industry.
50   
The Time Frame in a Likelihood-of-Injury Determination  
 31. The Appellate Body upheld the Argentina panel's findings that sections 752(a)(1) and (5) of the 
Tariff Act are not inconsistent with Article 11.3 of the Anti-Dumping Agreement.
51  More specifically, 
both the panel and the Appellate Body found that the st atutory standard of whether injury is likely to 
continue or recur within a "reasonably foreseeable  time" is not inconsistent with Article 11.3.52 
32. The United States has previously submitted to th is Panel that the analysis applied by the 
Argentina panel on this issue is correct.  The Appe llate Body likewise found that the Argentina panel 
properly analyzed this issue.53 
33. Argentina, like Mexico in the instant disput e, claimed that the US standard creates an 
"impermissible gap" during which an anti-dumping duty w ould remain in effect without the existence of 
present or threatened material injury.54  Following the reasoning of the Ar gentina panel and the Appellate 
Body, this Panel should reject that argument as "nothing more than a theoretical possibility" which unjustifiably attempts to import the Article 3.7 "immi nent" standard for original threat of injury 
determinations into Article 11.3, notwithstanding th e distinct nature and purpose of sunset reviews.
55 
34. The Appellate Body further upheld the Argentina panel's finding that the ITC's application of the 
"reasonably foreseeable time" standard in th e OCTG was consistent with the Agreement.56  The panel and 
the Appellate Body rejected Argentina's argument (whi ch is echoed by Mexico) that the ITC did not apply 
the proper "likely" standard because it failed to explic itly mention the parameters of the likely injury time 
frame.57  The panel concluded that the ITC's determina tion of likelihood of continuation or recurrence of 
injury rested on a sufficient factual basis, and the Appellate Body agreed.58  This Panel's review of the 
same facts under the proper standard should likewise l ead to the same conclusion as that reached in the 
Argentina case. 
 
                                                      
47 Argentina Panel Report, para. 7.306. 
48 Appellate Body Report, para. 346. 
49 Appellate Body Report, para. 346. 
50 Appellate Body Report, paras. 349-352. 
51 Appellate Body Report, paras. 354-361. 
52 Appellate Body Report, para. 36; Argentin a Panel Report, paras. 7.193 and 8.1(c). 
53 Appellate Body Report, para. 360. 
54 See, e.g., Second Written Submission of Mexico, paras. 166-167. 
55 Appellate Body Report, para. 359. 
56 Appellate Body Report, paras. 362-364. 
57 Appellate Body Report, para. 364. 
58 Appellate Body Report, para. 364.